ERIN RILEY-MacFADYEN APPELLANT AND: ROGER GREAVES v. MARY ROGERSON, 2024 PECA 5

PROVINCE OF PRINCE EDWARD ISLAND PRINCE EDWARD ISLAND COURT OF APPEAL Citation: Riley-MacFadyen v. Greaves, Rogerson and Island Regulatory and Appeals Commission , 2024 PECA 5 Date: 20240207 Docket: S1-CA-1502 Registry: Charlottetown BETWEEN: ERIN RILEY-MacFADYEN APPELLANT AND: ROGER GREAVES AND MARY ROGERSON RESPONDENTS AND: ISLAND REGULATORY AND APPEALS COMMISSION RESPONDENT Before: Chief Justice James W. Gormley Justice Michele M. Murphy Justice Thomas P. Laughlin Appearances: Erin Riley-MacFadyen, the appellant, on her own behalf Roger Greaves and Mary Rogerson, the respondent, on their own behalf Jessica A.

Gillis, counsel for the respondent, Island Regulatory and Appeals Commission Place and Date of Hearing Charlottetown, Prince Edward Island December 7, 2023 Place and Date of Judgment Charlottetown, Prince Edward Island February 7, 2024 Written Reasons by: Justice Thomas P. Laughlin Concurred in by: Chief Justice James W. Gormley Justice Michele M. Murphy

PRACTICE AND PROCEDURE – Appeals – Time limits – Extending time for commencement of appeal The Director of Residential Rental Property dismissed an appeal by the tenant regarding an eviction notice she received from the landlord. The tenant’s appeal to the Island Regulatory and Appeals Commission (“Commission”) was also dismissed. The tenant did not commence her appeal to the court within the limitation period to appeal prescribed in the Residential Tenancy Act and applied to extend the time to appeal.

While the court has jurisdiction to extend the time to appeal a decision of the Commission pursuant to the Residential Tenancy Act , the applicant must satisfy the requirements for granting the extension. In this case, the Residential Tenancy Act limits the court’s jurisdiction to reviewing the Commission’s decision on questions of law alone. A review of the record does not identify any questions of law raised by the applicant. As a result, the applicant has failed to establish that her appeal has merit and her application for an extension of time to appeal the decision of the Commission is dismissed.

Authorities Cited: STATUTES CONSIDERED: Residential Tenancy Act , RSPEI 1988, c R-13.11, ss. 61(1) (h), 75 - 89 , 75 - 76 , 77 , 89(1) , 89(8) , 89(9) ;

Interpretation Act , RSPEI 1988, c. I-8.1, s. 43 ; Island Regulatory and Appeals Act , RSPEI 1988, c I-11, ss. 13 , 13(1) - (4) . RULES CONSIDERED: Prince Edward Island Rules of Civil Procedure , Rule 3.02. Reasons for judgment: LAUGHLIN J.A.: Introduction and Overview [1] In November 2020 the applicant, Erin Riley- MacFadyen entered into a rental agreement with the landlords, Roger Greaves and Mary Rogerson for premises located in Charlottetown, Prince Edward Island. On May 12, 2023, the landlord issued a notice of termination to the appellant, effective June 12, 2023 (“Termination Notice”). The landlords cited a breach of s. 61(1)(

h) of the Residential Tenancy Act , RSPEI 1988, c R-13.11 (the “ RTA ”) as the grounds for issuing the Termination Notice. [1]

[2] On May 15, 2023, the applicant applied to the Director of Residential Rental Property (the “Director”) to dispute the Termination Notice. A hearing was held by telephone before the Director on June 9, 2023. On June 19, 2023, the Director denied the application and ordered that the tenancy agreement between the applicant and the landlords terminated effective 5:00 p.m. on June 30, 2023. [3] The applicant appealed the Director’s decision to the Island Regulatory and Appeals Commission (“Commission”). A hearing was held by telephone before the Commission on July 20, 2023.

On July 25, 2023, the Commission dismissed the applicant’s appeal, other than to extend the termination of the tenancy agreement to 5:00 p.m. on August 31, 2023. [4] On August 14, 2023, the applicant issued a notice of application seeking an extension of time to file a notice of appeal of the Commission’s decision. The applicant attached a draft of her notice of appeal to her extension of time application. Disposition [5] For the reasons that follow, the application for an extension of time to file a notice of appeal with respect to the Commission’s decision is dismissed.

The test for granting an extension of time to file an appeal requires the applicant to establish, among other things, that the appeal has merit. Although the threshold for establishing that an appeal has merit for the purpose of granting an extension of time to appeal is low, the applicant must show that the appeal is arguable. The Court’s jurisdiction to review a decision of the Commission

pursuant to s. 89(1) of the RTA is limited to considering questions of law. A review of the applicant’s draft notice of appeal and her submissions at the hearing of the application does not identify any questions of law regarding the Commission’s decision. Analysis [6] The RTA is intended to provide clear and reasonable statutory rights and responsibilities of parties to residential tenancy agreements in the province, and to provide a process for landlords and tenants to have their rights in respect of tenancy agreements adjudicated in a fair, transparent and expeditious manner. [2] [7]

Part 5 of the RTA establishes a process for landlords and tenants to have their disputes resolved. [3] As part of that process, either a landlord or a tenant may apply to the Director to determine any of the following issues:

(1) A question arising under the RTA or the regulations;

(2) Whether a provision of a tenancy agreement has been contravened; and

(3) Whether a provision of the RTA or the regulations has been contravened . [4] [8] The Director may, among other things, issue an order determining the rights of the parties. [5] Either party may appeal a Director’s order to the Commission, and such appeals are conducted by way of a re-hearing. [6]

[9] Section 89(9) of the RTA provides that either party may appeal the Commission’s decision to the Prince Edward Island Court of Appeal: A landlord or tenant may, within 15 days of the decision of the Commission, appeal to the Court of Appeal in accordance with the Island Regulatory and Appeals Commission Act , R.S.P.E.I. 1988, Cap. I-11, on a question of law only. [10] In this case, the Commission rendered its decision on July 25, 2023. Accordingly, the statutory appeal period expired on August 9, 2023.

The application for an extension of time to appeal was filed on August 14, 2023. [11] Section 89(9) of the RTA provides, among other things, that an appeal is in accordance with the Island Regulatory and Appeals Act , RSPEI 1988, c I-11 (“ IRAC Act ”).

Section 13 of the IRAC Act provides as follows with respect to the conduct of an appeal of a decision of the Commission: 13. Appeal

(1) An appeal lies from a decision or order of the Commission to the Court of Appeal upon a question of law or jurisdiction. Notice of appeal

(2) The appeal shall be made by filing a notice of appeal in the Court of Appeal within twenty days after the decision or order appealed from and the rules of court respecting appeals apply with the necessary changes. Commission deemed a party

(3) The Commission shall be deemed to be a party to the appeal. Costs

(4) No costs shall be payable by any party to an appeal under this

section unless the Court of Appeal, in its discretion, for special reasons, so orders. [12] I note there are ostensibly two conflicts in the reference to the IRAC Act with respect to appeals pursuant to the RTA . First, the appeal period pursuant to the RTA is set at fifteen days, while the appeal period in the IRAC Act is set at twenty days. Second, appeals pursuant to the RTA are limited to questions of law, while appeals pursuant to the IRAC Act may be with respect to questions of law or jurisdiction. Given the specific pronouncements in the RTA with respect to both of these issues, a proper

interpretation of the reference to the IRAC Act with respect to appeals pursuant to the RTA relates only to issues not otherwise addressed in the RTA . [7] Accordingly, the applicable appeal period for an appeal pursuant to the RTA is fifteen days. Additionally, the grounds of appeal are limited to questions of law alone.

Both issues are specifically prescribed in s. 89(9) of the RTA and therefore apply to the exclusion of the general directions found in the IRAC Act . [13] The court’s jurisdiction to grant an extension of time to appeal a decision of the Commission was considered by this Court in Ellis & Birt Ltd. v. Prince Edward Island (Island Regulatory & Appeals Commission) [8] . [14] In Ellis & Birt the plaintiff appealed a decision of the Public Utilities Commission (“PUC”). In the interim, the PUC was replaced by the Commission and the enactment of the IRAC

Act . As noted above, the IRAC Act provides that an appeal must be commenced within twenty days of the decision appealed from. The plaintiff in Ellis & Birt commenced its appeal twenty- one days after the date of the decision.

The intervenor argued that as the IRAC Act provided a twenty-day limitation period to appeal a decision of the Commission, and as the legislation provided no authority to extend the appeal period the court had no jurisdiction to extend the time for commencing an appeal. [15] Carruthers, C.J., concluded that the court had jurisdiction to extend the time for commencing an appeal pursuant to s-s 13(2) of the IRAC Act and the Civil Procedure Rules that provided authority for the court to extend the time for commencing an appeal: [42] The present situation is just the reverse of what existed in the Re Garden of The Gulf and Motel Inc. case and in the Workmen's Compensation Board case.

The Legislature has prescribed in s. 13(2) of the Island Regulatory and Appeals Commission Act a shorter period for filing a notice of appeal than is found in Rule 61.03 of the Rules of Court. It has not used any words of limitation as are found in s. 15(4) of the Public Utilities Commission Act and in s. 36 of the Real Property Tax Act . It has also incorporated the application of the Rules of Court right into the subsection dealing with the time period for commencing an appeal. … [44] Subsection 1(

c) of the

Interpretation Act defines "enactment" as "means

an Act or a regulation or any portion of

an Act or regulation" and s-s. 1(

c) defines "regulation" as "means a regulation order, rule, form, tariff of costs or fees, proclamation or bylaw enacted". So it is clear that the Rules of Court are included in s. 39 of the

Interpretation Act . [45] I am satisfied that as a result of all these legislative changes since the decisions in Re Garden of the Gulf & Motel Inc. case and in Workmen's Compensation Board case the substantive right to extend the time is now clearly found in the statute creating the right of appeal and the Court now has jurisdiction and power to extend the time in which to commence an appeal.

… [49] It can at least be argued that the Legislature, by the previously mentioned legislative changes, now intends that the Court be empowered to extend the statutory time period expressed in s. 13(2) of the Island Regulatory and Appeals Commission Act . The words invoked by the Legislature in s. 13(2) of the Island Regulatory and Appeals Commission Act can reasonably bear such an

interpretation and such an

interpretation will result in a more workable and practical result. [50] I am satisfied that the provisions of s-s. 13(1) and (2) of the Island Regulatory and Appeals Commission Act can reasonably bear such an

interpretation as I have found above. [16] In this matter, the applicant’s right to appeal is set out in s. 89(9) of the RTA which, as noted above, incorporates the provisions of the IRAC Act with respect to appeal procedures. Section 13(2) of the IRAC Act , in turn, incorporates the Civil Procedure Rules with respect to appeals. Civil Procedure Rule 3.02 provides the Court of Appeal with authority to extend or abridge time with respect to an appeal on such terms as are just. There are no words of limitation found in either s-s. 89(9) of the RTA or s-s. 13(2) of the IRAC Act . Further, s. 43 of the current

Interpretation Act [9] provides the same direction as noted by Carruthers, C.J., above in Ellis & Birt . Accordingly, the court has jurisdiction to extend the time for commencing an appeal pursuant to s-s. 89(9) of the RTA . [17] The test for granting an extension of time for commencing an appeal has been considered by this court on a number of occasions, most recently in R. v. R. , 2023 PECA 1 , where Murphy, J.A. provided the following guidance with respect to the factors the court will consider in determining whether to exercise its discretion to extend the time for commencing an appeal:

[7] In exercising discretion to grant relief from compliance with the time limit forcommencing an appeal, appeal courts attempt to reconcile the competing interests offinality and certainty for the successful party to the proceeding and the effect for theunsuccessful party of failing to comply with the time limit. One competing interestapproaches the issue from the premise that a successful party has a vested right oncethe time for appeal has expired. The other competing interest is that “it is desirable tohave appeals decided on their merits,” unless a respondent has been prejudiced by thedelay (Bryant v.

Fenton, (PESCAD)). Courts have attempted toreconcile these competing interests by considering several factors while maintainingan overriding power to ensure that the “interests of justice” in each individual caseshould govern (Thomas v. Thomas Estates, 2016 PECA 13, paras. 4-7). [8] This Court in previous decisions, including Thomas at para. 7, has cited theapplicable factors to be considered in deciding whether to grant an extension of timeto be: 1. Was there a bona fide intention to appeal? 2. Does the appeal have merit? 3. Is there a reasonable excuse for a delay in not filing within theprescribed time? 4.

Are there exceptional or special circumstances justifying the extensionof time? [18] Where the legislature has created a statutory appealmechanism, as is the case here, the decision is reviewed usingthe court’s appellate functions and applicable standards ofreview, respecting any limitations that are found within theappeal provision itself.[10] Absent such limitations on the scopeof a statutory appeal, the appellate functions of a court mayinvolve reviewing decisions with respect to questions of fact,

inferences of fact, questions of law or questions of mixed fact and law. [11] These functions entail unique considerations and involve the application of specific standards of review. In this matter, the legislature has limited the scope of appellate review to questions of law alone. [19] While the threshold concerning the merits of an appeal is not high, the applicant must show that the appeal is arguable.

In this matter, the applicant must show that her appeal is arguable with respect to a question of law relating to the Commission’s decision. [20] The applicant’s draft notice of appeal provides the following ground of appeal: 1 . Disabled a. accessible housing needed so to continue career upgrading and advancement. [21] The applicant raised the same ground of appeal at the hearing.

Although the court is sympathetic to the challenges faced by tenants in the current housing market, especially tenants also facing personal challenges such as the applicant, the issue does not raise a question of law with respect to the Commission’s decision in this matter. [22] As the applicant has not identified any questions of law in relation to the Commission’s decision, no arguable grounds of appeal have been advanced. As a result, the application to extend the time for the filing an appeal is dismissed.

[23] There will be no award of costs as there are no special reasons to order costs (s-s. 13(4) of the IRAC Act ). _____________________________________ Justice Thomas P. Laughlin I AGREE: ______________________________________ Chief Justice James W. Gormley I AGREE: _______________________________________ Justice Michele M. Murphy