r v. michael, 2016 QCCQ 14399

Simhon c.

Rosen 2016 QCCQ 14399 COURT OF QUEBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-80-033766-164 DATE: November 17, 2016 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ ASSAF SIMHON Petitioner v. michael rosen Respondent -and- régie du logement du québec Mise en cause ______________________________________________________________________ CORRECTED JUDGMENT ON MOTION FOR LEAVE TO APPEAL FROM A DECISION OF THE RÉGIE DU LOGEMENT (Article 91 of an Act respecting the Régie du logement (CQLR, c.

R-8.1)) ______________________________________________________________________ [ 1 ] Assaf Simhon (the “ Lessor ”) seeks leave to appeal from a decision of the Régie du logement rendered June 27, 2016, which dismissed his application for resiliation of lease, eviction and damages directed against his tenant Michael Rosen (the “ Tenant ”). [ 2 ] As a preliminary exception, the Tenant claims that the Lessor’s Application for Leave to Appeal is inadmissible because it was not filed within the applicable legal delay. Subsidiarily, he claims that this is not a case where leave to appeal should be granted. I.

FACTUAL CONTEXT [ 3 ] In June 2015, the Lessor filed an application before the Régie du logement seeking the resiliation of the lease between the parties (the “ Lease ”) alleging the breach of the Tenant’s obligations pursuant to the Lease and interference with his peaceful enjoyment of the property in which the dwelling is located.

He also sought damages. [ 4 ] After 4½ days of hearings before Commissioner Rosario Nobile (the “ Commissioner ”) a decision was rendered on June 27, 2016 dismissing the Lessor’s application (the “ Decision ”). [1] The Lessor was advised of the Decision on July 13, 2016. [ 5 ] By motion filed on July 18, 2016, the Lessor sought the correction of what it considered to be 12 clerical errors contained in the Decision, 11 of which were corrected by the Commissioner at a hearing held on August 4, 2016. [2] No corrections were brought to the conclusions of the Decision. [ 6 ] The Lessor then served and filed his Application for Leave to Appeal on August 31, 2016.

II. THE TENANT’S MOTION TO DISMISS [ 7 ] The Tenant claims that the Application for Leave to Appeal is inadmissible because it was not served and filed within 30 days of the date of the Decision as required by

article 92 of the Act Respecting the Régie du Logement (the “ Act ”). [3] [ 8 ] He argues that the Lessor’s motion for correction and the corrected decision that followed have no bearing on the legal delay of

article 92 of the Act , because the corrections did not affect the conclusions of the Decision. He referred the Court to precedents to this effect relating to

article 475 of the Code of Civil Procedure (“ C.C.P. ”). [4] [ 9 ] The Court disagrees with the Tenant’s argument. [ 10 ] It is clear from

article 88 of the Act that the Lessor’s motion for correction of the Decision interrupted the legal delay to serve and file his Application for Leave to Appeal: 88. The commissioner who rendered a decision may correct it if it contains an error in writing or in calculation, or any other clerical error or, by obvious inadvertence, it grants more than was demanded or omits to adjudicate upon part of the demand.

He may make the correction , ex officio or on the motion of one of the parties, so long as the decision has not been appealed or reviewed or before the decision becomes executory . The motion for correction suspends the execution of the decision and interrupts the time allowed for appeal or review until the parties are notified of the decision . [Emphasis added] [ 11 ] The precedents invoked by the Tenant are inapplicable given the obvious difference in wording between

article 88 of the Act and

article 475 C.C.P., which provides that the time limits for appeal from a corrected judgment run only from the date of the correction “ if [the correction] affects the conclusions ”. [ 12 ] It is also clear from the wording of

article 88 of the Act (more particularly the use of the term “ interrupts ”, which refers to the notion of interruption of prescription provided for in articles 2889 to 2903 of the Civil Code of Québec ) that the delay of

article 92 of the Act started to run again for 30 days on August 4, 2016, when the Commissioner corrected the Decision in the presence of the Lessor. [5] [ 13 ] The Application for Leave to Appeal was therefore served and filed within the legal delay. III.

THE APPLICATION FOR LEAVE TO APPEAL [ 14 ] Leave to appeal from a decision of the Régie du logement may be granted “when the matter at issue is one which ought to be submitted to the Court of Québec”. [6] [ 15 ] A matter will generally be considered as one which ought to be submitted to this Court if the issues raised by the applicant are serious, new, controversial or of general interest. [7] [ 16 ] In addition, leave to appeal may be granted where the issues raised call into question the higher interests of justice, for example if there is an apparent weakness in the decision because of an error of law or a clear and manifest error in the appreciation of the facts, or where the requirements of natural justice were not followed, including where insufficient reasons were given. [8] [ 17 ] The Lessor raises a series of grounds to support his application.

He argues that the Commissioner :

a) failed to adequately motivate the Decision;

b) failed to assess the credibility of the witnesses heard;

c) failed to consider judicial admissions made by the Tenant and his witnesses;

d) misapplied or failed to consider the law relating to evidence;

e) conducted the hearing in an inherently unfair manner, notably by: ➢ permitting the Tenant to enter inadmissible evidence; ➢ preventing the Lessor from presenting relevant and admissible evidence; ➢ attending the hearing without the parties’ exhibits, showing a total disregard for process;

f) his appreciation of the facts was blatantly erroneous and unreasonable. [ 18 ] The Court concludes that the first ground for appeal is sufficient, in and of itself, to authorize the appeal. [ 19 ] The requirement that decisions be reasoned, which constitutes an essential component of the principles of natural justice, is expressly provided in

Article 79 of the Act . To meet this requirement, the reasons provided in a decision must allow a reader to understand why the decision-maker preferred the theory of the case of one party to that of the other.

Although a decision may be succinct, the reasons as a whole, considering the context and circumstances, must be sufficient to understand the basis of the decision and allow review by the competent Court. [9] [ 20 ] Although the Decision contains 90 paragraphs, it falls quite short of the above requirement. [ 21 ] In the first 73 paragraphs, the Commissioner simply summarizes, in short, telegraphic-style sentences, the testimonial evidence heard as well as video evidence that appears to support the Lessor’s position. [10] His analysis and decision is essentially contained in the following paragraphs : “[74] L’

article 1863 C.c.Q. se lit comme suit : « 1863. L'inexécution d'une obligation par l'une des parties confère à l'autre le droit de demander, outre des dommages-intérêts, l'exécution en nature, dans les cas qui le permettent. Si l'inexécution lui cause à elle-même ou, s'agissant d'un bail immobilier, aux autres occupants, un préjudice sérieux, elle peut demander la résiliation du bail. L'inexécution confère, en outre, au locataire le droit de demander une diminution de loyer; lorsque le tribunal accorde une telle diminution de loyer, le locateur qui remédie au défaut a néanmoins le droit au rétablissement du loyer pour l'avenir. » [75] Il ressort de cet

article que si [sic] l’inexécution d’une obligation par le locataire donne droit au locateur de demander la résiliation du bail et des dommages-intérêts.

[76] La prépondérance de preuve est à l’effet que le locataire a respecté toutes les obligations qu’il avait en vertu du bail et que le locateur n’a pas subi de préjudice sérieux. […] [89] Il n’a pas lieu de résilier le bail ni émettre les ordonnances demandées par le locateur. [90] De plus, le locateur n’a pas démontré le bien-fondé du reste de sa demande en dommages-intérêts matériels et punitifs.» [ 22 ] The Commissioner also makes a series of comments concerning the origin of the dispute and the difficult relationship between the parties, [11] but they provide no useful insight into his reasoning. [ 23 ] The Decision contains no description of the parties’ respective legal positions and no analysis or determination regarding the credibility of the witnesses and other evidence offered, although it is clear from the Commissioner’s

summary that the evidence was contradictory on key issues in dispute. It is impossible to determine why the Commissioner set aside evidence that appears to support the Lessor’s position and why he concluded that the Tenant had fulfilled all of his obligations pursuant to the Lease or that the Lessor had not suffered serious injury. [ 24 ] This total lack of transparency in the Commissioner’s reasoning on the key issues in dispute violates the requirement of

article 79 of the Act. It also brings the Court to conclude to an apparent weakness in the Decision, in that the Commissioner appears, in the absence of proper reasons, to err in his appreciation of the facts. [ 25 ] The Court therefore concludes that the matter ought to be submitted to this Court on the following questions: 1. Did the Commissioner err in deciding that the Lessor did not have sufficient grounds to seek the resiliation of the Lease and the eviction of the Tenant and the occupants of the dwelling, namely: a.

Did the Commissioner err in deciding that the Tenant respected all of the obligations incumbent on him by virtue of the Lease, namely to use the premises with prudence and diligence? b. Did the Commissioner err in failing to render a decision on the other ground of the application to the effect that the Tenant interfered with the Lessor’s peaceful enjoyment of the property? 2. In the affirmative, what are the appropriate modalities to apply to the resiliation and eviction? 3. Did the Commissioner err in failing to find that the Tenant should reimburse the Lessor in respect to sums expended for the repair of (

i) the dryer; and (ii) the thermostat? [ 26 ] The Court will also refer the matter to the coordinating judge so that a case management conference may be scheduled and held to determine what evidence will be heard in the context of the appeal. FOR THESE REASONS, THE COURT: GRANTS Petitioner’s Application for Leave to Appeal; AUTHORIZES the appeal on the following questions: 1. Did the Commissioner err in deciding that the Lessor did not have sufficient grounds to seek the resiliation of the Lease and the eviction of the Tenant and the occupants of the dwelling, namely: a.

Did the Commissioner err in deciding that the Tenant respected all of the obligations incumbent on him by virtue of the Lease, namely to use the premises with prudence and diligence? b. Did the Commissioner err in failing to render a decision on the other ground of the application to the effect that the Tenant interfered with the Lessor’s peaceful enjoyment of the property? 2. In the affirmative, what are the appropriate modalities to apply to the resiliation and eviction? 3. Did the Commissioner err in failing to find that the Tenant should reimburse the Lessor in respect to sums expended for the repair of (

i) the dryer; and (ii) the thermostat? REFERS the matter to the coordinating judge so that a case management conference may be scheduled and held to determine what evidence will be heard in the context of the appeal; WITH LEGAL COSTS to follow suit. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: September 14, 2016

Me Lisa F. Hollinger Attorney/Avocate For the Petitioner Me Sacha Vrkic Greenspoon Bellemare, s.e.n.c.r.l. For Respondent