2019 QCCQ 528, 2019 QCCQ 528

Nayak c. Roland 2019 QCCQ 528 COURT OF QUEBEC Administrative and Appeal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-80-037172-187 DATE: February 6, 2019 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ SUCHIT NAYAK Plaintiff (lessor) v.

JANE ROLAND Defendant (lessee) and LA RÉGIE DU LOGEMENT Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is a de novo appeal of a decision rendered by the Régie du Logement (“RL”), on April 11, 2018, dismissing lessor Suchit Nayak’s application to repossess a dwelling which she has been renting to lessee Jane Roland since 2005 (“the decision”). [ 2 ] The decision reads as follows: « [1] Le locateur a produit une demande pour obtenir l'autorisation de reprendre le logement occupé par la locataire. [2] Les parties sont liées par un bail couvrant la période du 1 er juillet 2017 au 30 juin 2018 au loyer mensuel de 782 $. [3] Le 14 décembre 2017, le locateur a avisé la locataire qu'il entendait reprendre le logement pour s'y loger.

L'avis est conforme aux dispositions des articles 1960 et 1961 C.c.Q. [4] Le 12 janvier 2018, soit dans le délai prévu par l'

article 1962 C.c.Q. , la locataire a avisé le locateur qu'elle refusait de quitter les lieux. Le locateur a donc introduit la présente demande et ce, dans le délai prévu à l'

article 1963 C.c.Q. [5] Présente à l'audience, la locataire conteste les intentions du locateur quant à la reprise du logement. [6] La preuve prépondérante permet de conclure que le locateur n'a pas l'intention de reprendre le logement pour les fins mentionnées à son avis et qu'il s'agit d'un prétexte pour atteindre d'autres fins, la demande doit être rejetée. [7] Les parties ont deux autres dossiers en suspens où ils se poursuivent réciproquement d’où l’intention de reprendre le logement. PAR CES MOTIFS, LE TRIBUNAL : [8] REJETTE la demande du locateur qui en assume les frais. »

THE FACTS [ 3 ] In 2005, a lease agreement for a dwelling situated at [...], in Lachine, intervened between the parties. [ 4 ] The lease was renewed over the years. [ 5 ] The dwelling, which is a “5 ½”, is on the upper floor of a duplex.

[ 6 ] It is not in very good condition. The lessee, whose testimony was credible, described it as being “shabby, dirty and inappropriate for adults and kids”. [ 7 ] In the past, lessee has had to complain to the city about the presence of mold in the dwelling. Repairs were carried out, but the relationship between the parties was negatively affected. [ 8 ] The building is also apparently noisy.

The tenants living in the lower dwelling, can hear whatever is going on upstairs and vice versa . [ 9 ] Lessee has had altercations with tenants in the past. [ 10 ] One can gather that things are not rosy at the duplex. [ 11 ] Lessor has threatened to evict lessee in the past. Lessee has always refused to budge, and litigation has been ongling ( inter alia , application, exhibit D-1). [ 12 ] Lessee’s share of the monthly rent for the period from July 1, 2017 to June 30, 2018, was $244.00.

The rest was paid by the Office municipal d’habitation de Montréal (exhibit P-4). [ 13 ] Lessee lives in the dwelling with her 3 children. [ 14 ] On December 7, 2017, lessor sent lessee the following notice of repossession, under s. 1960 of the Civil Code of Québec : “Dear Ms. Roland, Please be informed, effective June 30, 2018, your lease will be TERMINATED . REASON : I Suchit Nayak, owner of [...], Lachine will be occupying the premises, as I am downsizing. Because I live alone. I cannot manage to upkeep a large house. I am putting my residence [...], Dorval, Qc for sale.

Please notify me ASAP that you have received this letter. Please make all the necessary arrangements for moving on June 30, 2018 . I hope you respect my legal right to downsize. Have a great day!” (exhibit P-5) [ 15 ] Lessee refused to leave. [ 16 ] On January 18, 2018, lessor filed an application for repossession, which was denied, on April 11, 2018. [ 17 ] Leave to appeal was granted, on May 30, 2018. [ 18 ] Lessor, who is a 72-year-old woman, lives alone in her own home in Dorval. [ 19 ] She put her house up for sale, after the decision was rendered.

She received 3 offers, but refused them, as the matter of repossession was not yet settled. It should be noted that one of the offers was above the market price of $650,000.00, as stated by lessor. The brokerage contract has since expired. ANALYSIS [ 20 ] Lessor did not prove, by a preponderance of evidence, that she truly intends to repossess the dwelling. [ 21 ] There were several inconsistencies in her testimony. [ 22 ] Lessor stated that she “couldn’t take the offers (for her home in Dorval) until the case was settled”.

Why then did she sign a brokerage contract after the decision was rendered and after filing her motion for leave to appeal? The Court believes that she did so with a view to present documentary evidence in support of her application, without there being true intent to occupy the dwelling. [ 23 ] Why would a 72-year-old woman, who owns a lovely home in Dorval (MLS listing, exhibit P-6), downsize to a “shabby” dwelling on the 2 nd floor of a noisy duplex? The Court thinks this is improbable. [ 24 ] Lessor’s testimony seemed rehearsed.

When she stated that she could no longer work in the garden, due to arthritis, high blood pressure, diabetes and high cholesterol, she quickly added and underlined that she had “no issues with (her heart)”. Later, in cross- examination, lessor was quick to repeat that she “had no heart condition, can go up the stairs, and goes to the gym regularly”. It was obvious that lessor was tailoring her testimony to suit the physical characteristics of the dwelling.

It has no garden, and one must climb many stairs to enter the dwelling, and go down a tricky spiral staircase to get to the backyard. [ 25 ] What also seems unlikely is that lessor, who is searching for a quiet and safe home, would choose a building where noise travels readily between floors, and altercations between occupants (needing police intervention, at times) have been known to occur. [ 26 ] What is also not credible about lessor’s stated position is that, although she has been living in Dorval for over 30 years, she claims that she has no friends or activities there, contrary to Lachine, which she purports to know well, because she has owned property in the city since 1983.

[ 27 ] Lessor declared that she is “losing tenants all the time”, because they “are afraid” of lessee; and then, in the same breath, added that she would be willing to pay for lessee’s moving expenses. [ 28 ] Let us not forget that lessor has tried to evict lessee in the past, and that there is outstanding and unresolved litigation before the Régie du Logement . [ 29 ] No one factor tips the scales of justice either way; but, based on the preponderance of evidence, and all of the above factors taken as a whole, the Court is left with the distinct impression that lessor wants lessee to move, not because she intends to move into the dwelling herself, but because lessee is a problem-tenant which she would like to be rid of.

Unfortunately, this does not justify an application under s. 1957 ff. CCQ . [ 30 ] In conclusion, the Court agrees with the decision rendered by administrative judge Marc Lavigne, on April 11, 2018, denying lessor’s application to repossess. WHEREFORE THE COURT HEREBY: DISMISSES the appeal, with costs. ______________________ ELIANA MARENGO, J.C.Q. Me Alexis Desgagné Hébert GAGNON & ASSOCIÉS Lawyers for plaintiff/lessor Me Lillian Kigler Lawyer for defendant/lessee Date of hearing: November 30, 2018