2011 QCCQ 11786, 2011 QCCQ 11786

Parent c. Papalaskaratos 2011 QCCQ 11786 JQ 0059 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-114520-093 DATE: September 21, 2011 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ WANDA PARENT Plaintiff v.

VASILIOS PAPALASKARATOS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized with an action in damages following the eviction of the tenant, the Plaintiff, Wanda Parent, by her landlord, the Defendant, Vasilios Papalaskaratos. [ 2 ] The Court proceeded ex parte , as the Defendant did not attend the hearing to contest Plaintiff's action.

The facts [ 3 ] A residential lease was concluded between the parties for a one-year term, from July 1 st , 2006 to June 30, 2007. [ 4 ] The Plaintiff neglected to pay the rent for the months of August, September and October 2006, prompting the Defendant to file a demand at the Régie du Logement ( Régie ). [ 5 ] On October 18, 2006, the Régie renders its decision concluding that the Plaintiff owed to the Defendant $1,620, representing those three months rent plus costs, Exhibit P-1 . [ 6 ] The Régie notes in its judgment that an amount of $1,095 was also owed by the Plaintiff, but this was settled by an agreement concluded by the parties on August 29, 2006, by which the Plaintiff undertook to pay this amount within four months. [ 7 ] By its decision, the Régie resiliates the lease and condemns the Plaintiff to pay to the Defendant $1,620 plus interests and costs. [ 8 ] As of October 25, 2006, the Plaintiff owes to the Defendant $1,715 in capital, interests and costs. [ 9 ] On that date, she pays to the Defendant $1,680, as appears from the receipt signed by the Defendant, Exhibit P-2 en liasse. [ 10 ] The balance of $35 is paid on November 1 st , 2006, at the same time that the Plaintiff paid the November rent to the Defendant, as appears from the receipt signed by the Defendant (Exhibit P-2) .

[ 11 ] For the month of December 2006, the Plaintiff tries to pay the rent to the Defendant, but he refuses to accept it. He refuses any payment by check, insisting on receiving cash only. When Plaintiff's daughter, Lita Parent, tries to pay to the Defendant the December rent, he refuses to open the door.

Lita Parent supports on all points the testimony of the Plaintiff. [ 12 ] On January 9, 2007, at the request of the Defendant, a bailiff serves a Writ of Expulsion against the Plaintiff, Exhibit P-3 en liasse. [ 13 ] The Defendant has Plaintiff's belongings and those of her children put in a truck and sent to La Fourrière municipale de Montréal. [ 14 ] After paying the costs of $1,326.03, Exhibit P-4 , Plaintiff recovers her belongings, but realizes that many items are missing, namely cosmetics, a microwave, a flat screen television etc., Exhibit P-5 en liasse. [ 15 ] The Plaintiff reduces the amount of her claim to $6,000, representing the amount of $1,326.03 paid to the City to recover her goods placed in storage, the lost items, the loss of time, inconvenience, pain and suffering.

Analysis [ 16 ] The Defendant had no right to request a bailiff to serve a Writ of Expulsion in January 2007. [ 17 ] The judgment of the Régie covers the arrears for the months of August to October 2006, for a total amount of $1,715, which the Plaintiff paid to the Defendant in October and November 2006. [ 18 ] The Defendant had no obligation to accept this amount and certainly no obligation to accept the November 2006 rent.

By accepting the payment for the November 2006 rent, he indicates his intention of waiving his rights to execute the Régie's judgment of October 18, 2006. [ 19 ] As this judgment does not cover the rent of November or December 2006, if the Defendant, in requesting the issuance of a Writ of Expulsion, was alleging that the Plaintiff had not paid the December rent, he had the obligation to return to the Régie and file a new demand.

He could not use the October 18, 2006 judgment as a basis for the Writ of Expulsion. [ 20 ] Moreover, the Régie clearly indicates in its decision, that should the previous arrears of $1,095 not be paid, the Defendant had to return to the Régie and file a new demand. [ 21 ] The Defendant acted in bad faith, with total disregard of the law and of Plaintiff's rights. [ 22 ] In the circumstances, the Court awards to the Plaintiff the amount paid to the City to recover her goods placed in storage at the request of the Defendant, namely an amount of $1,326.03, Exhibit P-4 . [ 23 ] As for the loss of property, the evidence provided by the Plaintiff is deficient.

More particularly no invoice or material evidence is provided to support the ownership of the more expensive items. However, the Plaintiff did testify to the fact that she lost a number of items in the move of her belongings.

For these reasons, the Court reduces Plaintiff's claim to $500. [ 24 ] The Court also grants damages of $1,000 for the loss of time, pain, suffering and inconvenience suffered by the Plaintiff resulting from her expulsion from the premises. [ 25 ] As there is no proof that the demand letter was sent to the Defendant, the Court will grant interest from the date of the institution of the action, January 9, 2009.

FOR THESE REASONS, THE COURT: [ 26 ] GRANTS in part Plaintiff's action; [ 27 ] CONDEMNS the Defendant to pay to Plaintiff the sum of $2,826.03, plus interests at the legal rate and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , as of January 9, 2009. __________________________________ DIANE QUENNEVILLE, J.C.Q.