2023 QCCQ 3794, 2023 QCCQ 3794

Ghelichkhani c. Li 2023 QCCQ 3794 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL CITY OF LONGUEUIL “Civil Division” No: 505-80-009523-234 DATE: June 14, 2023 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE MONIQUE DUPUIS, Q.C.J. ______________________________________________________________________ NASSER GHELICHKHANI Petitioner/Tenant v.

JOYCE PEIQUN LI Respondent/Landlord ______________________________________________________________________ JUDGMENT ON MOTION FOR LEAVE TO APPEAL FROM A DECISION OF THE TRIBUNAL ADMINISTRATIF DU LOGEMENT ______________________________________________________________________ [ 1 ] Petitioner seeks leave to appeal a decision of the Tribunal administratif du logement (“ TAL ”) rendered on March 15 th , 2023 in the file of Joyce Peiqun Li v.

Nasser Ghelichkhani (file no. 671289 37 20221228 G). [ 2 ] By this decision, the TAL resiliates the lease between the parties and orders Petitioner’s eviction from the leased premises. [ 3 ] The TAL condemns Petitioner to pay Respondent the sum of $284.30 plus interest calculated at the legal rate plus the additional indemnity according to

article 1619 of the Civil Code of Québec (“ CCQ ”) as of December 28 th , 2022, plus court costs of $84. [ 4 ] This judgment follows the application by Respondent before the TAL claiming from Petitioner unpaid arrears of rent due at the time of the hearing. [ 5 ] It appears from the decision that Petitioner argued that he did not owe this sum because it was not agreed upon by the parties in the original lease.

[ 6 ] The administrative judge Anne Malfait dismissed this defense, considering that Petitioner had other recourses in order to argue that the amount claimed by Respondent had either not been agreed upon or did not constitute rent as per the law. [ 7 ] The administrative judge Malfait considered that since Petitioner was late in paying the arrears for more than three weeks, the resiliation of the lease was justified by the application of

article 1971 CCQ: “ 1971. The lessor may obtain the resiliation of the lease if the lessee is over three weeks late in paying the rent or, if he suffers serious injury as a result, where the lessee is frequently late in paying it.” [ 8 ] The administrative judge Malfait added that the lease would not be resiliated if the rent due, in capital, interest and costs, was paid before judgment the whole according to

article 1883 CCQ: “ 1883. A lessee against whom proceedings for resiliation of a lease are brought for non-payment of the rent may avoid the resiliation by paying, before judgment, in addition to the rent due and costs, interest at the rate fixed in accordance with

section 28 of the Tax Administration Act (chapter A-6.002 ) or at any other lower rate agreed with the lessor.” [ 9 ] According to Petitioner, the following questions should be submitted to the Court of Quebec regarding this decision: 1. Could landlords present any amount listed in lease (for example, fee for parking a car) as rent payment? 2. Could landlords be allowed to collect for as many years back as they could, with no reason why they did not attempt to collect during the year they claimed it was not paid? 3.

Could landlords collect for non-existent fees just because they have it listed on the lease (for example, if the lease says Fee for parking a car is $10 a month, should a tenant that does not own a car be obligated by tribunal to pay it to landlord just for asking)? 4.

Should tribunal commissioners provide guidance where to submit the proof of payment, before the decision is rendered so that the decision would not include the cancellation of lease (causing additional stress plus legal steps that are time-consuming)? [ 10 ] In support of the present motion, Petitioner has filed a copy of the decision of the TAL of March 15 th , 2023, a non-official transcript of the hearing and numerous documents and emails between himself and Respondent. [ 11 ] But first and foremost, Petitioner files the proof that on March 10 th , 2023, he sent to Respondent by way of a money transfer the sum of $485 [1] . [ 12 ] Respondent files the same documents plus an email to Petitioner confirming that from this amount of $485, she keeps the following amounts and returns to him the balance [2] : • Arrears due $284.30 • TAL fees $84.00 • Postage $18.00 • Total 386.30 • Amount returned to Petitioner $98.70 Analysis [ 13 ] In the judgment of Suet Yang Deng et al v.

Yu-Kang Wang et al [3] , our colleague Julie Veilleux, J.C.Q., summarizes the principles to be applied by this Court regarding the present Motion: “[25] In order to decide whether the issues raised by Petitioners ought to be submitted to the Court of Quebec as per

Section 91 of the Act respecting the Régie du Logement (A.R.L.) 2 , 2 the Court must decide if these issues are serious, new, of general interest or refer to a controversy in the case law 3 .

The Court must also analyze the arguments submitted in order to avoid an appeal which is likely to fail. [26] There are additional criteria to be considered such as the apparent weakness of the decision, errors in the appreciation of facts and administration of proof, breach of natural justice, insufficient reasons for the decision or the refusal of the R.L. to exercise its jurisdiction 4 .” (References omitted) [ 14 ] In addition to these principles, the Court must also consider that each case must be considered according to its merit, while keeping in mind the objective of the Legislator when he set up the regime of appeal of decision of the TAL on leave: only questions of importance may be the object of such an appeal [4] . [ 15 ] In the present case, the uncontested fact is that Petitioner paid to Respondent on March 10 th , the amount of $485.

Respondent calculates herself that he owes her $386.30, which she keeps and returns to him the balance. [ 16 ] Therefore, Petitioner paid to Respondent the arrears due according to her own calculation, before the judgment of the TAL dated March 15 th , 2023. [ 17 ] Following

article 1883 CCQ, he has thus avoided the resiliation of the lease.

[ 18 ] Therefore, Petitioner’s Motion for leave to appeal the decision of March 15 th , 2023 has no object. As stated before, only questions of importance may be the object of an appeal of a decision of the TAL. The present situation surely does not comply with this requirement. [ 19 ] Since the Court finds that Petitioner has paid to Respondent the amounts that were due before the judgment of March 15 th , 2023 and that therefore, the lease between the parties has not been resiliated, it will dismiss the Motion for leave to appeal, but without cost considering the circumstances.

THEREFORE, THE COURT : [ 20 ] FINDS and DECLARES that Petitioner has paid the amounts due to Respondent before the rendering of the judgment of the Tribunal administratif du logement dated March 15 th , 2023; and therefore [ 21 ] FINDS and DECLARES that the lease between the parties has not been resiliated; AND FOR THESE REASONS, THE COURT: [ 22 ] DISMISSES the Motion of Petitioner for leave to appeal the decision of March 15 th , 2023; [ 23 ] THE WHOLE without cost. __________________________________ MONIQUE DUPUIS, Q.C.J.