2014 QCCQ 7796, 2014 QCCQ 7796

Sarault c. Ohana 2014 QCCQ 7796 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-138241-130 DATE: August 15, 2014 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ PIERRE SARAULT Tenant - Plaintiff v.

MIKE OHANA Landlord - Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Tenant - Plaintiff claims from the Landlord - Defendant $7,000 $ representing the extrajudicial fees and disbursements incurred to contest several demands made against him by the Landlord - Defendant at the Rental Board. [ 2 ] The Defendant contests Plaintiff’s claim on the basis that he is the victim and that he has already been condemned by the Rental Board to pay damages to the Plaintiff.

THE FACTS [ 3 ] A decision dated October 31, 2012, by Mr. Serge Adam, Régisseur at the Rental Board [1] is rendered in seven files opened at the request of the Defendant. [ 4 ] Defendant filed a Motion in repossession of the dwelling.

Two other files were opened at the request of the Defendant, asking the Rental Board to determine the rent to be paid by the Plaintiff. [ 5 ] Two others were opened at the request of the Defendant asking for the cancellation of the lease and in payment of the rent. [ 6 ] In two more files, the Defendant also asked for the cancellation of the lease but also asked for damages of $29,100. [ 7 ] At a hearing before the Rental Board, the Plaintiff contested Defendant’s Motions and claimed damages of $15,000, representing the extrajudicial costs paid to his lawyer, $5,000 in punitive damages and $5,000 in moral damages. [ 8 ] The salient points of Régisseur Adam’s decision can be summarized as follows. [ 9 ] All of Defendant’s claims between the period of 2002 and 2009 are prescribed. [ 10 ] He also concludes that the Defendant did not meet the burden of proof imposed on him.

The evidence presented is insufficient, not credible, full of exaggeration, even bad faith. [ 11 ] He also notes that the Defendant filed the similar Motions before the Rental Board and notwithstanding the many decisions rendered on the same subject matter, dismissing Defendant’s claims, he continues to introduce claims of a similar, if not identical nature. [ 12 ] Régisseur Adam concludes from the voluminous Court cases, that the sole objective of the Defendant was to take possession of the dwelling, which would allow him to increase the rent and increase the sale price of the immoveable.

In fact, Régisseur Adam concludes that the immoveable had, in all probability, already been sold to another tenant, maybe on the condition that the Defendant succeeds in getting rid of the Plaintiff. [ 13 ] Before the Rental Board, as well as at the hearing in this Court, the Plaintiff complains that he was forced to spend thousands of dollars on lawyer’s fees and in disbursements, such as stamps, bailiffs’ fees, stenographer’ fees, etc., to contest Defendant’s Motions.

For this reason, Plaintiff claimed before the Rental Board $25,000 in damages. [ 14 ] $5,000 in moral damages, stress and inconvenience suffered, $5,000 in punitive damages and $200 per month for the loss of enjoyment of the dwelling and in reduction of rent. [ 15 ] Régisseur Adam notes that on December 17, 2010, the Rental Board rendered a decision granting $5,000 to the Plaintiff following the malicious and repetitive manoeuvres by the Defendant.

[ 16 ] Although damages had already been awarded to the Plaintiff, Régisseur Adam concludes that punitive damages are awarded to discourage a party from repeating acts of bad faith. He concludes that the Defendant did not benefit from this lesson and for this reason, he again condemns Defendant to pay $5,000 to the Plaintiff as punitive damages. [ 17 ] However, as decided by the Court of Appeal [2] , the Rental Board is not competent to award damages for abuse of right, which can only be awarded by this Court or the Superior Court, depending on the amount claimed.

ANALYSIS [ 18 ] Similarly to the decision reached by the Rental Board, the Court concludes that Defendant’s conduct is equivalent to bad faith and the recourses instituted before the Rental Board by him were abusive. [ 19 ] Over the years, the Defendant has filed approximately 30 Motions against the Plaintiff.

The Court concludes that the Defendant’s conduct is abusive, as each new claim filed is similar to claims filed in the past and contrary to the decisions rendered by the Rental Board for similar circumstances. [ 20 ] For example, the numerous claims filed by Defendant asking for payment of the rent and the cancellation of the lease, his claims for damages, his Motions asking the Rental Board to determine the rent or to increase it, all dismissed by the Rental Board. [ 21 ] In the present case, the Plaintiff claims $25,000 in damages that he reduces to $7,000 and renounces to claim the difference. [ 22 ] The Court grants Plaintiff’s action and awards him the following damages: - the extrajudicial fees and disbursements paid by the Plaintiff to his lawyer for four days of hearing at the Rental Board, representing an amount of $7,450.38, as appears from the account [3] ; - the cost of the stenographer paid on October 22, 2010 for $155,34 and on October 25, 2010 for $256,26, totalling $411.60 [4] ; - the costs of the transcripts from January 17, 2011 to June 7, 2012, totalling $90.70 [5] ; which amount is reduced by the Court to $7,000. [ 23 ] This amount is granted to the Plaintiff in an effort to discourage the Defendant from pursuing unfounded claims, for acting in bad faith and for harassing the Plaintiff. [ 24 ] The fact that the Defendant describes himself as a victim, demonstrates to the Court that he still does not understand the decisions rendered against him before the Rental Board.

FOR THESE REASONS, THE COURT : GRANTS in part Plaintiff’s action; CONDEMNS the Defendant, Mike Ohana, to pay to Plaintiff, Pierre Sarault, the sum of $7,000, with interest at the legal rate, plus the additional indemnity provided at

Article 1619 of the Civil code of Québec , as of the date of the institution of the action on April 26, 2013; WITH COSTS , in the amount of $167.00 representing the judicial stamp for the Application. __________________________________ DIANE QUENNEVILLE, J.C.Q.