Docket A-003-96 & A-004-96
Order LR96-04

IN THE MATTER of appeals under Section 25 of the Rental of Residential Property Act, by Michael Hawkins against Order No. LD96-037A and LD96-035A of the Director of Residential Rental Property both dated March 1, 1996.

BEFORE THE COMMISSION

on Tuesday, the 30th day of April, 1996.

Linda Webber, Chair
Emmett Kelly, Commissioner
Clayton Bulpitt, Commissioner

Order

Participants

1. Appellant:

Michael Hawkins

2. Respondent:

Roop Realty Ltd.
Agent: John Roop

Reasons for Order

1. Introduction

On September 15, 1995 the Appellant took possession as lessee of rental premises being Apartment G-4, 131 North River Road, Charlottetown, P.E.I. On November 15, 1995 the Appellant gave up possession of the said premises. At all relevant times the Respondent was lessor of the premises at 131 North River Road.

A Notice of Intention to Retain Security Deposit (Form 8), dated November 21, 1995 was filed with the Commission by the Respondent on November 27, 1995.

An Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Form 2), dated November 21, 1995 was filed with the Commission by the Respondent on November 22, 1995.

An Application re Determination of Security Deposit (Form 9), dated November 27, 1995 was filed with the Commission by the Appellant on November 27, 1995.

On January 8, 1996 a hearing was held into the applications that had been filed. As a result of that hearing two decisions were rendered:

Order LD96-037 dealt with the Form 2 application and found that rent was owing by the Lessee to the Lessor for both October and November 1995 in the total amount of $1,050.00.

Order LD96-035 dealt with the Form 9 application and found that claims of the Lessor validly totalled more than $100.84 and this amount was payable out of the security deposit.

Both the above Orders named Nancy Ingersoll as a lessee, as well as Michael Hawkins. Upon objections being made against this designation, new orders were issued amending the above Orders only for the purpose of removing reference to Nancy Ingersoll as lessee. Orders LD96-037A and LD96-035A were issued as amending orders.

On March 4, 1996 Michael Hawkins appealed both amended orders.

The appeal was heard by the Commission on April 1, 1996. Michael Hawkins was present as Lessee/Appellant. John Roop was present on behalf of the Lessor/Respondent, and will be referred to herein as the "Lessor".

Both parties agreed at the beginning of the hearing that the appeals would be consolidated into one hearing and order.

2. Discussion

The Appellant describes his rental situation as unsatisfactory from almost the very start. He states he received assurances from a real estate agent as well as from John Roop, agent for the Lessor, that the tenancy area was quiet and specifically, that there were no children in the building. This was important to the Lessee, even though he himself was bringing an 11-year-old child to the tenancy area.

After moving in on the 15th of September, as early as the 18th the Lessee complained to the Lessor's agent about the noise coming from the tenant above. The Lessor states he questioned the upstairs tenant when he next saw her, was told that the noise related to special visitors over a weekend, and so concluded there would be no further problem. The Lessee complains that the Lessor should have returned to the Lessee's premises to report on the conversation and was negligent in not doing so.

Also, while the Lessees paid a security deposit of $100.00 plus one-half month's rent in advance – to cover the last two weeks of September – they paid no other rent before they moved out in mid-November. The Lessor stated that he usually made up deposit slips for tenants and left them in the mailbox each month. He usually explained this in person, and either left the deposit slips with the tenant or arranged to have the rent collected. However, the Lessor also said it is not uncommon for him to let a month or two go by without collecting the rent and his failure to make these arrangements with the Lessee until the 1st of November was for no special reason. At that meeting on November 1st the Lessor was advised that the Lessee was vacating the premises because of the noise and because promises to fix a few other items had not be kept.

The Lessor states that when he first met with the Lessee on September 18th he pointed out to the Lessee that a screen needed to be put on one window and that the fan in the kitchen needed fixing. He had intended to "get around to" these items but simply forgot. The Lessee states that it was the responsibility of the Lessor to fulfill these promises and he failed to live up to his agreement by not doing so. The Lessee states he was under no obligation to remind the Lessor of these matters or to contact him again about the continued noise problem.

The Lessee also complained of lights in the kitchen that weren't working although he had never mentioned these to the Lessor until November 1st when he gave notice to terminate the tenancy. The Lessor states that after the Lessee vacated, the lights were checked and it was found that the bulbs were loose. Once tightened, they worked.

There is no disagreement about the fact that the Lessee never paid rent after the initial advance payment for the last two weeks of September.

As for the issue of damage to the premises for which part of the security deposit was kept, the Lessee admitted that the oven and refrigerator were not cleaned and some items had to be removed. He admitted that pictures were glued onto two bedroom walls and this would require painting, but he thought $50.00 was too much to charge for this. He contests the claim for changing the door locks because, he says, he had instructed his 11-year-old daughter to return the keys to the apartment and states that she told him she put them in the mailbox.

The Lessor's position is that finish nails had to be taken out of the walls as well as the glued pictures removed. Holes had to be filled, sanded, primed and the walls painted. He also states he never got back the keys and the amount allowed ($30.84) was less than what Burke's charged to replace the locks.

While the above covers the evidence relating to the tenancy itself, the Appellant testified at length about his treatment by Commission staff and the appeal itself focuses on that issue:

The reasons for the appeal are:

"Descrimination [sic] on the part of the Island Regulatory and Appeals Commission. Partiality and definate [sic] bias on the part of Boyde White in dealing with this matter."

It is necessary to point out that the hearing officer was Shayne Hogan and no complaints are made against him. The complaints are against Mr. White and the belief on the part of the Lessee that Mr. White either prevented the Lessee from exercising/learning of his rights or influenced the decision being made by Mr. Hogan.

The Appellant states that on September 24th or 25th he telephoned the Commission and spoke with Mr. White. He asked what he could do about the noise problem and was told "nothing". The Appellant states that Mr. White asked who the Lessor was and once given the name of the Lessor "his whole tone changed". It was after Mr. White found out who the lessor was that he said "nothing" could be done.

The Appellant states that when the Lessor was told on November 1st that the Lessees were vacating, and refused to pay their two month's rent, Mr. Roop said "We'll see what Boyde will say about that" and that "Boyde will take care of you".

Then the Appellant states on November 27th he went to the Commission office and spoke with Mr. White, told him of Mr. Roop's comments and told him that it seems Mr. Roop doesn't seem to think Mr. White or the office would go against Mr. Roop on anything. The Appellant claims Mr. White responded "you're probably right".

The Appellant further alleges that while Mr. White denied any knowledge of the case prior to talking to the Appellant, in the Appellant's opinion Mr. White had such knowledge and his comments to the Appellant indicated such knowledge.

The Appellant claims that when all of these points were made to Mr. White he became agitated and told the Appellant that no matter what he said he had to fill in the forms Mr. White had given him. This is an apparent reference to the Application re Determination of Security Deposit, Form 9, dated November 27, 1995 and signed by the Appellant.

The Appellant states he then left Mr. White's office, complained to the Receptionist about these matters, and told her that whatever happened he didn't want Boyde White to handle the case.

The final incident complained of was a telephone call made to the office by the Appellant after the hearing – which he had been satisfied with – to find out the results. The Appellant states Mr. White got on the phone and said "We're working on it", which led the Appellant to respond that he hoped Mr. White wasn't working on it.

Other complaints made by the Appellant included complaints about Nancy Ingersoll being named as a lessee, stating that the Appellant thought this was a "deliberate" act; complaints about the date he received Form 2 and how this made him believe the form was actually back-dated; complaints that if he had been given Form 2 earlier and seen the "quiet enjoyment" clause he would have filed for that to fix the "noise and lies" he had originally telephoned the Commission to do something about – but instead he believes he was deliberately given bad advice by Boyde White and this is the source of much of his problem; complaints that his "rights weren't enforced", "nothing was explained to me", and "if I had had things properly explained to me then things could have been resolved"; complaints about Mr. Roop not coming to collect the rent on October 1st; complaints about Calvin Mol; complaints about how the fact Nancy Ingersoll's name was first listed as lessee resulted in her not attending the appeal hearing to testify.

Overall, the Appellant seems to have two main arguments:

1. The rent dispute process didn't work properly for him.

2. The responsibility for problems with the tenancy lies entirely on the Lessor. The Lessee's "legitimate concerns" were never addressed by the Lessor.

The Appellant seems to think that there was a remedy for "noise and lies" about which he was given poor advice. There is no indication he wasn't given the proper advice. "Quiet enjoyment" does not refer to lack of noise. It is a legal concept that refers to the right of a lessee to legally have possession of the premises. The advice the Appellant was given when faced with a Notice of Intention to Retain Security Deposit was the correct advice – file an Application re Determination of Security Deposit. Additionally, while staff in the Rental Division do respond to inquiries and try to assist landlords and tenants, lessors and lessees are ultimately responsible for their own knowledge of the law. The staff are here primarily to adjudicate upon disputes. Part of the process involves providing appropriate application forms to the public, and some assistance. However, there is an onus on a landlord or tenant as well. The staff are not legal advisors to the public and should not attempt to play such a role.

On the issue of whether or not the process at the Commission was fatally flawed because of bias exhibited by or attributed to Boyde White, the Commission need not decide that matter. The remedy for such a problem would be a new hearing. The appeal to the Commission is a new hearing – a trial de novo. This means that whatever problems might have existed, the hearing of the appeal by the Commission is a full rehearing at which all matters are once again in issue. A new decision, free of any taint that might have existed before, can now be rendered.

Having said that, the matters raised by the Appellant deserve some comment. As for the comments made by the Lessor, the Commission cannot hold the staff responsible for such comments. They can't be given any weight for to do so would mean that a third party could taint a proceeding just by commenting upon the staff. This would not make any sense of the law or the process.

As for the comments alleged to have been made by Mr. White, they will be further investigated by the Commission in its capacity as employer. Again, because the appeal hearing is a trial de novo, the decision on this appeal need not await the results of such an investigation. However, any time allegations of such a nature are made they must be noted and investigated to ensure that the process is fair to all and that there is not only no bias, but no reasonable apprehension of bias on the part of any participant.

As for the appeal on the results of the case, the Commission cannot agree that the actions of the Lessor justify the non-payment of rent by the Lessee. The Lessee occupied the premises from September 15th to November 15th and was aware that the unit was rented monthly starting on the first of each month.

The repairs to be done were minor, and the Appellant should have accepted some responsibility for at least reminding the Lessor of the items to be fixed. As for the noise, while good management policy might have required the Lessor to make further inquiries of the Lessee, the Lessee's failure to bring the continuation of the problem to the attention of the Lessor would certainly lead the Lessor to believe the matter was resolved. The rent is due and owing.

The damage claim of $20.00 for cleaning the premises is determined to be reasonable.

The claim of $50.00 for repairing and painting two bedroom walls is determined to be reasonable.

While the Appellant is convinced his daughter left the keys in the mailbox, the Commission accepts the Lessor's testimony that the keys were never found and as a result the locks had to be changed. The Commission does not accept that leaving the keys in the mailbox is sufficient to carry out the Lessee's responsibility to return the keys. The evidence of the Lessor is that this cost $40.00. This claim is also allowed.

The allowable claims against the security deposit total $110.00. The amount being held is $100.00 plus interest of eighty-four cents. That amount is ordered paid to the Lessor.

An order will also issue for the Lessee to pay $1,050.00 as rent owing.

IN THE MATTER of appeals under Section 25 of the Rental of Residential Property Act, by Michael Hawkins against Order No. LD96-037A and LD96-035A of the Director of Residential Rental Property both dated March 1, 1996.

 Order

WHEREAS Michael Hawkins filed two appeals against two decisions of the Director of Residential Rental Property dated March 1, 1996;

AND WHEREAS the Commission heard the appeals in a consolidated hearing in Charlottetown on April 1, 1996;

NOW THEREFORE, for the reasons given in the annexed Reasons for Order;

IT IS ORDERED THAT

1. The appeals are dismissed;

2. The Orders of the Rental Property Officer are affirmed;

3. The Lessor shall receive the Security Deposit in the amount of $100.84.

4. The Lessee shall pay to the Lessor the amount of $1,050.00 for rent owing by May 15, 1996.

DATED at Charlottetown, Prince Edward Island, this 30th day of April, 1996.

BY THE COMMISSION:

Linda Webber, Chair

Emmett Kelly, Commissioner

Clayton Bulpitt, Commissioner

NOTICE

Sections 26.(2), 26.(3), 26.(4) and 26.(5) of the Rental of Residential Property Act provide as follows:

26.(2) A lessor or lessee may, within fifteen days of the decision of the Commission, appeal to the court on a question of law only.

(3) The rules of court governing appeals apply to an appeal under subsection (2).

(4) Where the Commission has confirmed, reversed or varied an order of the Director and no appeal has been taken within the time specified in subsection (2), the lessor or lessee may file the order in the court.

(5) Where an order is filed pursuant to subsection (4), it may be enforced as if it were an order of the court.