LD23-491

Tenant application · eviction, compensation. Outcome: denied. A. The Application is denied.

Linked prior order: LR23-48

Order text

Orders of the Director of Residential Tenancy
Docket 23-376 October 20, 2023
Introduction
[1] On May 11, 2023 the Tenants filed a Tenant Application to Determine Dispute (Form 2A) dated May 10, 2023 (the “Application”) with the Residential Tenancy Office (the “Rental Office”) seeking the following remedy:
I am a former Tenant and request compensation from my former Landlord for a bad faith eviction.
[2] The Tenants are seeking $4,330.21 in compensation, pursuant to subsection 65.(1) of the Act.
[3] On August 23, 2023 a Notice of Hearing was sent to the parties for a scheduled hearing set for September 14, 2023. The matter was adjourned by request. On September 21, 2023 a new Notice of Hearing was sent to the parties for a new hearing date of October 10, 2023. The combined evidence package was sent to the parties on October 6, 2023. All documents were properly served in accordance to subsection 100.(1) of the Act.
[4] On October 10, 2023 a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). The Tenants appeared, representing themselves. The Landlord appeared with legal counsel.
Issue to be Decided
i. Are the Tenants entitled to compensation for a bad faith eviction?
Summary of the Evidence
[5] In February 2014 the Tenants and the former landlord entered into a verbal month-to-month tenancy agreement for the Residential Property. In June 2017 the Landlord purchased the Residential Property and took over responsibility of the tenancy agreement. Rent was $2,117.21 due on the first day of the month. A security deposit of $2,000.00 was required and paid. The Tenants vacated on December 4, 2022 and the tenancy ended.
Tenants’ Evidence and Submissions
[6] The Tenants’ argument is that the Landlord evicted them in bad faith. The Tenants testified that on October 30, 2022 they received an eviction notice from the Landlord for ‘own use’. The Tenants’ testified that they disputed that eviction notice with the Rental Office, however, due the unavailability of a scheduled hearing before November 25, 2022 they found a new place to live and vacated the renal unit on December 4, 2023.
[7] The Tenants’ testified that to their knowledge two separate individuals have lived in the Residential Property since they vacated. The Tenants’ testified that the Landlord never lived in the Residential Property. The Tenants’ submitted into evidence a written submission, detailing the timeline of events from February 5, 2023 to May 6, 2023.
[8] The Tenants are seeking one month’s rent in compensation in the amount of $2,117.21 and their moving expenses in the amount of $2,213.00. The Tenants are also seeking the max administrative penalty, and to set the rent back to the legal amount. The Tenants allege an illegal rent increase occurred after they were evicted.
[9] The Tenants submitted into evidence numerous documents, which include e-mails, news articles, rent increase notices, the eviction notice, their notice to terminate the tenancy agreement, text message conversations, and questioned the Landlord’s submitted evidence, namely the doctor’s letter.

Orders of the Director of Residential Tenancy

Landlord’s Evidence and Submissions
[10] The Landlords’ argument is that the Landlord did not evict the Tenants in bad faith, and that the Act does not apply in this case. The Landlord submitted into evidence a signed affidavit, a copy of a past Rental Office decision, a copy of an Air Canada booking dated January, 2023, a signed letter from the Landlord’s employer, additional documents regarding moving and utilities. The Landlord testified that he was unable to move into the Residential Property at the time the Tenants vacated due to an illness, which impeded him from flying. The Landlord submitted into evidence a letter from a physician dated September 14, 2023. The Landlord admitted to not being able to move into the Residential Property, and needed to find a tenant in May 2023. The Landlord admitted that the rent did increase since the Tenants’ vacated.
[11] The Landlord’s legal counsel argued that the tenancy agreement ended in December 2022, before the Act became law. The Tenants were not evicted under sections 62, 63 or 64 of the Act. The Landlord’s legal counsel argued that the Tenants are not entitled to a remedy under subsection
65.(1) of the Act.
Analysis
[12] The Officer begins by referencing the relevant law for the Application. Subsections 65.(1) and (6) of the Act state:
65. Notice given in bad faith
(1) A former tenant may make an application to the Director under section 75 to determine whether a landlord gave a notice of termination under sections 62, 63 or 64 in bad faith.
Order when notice brought in bad faith
(6) Where the Director determines that a landlord gave notice of termination in bad faith, the Director may issue one or more of the following orders:
(a) an order that the landlord pay a specified sum to the former tenant for (i) all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit, and (ii) reasonable out-of-pocket moving, storage and other similar expenses that the former tenant has incurred or will incur;
(b) an order for an abatement of rent;
(c) an order that the landlord pay to the Director an administrative monetary penalty in an amount not exceeding $10,000; or (d) any other order that the Director considers appropriate.
[13] The Officer notes that in these types of applications it is the Tenants’ responsibility, or onus to prove, on a balance of probabilities, their claim. The Application is requesting a finding that the Landlord evicted the Tenants in bad faith, and, as a result, the Tenants would be entitled to compensation pursuant to subsection 65.(1) and (6) of the Act.
[14] The Officer finds that the evidence and testimony of the parties establishes that on October 30, 2022 the Landlord served the Tenants a Notice of Termination by Lessor of Rental Agreement (Form 4) effective December 31, 2022 for ‘own use’. This reason for termination was pursuant to sub-subsection 15.(1)(a) of the Rental of Residential Property Act (the “Former Act”). The Tenants disputed the termination notice, however, made the decision to vacate the Residential Property on December 4, 2022, thus ending the tenancy.

Orders of the Director of Residential Tenancy

[15] The Act was proclaimed on April 8, 2023 and became the law governing residential tenancies on Prince Edward Island. The Officer finds that subsection 65.(1) of the Act only allows a former tenant to apply for such compensation if they were evicted under sections 62, 63 or 64 of the Act in bad faith. In this case, the Tenants were not evicted under any of the sections prescribed and that there are no transitional provisions in the Act to allow the Tenants to seek such compensation under the current set of facts established on the evidence.
[16] Furthermore, the Officer refers to Order LR23-48, paragraph 17. where the Island Regulatory and Appeals Commission, with a similar set of facts, state:
17. While the Landlord did serve a Form 4 back in October 2022 pursuant to
subsection 8.(d)(3) of the Rental of Residential Property Act (the “old Act”), section 65 of the RTA does not provide any transitional provisions to permit claims for compensation under the RTA to apply to past evictions under the old Act.
Accordingly, the Tenant’s application for compensation for an alleged bad faith eviction is denied.
[17] The Officer finds that because the Tenants were not evicted under sections 62, 63 or 64 of the Act, but were evicted under the Former Act, the Tenants are not entitled to compensation under subsection 65.(1) of the Act, and therefore, the Application is denied.
Conclusion
[18] The Application is denied.
[19] Order LD23-491 was served on the parties by e-mail on October 20, 2023.
IT IS THEREFORE ORDERED THAT
A. The Application is denied.
DATED at Charlottetown, Prince Edward Island, this 20th day of October, 2023.
(sgd.) Cody Burke Cody Burke Residential Tenancy Officer

Orders of the Director of Residential Tenancy

NOTICE
Right to Appeal
This Order can be appealed to the Island Regulatory and Appeals Commission (the “Commission”) by serving a Notice of Appeal with the Commission and every party to this Order within 20 days of this Order.
If a document is sent electronically after 5:00 p.m., it is considered received the next day that is not a holiday. If a document is sent by mail, it is considered served on the third day after mailing.
Filing with the Court
If no appeal has been made within the noted timelines, this Order can be filed with the Supreme Court of Prince Edward Island and enforced as if it were an order of the Court.