2018 QCCQ 966, 2018 QCCQ 966

Ezard c. D'Haiti 2018 QCCQ 966 COURT OF QUEBEC «Administrative and Appeal Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-80-035227-173 DATE: February 22, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ ANN EZARD Plaintiff v.

JEAN ONEL D’HAITI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] As per the judgment rendered by Judge Piazza on August 2 nd 2017, the present appeal was allowed on the following question: Was the difficulty of the Plaintiff to transmit her rent payments relevant to the Defendant’s recourse in cancellation of the Plaintiff’s lease? [ 2 ] The Decision of the Rental Board suggests that it was not [1] . [11] Moreover, the communication difficulties that have arisen between the parties owing to the fact that the lessor has not provided her with more specific mailing information is irrelevant to the resolution of this dispute, which concerns only non-payment of the rent and the resiliation of the lease as a result thereof. [12] Moreover, it seems that the lessee did not experience any problems at the time she gave the lessor her rent cheques.

The lessor cashed them, albeit sometimes with a certain delay, it is true.

The problem in this case is related first and foremost to the fact that the cheques were frequently returned by the bank for NSF, a situation for which the lessee is primarily responsible. [...] [17] After carefully analyzing the documents submitted, consisting mainly of cheques returned by the bank stamped " [TRANSLATION) item dishonoured," the Tribunal concludes that the amounts claimed by the lessor in accordance with the statement of account submitted at the hearing reflect the reality, save and except for the rent for June 2016. [...] [21] Even though she was instructed at the hearing to submit a cheque duly cashed for that month, and despite the time limit granted to trace the cheque, the lessee did not submit any proof of payment relating thereto; instead, she merely told the undersigned that her bank could not trace a cheque issued for "[TRANSLATION] May 2015". [...] [28] In September 2016, two cheques were returned by the bank for NSF, but only one was replaced and cashed on September 15.

Therefore, on September 30, 2016, another amount of $325 was added to the outstanding balance. [29] In October 2016 and November 2016, the bank also returned some cheques for NSF, for an amount of $1,300. Two cheques in the amount of $325 were then given as a replacement, for a total of $650, that is, cheques number 30 and 31.

An additional balance of $650 was therefore outstanding at the end of those two months. [30] In December 2016, only one cheque could be cashed, so that a balance of $325 was also added for that month. [31] Therefore, it seems that, on December 31, 2016, that is, even before the lessee lost her job, she owed the lessor a balance of $2,275. [32] Having said that, the Tribunal must add $1,300, that is, the unpaid rent for January and February 2017, to the outstanding balance. [33] On the day of the hearing, an amount of $3,575 was therefore due to the lessor in unpaid rent.

[34] The lessee is more than three weeks late in paying the rent; the resiliation of the lease is therefore justified pursuant to

Article 1971 C.C.Q. [...] [38] The lessee will therefore be able to avoid the resiliation of the lease if she pays the rent due with interest and costs before a decision is rendered. [ 3 ] It should be pointed out that even though the Plaintiff was given the opportunity to avoid resiliation of the lease by paying the rent due, with interest and costs, before the Decision from the Rental Board was rendered, she failed to do so. [ 4 ] Plaintiff gave no legitimate reasons why she defaulted on a number of payments other that her difficulty to reach the Defendant by mail.

This might explain why some payments were late but it cannot account why a number of payments were dishonoured by reason of insufficient funds. [ 5 ] The appeal raises no reason why this Decision should be overturned. FOR THESE REASONS, THE COURT: DISMISSES the appeal. WITH judicial costs. __________________________________ GILLES LAREAU, J.C.Q. Date of hearing: January 12, 2018 [1] Decision of the Rental Board, dated April 12, 2017.