2018 QCCQ 1332, 2018 QCCQ 1332

Haque c. Corporation d'habitation Jeanne Mance 2018 QCCQ 1332 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Administrative and Appeal Division No: 500-80-036057-173 DATE: February 16, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON ______________________________________________________________________ Razibul HAQUE Plaintiff v.

Corporation D’habitation Jeanne Mance Defendant and Ville de Montréal Defendant & Third party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Petitioner, Mr. Razibul Haque, the lessee of the dwelling known as 164 Ontario East, seeks leave to appeal from a decision of the Rental Board rendered in Montreal by Commissioner François Leblanc, September 15, 2017 dismissing Mr.

Haque’s motion in revocation of an earlier decision rendered by the Rental Board by Commissioner Sophie Alain on June 13, 2017. [ 2 ] The decision of Commissioner Alain dismissed the Plaintiff’s claim against the lessor, Corporation D’habitation Jeanne Mance and a third party, Ville de Montréal, a claim for compensatory damages of $ 41,500 and moral damages for $ 5,000 and a decrease in rent of 30 %. [ 3 ] Commissioner Alain dismissed this demand after closing the proof because of Mr. Haque’s failure to attend the hearing of June 2, 2017.

The decision of June 13, 2017 also dismissed the claim against Ville de Montreal on the grounds that the Rental Board does not have jurisdiction for an extracontractual claim of the nature brought by Mr. Haque against Ville de Montreal. [ 4 ] The decision of September 15 th dismissing the motion for relocation dismissed Mr. Haque’s grounds based on his impossibility to attend the hearing of June 2, 2017.

The decision also dismisses his second ground for revocation based on the assertion that the Commissioner should not have taken cognizance of the written representations made by Ville de Montreal concerning absence of jurisdiction. Grounds for appeal [ 5 ] Mr.

Haque asserts in his motion that, because of the fact that he suffered from a psychological illness causing depression and affecting his memory and because he was taking anti-depression medication at the time when he was fasting during Ramadan, he was therefore prevented from attending the hearing of the morning of June 2, 2017. [ 6 ] He alleges that his mental condition, his observance of his religious duty to fast during Ramadan and to be awake at night to eat and to pray, made it impossible for him to get up early enough to attend the hearing. [ 7 ] At the hearing before this Court he also asserted that it was impossible for him to communicate with his opponent to request a postponement and that he did not have any friend or relative that could attend the hearing on his behalf in order to request a postponement. [ 8 ] He therefor wishes to have his appeal from the dismissal of his relocation heard by a judge of this Court.

Analysis [ 9 ] On the issue of jurisdiction, it is obvious the claim against the City of Montreal, based on extra contractual relations not resulting from a lease, is beyond the jurisdiction of the Rental Board. This part of the decision of June 13, 2017 is clearly correct and an appeal from it would be futile. [ 10 ] The part of the decision concerning Mr. Haque’s excuse for having not been present at the hearing of June 2, 2017 requires closer scrutiny however.

[ 11 ] After setting out the relevant principles concerning revocability of judgments, commissioner Leblanc focuses on the requirement that a party seeking a revocation must have shown diligence. According to a passage from the jurisprudence [1] : « [23] … Une

partie ne peut laisser cheminer une affaire judiciaire qui la concerne directement sans s'en préoccuper. Elle doit être empressée de faire valoir sa prétention et de préserver ses droits. Les règles de procédure ne peuvent être modulées pour tenir compte du laxisme d'une partie. » [ 12 ] Following this quotation, the Commissioner states the essence of his decision as follows [2] : « [13] Or, le locataire savait qu’il avait de la difficulté à se réveiller et qu’il risquait fort de ne pouvoir se présenter à l’audience.

Il aurait donc dû prendre des mesures afin de demander une remise ou de se faire représenter à l’audience, ce qu’il n’a pas jugé bon de faire.

Il ne peut donc s’en prendre qu’à lui-même. » [ 13 ] The factual analysis leading to that decision is summarized as follows: « [3] Le locataire allègue n’avoir pu se présenter à l’audience en raison d’un problème de santé et plaide, de plus, lors de l’audience que le Tribunal est allé au-delà de la demande. [4] Quant à ses problèmes de santé, le locataire met en preuve qu’il prend plusieurs médicaments, lesquels à l’époque de l’audience du 2 juin, ne pouvaient être pris le jour, puisque c’était pendant la période du Ramadan. [5] Le locataire affirme avoir prié la veille jusqu’à 4 h du matin, ce qui n’est pas contesté par le locateur.

Le tout ayant empêché le locataire de se réveiller pour l’audience. [6] À ce sujet, l’avocat du locateur lui a fait préciser que le Ramadan avait débuté le 27 mai et qu’il lui était arrivé d’avoir de la difficulté à se lever. [7] Il plaide donc que la demande du locataire devrait être rejetée vu sa négligence et fait témoigner un représentant du locateur afin d’établir qu’il aurait été facile pour le locataire de les contacter afin d’obtenir une remise. » [ 14 ] In the Court’s view, this analysis, while following the general guidelines applicable to revocation, appears, at least at first view, to be unnecessarily harsh. [ 15 ] While there is no suggestion that the Commissioner treated the circumstances associated with Ramadan and an illness occurring during Ramadan any differently than any other illness, the idea that the lessee should have, in the middle of the night, made arrangements to have someone represent him at the hearing and/or communicate with the lessor in order to secure a postponement is perhaps somewhat unreasonable. [ 16 ] Ramadan commenced that year a few days before the hearing and the lessee has a certain awareness of his psychological condition and his susceptibility to difficulties of this sort but the decision appears weak in justifying the assertion that the lessee should have anticipated, before the events of June 2 nd , that he would need a postponement because it was Ramadan and because he was sick. [ 17 ] Without expressing its own opinion, the Court finds that the Commissioner arrives at the decision that the lessee was negligent and the author of his own misfortune rather quickly.

The lessee informed the Court, for example, that he wanted to demonstrate at the revocation hearing that the lessor was in fact very difficult to reach in his experience and in the experience of other tenants, but that his witness was not heard on this point. [ 18 ] While it may be that an appeal fails to show that the Commissioner’s decision was not justified, the Court is of the view that this question requires a more profound analysis and consideration of all the relevant evidence that the lessee would like to bring before the matter is disposed of. [ 19 ] When a Plaintiff does not attend the hearing in a matter that he is serious about, the decision that his absence was due to a lack of interest or that it resulted from his negligence is one that should be made upon careful consideration. [ 20 ] The parties will be permitted to bring evidence on the matter before the judge hearing the appeal.

FOR THESE REASONS THE COURT: ALLOWS in part the motion for permission to appeal; PERMITS the appeal of the decision of September 15, 2017, dismissing of the motion of revocation of judgement June 13, 2017; DEFINES the question in appeal as follows: Did the Commissioner err in deciding that the lessee did not have sufficient cause preventing him from being present at the hearing of June 2, 2017 and that his absence was a result of his own failure to take steps to request a postponement or to be represented at the hearing? __________________________________ DAVID L. CAMERON, J.C.Q.

M. Razibul Haque Plaintiff Me Marc Cantin for the Corporation D’habitation Jean-Mance Defendant Date of hearing: January 31, 2018