Docket A-006-01 
Order LR01-06

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Trevor Gale (the Lessee) against Order No. LD01-116 of the Director of Residential Rental Property dated June 13, 2001.

BEFORE THE COMMISSION

on Thursday, the 28th day of June, 2001.

Maurice Rodgerson, Panel Chair
Kathy Kennedy, Commissioner

Order

Participants

1.     Appellant:  Trevor Gale
                       (Lessee)

2.   Respondent: Lester MacDonald
                       (Lessor)

      Witness:     Robert Baldwin

Reasons for Order

1.  Introduction

Trevor Gale, who occupied Apartment #2, located at 75 Pleasant Street in Cardigan is appealing a June 13, 2001 decision of the Director of Residential Rental Property terminating the rental agreement as of midnight June 14, 2001 and stating the lessee must vacate the unit on or before that date.

2.  Background

The Lessee occupied one of the five rental units in the building. Mr. Gale and his girlfriend Paige Steele moved into the unit in the late fall of 2000. 

May 1, 2001 the Lessor sent a note to Paige Steele and Trevor Gale (Exhibit A-1) stating "you are required to vacate Apt #2 at 75 Pleasant Street by May 31, 2001." 

As a result of that notice Ms. Steele moved out of the apartment, Mr. Gale refused.  The Lessor then sought an order from the Director of Residential Property for early termination of the rental agreement.  The Order was granted on June 13, 2001, effective midnight June 14, 2001.  The termination is the subject of this appeal.

The Commission is satisfied that the original hearing established a number of issues and disputes regarding the neighbours, Lessee and Lessor. Several other lessees wrote letters raising concerns about the impact of the Lessee on the enjoyment of the apartment complex. Robert Baldwin appeared at the appeal hearing to support his earlier written statement and to further comment on the activities.

Section 6 of the Rental of Residential Property Act sets out certain statutory conditions that apply in all rental situations, regardless of whether or not a formal lease agreement exists. Several statutory conditions are of relevance to this particular case. 

Condition 3 - Good Behavior states:

"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."

At the appeal hearing, Mr. Baldwin stated that Mr. Gale, Ms. Steele and others visiting their apartment often bothered other lessees.  They often asked to use the phone of other tenants or "bummed cigarettes" from them.  Mr. Gale did not dispute such statements other than to indicate that he should not be held responsible for the actions of people visiting his apartment.  However, condition three places that responsibility on the Lessee.

Exhibit A-5 says in part "We had to listen to the noisy vehicles that he drove all hours of the day and night....We have also had him use foul language and insults towards us while we were on the deck enjoying the nice day.  He tries to pick fights all the time."  

Exhibit A-6 says, "It was a very pleasant place to live until Trevor Gale moved into Apt. 2.  The place changed there was constant fighting, very bad language and plenty of loud music...The puppy would cry and yelp constantly." 

Exhibit A-7 states "Looking at the flood you could clearly see it was coming from Apt # 2...You could see the kitchen sink over flowing and the floor flooded." 

Exhibit A-9 states "It was after the second meeting that I began to feel uneasy about this new neighbour in next apartment No.2."

Several tenants stated they were considering moving out if Mr. Gale continued to occupy a unit in the building. 

The Commission believes there is ample evidence to demonstrate that Mr. Gale violated statutory condition 3 and conducted himself in such a manner that he did, in fact, interfere with the quiet enjoyment of other lessees.

Condition 4 - Obligation of the Lessee  

"The lessee shall be responsible for the ordinary cleanliness of the interior of the premises and for the repair of damage caused by any willful or negligent act of the lessee or of any person whom the lessee permits on the premises, but not for damage caused by normal wear and tear."

The pictures filed with the Commission (Exhibit A-10), especially those relating to the water damage, and the evidence regarding the untrained dog reflect a violation of condition four.  

The matter of the dog had been discussed several times by the Lessor and Lessee.  At one point it was agreed the dog would be moved to a different location, and the Lessor transported the dog to that location for the Lessee.  A short time later the dog was returned to the unit, and while the Lessee claims it was then trained, evidence was presented to the contrary that dog feces and urine were on the floor in the apartment. 

Sections 12 through 15 of the Rental of Residential Property Act sets out the GROUNDS FOR TERMINATION BY LESSOR of a rental agreement. It is clear that a violation of either statutory condition 3 or 4 constitutes grounds for termination of the rental agreement. 

Section 14(1) The Lessor may also serve a notice of termination upon the lessee where

(a) statutory condition 3 or 4, or any other term of rental agreement has been breached, other than failure to pay rent;

(e)   the safety or other lawful right or interest of the lessor or other lessee in the residential property has been seriously impaired by an act or omission of the lessee or a person permitted in or on the residential property or residential premises by him.

The Commission reviewed the various documents presented at the original hearing and statements made at the appeal hearing, including the written statements filed by Mr. Gale (Exhibits A-15 and A-16).  Additional comments were also made about noise, dogs, a fire at the complex, the condition of the apartment, and the matter of the water leak and resulting damage.

The Commission is satisfied that sufficient grounds existed for the Lessor to seek and be granted early termination of the rental agreement and the surrendering of the apartment because of a breach of statutory conditions three and four.

The focus of Mr. Gale's comments at the appeal hearing centered on the manner in which the termination of the rental agreement and the surrendering of the premises took place.

The process took some time, starting with the Sheriff visiting the Lessee at another residence, the RCMP being called by the Lessee, the possessions of the Lessee being removed from the apartment, the Lessee refusing to leave, and the items being transported to Georgetown. 

The Lessee stated that he was told by the Sheriff and the RCMP that he did not have a right to appeal the order.  However, Section 25(1) of the Act states:

Section 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.

In this case the Lessor received an Order from the Director of Residential Property terminating the rental agreement (Exhibit A-11). The Sheriff chose to act on that order and to evict the Lessee from the apartment and, in fact, the Lessee did vacate the premises thereby complying with the order. 

The Commission notes that in bold letters immediately below the original order it reads: 

"NOTE: Where the lessee fails to comply with this Order the lessor may make application for an Order that possession of the residential premises be surrendered to the lessor and directing the sheriff to put the lessor in possession of the unit."

Given the decision of the Rental Officer in the original order, it is reasonable to assume a Delivery of Possession Order would be quickly granted.  The Lessor, however, did not apply for such an order as the Sheriff agreed to act on the termination of the rental agreement order, and in the end the Lessee moved out.  In fact, at the appeal hearing Mr. Gale indicated that at one point he agreed to move out if arrangements were made to transport his possessions to Georgetown. While the usual procedure may not have been followed, the Commission is satisfied that the end result would have been the same.

3.  Decision

The Commission denies the appeal.  The Order terminating the rental agreement is upheld.  The lessee has already vacated the apartment and since the appeal is denied has no right to reoccupy the unit at Pleasant Street.

Order

WHEREAS Trevor Gale filed an appeal dated June 15, 2001 against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Montague on June 25, 2001;

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

IT IS ORDERED THAT

  1. The appeal is denied;
  2. The rental agreement is terminated.

DATED at Charlottetown, Prince Edward Island, this 28th day of June, 2001.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Kathy Kennedy, 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.