Docket A-010-97
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gordon Gallant (the Lessee) against Order No. LD97-126 of the Director of Residential Rental Property dated July 18, 1997.
Order LR97-12ABEFORE THE COMMISSION
on Thursday, the 20th day of November, 1997.
Ginger Breedon, Vice-Chair
Clayton Bulpitt, Commissioner
Order
Participants1. Appellant:
Gordon Gallant (the Lessee)
2. Respondent:
Coles Construction Co. Ltd.
Agents: Allison and Barbara Coles (the Lessors)
Reasons for Order
1. Background
The Commission in Order LR97-12 issued October 28, 1997, dismissed the appeal of the Appellant, Gordon Gallant and confirmed Order LD97-126 of the Director of Residential Rental Property with a variance on the timing of the payment arrangements.
Subsequent to the issuance of the Commission's Order LR97-12, Mr. Gallant by letter dated November 5, 1997 and received by the Commission November 6, 1997, advised the Commission that he believed the Commission erred in calculating the rent owed by him to Coles Construction Co. Ltd. for the rental unit at 189 Mason Road. The Commission, in turn, wrote the Lessor's Agents, Allison and Barbara Coles, on November 7, 1997 to inform them of Mr. Gallant's submission regarding the calculation of rent owing. The Commission's letter also included a copy of Mr. Gallant's letter and extended to Allison and Barbara Coles the full opportunity to present written comment or argument, or to appear before the Commission in person, on the matter of whether a review of the Commission's Order should be held or on the issue of the appropriate calculation of rent owed. In writing the Lessor's Agents, the Commission advised that any written comments or arguments must be received by the Commission by 5:00 p.m., Monday, November 17, 1997. It also advised that they must contact the Commission by 5:00 p.m. Friday, November 14, 1997 if they wished to appear before the Commission to make their comments or arguments in person.
The Commission did not receive any written comments or arguments, or any other contact from the Lessor's Agents by the identified times. The Lessor's Agents did not therefore, avail themselves of the opportunity to be heard on this matter.
2. Decision
Section 12 of the Island Regulatory and Appeals Commission Act provides that:
The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it, or rehear any application before deciding it.
The November 5, 1997 letter from Mr. Gallant questioning the calculation of rent owing raised the following issues for the Commission:
1. Should the Commission, under provisions of Section 12 of the Island Regulatory and Appeals Commission Act, review its Order LR97-12?
2. Is there an error in the rent owing calculation and, if so, how much rent is actually owed?
Based on the information contained in Mr. Gallant's November 5, 1997 letter, the Commission concludes that there is sufficient reason for the Commission to review Order LR97-12.
In further reviewing Mr. Gallant's November 5, 1997 letter in detail and reviewing Exhibit A-7, Rental History from May 1, 1994 to May 1996, provided by the Lessor's Agent, the Commission finds that the rent owing calculation is in error and that Order LR97-12 must be varied to properly identify the rental amount owed by the Lessee to the Lessor.
Mr. Gallant's input is based on the original decision by the Director of Residential Rental Property that Mr. Gallant's rent payment for the unit at 189 Mason Road was $550 per month, and the subsequent re-affirmation of that decision by the Commission in Order LR97-12. As a result, Mr. Gallant contends that his payments during his tenancy would have created a credit situation in relation to rent payments to the Lessor. He further points out that this outstanding credit amount should be credited against the $450 amount identified in Order LR97-12 as owing by him to the Lessor, Coles Construction Co. Ltd.
The Commission agrees with Mr. Gallant that he did build up a rental credit during his tenancy at 189 Mason Road. The Commission has analyzed the Rental History material (Exhibit A-7) provided by the Lessor's Agent and has found the following:
Based on a rent of $550 per month
1. Rent Credit for work on House Adjusted Rent for Month Rent Actually Paid Sept. 1994 $550 ($100) $450 $500 Oct. 1994 $550 ($50) $500 $550 Nov. 1994 $550 ($50) $500 $550 Dec. 1994 $550 ($50) $500 $550 Rent that should have been paid $1950 Rent Actually paid $2150 Overpayment or rental credit of $2150 - $1950 or $200
2. Recorded payment of $200 in November 1995 for payment on purported arrears arising from the difference between the $550 per month being paid by the Lessee and the Lessor's $600 per month reported in the rental records.
Overpayment or rental credit of $200
Total Rental Credit of $200 + $200 or $400
The Commission notes from the rental payment records that the Lessee generally paid his rent in the latter part of the month rather than at the first of the month when rent is due. The Commission also notes that the Lessor did not charge any interest on these late payments. The Commission believes these lost interest charges would offset any concurrent interest earnings on the Lessee's overpayments during the tenancy.
The Commission therefore finds that the Lessee did accumulate a rental credit of $400 during his tenancy at 189 Mason Road. The Commission further directs that this $400 rental credit is to be applied against the $450 in rent owing for the month of May 1996.
The Commission varies Order LR97-12 to account for the rental credit accumulated by the Lessee during his tenancy.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gordon Gallant (the Lessee) against Order No. LD97-126 of the Director of Residential Rental Property dated July 18, 1997. OrderWHEREAS Gordon Gallant filed an appeal against a decision of the Director of Residential Rental Property dated July 18, 1997;
WHEREAS
the Commission subsequently issued Order LR97-12 dated October 28, 1997 with respect to Mr. Gallant's appeal;WHEREAS
following issuance of Order LR97-12 Mr. Gallant requested a review of the calculation of rent owing;AND WHEREAS
the Commission agreed, under Section 12 of the Island Regulatory and Appeals Commission Act to review the rent owing calculation;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. Order LR97-12 shall be varied as specified in "2" below;
2. The Lessee shall pay the Lessor an amount of $50, with payment to be made to the Lessor's Agent on or before December 11, 1997. This payment replaces the payment of $450 identified in Order LR97-12.
DATED
at Charlottetown, Prince Edward Island, this 20th day of November, 1997.BY THE COMMISSION:
Ginger Breedon, Vice-Chair
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.
