Order LR00-04 - Rental Appeal - A-005-00 - Dupuis & Stugnell v. Bevan (July 5, 2000)

Docket A-005-00
Order LR00-04

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Kelly-Ann Dupuis & Brad Strugnell (the Lessees) against Order LD00-089 of the Director of Residential Rental Property dated May 15, 2000.

BEFORE THE COMMISSION
on Wednesday, the 5th day of July, 2000.

Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner
Jim Carragher, Commissioner

Order

Participants

1.     Appellant:

Kelly-Ann Dupuis (Lessee)
Brad Strugnell (Lessee)
Gary Jewett (Authorized Representative for Appellants)

2.    Respondent:

Kathleen H. Bevan (Lessor)
Wayne Bevan (Agent)

Reasons for Order

1. Introduction

The Appellants' Kelly-Ann Dupuis and Brad Strugnell are appealing Order L00-89 of the Director of Residential Rental Property, issued by Rental Property Officer John Keizer on May 15, 2000. In Order L00-89, the delegated Rental Officer ordered that the security deposit on a residential premises at 56 Queen Street, Charlottetown, PEI, be disbursed with the full amount ($226.32) going to the Lessor.

This appeal is being made under the provisions of Section 25(1) of the Rental of Residential Property Act R.S.P.E.I. 1988, Cap. R-13.1 (the Act).

2.    Background

The Appellants' Authorized Representative, Gary Jewett, filed a Notice of Appeal (Form 17) to Order L00-89 of the Director of Residential Property on behalf of the Appellants. This Notice of Appeal was filed by fax on June 12, 2000, while the Director's Order had been issued and mailed on May 15, 2000.

As a first step in dealing with the June 12, 2000 Notice of Appeal, the Commission reviewed the date of the issuance and mailing of the Order, the date of the filing of the Notice of Appeal and the relevant statutory provisions contained in Sections 25(1) and 33(3) of the Act, which set out the time period for filing an appeal and the deemed delivery timing of a mailed document. Based on the involved dates and the statutory requirements of the Act, the Commission informed the Appellants' Representative that, on the face of the record, the Notice of Appeal had been filed beyond the appeal period and that, as a result, the Commission had no jurisdiction to hear the appeal.

The provision of this information to the Appellants follows the Commission's established administrative approach of informing parties where it seems clear that the Commission does not have jurisdiction.

Following receipt of the information on jurisdiction, the Appellants' Representative has by means of correspondence stated that the Order of the Director was sent to a previous address of the Appellants in Moncton and not their current address in Ontario, and that, as a result, they only learned of the content of the Order on May 27, 2000 when informed by Ms. Dupuis' mother during a telephone call. He therefore argues that the Commission should still have jurisdiction and hear the substantive issues of the appeal. He further argues that this should happen in accordance with the rules of natural justice. He also argues that if the Commission is not prepared to do this, that under the rules of natural justice, the Appellants should be provided an opportunity to present their arguments on the matter of jurisdiction.

3. Decision

The Commission is a creature of statute and only has the authority expressly conferred upon it by the involved legislation. In the case of this appeal that legislation is the Rental of Residential Property Act. This Act clearly stipulates a time limitation for filing an appeal on a decision/order of the Director of Residential Rental Property. More particularly, Section 25(1) of the Act provides:

s.25(1) 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]

Section 33(3) of the Act provides direction on the serving of documents.

s.33(3) Where a document is delivered by ordinary mail, it is deemed to have been delivered on the third day after the date of mailing.

The information before the Commission is that the Director's Order was issued and mailed to the involved parties at their last known mailing address on May 15, 2000. A Notice of Appeal was subsequently forwarded to the Commission on June 12, 2000.

In applying the provisions of Sections 25(1) and 33(3) of the Act to the dates of the Order and Notice of Appeal the Commission finds the following:

under Section 33(3) the Appellants would be deemed to have received the Order by the third day after mailing or May 18, 2000;

under Section 25(1) the Appellants would then have twenty days within receipt of the Order to file an appeal or, in this case, by June 7, 2000.

The Appeal was actually filed on June 12, 2000, which is beyond the June 7, 2000 time limit required by Section 25(1) of the Act.

As noted previously, as a creature of statute, the Commission only has the powers expressly conferred upon it by legislation including Section 25(1) of the Act. The Act also does not provide any discretion to the Commission in the application of the appeal period limit established in Section 25(1). The Commission in taking both these factors and the correspondence received from the Appellants' Authorized Representative into consideration, finds that it does not have jurisdiction to hear the June 12, 2000 appeal of the Appellants.

The Commission believes it is also worth noting that the Appellants' Representative has indicated that the Appellants were informed of the content of the Order on May 27, 2000. This was eleven days before the legislated filing time period ran out.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Kelly-Ann Dupuis & Brad Strugnell (the Lessees) against Order LD00-089 of the Director of Residential Rental Property dated May 15, 2000.

Order

WHEREAS Kelly-Ann Dupuis and Brad Strugnell (the Appellants) filed an appeal dated June 12, 2000, against a decision of the Director of Residential Rental Property ;

AND WHEREAS the Commission identified a problem with jurisdiction;

AND WHEREAS the Authorized Representative of the Appellants provided written comments to the Commission;

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

IT IS ORDERED THAT

1. The Commission is without jurisdiction to hear the Appellants' Appeal of Order LD00-89.

DATED at Charlottetown, Prince Edward Island, this 5th day of July, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner
Jim Carragher, 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.