2015 QCCQ 1197, 2015 QCCQ 1197

Nordic Development Corp. c. Adu 2015 QCCQ 1197 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT DE MONTREAL Civil Division N° : 500-22-210865-146 DATE : February 20, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ NORDIC DEVELOPMENT CORP. Plaintiff v.

VANDALINE ADU -and- JERIPHER YAW OPPONG Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The lessor Nordic Development Corp. (the lessor) sued its lessee Jerivan Communications Inc. (the lessee) and its two representatives who acted as guarantors, Vandaline Adu and Jeripher Yaw Oppong [1] . [ 2 ] At the hearing, the lessor amended its action and withdrew its claim against Jerivan Communications Inc., leaving Mrs. Adu and Mr.

Oppong as sole Defendants. [ 3 ] The lessor sued these three parties based on a commercial lease [2] (the Lease) and is claiming $27,034.43 for unpaid rent. [ 4 ] Mr. Oppong denied owing such amount, explaining that he signed the renewal of the Lease under pressure and could not operate Jerivan Communications Inc. anymore, adding he had no money to pay the rent. QUESTION IN ISSUE Does the lessor have the right to obtain payments for the unpaid rent from Mrs. Adu and Mr. Oppong? CONTEXT AND ANALYSIS [ 5 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [3] .

In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence . This implies that the demand must demonstrate that the existence of a fact is more probable than its non-existence [4] . [ 6 ] All relevant elements of evidence are analysed by the Court. The probability is evaluated based on the direct evidence, the circumstances and the presumptions [5] . [ 7 ] On November 29, 2013, Mrs. Adu and Mr.

Oppong, acting as authorized agents, renewed the Lease of the lessee for the period of January 1, 2014 to December 31, 2014 [6] . In view of some problems with the operation of the lessee, they had to vacate the commercial premises in May 2014. [ 8 ] Considering that the lessee failed to pay the rent, a demand letter was sent on March 13, 2014 [7] . [ 9 ] The documentary evidence established :

a) the calculations of the rent, which included a minimum net base rent and an additional rent for various operating expenses [8] ;

b) Mrs. Adu and Mr. Oppong put their initials on approximately 35 pages and on various annexes, detailing the terms and conditions of the Lease. The initialed pages indicated : The parties do hereby acknowledge, confirm and agree that the foregoing recitals are true in substance and in fact and that such recitals

form an integral part hereof.

c) the lessor had the right to maintain and repair the building [9] ;

d) the lessor obtained a Safeguard Order on April 29, 2014 by judgment rendered by Mrs. Justice Diane Quenneville, J.C.Q. Such Safeguard Order was served upon Mrs. Adu and Mr. Oppong on May 8, 2014, to get deposits of rent into the lessor’s lawyer trust account. However, no payment was made and the Safeguard Order was not respected;

e) on May 31, 2014, the unpaid rent plus adjustements amounted to $21,332.48 [10] ;

f) in case of default by the lessee, the lessor had the right to claim $5,701.95 representing the accelerated rent [11] ;

g) in addition to the solidary liability clause mentioned in the Lease [12] , Mrs. Adu and Mr. Oppong signed a suretyship agreement where they agreed to pay the rent, in case of default by the lessee [13] . [ 10 ] Mr. Oppong pleaded that he and his wife signed that renewal of the Lease under pressure, without understanding its terms. [ 11 ] The testimonial evidence established that the lessee had been a tenant in those commercial premises since 2001. [ 12 ] The notice of renewal of the Lease was received by Mrs. Adu and Mr. Oppong on October 31, 2013. [ 13 ] The Lease was signed on November 29, 2013. [ 14 ] Mrs.

Adu and Mr. Oppong had a month to read the terms and conditions of the Lease or take that time to consult an attorney, if necessary. [ 15 ] Mr. Oppong pleaded that the Lease of 2014 contained clauses which were not found in the previous leases. However, Mr. Oppong did not provide evidence regarding any prior leases. The Court therefore cannot accept that argument. [ 16 ] The defence of Mrs. Adu and Mr. Oppong has no probative value. [ 17 ] Mr. Oppong admitted owing the rent, but explained that the business went down and that he had no money to pay the rent.

This reality, although difficult to live, does not constitute a valid defense. [ 18 ] Under the balance of probabilities, the lessor has established that the lessee owed an amount of $27,034.43 and that Mrs. Adu and Mr. Oppong, by the suretyship agreement, are solidarely responsible to reimburse such amount to the lessor.

FOR THESE REASONS, THE COURT : GRANTS the action of Plaintiff Nordic Development Corp. against Defendants Vandaline Adu and Jeripher Yaw Oppong; CONDEMNS solidarely Defendants Vandaline Adu and Jeripher Yaw Oppong to pay $27,034.43 to Plaintiff Nordic Development Corp., plus the legal interest of 5% per annum and the additional indemnity provided for at

article 1619 of the Quebec civil Code, calculated as of March 13, 2014; RESILIATES and CANCELS the lease entered into between Plaintiff Nordic Development Corp. and Jerivan Communications Inc. for the premises located at [...] in Montreal; ORDERS that the judgment be executory, notwithstanding appeal; THE WHOLE , with costs. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Me Hershie Frankel FRANKEL & SPINA Plaintiff’s attorney Defendants represented by Mr. Jeripher Yaw Oppong himself Date of hearing : December 18, 2014

[1] The terms landlord / lessor or tenant / lessee can be used.