2017 QCCQ 2109, 2017 QCCQ 2109

Villanueva c. Bomediano 2017 QCCQ 2109 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-80-032775-166 Date: March 17 th , 2017 BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. DANTES VILLANUEVA AND MARINEL SORIANO Appellants v.

ALVIN BOMEDIANO AND ROYA FATTAHIE Respondents and RÉGIE DU LOGEMENT Mise en cause JUDGMENT JQ 0059 [ 1 ] The Court is seized of the appeal of a decision by the Régie du Logement (the Régie ), Louise Fortin Régisseur, dismissing Appellants’ Motion to Repossess the dwelling occupied by the Respondents, as a residence for Appellant Villanueva’s mother-in-law, Ms. Ma Fe Soriano. The Régie concluded that Appellant Villanueva was not the main support of Ms.

Soriano. [ 2 ] On April 15 th , 2016, the Court granted permission to appeal the Régie’s decision, declaring that a de novo hearing would take place to provide evidence on the relationship between Ms.

Soriano and the Appellants, to demonstrate that Appellant Soriano qualifies as a lessor and finally to allow the Respondents to present their evidence in contestation of the Motion to Repossess. [ 3 ] At the hearing before this Court, the Appellants filed a Deed of Sale showing that both Appellants are the owners of the immoveable, located at […], having purchased it on March 26 th , 2008 [1] . [ 4 ] While the lease dated March 30, 2008 entered into with the Respondents was only signed by the Appellant Villanueva, Appellant Soriano nonetheless qualifies as a lessor of the dwelling for the purposes of the Motion to Repossess since she is a co-owner of the immoveable. [ 5 ]

Article 1957 of the Civil Code of Québec provides that the lessor may repossess the dwelling as a residence for an ascendant, which definition includes Ms. Soriano as she is the mother of Appellant Soriano. Thus, it was not necessary to show before the Régie that the Appellants were the main support of Ms. Soriano, as this condition only applies to those relatives or persons connected by marriage or civil union and not to ascendants or descendants in the first degree. [ 6 ] Surprisingly, the proof of Appellant Soriano’s ownership of the immoveable was never presented to the Régie.

[ 7 ] The only question in issue before this Court is to determine whether the Appellants are justified in repossessing the dwelling. No such evidence was presented before the Régie, for the reasons mentioned hereinabove. However, as the Court proceeded to a de novo hearing, the parties had the opportunity of presenting to this Court all relevant evidence. THE FACTS [ 8 ] The Appellants occupy the ground floor of the Rendall Avenue building with their six year old daughter, in a three bedroom dwelling. [ 9 ] Respondents’ occupy the top floor apartment, which consists of a three bedroom apartment.

They have been tenants since 2004. [ 10 ] When the Appellants purchased the building, a lease was signed between the parties on March 30 th , 2008, renewed since then with a rent presently set at $850.00 per month [2] . [ 11 ] On August 12 th , 2015, the Appellants sent the Respondents a Notice of Repossession [3] , indicating that their apartment would be occupied by Appellant Soriano’s mother, her two sisters and a niece. Before the Régie, the Appellants amended their request to limit the repossession to Ms.

Soriano only, adding that Appellant Soriano’s sisters had not yet cancelled their lease. [ 12 ] The Respondents, on the other hand, argue that the real intention of the Appellants is to repossess their apartment as reprisal for the recourse the Appellants instituted before the Régie, in which they sought a reduction of the rent and that Appellants proceed with certain repairs. [ 13 ] Respondent Fattahie explains that the Motion to Repossess and the Motion for Reduction of Rent were joined for a common hearing.

On February 23 rd , 2016 [4] , the Régie is issued its rulings on both cases. [ 14 ] In its decision, on the Motion for Reduction of Rent the Régie notes that the Respondents complain of harassment by Appellant Soriano.

They also complain that mold was apparent in several rooms of the apartment, that the door to the entrance did not close securely, that they were deprived of water in the kitchen for several days that broken windows as well as cracked walls and ceilings were not repaired. [ 15 ] The Régie ordered the Appellants to carry out to the repairs, awarded a decrease of 5% in the rent, plus a nominal amount of $250, as well as $600 for the inconvenience suffered. THE ANALYSIS [ 16 ] It is well established that in such cases the courts are confronted with two conflicting rights.

The right of the tenant to maintain occupancy [5] and the right of the owner to repossess the dwelling [6] . [ 17 ] The burden of proof rests with the lessor to show that he truly intends to repossess the dwelling for the purpose mentioned in the notice and not as a pretext for other purposes [7] . [ 18 ] In accordance with the provisions of

article 2805 CcQ , the Appellants are presumed to act in good faith. [ 19 ] Professor Pierre-Gabriel Jobin in Le Louage [8] writes that, although the lessor is presumed to act in good faith, it is often the

weakest link in the lessor’s argument, extensive case law showing that the real intention behind repossessing a dwelling is to increase the rent which is often below market value. [ 20 ] Professor Jobin adds that the Court must require, by preponderance of evidence, leaving no doubt in the Court’s mind, what are the true intentions of the lessor. [ 21 ] Often, the tenant will argue and expose the disputes between the parties either with respect to an increase in rent or because of the requirements of the tenants.

This demonstration is only but one factor to be considered by the Court. [ 22 ] In issue here is the credibility and reliability of the testimony of Appellant Soriano. [ 23 ] The Court highlights as follows the relevant facts which transpired from Appellant Soriano’s testimony and from the questions asked by Respondent Fattahie: • Ms. Soriano is originally from the Philippines where, just days before the hearing before the Régie, she had been living for the last 14 months. She resides at least six months per year in the Philippines; • When in Montreal, Ms.

Soriano works as a live in caregiver, living with the family five days per week; • Ms. Soriano arrived in Canada in 2009 and since that time has resided with her two daughters and a granddaughter; • Both Appellant Soriano and Ms. Soriano have stated that she sleeps on a sofa; • Ms. Soriano’s daughters with whom she resides are: Manites, who is 41 years old and who works as a project supervisor at David’s Tea, and Marise, who is 34 years old and who is employed as a computer programmer for an engineering firm.

Her niece is 21 years old; • On February 27 th , 2016, Appellant Soriano’s sisters received from their lessor a notice to increase their rent; • At first, Appellant Soriano stated that when she informed her sisters of the decision by the Régie, refusing her request to repossess the dwelling, her sisters informed their lessor that they would not be renewing their lease; • Appellant Soriano corrected her testimony to state that it was two days later, on February 29 th , 2016, prior to receiving the Régie’s decision, that her sisters informed their lessor they would not be renewing; • Appellant Soriano later added that this notice was sent by her sisters at the request of their mother; • Questioned by Respondent Fattahie as to why her sisters acted with such haste, she simply replied it was their decision; • Following the cancellation of her sisters’ lease, Appellant Soriano states that her mother, her two sisters and her niece moved in with Appellants;

• The living arrangements were described as follows: Appellants and their daughter slept in the living room, the niece slept in a small room, one sister slept in the other bedroom, the master bedroom was occupied by her mother and her other sister.

Appellant Soriano adds that another niece was sleeping in a walk-in closet; • Appellant Soriano later corrected her testimony to say that her mother slept on the sofa; • In answer as to why Appellant Soriano’s mother did not use the bigger bedroom, she replied that she has a bigger bedroom in Respondents’ apartment; • Questioned as to why Appellant Soriano’s sisters, who have full time employment, did not find a proper place to reside, she replied that she has a proper place, Respondents’ place, further adding that she was just waiting for them to leave, and expecting her rights to be exercised; • Questioned by Respondent Fattahie as to why she had never seen the sister or mother at Appellant Soriano’s dwelling, she replied that in fact she visited her mother and sisters at their apartment; • Appellant Soriano added that she lived with her mother and sisters and nieces for 1 1 / 2 month, following the decision by the Régie; • Finally, questioned as to why Appellant Soriano’s mother did not live with them, since they have a three bedroom dwelling, she stated that the third bedroom was used by her daughter for her arts and crafts and office. [ 24 ] The evidence also revealed that in 2008, a few days after the lease had been renewed with the Respondents, the Appellants sent their first notice of repossession as a residence for Appellant Soriano’s sister in law.

At the time when Respondent Fattahie asked if the Appellants were her main support, she was threatened to be sued by Appellant Soriano. [ 25 ] Prior to the hearing before this Court, the Appellants, through their lawyer, sent a new Notice of Repossession, dated October 27 th , 2016, for May 1 st , 2017. The Notice states that the Appellants wish to repossess Respondents’ dwelling as a residence for Ms. Soriano only. [ 26 ] In

summary, the evidence shows that the first Notice of Repossession was for Appellant Soriano’s sister in law, in the second Notice of Repossession Appellants indicate that they wish to repossess for Appellant Soriano’s mother, her two sisters and a niece. At the Régie, Appellant Soriano changed her request to state that it was only for her mother. Before this Court, Appellant Soriano testified that her mother would be living in Respondents’ apartment but with her daughter and granddaughter. [ 27 ] The Respondents pay $855 per month. Ms.

Soriano’s wages are $600 per month, since she is a live in caregiver. [ 28 ] The Appellants have not convinced the Court that their true intentions in repossessing Respondents’ dwelling is for Appellant Soriano’s mother. [ 29 ] The Court arrives at this conclusion following the implausibility of the facts and the contradictions and hesitations in Appellant Soriano’s testimony, which the Court qualifies as unreliable and not credible. [ 30 ] Appellant Soriano states that in repossessing Respondents’ dwelling she wishes to care for her mother.

However, her mother has been living for years with her two daughters and a granddaughter in an apartment where she has no bedroom and where she sleeps on

a sofa, whereas Appellants have a three bedroom apartment, one of which has been used, in the latter years by their daughter as a playroom. [ 31 ] Either prior to the decision by the Régie or shortly thereafter, as this evidence is contradictory, Appellant Soriano’s sisters gave notice to their lessor that they would not be renewing their lease, to end up living with the Appellants; seven people in a three bedroom dwelling.

No evidence was presented to this Court explaining why such a decision was made or why they accepted such an arrangement, when in fact, both sisters are 41 and 34 years old and work full time. [ 32 ] The Court also questions the need for Ms. Soriano to reside in Respondents’ apartment, a three bedroom dwelling for which the rent is $850 per month, when she earns $600 per month and when she spends six months per year living in the Philippines. [ 33 ] The Appellants have not convinced the Court that their intention, in repossessing Respondents’ dwelling, is for the purpose indicated in the Notice of Repossession.

FOR THESE REASONS, THE COURT: DISMISSES Appellants’ appeal; WITHOUT COSTS. Diane Quenneville, J.C.Q. Date of hearing: November 16 th , 2016