2013 QCCQ 12429, 2013 QCCQ 12429

Vasilopanagos c. Varga 2013 QCCQ 12429 COURT OF QUEBEC Administrative and Appeal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-80-026073-131 DATE: September 30, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ PETER VASILOPANAGOS Plaintiff vs.

ANDREW VARGA Defendant ______________________________________________________________________ JUDGMENT [ 1 ] The Court is seized of a motion for permission to appeal a decision rendered by the Rental Board of Quebec, on June 19, 2013, by Commissioner Ronald Charbonneau.

The decision rejected the lessor’s claim and granted a part of the lessee’s claim, reducing the rent by global amount of $ 3,000 for the period from November 5, 2008 to June 13, 2013, and condemning the Lessor to pay the Lessee $ 500 damages. [ 2 ] As well, the decision ordered the lessor to perform a series of corrective works, authorized the deposit of the rent, maintained an earlier decision of the Rental Board of October 29, 2008 reducing the rent and awarded an additional rent reduction of $ 25 per month. [ 3 ] The scope of appeal is limited to the conclusions awarding damages of $ 500 and the retroactive rent deduction of $ 3,000, for a total of $ 3,500, and the prospective rent deduction of $ 25 per month. [ 4 ] The grounds of the appeal for which the lesser seeks authorization are as follows:

a) Failing to properly and directly address in his conclusions the testimonial and written evidence (expert inspection report) given by the Petitioner’s expert witness, Mr. Ferdinand Lemay, a technological professional in building sciences with respect to the cause of many of the damages alleged by the Respondent?

b) Failing to give adequate reasons and/or giving an inappropriate weight or consideration to the evidence in the form of the reports and non-conformity warnings to the given to Petitioner by building inspectors for the City of Montreal as well as to the testimonial evidence by the tenant regarding the damages described for as Petitioner respectfully submits, those reports appear to indicate only the presence and existence of damages in the apartment in question and not the origin of the damages which the administrative judge ultimately concludes to be due to the Petitioner’s sole negligence to maintain the building and this, in contradiction to the contributory negligence of the Respondent demonstrated by Petitioner’s expert;

c) Concluding that Petitioner’s defense amounted to nothing more than imputing fault to the tenant despite the independent evidence with respect to liability and mitigation of damages?

The whole leading the administrative judge to conclude that petitioner failed to establish beyond a balance of probabilities the allegations of his demands and thereby being an error determinant to the point of overturning the decision of the Rental Board; [ 5 ] The lessor argues that the Rental Board’s decision demonstrates an apparent weakness because the commissioner did not adequately explain his evaluation of the expert testimony adduced by the lessor.

The lessor submits that the commissioner erred in failing to give probative value to the expert witness’ report because of the lessor’s own lack of credibility, an irrelevant consideration. [ 6 ] A veritable saga relating to a conflict dating from 2007, the case was heard over several days between the first scheduled hearing in October, 2010 and the completion of all matters in March, 2013. [ 7 ] The issue raised in the motion for leave relates to a finding of responsibility on the lessor’s

part in failing to correct outstanding deficiencies, despite numerous notices of compliance from the municipal authority.

[ 8 ] In assigning liability to the lessor, the decision also rejects the lessor’s claim in damages against the lessee. The decision dismisses the assertion that the lessee bore a responsibility with respect to the accumulation of condensation because of various measures he had taken to try to deal with the problem. It also rejects the lessor’s claim that the lessee has caused damage to the already defective masonry. [ 9 ] The lessor drew the Court’s attention to the expert’s evaluation of the various causes associated with the effective condensation in the dwelling.

The expert concluded: • Cette inspection a révélé qu’il y a effectivement un problème majeur de condensation.

Cet état découle du manqué d’entretien du logement, d’un manqué de chauffage et de l’ajout de composantes néfastes à la circulation normale de l’air. • Ces négligences occasionnent la contamination de l’air ambiant et la dégradation des finis intérieurs du logement, plus particulièrement aux murs extérieurs. • Les travaux préconisés devraient être réalisés immédiatement tel que mentionné lors de notre visite et, à défaut de procéder, les locataires devraient être relocalisés. [ 10 ] The decision gives the following response concerning the possible liability of the opposing parties for these two problems: La réclamation de 9 865 $ du 21 septembre 2011 pour les dommages causés par la condensation et la somme de 455 $ pour les dommages à la maçonnerie sera aussi rejetée.

La preuve révèle que les dommages au logement sont davantage causés par la négligence du locateur à entretenir correctement le logement et son refus de respecter les ordonnances émises par la Régie du logement et la Ville de Montréal. [ 11 ] Thus, the commissioner, clearly, based his decision on causality, concluding that the lessor is responsible for these problems and that the lessee does not bear any responsibility. [ 12 ] There is no basis on which the Court could conclude that the commissioner erred in finding no responsibility on the part of the lessee relating to the masonry. [ 13 ] With respect to the condensation, it stands to reason that, if corrective measures are required to the immoveable to bring it up it to the standards required by the applicable codes, the lessor cannot be relieved of his liability because of temporary measures taken by the lessee.

It is evident from the passage quoted above that the commissioner did not consider that causality was sufficiently demonstrated in regard to the things the tenant had done. This was within the commissioner’s scope of evaluation of the evidence. There is nothing to suggest that the commissioner, in evaluating the parties’ respective roles in the condensation problem, erred in the application of the rules of causality, nor that he made a factual error that was obvious and determinative in the result. [ 14 ] There is no apparently weakness in the decision.

FOR THESE REASONS, THE COURT : DISMISSES the motion for permission to appeal a decision rendered by the Rental Board of Quebec; THE WHOLE with costs. _________________________________ DAVID L. CAMERON, J.C.Q.

Me RANDI ZARITSKY PAQUETTE & ASS. HUISSIERS Attorney for the Plaintiff ANDREW VARGA (self defense) Respondent Date of hearing: September 19, 2013