Docket A-011-98 and A-012-98
Order LR99-01

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by James Fizzard (the Lessee) against Orders No. LD-98-190 and LD-98-194 of the Director of Residential Rental Property both dated November 12, 1998.

BEFORE THE COMMISSION

on Thursday, the 14th day of January, 1999.

Wayne D. Cheverie, Q.C., Chair
Norman Gallant, Commissioner
Weston Rose, Commissioner

Order

Participants

1. Appellant:

James Fizzard
Krista Fizzard

2. Respondent:

Thomas DesRoches

Reasons for Order

1. Introduction

On November 12, 1998, Mr. John Keizer, Residential Rental Property Officer issued two orders, namely, LD98-190 and LD-98-194 (being Exhibit 6 in appeal A-011-98 and Exhibit 4 in appeal A-012-98, respectively). Both orders arose out of a rental agreement entered into on the 23rd day of July 1997 between Thomas DesRoches and Melanie Fraser (Lessors) and James and Krista Fizzard (Lessees). This document became Exhibit 5(a) in appeal A-011-98. Mr. DesRoches (the Respondent) sought to retain the security deposit which Mr. Fizzard (the Appellant) had deposited at the outset of the rental agreement. Further, the Respondent sought an order from the Residential Rental Property Officer for rent owing and that the same should be paid. The Respondent was successful with respect to both of his requests as is evidenced by the two orders referred to above. On November 30, 1998, the Appellant filed a Notice of Appeal with respect to each of the rental orders in question which appeals were taken pursuant to Section 25 of the Rental of Residential Property Act `R.S.P.E.I. 1988, Cap. R-13.1 (the Act).

The Notices of Appeal are identical. The grounds for each appeal are as follows:

"Errors found in orders LD98-190 and order LD98-194 both of which are appealed."

On December 14, 1998, the Commission met in order to hear both of the present appeals. At the commencement of the hearing, all parties agreed with the Commission suggestion that both appeals, i.e., A-011-98 and A-012-98, be joined for the purpose of a single hearing since all the matters in issue arise out of the same rental agreement. Since both appeals to the Commission are by way of a re-hearing pursuant to Section 26 of the Act, the Commission had the benefit of the record before the Rental of Residential Property Officer as well as any new evidence that might be tendered at the appeal.

2. Background – A-011-98

At the commencement of the hearing, all documentation which was considered and tendered before the rental officer was in turn transmitted to the Commission pursuant to the Act. The Exhibits were identified and tendered with certain objections being taken by the Appellant to a number of the Exhibits. For the most part, the Appellant's objection rested on the proposition that Exhibits 5(c)(f)(g)(h)(i)(m)(n) were letters or documents purporting to support the Respondent without the opportunity for the Appellant to cross-examine the authors of those documents. As it turned out, the Respondent was given the opportunity to call further evidence after his own testimony, but he declined to do so and left the matter with the Commission to be determined on the evidence presented to us. The Appellant's point was well made and in fact the Exhibits to which he objected, form no part of the basis for the decision in this case.

The Appellant gave evidence on his own behalf with respect to the issues that were raised before the rental officer and upon which the rental officer had to decide. The highlights of the Appellant's evidence with respect to the matters related to the Respondent's claim for retention of the security deposit may be summarized as follows:

1.    The Appellant acknowledged that there was an odour in the basement of the rented premises, but that it existed when he moved into the residence in August of 1997 and further, that he had made the Respondent aware of this. The Appellant took the position that this odour was as a result of flooding that had occurred in the basement sometime before he occupied the premises. In answer to the suggestion from the Respondent that the odour in the basement was the result of dog urine, the Appellant denies this except to say that if the dog he kept as a pet had urinated in the premises as suggested, it would only have been when the dog was a pup and would only have occurred in the kitchen and not the basement.

2.    The Appellant indicated that he had agreed to undertake some painting in the premises, particularly in the kitchen area and that this was done with the complete agreement of the Respondent.

3.    The Appellant's response to the allegation that he made holes in the kitchen floor was simply that these holes were there when he moved into the residence.

4.    The Appellant freely admitted that an ink stain on the living-room carpet was his fault and in fact he had taken some steps to have the stain removed. He also admitted that his dog had done some damage to carpet in another area of the rented premises.

5.    The Appellant admitted that the bathroom fixture was broken. However, he explained that it was cracked and when he tried to clean it, the fixture broke.

6.    The Appellant gave extensive evidence with respect to the state of repair of the backyard of the rented premises indicating that there had been previous structures left there by the Respondent which, when removed, produced a bare area in the yard. There was also a pile of some sort of debris left on the property by the Respondent, and there was an old car left in the yard by the Respondent. He admits that his dog did create two small holes in the yard which in fact he attended to before he left the premises by fixing them and seeding them.

7.    Generally, the Appellant suggested that the rental premises was in a bad state of repair when he moved in; the windows were bad; the carport was in bad shape; and generally that he had offered an explanation for the damages that the Respondent suggested he had done beyond reasonable wear and tear in the rented premises.

For his part, the Respondent gave evidence that the water damage in the premises occurred in 1995 when in fact the carpet was destroyed and all new carpet had been installed in its place. He acknowledged that he agreed that the Appellant would paint part of the premises in lieu of one week's rent, but that because of the poor quality of this work, the Respondent had to redo it. He relied on the Exhibits tendered at the hearing and specifically referred to the photos that he had taken and formed part of the record as Exhibit 5(p) as well as the video tape of the premises following the vacating of the premises by the Appellant which video tape was marked as Exhibit 5(q). The Respondent testified that he in fact had occupied the premises before the Appellant rented it and in fact had moved out three weeks before the Appellant moved in. Further, no one else occupied the premises in the intervening period. He suggested the rental property was in good shape when he moved out.

3. Decision – A-011-98

The Commission listened intently to the evidence offered by both the Appellant and the Respondent and has reviewed all of the documentation presented at the hearing. With respect to the matters in issue before the Commission, the Commission makes the following determinations:

1.    It was admitted at the hearing that a stain in the carpet in the living-room was the fault of the Appellant although he claims that he attempted to have the stain removed. The Respondent had advanced a claim of $250.00 for both cleaning the basement and the living-room stain. In response to that, the Appellant tendered Exhibit 4(a) which supported his attempt to remove the stain from the living-room carpet. The Commission finds that indeed the Respondent has a valid claim with respect to this issue, but that the same should be reduced by the amount of $69.55 as per Exhibit 4(a). That being the case, the Respondent's claim with respect to this matter is allowed in the amount of $180.45.

2.    With respect to the issue of the cost of repairs to the bedroom, kitchen, and divider, the Commission finds that indeed repairs were necessary here as a result of actions by the Appellant which were beyond normal wear and tear and the Commission further finds that the amount of $75.00 is a reasonable cost and so orders.

3.    After reviewing the evidence with respect to this issue as it relates to the backyard of the rented premises, the Commission notes that Exhibit 5(k) which is relied on by the Respondent is a quotation only. There appears to be quite a discrepancy between the amount of work needed as per Exhibit 5(k) - i.e. 16 yards of sod versus the evidence of the Appellant that there were only two small holes which he fixed. That being the case, the Commission hereby reduces the claim allowed by the rental officer in the amount of $240.11 to the sum of $75.00.

4.    There being no dispute over the claim for removal of the old sofa and chair as well as removal of garbage from the premises, this claim of $20.00 is allowed.

5.    The Appellant admitted that the bathroom light fixture broke when he attempted to clean it. At the hearing before the rental officer, the Respondent submitted a bill for replacing this fixture and that claim was allowed in the amount of $13.95. The Commission accepts the evidence of the Appellant that this fixture was in fact damaged prior to his attempts to clean it, and therefore disallows any claim for this item.

6.    On the evidence, the Commission is prepared to allow the Respondent's claim with respect to the entryway carpet in the amount of $135.00 as per Exhibit 5(d). In addition, the Commission concludes that notwithstanding the efforts of the Appellant to remove the stain in the living-room carpet, that the Respondent has a right to have that portion replaced and the Commission hereby allows the sum of $376.00 for this item as per Exhibit 5(d).

The foregoing claims having been allowed, the total now exceeds the sum of $614.14 which is the total of the security deposit and interest thereon. The rental office noted that there was some small discrepancy between the amount of security deposit and interest payable on Form 8 which was given to the Appellant versus the amount actually submitted to the Rental Office. He concluded therefore that the sum allowed will be in the amount of $611.88 and since there was no dispute over this matter before the Commission, that then will be the amount awarded to the Respondent as a result of this hearing.

While the Appellant has succeeded in part in convincing the Commission that certain claims allowed by the rental officer at the initial hearing ought to be reduced, the fact remains that in total, the amounts claimed and allowed by the Respondent continued to exceed the security deposit and interest payable thereon. That being the case, the appeal is essentially denied and an order giving effect to that will follow at the conclusion of these reasons once the Commission has disposed of the second appeal.

4.  Background – A-012-98

The Respondent had claimed the additional amount of $600.00 stating that it was rent owed to him by the Appellant for occupying the premises for the month of July 1998. There appears to be an agreement between the parties that in fact the Respondent wanted the Appellant to vacate the premises before the expiration of the tenancy at the end of August 1998. The Appellant had agreed to do so and vacated the premises at the end of July 1998. The Appellant then put a stop payment on his July 1, 1998 rent cheque in the amount of $600.00 believing that the Respondent already had the $600 rent payment in the form of the security deposit. The cheque for the August rent payment was not an issue since apparently it was not negotiated by the Respondent.

5.  Decision – A-012-98

Had the Respondent not successfully claimed retention of the security deposit, then the Appellant's assumption may indeed have been correct since there would have been an offset between the rent owing for July 1998 and the security deposit principle. However, for reasons already given in this decision, the security deposit is not available to cover the rent for July 1998. The Commission finds that the Appellant did occupy the rented premises during the month of July 1998, and that the rent for that period had not been paid. Therefore, the Commission finds that the Appellant does owe the Respondent the sum of $600.00 for rental of the Respondent's premises for the month of July 1998 and an Order will follow accordingly.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by James Fizzard (the Lessee) against Orders No. LD-98-190 and LD-98-194 of the Director of Residential Rental Property both dated November 12, 1998.

Order

WHEREAS James Fizzard filed two appeals on December 1, 1998 against two decisions of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeals in Charlottetown on December 15, 1998;

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

IT IS ORDERED THAT

1.    The appeals are dismissed;

2.    The Respondent shall receive a payment of $611.88, which constitutes the full security deposit and interest;

3.    The Appellant shall pay the Respondent the sum of $600.00 for rent owing for July 1998.

4.    These payments shall be made within fifteen (15) days of the date of this Order.

DATED at Charlottetown, Prince Edward Island, this 14th day of January, 1999.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Norman Gallant, Commissioner
Weston Rose, 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.