Docket A-008-96
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by David Reid and Gerald O'Reilly (the Lessors) against Order No. LD96-062 of the Director of Residential Rental Property dated March 14, 1996.
Order LR96-6BEFORE THE COMMISSION
on Monday, the 17th day of June, 1996.
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Clayton Bulpitt, Commissioner
Order
Participants
1. Appellant:David Reid (the Lessor)
2. Respondent:
Pam Williams, Counsel on behalf of Jennifer Jackson (the Lessee)
Reasons for Order
1. Discussion & Findings
On the 14th day of March, 1996, Shayne Hogan, Residential Rental Property Officer, as authorized by the Director of Residential Rental Property, issued Order LD96-062. He ordered that:
1. The monthly rent of $500.00 for the residential premises located at 80 MacRae Drive, Charlottetown, shall remain in effect.
2. The lessor David Reid shall pay to the lessee the amount of $400.00.
3. The lessor Gerald O'Reilly shall pay to the lessee the amount of $1300.00.
4. The payments by David Reid and Gerald O'Reilly shall be made to the lessee on or before April 14,1996.
On April 3, 1996, the Lessor David Reid and on behalf of Gerald O'Reilly, the former lessor filed a Notice of Appeal with the Island Regulatory and Appeals Commission stating reasons for the appeal. Subsequently, the Lessor, on the same day, filed an amended Notice of Appeal substituting the original reasons for the appeal with the following:
Sect. 21 of the Act stating "residential premises not previously rented." (sic) We contend that due to the wording of this clause, it is open to interpretation as to a suitable time lapse following termination of one rental period and the commencement of another.
A hearing was scheduled for April 24, 1996, however because of an emergency on the part of the Lessor just prior to the hearing time the hearing had to be rescheduled. The Commission held a hearing on May 21, 1996.
2. Decision
The Appellant and the Respondent agreed that there was no dispute over the facts of the case as reported by the Residential Rental Property Officer in Order LD96-062.
Section 21 of the Act states:
The rent payable for residential premises shall not be increased until twelve months have elapsed since the date of any previous increase or, in the case of residential premises not previously rented, the date on which rent was first charged.
The Lessor argued that there is nothing in the Act that defines what time period must elapse or expire before a residential premise can be declared not previously rented. He further argued that the Commission has the discretion to determine that in this particular case the residential premises located at 80 MacRae Drive was not previously rented and the date Jennifer Jackson took possession of the unit and paid rent was the date on which rent was first charged. He submitted the reason the Commission can make such a determination is because the rental unit was vacant when the Lessee took possession and because the time period is not defined under the Act. Therefore he contends, the Commission can declare the unit not previously rented and that Ms. Jackson was the first lessee of the rental unit.
Based on submissions heard at the hearing Ms. Jackson was not the first lessee of the subject premises. The unit had been occupied until the end of July by the previous lessees, Larry and Edith Sider. During the time of their tenancy they paid rents in the amount of $500.00 and $600.00 for the residential premises. The Lessors did not receive approval for the rent increase in accordance with provisions for rent increases under the Act.
After considering the evidence and argument presented at the hearing the Commission finds that it cannot agree with the submission put forward by the Lessor. It is the Commission's view that a statutory provision cannot be read in isolation of the whole Act as to its general intent and purpose nor can any one phrase be read in isolation of the whole section within which the phrase is contained.
The Commission finds that Section 21 is very clear as to its intent and purpose. The Commission finds that Section 21 provides clear instruction that no rent shall be increased until twelve months have gone by either from the date of the last rental increase for the residential premises or the date on which rent was first charged. The Commission finds that this is not the first time rent was charged and collected for occupation of the subject residential premises. The Commission cannot conclude that Jennifer Jackson paid the first rent for the unit.
Clearly, the purpose of the provision regarding rent increases for rental premises which were not previously rented is to set a starting point from which twelve months would elapse. If this is not true in the case of a newly constructed unit there would never be a previous increase and there would be no date from which one could count the twelve months. Consequently, one would never be able to increase the rent because there was no previous increase. This would lead to an illogical result and one must conclude that the purpose for the provision in section 21, in the case of a new rental unit, is to allow for a rent increase after twelve months have elapsed since collecting the first rent. The Commission believes that no other reasonable interpretation can be given to the application of Section 21. The Commission therefore cannot allow the appeal on this point.
Even if such an interpretation could be given, and the Commission firmly believes it cannot, the finding of the Rental Property Officer that neither the present Lessor, Gerald O'Reilly nor the former Lessor, David Reid received approval for the rent increase from $500.00 to $600.00 which was well beyond the allowable rent increases at the time and no approval was ever received by either lessor for a greater rent increase. These facts are not in dispute. The Commission finds that both the present and former Lessors are in non-compliance with 22, 23.(1) and (3).
Therefore, the Commission must dismiss the appeal.
Pam Williams, legal counsel for the Lessee submitted that on April 3, 1996 David Reid served on Kenny and Jennifer Jackson a Notice of Intention to Retain Security Deposit (Form 8). On April 29, 1996 Jennifer Jackson filed with the Island Regulatory and Appeals Commission an Application Re Determination of Security Deposit (Form 9). Section 10(7) of the Act requires :
Section 10(7) A lessee served with a notice under subsection (5) may, within fifteen days of the date of service, apply to the Director in the form prescribed by regulation for a determination on the disposition of the security deposit, in which case he shall serve a copy of the application on the lessor.
The Commission finds that the Lessee did not serve the notice required under Section 10(7) until 26 days elapsed which is well beyond the fifteen days required for service. Legal Counsel for the Lessee submitted to the Commission that the time period for filing such a form had expired but wanted the Commission to give consideration to the circumstances. However, the Commission finds that in this case, due to the expiration of the fifteen day appeal period it is without jurisdiction to give consideration to the notice and to make a determination on the issues raised by the Lessee on Form 9.
The Commission affirms the decision and order of the Rental Property Officer for the above stated reasons.
Accordingly,
1. The monthly rent of $500.00 for the residential premises located at 80 MacRae Drive, Charlottetown, shall remain in effect.
2. The lessor David Reid shall pay to the lessee the amount of $400.00.
3. The lessor Gerald O'Reilly shall pay to the lessee the amount of $1300.00.
4. The payments by David Reid and Gerald O'Reilly shall be made to the lessee on or before April 14,1996.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by David Reid and Gerald O'Reilly (the Lessors) against Order No. LD96-062 of the Director of Residential Rental Property dated March 14, 1996.Order
WHEREAS
David Reid filed an appeal against a decision of the Rental Property Officer dated March 14, 1996 ; AND WHEREAS the Commission heard the appeal in Charlottetown on April 24, 1996;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The monthly rent of $500.00 for the residential premises located at 80 MacRae Drive, Charlottetown, shall remain in effect.
2. The lessor David Reid shall pay to the lessee the amount of $400.00.
3. The lessor Gerald O'Reilly shall pay to the lessee the amount of $1300.00.
4. The payments by David Reid and Gerald O'Reilly shall be made to the lessee on or before April 14,1996.
DATED
at Charlottetown, Prince Edward Island, this 17th day of June, 1996.BY THE COMMISSION:
John L. Blakney, Vice-Chair
Anne McPhee, 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.