r v. GESTION NAVAREX INC., 2014 QCCQ 6589

Zaslavski c. Gestion Navarex inc. 2014 QCCQ 6589 COURT OF QUEBEC Administrative and Appeal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-80-028274-141 DATE: June 3, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ ALEX ZASLAVSKI Petitioner v. GESTION NAVAREX INC.

Respondent ______________________________________________________________________ JUDGMENT [ 1 ] The Court is seized of the petition of the tenant, Alex Zaslavski, for permission to appeal a decision of the Régie du logement, (the "Board"), Rosario Nobile, Commissioner, presiding, rendered on April 29, 2014, in case no 31-110510-082 31 20110510 G. The Decision [ 2 ] The decision resiliated the residential lease between the parties, ordered the expulsion of the tenant and all occupants, and ordered the provisional execution, notwithstanding appeal of the expulsion order, to be in effect 11 days later.

The Suspension of the Provisional Execution [ 3 ] On May 9, 2014, the Court ordered the suspension of the execution pending hearing of the motion for leave to appeal, which was presented May 14, 2014. The Grounds for Appeal [ 4 ] The tenant raises a series of grounds for appeal that the Court summarises as follows: 1. The decision is inadequately motivated with respect to the determination of the credibility of witnesses 2.

The Commissioner allowed hearsay evidence as to the presence of insects on the premises, rather than insisting on the presence of the representative of the extermination company who had observed the facts. 3. The Commissioner erred in excluding from the evidence a copy of a proceeding brought against the tenant by a witness who was another tenant who complained of noise emanating from the tenant's premises, a document which would have had an impact on the witnesses' credibility 4.

The Commissioner erred in the evaluation of the evidence of disturbance, including the fact that the barrier between the two apartments was a concrete slab, and because of the presence of only one witness to prove the conduct complained of. 5. It was abusive to order provisional execution given the age of the tenant and other circumstances of the case. Analysis [ 5 ] The grounds invoked include the unfairness inherent in a decision that does not adequately motivate the decision-maker's reasons for the final outcome.

[ 6 ] The Court is of the view that this ground is sufficient for the authorisation of an appeal in the present matter. [ 7 ] The methodology applied by Commissioner Nobile is the same as that used by him in Ullah c. Rusimov [1] and in an earlier case referred to therein, Beaudry c. Akhtar [2] [ 8 ] The decision consists in a brief chronology of the factual positions of the parties and reference to certain of their factual declarations. Without actually giving any analysis of the respective credibility of the parties and their witnesses, the Commissioner cites a relevant

article of the code, paraphrases the rule that it contains, and then states that the lessor has established his case. [ 9 ] The rule that requires proper motivation of a decision is one of the cornerstones of the administrative law system. In the present type of case, it is expressly embodied in

article 79 of

an Act respecting the Régie du logement [3] . 79. Every decision of the board must be substantiated and transmitted to the parties concerned, in the manner provided in the rules of procedure.

A copy of a decision, certified true by the commissioner having heard the case or by the person authorized for that purpose by the chairman, has the same value as the original. 1979, c. 48, s. 79. [ 10 ] This being one of the composites of natural justice, the question raised as to the sufficiency of the reasons given is one that should be submitted to the Court by way of appeal. [ 11 ] Given that an appeal will proceed on the essential issue of whether the lessor's grounds for seeking resiliation and expulsion are sufficient, and the appropriate modalities to apply to the resiliation in such a case, issues of admissibility and sufficiency of evidence can necessarily arise. [ 12 ] The lack of reasons in the decision on admissibility of evidence and the practice of the Board in not setting out in detail its interlocutory decisions in minutes, leads inevitably to the possibility that the judge hearing the appeal may intervene on questions of admissibility and, generally on the conduct of the trial.

Since the parties are free to call witnesses and produce evidence on the issues authorised in the appeal, the grounds mentioned above listed as items 2 through 5 are implicitly authorised.

The Court has summarised the questions in appeal in a more general way in the conclusions. [ 13 ] At the hearing of the motion, it became obvious that the nature of the matter to be debated on the merits of the case, the presence of in infestation of insects and the tenant's alleged default in connection with attempts to eradicate this infestation and the allegations of disturbances, would permit the factual issues to be dealt with as in a trial de novo , unless the parties preferred to limit the evidence in whole or in part to transcripts, but subject to the appeal judge's decision as to the admissibility of evidence in the event of an objection, or on his own motion in case of a rule of public order. [ 14 ] As well, the nature of the problem compels the Court to treat the case as a relatively urgent matter, and it will be scheduled for hearing on a priority basis.

The attorneys are called upon to collaborate together and with the Court to set an early date for the hearing. FOR THESE REASONS, THE COURT : GRANTS the motion for leave to appeal the decision rendered by the Régie du logement rendered on April 29, 2014, in case no 31- 110510-082 31 20110510 G. AUTHORISES the appeal on the following questions: Did the Commissioner err in deciding that the Lessor had sufficient grounds to seek the resiliation of the lease and the expulsion of the Lessee and the occupants of the dwelling?

Did the Commissioner err in the application of the modalities of this resiliation and expulsion? REMAINS SEIZED of the matter for the hearing of the appeal on the merits; ORDERS the hearing to proceed by preference; AUTHORISES the attorneys to communicate with the undersigned by conference call to confirm the date of the hearing and to discuss case management. _________________________________ DAVID L. CAMERON J.C.Q. Maitre Zachary Lisac MDB AVOCAT INC. Attorneys for the Petitioner

Me Jean El Masri Attorney for the Respondent Date of hearing: May 14, 2014