Docket A-006-97
Order LR97-2

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by France Morin (the Lessee) against Order No. LD97-085 of the Director of Residential Rental Property dated June 4, 1997.

BEFORE THE COMMISSION

on Thursday, the 12th day of June, 1997.

Linda Webber, Chair
Carl Riggs, Commissioner
Anne McPhee, Commissioner

Order

Participants

1. Appellant:

France Morin

2. Respondent:

Linda MacLeod and Charles MacLeod

Reasons for Order

1. Background

The Commission reviewed the documentary evidence in the file, confirming with the parties that there are 10 Exhibits before the Commission. No additional exhibits were presented at the hearing.

The facts are as set out in Order LD97-085 and will not be repeated here.

The Appellant testified on her own behalf that there were no significant errors in the Order of the Director except for what she believed was a failure by the Director to state in the Order that she had promised at the hearing on June 2nd to not play her guitar between the hours of 11:00p.m. and 9:00a.m., if this would resolve the problem. She further stated that she had not been doing so in the last two weeks. She explained that the reason she had ignored the warning she had been given about noise was because she really found it hard to believe that her soft playing of the guitar could be disturbing anyone. The Lessee asked that the Order of the Director be overturned and she be allowed to stay so long as she promised not to play her guitar between the hours of 11:00p.m. and 9:00a.m. In the alternative, she asked for a reasonable period of time to leave the premises if the Order of the Director was upheld.

Charles MacLeod and Linda MacLeod, Lessors, testified that they don't remember any promise at the hearing that the Lessee would cease playing the guitar during those hours. At most there may have been a statement that she might stop playing if the guitar really was a problem. In any event, the position of the Lessors was that it was too late to make such a promise at the hearing. The Lessee had already created a disturbance and failed to heed the verbal warning she was given. They also stated that there had been complaints in the last two weeks about other types of noise and about guitar playing about 11:00p.m. or 11:30 p.m. They expressed concern about a threat from at least one tenant to leave if the noise problem wasn't resolved, and their need to have the apartment vacated as soon as possible because new tenants were waiting to move in.

The Commission issued an oral decision on this matter on June 11, 1997.

2. Decision

The Commission focused on Section 6 of the Rental of Residential Property Act, R.S.P.E.I. 1988, Cap.R-13.1 which sets out the conditions that apply between the lessor and lessee as statutory conditions governing the residential premises. Condition 3 is the relevant condition here:

3. Good Behaviour

The lessee and any person admitted to the premises by the lessee shall conduct themselves in such a manner as not to interfere with the possession, occupancy or quiet enjoyment of other lessees.

The evidence in this case indicates that the Lessee did interfere with the quiet enjoyment of other lessees in the premises. Her guitar playing in the middle of the night was disturbing to them and the Lessee failed to respond to the warning given to her by the Lessor that this behavior was a disturbance.

The Commission does not view the actions of the Lessee as deliberate attempts to disturb. There appears to have been a sincere failure by the Lessee to appreciate the effect of her actions as well as the potential legal consequences of those actions. However, this failure to understand her obligations under the law cannot be used as a means of lessening the right of the Lessor to have the covenant enforced as a protection to other lessees. The denial of the problem by the Lessee continued at the very least up until the time of the June 2nd hearing before the Director. There is a dispute as to whether or not even then there was any commitment made by the Lessee to change her behavior but the Lessor's position that it was too late is accepted by the Commission. The eviction notice had been served and an after-the-fact promise could not affect the legal validity of the notice.

The Commission finds that the breach of the condition has been proven and there is no evidence of anything to invalidate the notice.

At the same time, in the circumstances of this case the Commission believes that the Lessee should be given a reasonable amount of time to move from the premises. After giving consideration to the points made by both parties the Commission has determined that the Order of the Director should be varied to require the Lessee to be out of the premises by midnight, Saturday, June 21, 1997.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by France Morin (the Lessee) against Order No. LD97-085 of the Director of Residential Rental Property dated June 4, 1997.

Order

WHEREAS France Morin (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice dated June 5, 1997, against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Charlottetown on June 11, 1997;

AND WHEREAS the Commission issued an oral decision;

FOR THE REASONS given at the hearing,

IT IS ORDERED THAT

1. The Order of the Director denying the lessee's application of May 12, 1997 to set aside the lessor's Notice of Termination is hereby confirmed; and

2. The effective date of the Notice of Termination is hereby varied to June 21, 1997.

DATED at Charlottetown, Prince Edward Island, this 12th day of June, 1997.

BY THE COMMISSION:

Linda Webber, Chair
Carl Riggs, Commissioner
Anne McPhee, 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.