2021 QCCQ 1444, 2021 QCCQ 1444

Casimy c. Chen 2021 QCCQ 1444 COURT OF QUEBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-02-244798-208 DATE: February 23, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ JEAN-ÉMILE CASIMY Plaintiff v.

DONG CHEN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On November 11, 2020, the Tribunal administratif du logement (« TAL ») issued a ruling in which it resiliated the lease between Mr. Jean-Émile Casimy (the « Tenant ») and Mr. Dong Chen (the « Landlord »), ordered Mr. Casimy’s eviction and condemned him to pay his Landlord $745 plus interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec (« C.C.Q. »), and costs of $101 (« November 11 Decision »). [ 2 ] However, the administrative judge also held that pursuant to

article 1883 C.C.Q. , Mr. Casimy could avoid the resiliation of the lease if he paid his Landlord before the judgment, in addition to the rent due, costs and interest. [ 3 ] On January 26, 2021, Mr. Chen served an eviction notice on Mr. Casimy. [ 4 ] Mr. Casimy has applied to the Court to oppose the seizure in execution and eviction proceedings. He raises two arguments. [ 5 ] Firstly, he argues that he and the Landlord entered into a transaction agreement whereby he could avoid resiliation of the lease and his eviction if he paid the rent due, costs and interest by December 1 rather than before the judgment.

In other words, he argues that his Landlord waived his right to receive payment of all amounts owed before the judgment. [ 6 ] Subsidiarily, he argues that even if the Court concludes that he has failed to prove the transaction agreement, he nonetheless paid the rent due before the judgment and paid the interest and costs on November 27 only because it was impossible for him to know before receiving the November 11 Decision that he could avoid eviction by paying these amounts.

Given these circumstances, and considering his good faith, he argues that the Court should exercise its discretion and apply the forgiving line of jurisprudence which interprets

article 1883 C.C.Q. and quash the seizure. [ 7 ] Mr. Chen argues that the parties never entered into any agreement whatsoever relating to the payment of the rent due, interest and costs. He never waived his right to insist on the eviction of the Tenant if these sums were not paid before the judgment. [ 8 ] Secondly, he argues that the provisions of

article 1883 C.C.Q. and the November 11 Decision are clear. His Tenant, Mr. Casimy, did not pay the rent due plus costs and interest before the judgment and therefore full effect should be given to the November 11 Decision and Mr. Casimy should be evicted. [ 9 ] Mr. Casimy’s Application in Opposition of the Seizure and Execution raises two issues. [ 10 ] Firstly, the Court must determine whether the Landlord and Mr. Casimy entered into a transaction agreement whereby Mr. Chen waived his right to receive rent due, costs and interest before the judgment and agreed not to evict Mr.

Casimy so long as the amounts were paid by December 1. [ 11 ] If the Court concludes that the parties never entered into this transaction agreement, the Court must decide whether owing to the particular circumstances of this case, namely given that neither the Landlord nor the Tenant knew before receiving the November 11 Decision that the Tenant could avoid eviction if he paid rent due, interest and costs before receiving the judgment, the Court should apply the line of authority which favours a lenient and forgiving application of the rule set forth in

article 1883 C.C.Q. Analysis and Decision

a) Has Mr. Casimy shown that the Landlord waived his right to enforce the Tribunal administratif du logement’s November 11 Decision?

[ 12 ] Mr. Casimy argues that on or about November 6, 2020, he and his Landlord entered into an agreement whereby Mr. Chen agreed that he could avoid eviction if he paid rent due, costs and interest no later than December 1 rather than before the judgment. [ 13 ] Mr. Chen denies that he ever entered into any agreement with Mr. Casimy with regards to the November 11 Decision. [ 14 ] Before addressing the circumstances in which the alleged agreement would have been entered into, the following background information is relevant. [ 15 ] Sometime in 2018 or 2019, Mr.

Chen purchased a multiunit apartment building in Montréal North. [ 16 ] Mr. Casimy had been a tenant in this apartment building since 2010. Mr. Chen took over the lease when he acquired the property. [ 17 ] According to the November 11 Decision, the monthly rent payable was $665, although up to receiving the decision, Mr. Casimy had argued that the monthly rent was in fact $645. [ 18 ] In July 2020, Mr. Chen filed an Application regarding unpaid rent before the Tribunal administratif du logement against Mr.

Casimy in which he alleges that his Tenant is over three weeks late in paying the rent and asks for the resiliation of the lease, the eviction of his Tenant and the payment of unpaid rent. [1] [ 19 ] The trial took place before the administrative judge on November 5, 2020. [ 20 ] The administrative judge signed his ruling on November 11, 2020.

He concludes as follows: [9] RÉSILIE le bail pour retard de plus de trois semaines dans le paiement du loyer et ORDONNE l'expulsion du locataire et de tous les occupants du logement; [10] CONDAMNE le locataire à payer au locateur la somme de 745 $, plus les intérêts au taux légal et l'indemnité additionnelle prévue à l'

article 1619 C.C.Q. , à compter du 2 octobre 2020 sur la somme de 80 $, et sur le solde à compter de l'échéance de chaque loyer, plus les frais de justice de 101 $; [11] REJETTE la demande quant aux autres conclusions. [ 21 ] However, he also adds in paragraph 8 of his ruling that : [8] Le bail n’est toutefois pas résilié si le loyer dû, les intérêts et les frais sont payés avant jugement, conformément aux dispositions de l’article 1883 C.C.Q. [ 22 ] For Mr.

Casimy to prevail on his opposition to the eviction proceedings based on his first argument, he must show that he and his landlord entered into a transaction agreement through which Mr. Chen clearly and unequivocally agreed to waive his right to receive payment of rent due, interest and costs before the November 11 Decision. [2] [ 23 ] This argument is wholly dependent on the facts of this case, including the Court’s evaluation of the parties’ credibility. [ 24 ] Mr.

Casimy has the burden of proof of proving on the balance of probabilities that the parties entered into a transaction agreement whereby his landlord waived the right to enforce the November 11 Decision. [3] [ 25 ] The proof supporting the alleged agreement must be clear and convincing and based upon cogent evidence. [4] [ 26 ] The facts adduced at the hearing on opposition reveal the following. Only two witnesses were heard, Mr. Casimy and Mr. Chen. [5] [ 27 ] On November 5, 2020, later in the day after the hearing before the TAL, Mr. Chen called Mr.

Casimy to inform him that he would come to his apartment on the following day to collect the rent due for the month of November. [ 28 ] On November 6, Mr. Chen in fact did attend Mr. Casimy’s apartment to collect the rent payment. [ 29 ] Mr. Casimy and Mr. Chen’s version of the events which occurred on November 6 differ substantially. [ 30 ] During this meeting, Mr. Casimy asked his Landlord how much he owed him. Mr. Chen answered that he did not know precisely how much was owed. Mr. Casimy then offered to give Mr.

Chen a cheque for $645, representing what he believed was the rental payment for the month of November 2020. He further proposed that since neither he nor his Landlord knew how much precisely was owed, they would agree to wait for the TAL to issue its ruling, and once it was issued, Mr. Chen would determine the exact amount, inform Mr. Casimy, and the latter would pay whatever was owed. [ 31 ] According to Mr. Casimy, Mr. Chen agreed with this proposal. Mr. Casimy proceeded with giving Mr. Chen a cheque for $645. [6] [ 32 ] On November 27, 2020, Mr. Chen sent the following text message to Mr.

Casimy: Bonjour Casimy, selon la décision du Tribunal administratif du logement (no demande 3032742) du 11 novembre 2020, vous devez me payer 258.44$ = 745 + 0,66 (intérêt sur 80$ + 56.78 (intérêt sur le solde à compter de l’échéance de chaque loyer) + 101 – 645 (reçu pour le loyer de novembre.) avant le 1 [7]

( sic ) [ 33 ] Later on the day of November 27, Mr. Casimy remitted to Mr. Chen a cheque for $258.44 in payment of the balance owed further to the November 11 Decision. [8] [ 34 ] This cheque was cashed by Mr. Chen on or about November 29, 2020. [9] [ 35 ] Mr. Chen categorically denies that he entered into an agreement with Mr. Casimy on November 6 or at any time after the November 5 hearing. He adds that he never waived any of his rights under the November 11 Decision. [ 36 ] He admits that he collected Mr. Casimy’s rental cheque on November 6 for the rent owed for that month and that during this visit Mr.

Casimy asked him how much he owed him further to the November 5 hearing before the TAL. [ 37 ] However, he adds that he told his Tenant that he did not know the specific amount and that the parties did not discuss anything else, much less enter into any agreement of any kind whatsoever. [ 38 ] As stated above, the evidence as to the existence of a transaction agreement is contradictory. [ 39 ] Mr. Casimy had the burden of proving this agreement. [ 40 ] Mr. Chen’s testimony refuting Mr. Casimy’s claim that the parties entered into a transaction agreement is credible and reliable.

There is no reason to set aside his testimony. [ 41 ] Mr. Casimy has failed to prove that Mr. Chen clearly and unambiguously greed to waive his right to receive payment of rent due, interest and costs before the judgment. [ 42 ] Moreover, if, as both parties admit, neither of them knew on November 6 what the outcome of the November 5 hearing would be and whether Mr. Casimy owed his landlord any amount, then it is not plausible that they would enter into an agreement like the one Mr. Casimy claims they entered into. [ 43 ] Mr.

Casimy has failed to prove that his Landlord waived his right to enforce the Tribunal administratif du logement’s November 11 Decision. His first ground of opposition is dismissed.

b) Given t he particular circumstances of this case, should the Court apply the line of authority which favours a lenient and forgiving application of the rule set forth in

article 1883 C.C.Q. and quash the seizure and eviction proceedings even though the tenant did not pay the rent due, interest and costs before the judgment? [ 44 ] Mr. Casimy argues that even if the Court does not side with the waiver argument, the Court should apply the “forgiving line of authority” and owing to the particular circumstances of this case, grant him relief, quash the seizure, notwithstanding that he did not pay the rent owed, the interest and costs before the November 11 Decision. [ 45 ] Mr. Chen argues that the terms of

article 1883 C.C.Q. and the judgment are clear. Since Mr. Casimy did not pay the rent owed, the interest and the costs before November 11, full effect should be given to the November 11 Decision and the eviction proceedings should be allowed to proceed. [ 46 ]

Article 1883 C.C.Q. states: 1883. A lessee against whom proceedings for resiliation of a lease are brought for non-payment of the rent may avoid the resiliation by paying, before judgment , in addition to the rent due and costs, interest at the rate fixed in accordance with

section 28 of the Tax Administration Act (chapter A-6.002 ) or at any other lower rate agreed with the lessor. [Underlining Added] [ 47 ] The purpose of this

article is to give a tenant who is late in the payment of his/her rent a second chance. The provision is of public order in residential leases and parties to such a contract cannot opt out of it. It reflects the legislator’s intent in preserving and fostering tenants’ rights to maintain in the dwelling. As such, in the context of a residential lease,

article 1883 C.C.Q. should be interpreted in a broad and purposive fashion and in such a way as to fulfill the legislator’s intent. [ 48 ] According to one line of authority, if an Administrative Housing Tribunal decision orders the resiliation of a lease and the eviction of the tenant subject to his right to cure the default under

article 1883 C.C.Q. , the Court of Québec has no discretion to block eviction proceedings if the tenant has not paid the rent due, the interest and the costs before the date of the judgment, even where the amount still owing is minimal or if the payment was made very shortly after the date of the judgment. [10] [ 49 ] A second line of authority is more forgiving towards tenants and affords the court discretion and flexibility based on the specific circumstances of the case. [11] According to this line of jurisprudence, if the tenant pays the rent before he/she acquires knowledge of the Tribunal administratif du logement decision, and only a modest amount in interest and costs remains outstanding after the judgment, the court may allow the lease to remain in force and block the eviction proceedings if all outstanding amounts are fully paid by the date of the hearing before the Court of Québec, absent a showing of bad faith on the tenant’s part or if the tenant is found to have taken undue and unreasonable advantage of the “last chance” afforded by

article 1883 C.C.Q. [ 50 ] This forgiving line of jurisprudence is reflected in the following decisions: Germain v. Holness [12] , Martel v. Jean- Baptiste [13] , Seigneurie Lasalle v. Buteau [14] , and 9215-9029 Quebec inc . v. Perreault [15] . [ 51 ] In Seigneurie Lasalle v. Buteau , Justice Luc Huppé explains the underlying premise for the forgiving line of authority as follows: [16]

[17] L’

article 1883 du Code civil du Québec est situé dans une

section du Code applicable à tous les types de baux. Il reçoit donc application tant à l’égard de baux résidentiels que de baux commerciaux. Le législateur a cependant établi, aux articles 1892 à 2000 du Code civil du Québec , un régime particulier concernant le bail d’un logement. Lorsque l’

article 1883 du Code civil du Québec reçoit application à l’égard du bail d’un logement, il est donc requis de l’interpréter de manière compatible avec la philosophie qui sous-tend les dispositions particulières à ce type de bail. [18] Ainsi, on peut noter qu’à l’

article 1893 du Code civil du Québec , le législateur prive d’effet toute disposition d’un bail portant sur un logement qui déroge à l’

article 1883 . Ce qui signifie que le législateur accorde une importance spéciale à la faculté accordée au locataire d’un logement d’éviter la résiliation de son bail en raison d’un loyer impayé. … [20] En outre, bien que la règle générale soit que le bail à durée fixe cesse de plein droit à l’arrivée du terme, le législateur accorde plutôt au locataire d’un logement un droit au maintien dans les lieux : il ne peut être évincé du logement loué que dans les cas prévus par la loi et il a droit à la reconduction de plein droit du bail à durée fixe lorsque celui-ci prend fin.

Le défaut du locataire d’un logement de payer le loyer n’est une cause de résiliation du bail que si le locataire est en retard de plus de trois semaines ou lorsqu’il retarde fréquemment le paiement mais, dans ce dernier cas, seulement si le locateur en subit un préjudice sérieux. [21] Toutes ces dispositions reposent clairement sur une volonté de protection du locataire et de l’occupation qu’il fait du logement loué. De l’avis du tribunal, c’est aussi dans cet esprit qu’il faut aborder l’application de l’

article 1883 du Code civil du Québec au bail d’un logement. Dans la mesure où le locataire exerce ses droits selon les exigences de la bonne foi et qu’il ne cherche pas à tirer profit de manière déraisonnable et excessive du régime particulier établi à son bénéfice, il y a lieu d’appliquer de manière souple la faculté qui lui est accordée par cette disposition d’éviter la résiliation de son bail . [References Omitted- Underlining Added] [ 52 ] Justice Nathalie Chalifour echoes this view in Martel v.

Jean-Baptiste : [17] [14] En matière de bail de logement résidentiel, les dispositions du Code civil du Québec cherchent à favoriser le maintien du locataire dans les lieux loués et à limiter les cas de terminaison forcée du bail. [15] Le droit au maintien dans les lieux loués est non seulement un droit fondamental du locataire, mais aussi la pierre d’assise du bail résidentiel. [ 53 ] The court agrees with the foregoing comments of Justice Huppé and Justice Chalifour. [ 54 ] For the reasons explained below, the circumstances of this case warrant applying the forgiving line of authority and allowing Mr.

Casimy to avail himself of the last chance afforded by the terms of the November 11 Decision and

article 1883 C.C.Q. even though he did not pay the interest and costs owed to his landlord before the judgment. [ 55 ] According to the November 11 Decision, Mr. Casimy could avoid resiliation of the lease and eviction from the leased premises if he paid his landlord the rent owed, amounting to $745 [18] , plus interest, plus costs of $101 before the judgment. [ 56 ] In the instant case, going into the November 5 hearing at the TAL, Mr.

Chen was asking for the resiliation of the lease and eviction of his tenant, and recovery of rent owing at the time of the hearing on the grounds that his tenant was over three weeks late in paying the rent, or subsidiarily, that the tenant was frequently late in paying the rent which caused him serious injury (art. 1971 C.C.Q. ). [ 57 ] Mr. Casimy contested the application and argued that he was not late in paying rent because: 1) he had an agreement with his former landlord whereby rent was payable on the twentieth of each month and not the first of the month and that this agreement remained in force when Mr.

Chen purchased the apartment building, and 2) he never accepted his landlord’s $20 monthly rent increase and thus the monthly rent payable was $645. [ 58 ] No proof was made by the landlord that during the November 5 hearing, the administrative judge told Mr. Casimy that he owed Mr. Chen rent, much less a specific amount, and that he could avoid eviction if he paid the rent due in addition to costs and interest before the judgment. [ 59 ] In fact, both Mr. Chen and Mr. Casimy admit that at the end of the November 5 hearing, they had no idea how the administrative judge would rule on Mr.

Chen’s application, i.e. whether he would conclude that Mr. Casimy was late in paying rent and owed rental arrears or whether he would side with Mr. Casimy. [ 60 ] Mr. Chen writes in his Written Contestation: Therefore, I went to get the cheque for the rent of November on the following day November 6. Both of us did not know the decision of the judge at the moment. I could not ask him to pay interest and other costs while I was still waiting for the decision….All the rest would have to depend on the judge’s decision. [ 61 ] Mr. Chen admits that Mr. Casmiy paid him $645 on November 6. [19] For Mr.

Casimy, this represented the rent owed for the month of November given his argument that the rent increase had never taken effect. [ 62 ] Until receiving the November 11 Decision, the parties had no idea who would prevail, much less if Mr. Casimy did in fact owe back rent to Mr. Chen and whether the monthly rent was $665 or $645. Moreover, the parties ignored whether the last chance provision of

article 1883 C.C.Q. was in play. [ 63 ] In those circumstances, how can one fault a tenant for not taking advantage of his last chance and paying before judgment the

rent due, costs and interest? [ 64 ] Even if Mr. Casimy had wanted to pay interest on the rent owed and the costs before the date of the judgment, it was impossible for him to do so because both he and his landlord ignored that the last chance provision was in play. [ 65 ] If a landlord argues that its tenant failed to comply with an order of the Tribunal administratif du logement under

article 1883 C.C.Q. , he must prove that the tenant in fact knew before judgment

i) that he could avail himself of this last chance and ii) the amount of the rent due. [20] [ 66 ] It would be patently unfair to evict a tenant because he failed to take advantage of the “last chance” that the law affords him when the tenant ignores that he had this opportunity, ignores the amount of the rent due and only learns of the amounts he had to pay to avoid eviction when he receives the Tribunal administratif du logement judgment. [ 67 ] Otherwise, by the time the tenant receives the decision, resiliation and eviction are a fait accompli and he is deprived of this last chance. [ 68 ] No one can be expected to do the impossible. [ 69 ] This is what happened in the instant case. [ 70 ] Until he received the November 11 Decision, Mr.

Casimy ignored that he could avoid eviction if he paid the Landlord rent due, interest and costs. [ 71 ] When he became aware of the November 11 Decision, Mr. Casimy acted promptly. He paid the balance of rent due ($100), interest ($57.44) and costs ($101), totalling $258.44 less than two weeks after receiving the judgment and on the same day he was asked to do so by the Landlord. [ 72 ] The Landlord accepted the payment of $258.44, cashed the cheque, and did not immediately protest or complain. [21] [ 73 ] The foregoing prompt payment shows that Mr.

Casimy carried out his rights in good faith and was not acting in such a way as to take undue and unreasonable advantage of the “last chance” afforded by the November 11 Decision and

article 1883 C.C.Q. [ 74 ] Moreover, on November 27 Mr. Casimy attempted to remit to his Landlord the rent payment for the month of December but he refused to accept the cheque. On December 3, 2020, Mr. Casimy, through his lawyer, reiterated his offer to pay the rent for December and enjoined the Landlord to come pick up the cheque, but he refused. [22] [ 75 ] On December 7, 2020, Mr. Casimy deposited his rent with the Tribunal administratif du logement given Mr. Chen’s refusal to accept payment. [23] [ 76 ] On December 9, 2020, Mr.

Casimy filed an application with the Tribunal administratif du logement asking the tribunal to declare that the lease between the parties is renewed and that he be authorized to deposit with the tribunal the rent for the month of December 2020 and the subsequent months. [24] [ 77 ] This conduct further demonstrates Mr. Casimy’s good faith and that he is not taking unreasonable advantage of his “last chance”. [ 78 ] Given the particular circumstances of this case, the Court believes it is appropriate to apply the forgiving line of jurisprudence to this case and to grant Mr.

Casimy’s Opposition to Seizure and Eviction. FOR THESE REASONS, THE COURT: [ 79 ] GRANTS Mr. Casimy’s Opposition to Seizure and Eviction; [ 80 ] QUASHES the Notice of Execution dated January 25, 2021 (exhibit D-1); [ 81 ] DECLARES that Mr. Casimy is entitled to continue occupying the leased premises pursuant to the lease in force for the period July 1, 2020, to June 30, 2021; [ 82 ] WITHOUT COSTS. __________________________________ ENRICO FORLINI, J.C.Q. Me Natasha Beras Monaco Avocats Plaintiff’s lawyer Dong Chen, defendant Present and self-represented

Date of hearing: February 17, 2021