2019 QCCQ 2966, 2019 QCCQ 2966

9279-0674 Québec inc. c. James 2019 QCCQ 2966 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-157508-179 DATE: May 6, 2019 (corrected on May 23, 2019 and on August 30, 2019 ) ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ 9279-0674 Québec inc.

Plaintiff v. rasheed james Defendant ______________________________________________________________________ RE-CORRECTED JUDGMENT ______________________________________________________________________ [ 1 ] The parties are bound by a commercial lease agreement [1] (the “ Lease ”), pursuant to which Plaintiff rents to Defendant an interior garage on Airlie Street in LaSalle. Plaintiff seeks the termination of this Lease and the payment of rent arrears since January 2017. [2] [ 2 ] Defendant contests the claim.

He denies that rent is outstanding since January 2017 and alleges that Plaintiff has refused to accept certain payments. At trial, he also argued that Plaintiff is not entitled to the full contractual rent due the state of the garage. questionS in issue [ 3 ] In order to decide the case, the Court must determine:

a) What rent arrears are presently outstanding pursuant to the Lease?

b) Whether Plaintiff is entitled to the full amount of the contractual rent given the state of the garage?

c) Whether Plaintiff is entitled to the resiliation of the Lease? FACTUAL CONTEXT [ 4 ] Defendant has been renting the garage at issue for several years.

The Lease presently in place was entered into in May 2012 with the previous owner of the property where the garage is located. [3] It was entered into for a period of one year (from June 1, 2012 to May 31, 2013), to be renewed automatically each year unless one of the parties notifies the other of its intention not to renew within three months of the expiry date. [ 5 ] Although the Lease provides for a monthly rent of $150, this was later reduced to $120. [ 6 ] Plaintiff purchased the property sometime in 2013, at which time it assumed the rights and obligations of the previous owner pursuant to the Lease. [ 7 ] Starting in the spring of 2013, Defendant began to fall behind in the payment of the rent.

Several months sometimes remained unpaid and several checks were returned because of insufficient funds. [4] Some payments were made, but they were often applied to arrears going back several months. [ 8 ] On August 14, 2017, Plaintiff formally demanded payment from Defendant of $1,155 representing rent arrears then due. [5] Having received no payment from Defendant, Plaintiff filed suit against Defendant on October 30, 2017, claiming updated rent arrears of $1,995, as well as the resiliation of the Lease. [6] ANALYSIS

a) What rent arrears are presently outstanding pursuant to the Lease? [ 9 ] Defendant contests that the rent due pursuant to the Lease has been unpaid since January 2017. At trial, he produced a receipt showing a payment of $240 made on August 20, 2017, [7] which he claims proves that the rent was paid until that date. [ 10 ] Plaintiff, on the other hand, has produced a detailed statement of account [8] showing the date and amount of every payment made by Defendant since May 2013, as well as the outcome of such payments (returned check, application towards rent for which month, etc.).

The August 20, 2017 payment invoked by Defendant is reflected in this statement of account, which shows that it was applied against the rent due for November 2016 and a portion of January 2017.

[ 11 ] On a balance of probabilities, [9] the Court concludes that a balance of $50 remains unpaid from the January 2017 rent and that no subsequent payments were made. The Court also concludes on the facts that although Plaintiff did require cash or a certified check on one occasion, it did not refuse any payments from Defendant.

b) Is Plaintiff entitled to the full amount of the contractual rent given the state of the garage? [ 12 ] Defendant argues that Plaintiff should not be entitled to the full rent provided in the Lease because of an ongoing water infiltration problem in the garage since the summer 2018. He states that he advised the building superintendent, Mr. Sergei Nikolov, and Mr. Mark Wiegard, Plaintiff’s representative, of the problem sometime during the summer of 2018, yet Plaintiff failed to correct the problem.

He provided photographic evidence of this water infiltration [10] and argues that this problem justified him from retaining the rent. [ 13 ] Plaintiff, on the other hand, claims that it was advised of the water infiltration problem at the trial only. Consequently, it argues that it cannot be held responsible for the alleged water infiltration given that the Lease provides : 9. The TENANT hereby agrees that his/her automobile in the premise exclusively at his own and peril.

The LANDLORD shall not be held responsible for any damages that may occur to the car or other property of the TENANT, which may arise due to including but not limiting the generality thereto theft, fire, flood, by the fault or negligence of other tenants in the building, and/or other parking tenants, and/or any other person or their cars. [ 14 ] The Court concludes, based on the evidence, that there has been a slow ongoing water infiltration coming from a pipe in the floor of the garage since the summer of 2018 [11] and that Plaintiff was advised of the problem in July 2018. [ 15 ] This constitutes a violation of Plaintiff’s obligations as landlord to provide Defendant with the peaceful enjoyment of the garage [12] and to make necessary repairs other than minor maintenance repairs. [13] [ 16 ] Contrary to what Plaintiff argues, paragraph 9 of the Lease (reproduced above) does not exclude liability for the water infiltration, as nothing in the evidence suggests that the infiltration is due to Defendant’s negligence or that of other tenants.

The Court also believes that the reference to a “flood” in clause 9 concerns an accidental flood and not a plumbing problem under a landlord’s responsibility. [ 17 ] Given Plaintiff’s failure to perform its obligations regarding the repair of the water infiltration problem in the garage, Defendant was authorized by law to refuse to pay a portion of the rent corresponding in importance with Plaintiff’s failure to repair. [14] [ 18 ] On the fact, the Court is of the opinion that the water infiltration problem authorized Defendant to retain an amount equivalent to 20% of the monthly rent from the time that he advised Plaintiff of the problem in July 2018.

He was therefore authorized to retain $24.00 of the monthly rent from then on, but had the obligation to continue to pay the balance of $96.00 per month. [ 19 ] Under the circumstances, the Court concludes that Plaintiff has proven that it is entitled to the payment of the following rent arrears : Period covered Rent due ➢ January 2017 (balance) $50.00 ➢ February to December 2017 (11 months @ $120/month) $1,320.00 ➢ January to June 2018 (6 months @ $120/month) $720.00 ➢ June to December 2018 (6 months @ $96/month) $576.00 TOTAL $2,666.00 [ 20 ] Plaintiff is entitled to the payment of this amount.

c) Is Plaintiff entitled to the resiliation of the Lease? [ 21 ] Failure by a tenant to pay the rent due pursuant to a lease agreement entitles the landlord to apply for the resiliation of the lease where this failure to pay causes serious injury to the landlord. [15] [ 22 ] The Court has no difficulty in concluding that the continual late payment of the rent since 2013 and the fact that presently, the rent is in arrears since January 2017 constitutes serious injury entitling Plaintiff to the resiliation of the Lease. A landlord cannot be expected to maintain a lease in place without payment of any rent.

FOR THESE REASONS, THE COURT: GRANTS the action; CONDEMNS Defendant Rasheed James to pay to Plaintiff 9279-0674 Québec inc. an amount of $2,666.00 together with interest at the legal rate and the legal indemnity provided for at

article 1619 of the Civil Code of Québec from August 22, 2017; RESILIATES the lease agreement dated May 30, 2012 between the parties; ORDERS the eviction of Defendant Rasheed James from the premises leased pursuant to said lease agreement, namely the interior garage located at 9257 Airlie Street in LaSalle, Québec, unit 9 .

WITH LEGAL COSTS of $200 representing the judicial stamp on the Originating Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: December 18, 2018 (taken under advisement on December 21, 2018)