2021 QCCQ 5552, 2021 QCCQ 5552

James c. Solomon Bierbrier Alter Ego Trust 2021 QCCQ 5552 COURT OF QUEBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-80-041497-216 DATE: July 2, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ PETER JAMES Applicant v.

SOLOMON BIERBRIER ALTER EGO TRUST Respondent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Applicant, Peter James, seeks leave to appeal of a decision of the Administrative Housing Tribunal (Tribunal) rendered on April 19, 2021, which dismisses his preliminary objection based on lack of jurisdiction, determines that he is over three weeks late in paying the rent owed to the Respondent, and orders the resiliation of the lease and his expulsion from the premises he’s lived in for over forty years (Decision). [1] [ 2 ] The Applicant argues that leave to appeal should be granted because the Decision is not sufficiently substantiated as required by

section 79 of the Act Respecting the Administrative Housing Tribunal . [ 3 ] Moreover, he asserts that the administrative judge committed an error in law as well as palpable and overriding errors in his appreciation of the evidence pertaining to the existence of a secret contract or contract of prête-nom which he entered into with Mtre Solomon Brierbrier, a principal of the Respondent, pursuant to which he is the true owner of the duplex in which he resides, although Mtre Bierbrier appears as the owner on the deed of sale.

The Applicant argues that if the administrative judge had properly construed the evidence, he should have concluded that he occupied the premises not as a tenant, but rather as an owner, and thus the Administrative Housing Tribunal did not have jurisdiction over the Respondent’s application for unpaid rent and resiliation of a lease. [ 4 ] Finally, he contends that the administrative judge erred in granting the Respondent’s application to quash a subpoena addressed to Mtre Brierbrier, depriving him of the opportunity to obtain and adduce evidence from this witness. [ 5 ] The Respondent, Solomon Bierbrier Alter Ego Trust, argues that leave to appeal should not be granted essentially because the Applicant wishes to relitigate the entire matter before the Court of Québec, which is not the proper role of an appeal.

It adds that the administrative judge properly weighed all the evidence and his Decision is consistent with the facts and the law. Background [ 6 ] The Applicant is currently 77 years old and has lived in one of the apartments of the duplex which is the subject matter of this litigation for over 42 years. [ 7 ] In January 2008, the Applicant purchased the duplex building. [2] [ 8 ] In February 2010, the Applicant sold the duplex to Mr. Chockalingam. [3] [ 9 ] In November 2014, Mr.

Chockalingam sold the duplex to Mtre Solomon Bierbrier, notary. [4] [ 10 ] The Applicant contends that concurrently with the signing of the deed of sale, he entered in a contract of prête-nom with Mtre Bierbrier according to which Mtre Bierbrier appeared in the deed of sale of the duplex as the purchaser, he did so as mandatary for the Applicant who was the true owner.

The Applicant further contends that pursuant to this simulation, he continued to reside in one of the apartments of the duplex as the owner and did not pay rent. [ 11 ] In November 2019, Mtre Bierbrier transferred ownership of the duplex to his own personal trust, the Respondent. [5] The Applicant contends that this transfer was illegal and in violation of the contract of prête-nom . [ 12 ] The Respondent is the owner of the duplex to this day. [ 13 ] On June 9, 2020, Mtre Kenneth Adessky, as trustee of the Respondent trust, filed with the Administrative Housing Tribunal an

Application in resiliation of lease and eviction of the Applicant. The Application alleges that rent has not been paid by the Applicant since November 2019.

The Respondent does not seek the payment of arrears in rent and simply prays the Tribunal to resiliate the lease and order the Applicant’s eviction. [6] [ 14 ] The hearing before the Tribunal took place over three days, namely on January 5, February 10, and March 9, 2021. [7] Both the Applicant and the Respondent were represented by counsel before the Administrative Housing Tribunal. [ 15 ] A number of witnesses were heard by the Administrative Tribunal, including Mtre Adessky on behalf of the Respondent, the Applicant, the tenant of the other apartment in the duplex, Mrs. Sexton, Mr. Chockalingam, and Mr.

Simons, a witness to the events of the transfer in trust to Mr.

Bierbrier. [ 16 ] The Applicant had subpoenaed Mtre Bierbrier to appear as a witness but the administrative judge quashed this subpoena. [ 17 ] The central issue before the Administrative Housing Tribunal was whether or not a lease existed between the Applicant and the Respondent since the Applicant did not deny that he had not paid rent. [ 18 ] The Applicant asserted that in November 2014, he entered into a contract of prête-nom with Mtre Bierbrier whereby although Mtre Bierbrier’s name appears on the deed of sale, the latter acquired the duplex from Mr. Chockalingam as mandatary on his behalf.

Therefore he argues that he occupied the dwelling not as a tenant, but rather as an owner. [ 19 ] The Applicant further argued that the November 2019 transfer of the duplex from Mtre Bierbrier to the Respondent was illegal and prejudiced his rights since he had accumulated over $100,000 in equity in the duplex. [ 20 ] Over 45 exhibits were entered into evidence before the Administrative Housing Tribunal. [ 21 ] After three days of hearing, the Administrative Housing Tribunal issued its reasons for judgment on April 19, 2021. Criteria for Leave [ 22 ] The Applicant’s application for leave to appeal is governed by

section 91 of the Act respecting the Administrative Housing Tribunal ( R.S.Q. ch. T-15 .01).

Under this provision, an appeal from a decision of the Administrative Housing Tribunal is only possible with leave of a judge of the Court of Québec ‘’when the matter at issue is one which ought to be submitted to the Court of Québec“. [ 23 ] A matter will generally be considered as one which ought to be submitted to this Court if the issues raised by the applicant involve a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions. [ 24 ] Leave to appeal may also be granted where the issues raised call into question the higher interests of justice such as, for example, where the applicant demonstrates, prima facie , an apparent weakness in the decision because of a palpable and overriding error in the appreciation of the evidence, or if there was a violation of a principle of natural justice, for example where the reasons for judgment are not sufficiently substantiated. [ 25 ] The Court has wide discretion to determine whether leave should be granted; it must keep in mind the legislator’s intent that frivolous, dilatory or manifestly ill-founded appeals should not be allowed.

The Decision [ 26 ] The Decision is succinct. [ 27 ] The administrative judge first addressed the preliminary objection raised by the Applicant based on the lack of jurisdiction of the Tribunal under s. 28 of the Act respecting the Administrative Housing Tribunal . [ 28 ] The issue of jurisdiction is central to the outcome of the case since the Applicant does not deny that he has not paid rent to the Respondent.

The payment of rent is antinomic to his assertion that under the contract of prête-nom , he is the rightful owner of the premises where he’s resided for 40 years and thus not a lessee. [ 29 ] The administrative judge decides that the Applicant failed to prove that a prête-nom agreement existed.

He then applies the presumption of art. 1853 par. 2 Civil Code of Québec ( C.C.Q . ) and concludes that the Applicant occupies the premises under a lease by tolerance and therefore, the claim falls within the jurisdiction of the Tribunal. [ 30 ] Secondly, on the merits of the Respondent’s application for eviction, he concludes that the Applicant is more than three weeks late in paying the rent. Applying art. 1971 C.C.Q. , he orders the resiliation of the lease and the eviction of the Applicant.

The Grounds for Appeal [ 31 ] The Applicant asserts that leave to appeal should be granted because the trial judge committed numerous errors in law and mixed errors in fact and in law as well as palpable and overriding errors in his appreciation of the evidence. [ 32 ] These errors essentially revolve around the administrative judge’s decision to reject the Applicant’s argument based on the existence of a secret contract or prête-nom agreement, which as a result, leads the Tribunal to conclude that it had jurisdiction under s. 28 of the Act . [ 33 ] He submits that the following questions merit the Court of Québec’s consideration on appeal: 1.

Did the hearing judge commit an error in law in not sufficiently detailing his reasons for judgment such that it would infirm the judgment?

2. Did the hearing judge commit an error in fact and in law in granting the Respondent’s verbal application to quash the Applicant’s subpoena to have Solomon Bierbrier testify such that it would infirm the judgment? 3. Did the hearing judge commit manifest errors in his appreciation of the documentary and testimony evidence before him that led him to conclude that the Applicant had not ‘’ repoussé la présomption et qu’il existe un bail entre les parties ” and thus that the Tribunal had jurisdiction, which such errors in fact merit the intervention of the Court of Québec on appeal to quash the judgment? 4.

Did the hearing judge commit an error of mixed fact and law in that the judgment reached its conclusion based on reasoning that the prête-nom relationship has to be proven by a written agreement and if so was such an error determinant and thus infirm the judgment?

Analysis [ 34 ] The Court will first address questions one, three and four together, since the issue of the sufficiency of the reasons of the Decision is closely tied to the errors allegedly committed by the administrative judge. [ 35 ] The Applicant argues that the reasons of the administrative judge are not sufficiently detailed and don’t allow him to understand why he decided that he did not prove that a counter-letter or contract of prête-nom existed and therefore, failed to rebut the presumption that a lease by tolerance existed between the parties. [ 36 ] As to the sufficiency of reasons and s. 79 of the Act respecting the Administrative Housing Tribunal , the Court of Appeal summarized the test as follows in Immeubles Zamora Ltée v.

Agence du revenu du Québec [8] : [24] Il est étonnant que le juge, manifestement bien au fait de la problématique et des critères applicables, ne reprenne pas dans son analyse cet aspect du dossier qui était au cœur de la question qu’il avait à trancher. Certes, un juge n’a pas à discuter dans son jugement de chaque élément de preuve ou argument invoqué par les parties. Du moment que l’on sait ce sur quoi il base son jugement, que celui-ci est intelligible, on peut en effet considérer que son obligation de motiver est satisfaite.

Il se peut par contre que le silence du juge révèle une erreur de sa part, par exemple, une omission de prendre en compte un élément de preuve ou un argument pouvant avoir une influence sur l’issue du litige . Dans un tel cas, il y aura lieu pour une cour d’appel d’intervenir. (Underling Added- References Omitted) [ 37 ] In Joad v. R ., the Court of Appeal stated that the duty to give reasons is satisfied if the reasons adequately address the issues in dispute.

It goes on to state that for a judgment to be adequately reasoned, the reasons must be capable of being understood by the parties and reviewed by the courts. [9] [ 38 ] The administrative judge concluded in the Decision that the Administrative Housing Tribunal had jurisdiction because the parties were bound by a lease by tolerance.

He came to this conclusion because he decided that since the Applicant did not prove the existence of the contract of prête-nom , he failed to rebut the presumption of art. 1853 par. 2 C.C.Q . [ 39 ] In reaching his decision, the administrative judge dismissed the Applicant’s argument which rested on the existence of a secret contract or contract of prête-nom which he entered into with Mtre Bierbrier in November 2014.

Under this contract, while Mtre Bierbrier appears as the purchaser in the deed of sale of the duplex, he purchased it as mandatary for the Applicant, who is the true owner. [ 40 ] The Applicant asserted that this secret contract formed the basis of his residing in the leased premises. He did not pay rent to Mtre Bierbrier nor the Respondent because no lease exists between the parties. [ 41 ] The administrative judge’s decision rests on the application of

article 1853 C.C.Q. , which states: 1853. Le bail portant sur un bien meuble ne se présume pas; la personne qui utilise le bien, avec la tolérance du propriétaire, est présumée l’avoir emprunté en vertu d’un prêt à usage Le bail portant sur un bien immeuble est, pour sa part, présumé lorsqu'une personne occupe les lieux avec la tolérance du propriétaire. Ce bail est à durée indéterminée; il prend effet dès l'occupation et comporte un loyer correspondant à la valeur locative. » 1853.

The lease of movable property is not presumed; a person using the property by sufferance of the owner is presumed to have borrowed it by virtue of a loan for use. The lease of immovable property is presumed where a person occupies the premises by sufferance of the owner. The term of the lease is indeterminate; the lease takes effect upon occupancy and entails the obligation to pay a rent corresponding to the rental value. [ 42 ] It is questionable whether this

article even applied, owing to the language of the provision and the facts entered into evidence by the Applicant. [ 43 ] The presumption of art. 1853 C.C.Q. is only triggered if the person who seeks to rely on it proves that the party occupying the premise is doing so “by sufferance of the owner.” [10] [ 44 ] The Decision does not contain an analysis of why the presumption is triggered since the administrative judge immediately applies it and puts the burden on the Applicant to rebut it. [ 45 ] This is potentially an error in law and warrants that leave be granted. [ 46 ] Moreover, as it appears from the following excerpt of the Decision, the administrative judge appears to decide that since the Applicant has not adduced written evidence of the existence of the counter-letter, then it was not proven and the presumption was not rebutted:

[7] La question est de savoir si le défendeur parvient à repousser cette présomption.

Les faits démontrent que : − Il ne détient aucun document ou contre-lettre en faisant foi ; − Il prétend également avoir tenté d’exercer son droit de premier refus pour l’acquisition de l’immeuble en copropriété avec Solomon Bierbrier ; − Aucun document ne confirme cet état de fait ; − Il a mis en preuve le contenu de trois conversations téléphoniques avec Solomon Bierbrier lors desquelles il lui demande de lui céder formellement l’immeuble. [8] À la lumière des faits ci-haut mentionnés, le Tribunal considère que le défendeur n’a pas repoussé la présomption et qu’il existe un bail entre les parties.

Tous ces éléments sont insuffisants pour soutenir la prétention que le défendeur était ou était sur le point de devenir le véritable propriétaire de l’immeuble. Aucune simulation au sens de l’

article 1451 du Code civil du Québec n’a été démontrée. Par conséquent, son objection préliminaire est rejetée. [Underlining added] [ 47 ] The reasoning of the administrative judge in deciding that the Applicant failed to prove this contract is potentially flawed and erroneous in law because he it rests on the premise that such A contract must be evidenced in writing. [ 48 ] Secret contracts are valid under the Civil Code of Québec and are formally recognized in art. 1451 of the Code .

Moreover, it is well established that such contracts may be oral. [11] The trial judge does not seem to have allowed for this and disregarded the Applicant’s argument apparently on the sole basis that the secret contract could only be proven if it was witnessed in writing. [ 49 ] Alternatively, it is impossible to know whether the trial judge simply did not find the Applicant’s proof of an oral contract of prête-nom credible and reliable given the lack of detail of the reasons for judgment. [ 50 ] In limiting his analysis on the written evidence, the administrative judge fails to consider, or perhaps he does consider but the insufficient reasons of his decision prevent us from knowing, an important and integral part of the Applicant’s evidence. [ 51 ] In particular, it appears that he fails to address the testimony of the Applicant and the other witnesses, and nor does he consider the telephone conversations between the Applicant and Mtre Bierbrier that were transcribed and entered into evidence as exhibits D-10, D-11 and D-12.

While the administrative judge does refer to the phone conversations in his ruling, he does not explain why he did not find this evidence persuasive. [ 52 ] This evidence could prove that a secret contract or contract of prête-nom was entered into between the Applicant and Mtre Bierbrier in November 2014. [ 53 ] The failure to consider this evidence may constitute a palpable and overriding error of fact.

The arguments raised by the Applicant in this regard are compelling and merit review by the Court of Québec sitting in appeal. [ 54 ] The Applicant has convinced me that the issues raised by questions one, three and four ought to be submitted to the Court of Québec. He has demonstrated an apparent palpable and overriding error in the administrative judge’s appreciation of the evidence pertaining to the existence of an oral contract of prête-nom with Mtre Solomon Brierbrier or an error of law in the application of art. 1853 C.C.Q .

Moreover, he’s made a prima facie case that the reasons of the Decision are not sufficiently substantiated. [ 55 ] Leave to appeal is granted with respect to questions one, three and four as well with respect to the issue of whether the Respondent proved the conditions precedent to triggering the presumption of art. 1853 C.C.Q. [ 56 ] That said, the Applicant does not convince me that leave should be granted with respect to the second question, namely that the administrative judge committed an error in granting the Respondent’s verbal application to quash his subpoena to have Solomon Bierbrier testify. [ 57 ] The Applicant had a subpoena served on Mtre Bierbrier requiring him to attend and testify at the hearing before the Administrative Housing Tribunal. [ 58 ] The Respondent moved to quash the subpoena and filed a physician’s report dated February 9, 2021, which states that Mtre Bierbrier was not fit testify owing to his poor health. [12] [ 59 ] This evidence was not refuted by the Applicant. [ 60 ] Based on the medical report, the administrative judge decided that Mtre Bierbrier was unfit to testify. [ 61 ] The trial judge’s decision to quash the subpoena based on the witness’s health is entirely a factual issue and a case management issue. [ 62 ] The Applicant has not demonstrated prima facie that the administrative judge abused his discretion in quashing the subpoena. [ 63 ] Leave to appeal is refused on this issue. [ 64 ] The Applicant prays the Court to allow the appeal to proceed in the form of a de novo appeal, or alternatively, to allow evidence only insofar as it pertains to the questions that have been authorized.

[ 65 ] The Applicant has not convinced me that the Court needs to hear any evidence for the purposes of the appeal. [ 66 ] Firstly, leave will not be granted with respect to question two. Secondly, the hearing before the Administrative Housing Tribunal lasted three sittings, numerous witnesses were heard and the documentary evidence was extensive; over 45 exhibits were entered into evidence.

The Applicant has not convinced me that the record comprised of the documentary evidence combined with the transcripts of the testimony before the Tribunal is insufficient to address the questions on appeal authorized in this judgment. FOR THESE REASONS, THE COURT: [ 67 ] GRANTS in part Peter James’s Application for Leave to Appeal; [ 68 ] AUTHORIZES the appeal from the decision rendered by the Administrative Housing Tribunal on April 19, 2021, in file No. 524778 31 20200609 on the following questions: 68.1.

Did the administrative judge commit an error in law in not sufficiently detailing his reasons for the Decision? 68.2. Did the administrative judge commit an error in law or an error of mixed fact and law in determining that

article 1853 C.C.Q. was applicable? 68.3. Did the administrative judge commit palpable and overriding errors in his appreciation of the evidence that led him to conclude that the Appellant had not rebutted the presumption of art. 1853 C.C.Q. and therefore that a lease existed between the parties such that the Administrative Housing Tribunal had jurisdiction? 68.4.

Did the administrative judge commit an error of law or of mixed fact and law in concluding that the prête-nom relationship could only be proven by a written agreement and if so, was such an error overriding? [ 69 ] DECLARES that upon payment of the court fees by Peter James, this judgment shall serve as an inscription in appeal . __________________________________ ENRICO FORLINI, J.C.Q. Mtre Michael R. Concister Michael Reginald Concister Applicant’s lawyer Mtre Kenneth Adessky Kenneth Adessky, Avocat Respondent’s lawyer Date of hearing: May 19, 2021