2015 QCCQ 1114, 2015 QCCQ 1114

McGaw c. Fiducie André Perron 2015 QCCQ 1114 COURT OF QUEBEC Administrative and Appeal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-80-028891-142 DATE: February 3, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ LILLI-ANNE McGAW Petitioner / Tenant v.

FIDUCIE ANDRÉ PERRON A/S MARIE-ANDRÉE PERRON Respondent / Landlord ______________________________________________________________________ JUDGMENT [ 1 ] The Court is ceased of an amended motion by the Tenant to appeal from a decision of the Rental Board, rendered on June 25, 2014, Commissioner Ross Robins presiding. [ 2 ] The decision is the final stage in a number of files that were joined for hearing.

For the purposes of this Motion for leave to appeal, the proceedings that the Commissioner disposed of, are as follows: he resiliated the lease and ordered the expulsion of the occupants of the dwelling pursuant to the Landlord’s application. [ 3 ] Two grounds for awarding this resiliation are discussed.

The first is the tenant’s failure to comply with the Tribunal’s order to have her oil tank filed with home heating oil as quickly as possible and to insure that the oil of the tank is replenished on an ongoing basis. [ 4 ] Prior to the order, the Commissioner had heard testimony at the hearing of January 14, 2013, to the effect that the tenant’s oil tank had been empty since January 2 nd , and there was a risk that the pipes in the building would freeze. [ 5 ] After the interim order signed January 16, 2013, there were two subsequent hearings.

At the second of these, on January 6, 2014, the Commissioner heard expert testimony that the tenant’s oil gage had been read as below zero, on January 19, 2013. [ 6 ] The Landlord admitted that an oil delivery had been made later that day, but maintained that, subsequently, the Tenant allowed the tank to go empty again on February 18, 2013, again on November 8, 2013 and on December 29, 2013. [ 7 ] The procedures of calling up on a technician to start the furnace became necessary on two occasions after the Tenant had obtained an oil delivery. [ 8 ] The Commissioner mentions that the Tenant’s testimony was unclear as to whether the tank was empty on one of these occasions and this testimony also established clearly that the Tenant had no contract for automatic deliveries. [ 9 ] The second ground for the resiliation of the lease is the Commissioner’s concern about the Tenant’s conduct, irreconcilable with the obligation of good faith imposed by the Civil Code of Quebec at

article 7 and 1375 . This relates to a series of insults including those contained in letters. [ 10 ] A careful reading of the decision reveals that each of these two grounds is a self-standing reason that the Commissioner considers sufficient to order resiliation. [ 11 ] The judgment is also important in that it declares the Tenant’s application abusive and forecloses her from filing any additional applications, in any of the files forming part of the case without the express authorization of the presence of the Tribunal or his appointee.

GROUNDS OF APPEAL [ 12 ] In her amended motion for leave to appeal, the Tenant eliminates several of the allegations and grounds as formulated in the original conclusions. After the amendments, there are four grounds which are expressed as follows:

E) Le juge administratif a-t-il commis une erreur dans l’inférence qu’il fait aux paragraphes [59] et [60] comme étant suffisants

pour justifier une résiliation de bail ? E.1) De manière plus générale :

a) Un juge administratif peut-il résilier un bail en vertu de l’

article 1973 al. 2 C.c.Q. , suite au non-respect d’une ordonnance intérimaire rendue en vertu de l’art. 9.8 al. 2 de la

Loi sur la Régie du logement ?

b) Un juge administratif peut-il prononcer la résiliation d’un bail pour non-respect d’une obligation contractuelle ou légale, en l’absence de la preuve d’un préjudice sérieux ? E.2) Les lettres adressées à une

partie absente à l’audience sont-elles suffisantes pour prouver le préjudice subi par ladite

partie à leur réception; E.3) Le droit à une défense pleine et entière est-il miné, lorsque la

partie défenderesse ne peut contre-interroger la

partie demanderesse sur les faits allégués dans sa demande ? Criteria applicable to the MOTION FOR leave to appeal [ 13 ]

Article 91 of the Act respecting the Régie du logement [1] expresses the criteria for permission to appeal in terms of the expression: "when the matter at issue is one which ought to be submitted to the Court of Quebec". [ 14 ] This general expression has been declined to a series of criteria which go both to the impact of the errors alleged on the decision and the outcome for the parties and to the interest the question might have in the jurisprudence because it is new, of general interest, or because it is part of a controversy. [ 15 ] There is also the importance of issues that go to the process, when there has been a failure to follow natural justice, inadequate motivation of the decision and the like. [ 16 ] Grounds E and E.1 relate to rules respecting resiliation.

The issue is whether, in this case, the resiliation of the lease occurred as a result of a failure on the part of the Tenant to follow an order given by the Régie du logement to the Tenant to perform an obligation, whether the failure to respect that order can only be a reason for resiliation when prejudice has occurred and whether the decision- maker’s assessment of the prejudice in this case should be maintained. [ 17 ] The last two grounds relate to process: was there a procedural prejudice to the Tenant because of the absence of her direct opponent at the hearing, which would have prevented her from cross-examining ?

ANALYSIS [ 18 ] Turning first to the issues relating to the resiliation, the Court is of the view that the appeal does not raise serious enough questions to merit the Court’s further analysis. [ 19 ] First there is the question of whether the order made in the present case, part of what appears to be a safeguard order, should be considered to have been made under

article 973 of the Civil Code of Québec . [ 20 ] That question depends upon an

interpretation of the procedures that were followed in this case.

The judgment gives sufficient grounds for resiliation on the basis of the facts as revealed through a succession of hearings before and after the order was made. [ 21 ] The reasons make it clear that the Commissioner was of the view that it was prejudicial for the Landlord to be faced with the insecurity and inconvenience of the Tenant having failed to prevent the oil tank from becoming empty through a contract of successive performance with an oil supplier. [ 22 ] The Tenant’s resistance to having such a contract went unexplained and the problem persisted.

The fact that the Tenant could not give any adequate explanation or answer to the allegation that the tank had been empty on several occasions was proper material on which the Commissioner could form an opinion. [ 23 ] At the end of the process, the Tenant had been given adequate opportunity to solve the problem and it was open to the Commissioner to apply

article 973 , granting the resiliation immediately at that stage, irrespective of the fact that the previous order had not been complied with. Thus the questions raised are not dominant in the analysis and do not justify an appeal. [ 24 ] On the issues relating to process, the Court is not convinced that there is any serious reason to rehear the case related to the fact that a person connected with the Landlord was not present and therefore could not be cross-examined.

The presence or absence of this person is not of great significance in a case where the decision maker was focussing on technical issues requiring a debate between experts. The Tenant’s motion does not establish for what reason precisely this person’s testimony would have been crucial. [ 25 ] Finally, the motion raises, in item E-2, the question whether the letters addressed to this individual had actually been proved to have constituted a prejudice.

[ 26 ] Based on a description of the content of the letters, it is possible to discern that the Commissioner found them to be prejudicial in and of themselves because of the nature of their content. [ 27 ] Even if this ground for resiliation were found to be insufficient because of a lack of prejudice, the other ground, relating to oil supply, would have been sufficient. [ 28 ] The Court will therefore not authorise the appeal. [ 29 ] The parties subscribed to an undertaking that was recorded in the minutes at the hearing before the undersigned that, in the case where the motion for a leave to appeal were dismissed, the suspension of the execution maintained throughout the proceedings before the Court of Quebec, would come to an end only on May 30, 2015. [ 30 ] The parties’ express undertaking to establish the modality of the end of the suspension are sufficient to give the Court jurisdiction in that regard and the conclusions therefore follow this undertaking.

FOR THESE REASONS, THE COURT : DISMISSES the Motion for a leave to appeal from the decision of the Rental Board; ORDERS that the suspension of the execution of the decision of the Rental Board of June 25, 2014, be maintained until May 30, 2015 by consent of the parties. _________________________________ DAVID L. CAMERON J.C.Q. Me Thierry Muhgoh Thierry Muhgoh, Avocat Attorney for the Petitioner/Tenant Me Simon Lahaie Lahaie, Avocats Attorney for the Respondent / Lessor Date of hearing: December 3, 2014