2021 QCCQ 12444, 2021 QCCQ 12444

Ojaghi c. 9348-0408 Québec inc. 2021 QCCQ 12444 COURT OF QUEBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-80-042141-219 DATE: November 19, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ SAEID OJAGHI And RAHELEH PARSEIFAR Applicants v. 9348-0408 QUÉBEC INC. And SPG CANADA INC.

Respondents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Applicants seek leave to appeal of a decision of the Administrative Housing Tribunal dated October 5, 2021 which grants in part their application in damages against their landlord, the Respondents, and condemns them to pay $2,624.38 (‘’ Decision ’’). [1] [ 2 ] The Applicants submit that leave to appeal should be granted because the Decision is not sufficiently reasoned, they were not given the opportunity to be heard by the member of the Administrative Housing Tribunal, and because the Decision fails to adjudicate part of the application, namely their claim for additional rent paid. [ 3 ] The Respondents, although duly served with the Application for Leave to Appeal, did not appear at the hearing and therefore, the matter proceeded by default. [ 4 ] The 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).

Leave to appeal can only be granted if the matter raised by the appeal is one which ought to be submitted to the Court the Québec. [ 5 ] For the reasons that follow, the Court concludes that leave to appeal from the Decision should be granted because the Applicants have made a prima facie case that they were not given the opportunity to be heard by the member of the Tribunal, the Decision is not sufficiently reasoned and because it fails to adjudicate part of their application. [ 6 ] The Decision from which the Applicants seek leave to appeal arises in the following context. [ 7 ] In 2019, the Applicants entered into a lease with the Respondents to occupy a dwelling beginning on April 1, 2019 for a monthly rent of $750. [ 8 ] They left the leased premises on June 30, 2019.

They claim that they were forced to leave because of the Respondents’ harassing and intimidating behavior. [ 9 ] In July 2021, the Applicants filed before the Tribunal an application in damages against the Respondents.

Their claim alleges that the landlord rented the apartment in violation of City bylaws and that they were harassed and intimidated by the Respondents, to the point that they were forced to leave the leased premises. [ 10 ] For example, they contend that were locked out of their apartment, the electricity and water was cut off, and that they were repeatedly disturbed by the fire alarm being pulled intentionally by the landlord.

They also allege that they were forced to pay rent over and above the amount that was agreed to in the lease. [2] [ 11 ] The Applicants claim more than $15,000 in damages from the Respondents including :

a) Reimbursement of overpaid rent: $50 x 3 months = $150;

b) Moving fees: $233.38;

c) Police reports: $16;

d) Illegal key deposit: $20;

e) Rent reduction (50% of the rent owed for the month of June): $375;

f) Additional rent paid for the months of July and August 2019: $330;

g) Moral damages: $7,000;

h) Punitive or exemplary damages: $8,000. [ 12 ] The Applicants take no issue with the award of damages with respect to items (

a) through (

e) above. However, they argue that the failure to observe the rules of procedural fairness voids the Decision as it concerns items (f), (

g) and (h). The Right to be Heard [ 13 ] The Applicants argue that leave to appeal should be granted because they were denied the opportunity to present their case before the Tribunal.

While this grounds of appeal is distinct from their second ground, i.e., the insufficiency of reasons, the two are nonetheless related. [ 14 ] The hearing before the Administrative Housing Tribunal took place on September 21, 2021 and lasted roughly 20 minutes. [3] The Respondents were not present and the hearing proceeded by default. [ 15 ] While the Applicants were physically present in the courtroom at the Administrative Housing Tribunal, the member attended by video link.

The Applicants had prepared a fourteen page outline of arguments and eighteen exhibits that they intended to file in support of their claim. [4] [ 16 ] Since the member of the Tribunal was not in the courtroom, he invited the Applicants to scan the first few pages of the outline of arguments using the scanner made available to parties and to send them to him electronically. [ 17 ] A significant portion of the hearing, almost 50% of the time, was taken up by the time required by the Applicants to submit the documents and the exhibits to the member electronically via the scanner. [5] [ 18 ] The audio recording of the hearing shows that the member of the Tribunal raised the issue of the claims for moral and punitive damages. [6] [ 19 ] Mr.

Ojaghi briefly explained why the Applicants were claiming the amount they were and referred to case law that he intended to file in support of the claim. This lasted less than one minute. [ 20 ] The member then asked Mr. Ojaghi to send him ‘’everything you have’’ by remitting the exhibits and the full argument plan to the clerk that was present in the courtroom. The member asked Mr. Ojaghi no questions with respect to the factual basis for the claim for moral and punitive damages. The member appears to have been satisfied with only the documentary evidence that the Applicants intended to rely on. [ 21 ] Mr.

Ojaghi attempted to testify on the issue of moral and punitive damages, but the member of the Tribunal simply reiterated that he should give all his documents to the clerk and did not allow him to elaborate. [7] [ 22 ] Moreover, the Applicants also raise prima facie doubt as to whether the member even received the evidence they wanted to submit and which they remitted to the clerk.

The Decision does not reference at all any of the 18 exhibits they filed. [ 23 ] Perhaps the member was influenced by the fact that the hearing was proceeding by default, but nonetheless, the audio recording demonstrates that prima facie the Applicants were not given the opportunity to present their testimony. [8] [ 24 ] Likewise, the Applicants also make a prima facie case that the member of the Tribunal may not have fulfilled his duty to provide equitable and impartial assistance as is required of him/her under

section 63 of the Act . [ 25 ] Leave to appeal will also be granted on the issue of the right to be heard and the duty to provide equitable and impartial assistance. Insufficiency of Reasons [ 26 ] The duty to provide reasons is a facet of the rules of natural justice or procedural fairness. It is also a statutory duty in hearings before the Administrative Housing Tribunal as this rule is specifically enshrined in

section 79 of the Act:

79. Toute décision du Tribunal doit être motivée et transmise aux parties en cause, en la manière prévue par les règlements de procédure. La copie d’une décision, certifiée conforme par le membre qui a entendu l’affaire ou par la personne autorisée à cette fin par le président, a la même valeur que l’original. 79. Every decision of the Tribunal 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 member having heard the case or by the person authorized for that purpose by the chairman, has the same value as the original. [ 27 ] It is well established that a lack of reasons may warrant granting leave to appeal to the Court of Québec from a decision of the Administrative Housing Tribunal. [ 28 ] In Immeubles Zamora Ltée v.

Agence du revenu du Québec , the Court of Appeal summarized the duty to give reasons as follows: [9] [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. (References omitted) [ 29 ] 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. [10] [ 30 ] In Baker , the Supreme Court of Canada stated that “Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review.” [11] [ 31 ] In the instant case, the Applicants sought an award of $7,000 for moral damages and $8,000 for punitive or exemplary damages. [ 32 ] Hence, one of the issues that the member of the Tribunal had to decide was whether the Applicants were entitled to moral or non-pecuniary damages and punitive damages, and if so, to quantify these damages. [ 33 ] While the Decision does award the Applicants moral and punitive damages, the award falls significantly short of the amount they were claiming.

Paragraphs 9 and 10 of the Decision address moral and punitive damages, but it is worthwhile to reproduce the entire decision: [1] Le 29 juillet 2021, les locataires déposent au Tribunal une demande en diminution de loyer, en dommages-intérêts matériels de 619,38 $, dommages moraux de 7 000 $ et dommages punitifs de 8 000 $.

Les faits pertinents [2] Les parties étaient liées par le bail d’un logement au loyer mensuel de 750 $ du 1 er avril au 30 juin 2019 situé au deuxième étage d’un immeuble commercial et résidentiel. [3] La preuve prépondérante révèle que : − Les locataires vivaient dans un logement exigu et sans fenêtre; −

Malgré le prix convenu, ils ont payé 800 $ de loyer pendant les trois mois d’occupation; − La Ville de Montréal a ordonné leur expulsion qui s’est concrétisée le 30 juin 2019 à cause de la non-conformité du logement à la réglementation municipale; − Le représentant des locateurs a été arrêté par la police pour intimidation auprès des locataires; − L’eau et l’électricité ont été coupées à plusieurs occasions. La diminution de loyer : [4] Un montant de 200 $ est accordé pour la moitié du mois de juin 2019. Le trop payé de loyer : [5] Un montant de 150 $ est accordé soit 50 $ pendant trois mois. Les frais de déménagement : [6] Un montant de 233,38 $ est accordé. Le rapport de police :

[7] Le montant de 16 $ est accordé. Le dépôt pour des clés : [8] Le montant de 20 $ est accordé. Les dommages moraux : [9] Un montant de 1 000 $ est accordé pour compenser le stress et à cause du comportement répréhensible des locateurs à l’endroit des locataires.

Les dommages punitifs : [10] La preuve démontre que les locataires ont subi du harcèlement de la part des locateurs et un montant de 1 000 $ leur est accordé. [ 34 ] The standard of review of an appellate court in the assessment of the quantum of non-pecuniary damages or punitive damages is high; it can only intervene if the trier of fact applied an erroneous principle of law or if the sum awarded constitutes manifestly incorrect compensation for the loss suffered. [12] [ 35 ] This being said, given the brevity of the reasons of the Decision with respect to the quantum of moral and punitive damages, and given that the standard of review is one of correctness when the issue raised is one of procedural fairness [13] , the Court considers that the Applicants have made out a prima facie case that the duty to give reasons was not respected. [ 36 ] Leave to appeal on this issue will be granted.

The Claim for Additional Rent [ 37 ] Finally, the Applicants argue that leave to appeal should also be granted because the Decision does not address that part of the application which dealt with the claim for additional rent which they paid for their new apartment for the months of July and August 2019 and for which they claimed $330. [ 38 ] The Decision does not address this portion of the claim at all, such that we ignore whether he dismissed it for lack of evidence or because he thought it was ill founded in law, or because he simply forgot to adjudicate it. [ 39 ]

Section 88 of the Act respecting the Administrative Housing Tribunal states that a decision of the Tribunal which omits to adjudicate upon part of an application constitutes grounds for correction of the decision. [ 40 ] Hence, it could be argued that an appeal is not the proper vehicle to contest that part of the Decision which pertains to the omission to adjudicate the part of the claim dealing with additional rent. [ 41 ] However, since leave to appeal from the Decision will be allowed on other grounds, I consider that it is in the interest of justice and in accordance with the guiding principles of procedure to authorise leave to appeal with respect to this ground as well. [ 42 ] It would not be an efficient use of the judicial resources to force the Applicants to return to the Administrative Housing Tribunal and file an application for correction of the Decision, assuming there are still within the time period to do so, while it is simultaneously being appealed to the Court of Québec.

Conclusion [ 43 ] Leave to appeal will be granted. [ 44 ] Considering that the appeal raises the issue of whether the Applicants were denied the right to be heard before the Tribunal, the Court considers that it is appropriate to allow them to adduce evidence at the hearing of the appeal on the issue of moral and punitive damages, and the issue of difference in rent, pursuant to

article 98 of the Act respecting the Administrative Housing Tribunal . [ 45 ] The Applicants indicate in their application for leave that they estimate that they will need 2 hours to adduce this evidence. [14] FOR THESE REASONS, THE COURT: [ 46 ] GRANTS the application for leave to appeal; [ 47 ] GRANTS leave to appeal from the Decision rendered by the Administrative Housing Tribunal on October 5, 2021 in file No. 3310438 on the following questions: 1. Is the Decision of the Tribunal sufficiently reasoned? 2. Was the Applicants’ right to be heard breached? 3.

Did the member of the Tribunal fail to consider the evidence pertaining to the Applicants’ claim for extra rent paid? 4. Did the Tribunal member provide equitable and impartial assistance to the Applicants as required by

section 63 of the Act respecting the Administrative Housing Tribunal ? [ 48 ] AUTHORIZES the Applicants to adduce evidence at the hearing of the appeal but only in relation to the claim for moral and punitive damages as well as the claim for difference in rent;

[ 49 ] DECLARES that upon payment of the court fees by the Applicants, this judgment shall serve as an inscription in appeal. __________________________________ ENRICO FORLINI, J.C.Q. Mr. Saeid Ojaghi Mrs. Raheleh Parseifar Self-represented 9348-0408 Québec inc. SPG Canada Inc. Not present and unrepresented Date of hearing: November 17, 2021