Order LR98-02 - A-002-98 - Rental Appeal - Ifo Ikede v. George Bassett (Jun. 2/98)

Docket A-002-98
Order LR98-2

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Ifo Ikede (the Lessee) against Order No. LD98-075 of the Director of Residential Rental Property dated May 6, 1998.

BEFORE THE COMMISSION

on Tuesday, the 2nd day of June, 1998.

Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner
Norman Gallant, Commissioner

Order

Participants

1. Appellant:

Ifo Ikede (Lessee)

2. Respondent:

George Bassett (Lessor)

Reasons for Order

1.     Introduction

Ifo Ikede is appealing Order LD98-075 of the Director of Residential Rental Property dated May 6, 1998. This Order directed that the residential premises at Apartment #1 at 310 Grafton Street in Charlottetown be surrendered by Mr. Ikede to Mr. Bassett and that the sheriff put Mr. Bassett in possession of this unit on May 6, 1998.

In appealing the Director's Order Mr. Ikede indicates on Form 17, Notice of Appeal (Exhibit E-6) his reasons for appealing are that the lessor has not fulfilled his obligations as a landlord, that the lessor has failed to provide him with a key to his mail box and that the lessor has also refused to fix appliances or even return his numerous phone calls.

2. Preliminary Matters

In reviewing the Director's Order (Exhibit E-5), the Commission notes that the Appellant to this Order, Mr. Ikeke, did not appear or, alternatively, did not have someone represent him at the hearing before the Director (i.e. the Director's delegated Officer). This was further confirmed by both parties at the appeal hearing before the Commission.

Section 25(1) of the Rental of Residential Property Act provides that:

"Any party to a decision or order of the Director, if the party has appeared or been represented at the hearing before the Director, may appeal therefrom by serving on the Commission, within twenty days after receipt of the decision or order of the Director, a notice of appeal in the form prescribed by regulation." (emphasis added)

This Section of the Act means that for a party to be able to appeal a decision of the Director of Residential Rental Property, he or she must appear or be represented at the hearing before the Director or his delegated officer. The appellant in this case did not appear nor was he represented at the May 1, 1998 hearing on the application by the Lessor for enforcement of a statutory condition of the rental agreement (Exhibit E-2). Under these circumstances, the Commission does not have the jurisdiction to hear Mr. Ikede's appeal of Order LD98-075.

In further reviewing the subject Order and the evidence provided at the appeal hearing, the Commission experienced some concern with the very tight timing around the receipt by the Director and the Lessee on April 30, 1998 of the Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-2) from the Lessor and the setting of a hearing for May 1, 1998. The Commission further noted that the Lessee did contact the Director's Office on May 1, 1998 and requested a rescheduling of the hearing until May 4, 1998 as he could not attend on May 1, 1998 because of a business appointment.

The Commission considered this information and decided, within the principles of natural justice and fairness, to hear out the substantive elements of this particular appeal.

3.     Background

Documents from the Office of the Director of Residential Rental Property pertaining to the subject of this appeal were filed at the hearing and identified as Exhibits E-1 through E-8. These documents had previously been circulated to the parties to the appeal. The Appellant, Mr. Ikede, also filed two additional documents which pertain to some of the events involved in the rental arrangements between him and the Lessor. These documents, an Application of Enforcement of Statutory or Other Conditions of Rental Agreement dated March 19, 1998 and signed by Mr. Ikede and an Inspection Order dated March 20, 1998 issued by the Director of Residential Rental Property, were accepted by the Commission and identified as Exhibits E-9 and E-10 respectively.

The evidence presented to the Commission is that the Lessee, Mr. Ikede, rented the apartment unit at 310 Grafton Street from Mr. Bassett, commencing March 16, 1998. The Lessee did not pay any rent at that time. The Lessee subsequently identified what he felt were deficiencies in the unit and, by means of an application to the Director, the Lessee requested that these deficiencies be rectified (Exhibit E-9).

As a result of this application, the Director issued an Inspection Order (Exhibit E-10) requiring that the apartment unit in question be made available for inspection on March 31, 1998. The inspection was carried out by a delegated officer of the Director with the Lessor present and in the absence of the Lessee, who indicated that he would not be available for the inspection but had no problem with it proceeding.

Evidence was heard that following the March 31, 1998 inspection, the delegated officer concluded that the apartment had generally been brought to a state of repair fit for habitation. He contacted the Lessee to seek his input on this and the Lessee agreed that the main problems had been looked after. The Lessee did, however, continue to believe some other problems existed.

The Lessor received a cheque from the Lessee on April 2, 1998 for $550.50 (Exhibit E-4) for partial payment against rent owing for the part month of March and the month of April. In providing the cheque, the Lessee asked the Lessor to hold the cheque for some time until funds were transferred into the account. The Lessor subsequently attempted to cash the cheque on April 7, 1998 and was advised that there were insufficient funds in the account to cover the cheque. The Lessor followed up with the Lessee by visiting him at the apartment unit to request some payment on the rent owing. The Lessee did not provide any rental payment at this time.

The Lessor then proceeded to file a Notice of Termination by Lessor of Rental Agreement (Exhibit E-1) dated April 2, 1998 but filed with the Director and served on the Lessee on April 7, 1998. The Notice informed the lessee that his rental agreement was being terminated for failure to pay rent and that he must vacate the unit on or before April 29, 1998. The Lessee did not pay the outstanding rent nor did he apply to the Director for an order to set the Notice aside. He did, however, continue to occupy the unit and did not vacate the unit by or on April 29, 1998, as identified in the Notice.

The Lessor subsequently filed an Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-2) on April 30, 1998 seeking an order that possession of the residential premises be surrendered to him and directing the sheriff to put the lessor in possession. Following a hearing on May 1, 1998 the Director so ordered. The Lessee subsequently appealed this order by Notice of Appeal (Exhibit E-6) dated May 14, 1998.

The main thrust of the evidence and argument presented by the Lessee and the Lessor at the hearing before the Commission can be summarized as follows:

Lessee – There are deficiencies in the apartment unit which adversely affect its condition for habitation and the Lessor should have remedied these. Since the Lessor has not done so to the Lessee's satisfaction, he questions what rent should be paid. The Lessee believes he was not getting what he was paying for.

Lessor – There were some problems with the unit at first but these were fixed and the unit passed the inspection of the Residential Rental Property Officer. If the Lessee had other problems he should have communicated them to the Lessor who lived and worked only a very short distance from the unit. The Lessor had not received any rent since the Lessee moved in and this was not fair. The Lessor therefore took action as provided in the Act and should now have his vacated unit available for another rental.

4. Decision

Based on the evidence filed, the evidence presented by the parties at the May 22, 1998 hearing, and the provisions of the Act and its Regulations, the Commission finds the following:

The Lessor properly filed and served a Notice of Termination by Lessor of Rental Agreement (Exhibit E-1) on the Lessee for non-payment of rent.

The Lessee did not void this Notice by paying to the Lessor all the rent due within ten days of being served with the Notice, as provided in Section 13(2) of the Act which reads:

"A lessee may, within ten days of being served with a notice of termination under subsection (1) deliver to the lessor all the rent due as of that date, whereupon the notice shall be void."

The Lessee did not, alternatively, apply to the Director for an order setting aside the notice as provided in Section 16(1) of the Act which reads:

"A lessee who has received notice of termination for any of the reasons set out in Section 13, 14, or 15 may apply to the Director for an order setting aside the notice."

(Section 13 deals with failure to pay rent)

The Lessee is deemed to have accepted the termination of the rental agreement since he did not apply to the Director for an order to set aside the Notice, as provided in Section 16(3) of the Act which reads:

"Where the lessee does not bring an application to set aside the notice, he shall be deemed to have accepted the termination on the effective date of the notice."

By not voiding the Notice of Termination through the payment of due rent or by applying to the Director for an order to set aside the Notice, the Notice of Termination has effect and the Lessee must deliver up possession of the residential premises to the Lessor. This is as provided in Section 6.10 of the Act which reads:

"Where notice of termination has been given in accordance with this Act, and all remedies in relation thereto have been exhausted, the lessee shall deliver up possession of the residential premises."

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Ifo Ikede (the Lessee) against Order No. LD98-075 of the Director of Residential Rental Property dated May 6, 1998.

Order

WHEREAS Ifo Ikede filed an appeal against a decision of the Director of Residential Rental Property dated May 6, 1998;

AND WHEREAS the Commission heard the appeal in Charlottetown on May 22, 1998;

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

IT IS ORDERED THAT

1.    The appeal is denied;

2.    The Order LD98-075 of the Director of Residential Rental Property is confirmed.

DATED at Charlottetown, Prince Edward Island, this 2nd day of June, 1998.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner
Norman Gallant, 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.