r v. PANAGIOTIS DRAKAPOULOS, 2015 QCCQ 12405

Liao c. Drakapoulos 2015 QCCQ 12405 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-80-028263-144 DATE: November 12, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON ______________________________________________________________________ CHEN CHIH CHEN LIAO Appellant / Lessor v.

PANAGIOTIS DRAKAPOULOS Respondent / Lessee and RÉGIE DU LOGEMENT Mise en cause ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is an appeal from a decision of the Régie du Logement (the "Board") rendered in Montreal on April 7, 2014 by Commissioner Ross Robins. [ 2 ] The case involved a situation where a dwelling was vacated by the Lessee, ostensibly because it was unfit for habitation because of a proliferation of mould that developed because of marijuana cultivation by a previous Lessee. [ 3 ] The Lessor contested the allegation that the dwelling was unfit, and there was contradictory expert evidence on the question.

Depending on how the issue was determined, the resiliation of the lease would result in a recourse in favour of the Lessor, for the consequences of an unlawful resiliation on the part of the Lessee, or a recourse in favour of the Lessee, because of the fault of the Lessor in not providing a dwelling fit for habitation. [ 4 ] Central to the case are documents emanating from the City of Dorval (the “City”), on which both parties rely to establish their case: the Lessee asserts that a competent authority had declared the dwelling unfit for habitation, thereby justifying his departure, and the Lessor maintains that that the City had not clearly done so, that it had rescinded it's initial notice and that, as a question of fact, including the technical data, the dwelling was not unfit for habitation. [ 5 ] The appeal raises questions as to the meaning and effects of articles 1913 to 1916 of the Civil Code of Quebec in the context of declarations of "a competent authority", in this case a municipal authority.

The decision appealed from [ 6 ] The Board was seized of two files joined for hearing, which was held on November 2, 2012 and April 15, 2013. [ 7 ] In the Lessor’s demand, number 31-120802-026 G, the initial application and subsequent amendments included recourses for the resiliation of the lease on the ground that the rent was not paid in a timely manner, for the recovery of unpaid rents as well as damages in the form of lost rental income, heating and electrical costs as well as various costs of cleaning and repairs and, finally, expert costs and punitive damages. [ 8 ] The Lessee’s case, file number 31-120910-077 G, requested the resiliation of the lease on the ground that the premises were unfit for habitation (related to a proliferation of mould due to a previous marijuana cultivation) and a retroactive reduction of rent, costs of moving and storage, hotel expenses, decontamination of furniture and clothing, and kennel costs for the Lessee’s dog as well as expert fees. [ 9 ] The Board rendered a single decision in both files.

Firstly in the Lessor’s Application, the Board condemned the Lessee to pay the Lessor the sum of $ 3,535 with interest at the legal rate plus the additional indemnity, plus costs, dismissing the other aspects of the Lessor’s Application.

[ 10 ] In the Lessee’s Application, the Board confirmed the resiliation of the lease as alleged by the Lessee as of October 1, 2012 and condemned the Lessor to pay the Lessee damages in the amount $ 5,872.50 with interest at the legal rate plus the additional indemnity plus costs, authorizing compensation between the two amounts. [ 11 ] The issue of the fitness of the premises for habitation was determined in the Decision by a series of findings which can be summarized as follows: • A notice of eviction issued by an inspector of the City of Dorval dated October 1, 2012 constituted a declaration of a competent authority that the dwelling was unfit for habitation; • the Lessee and other occupants had left the dwelling definitively by September 18, 2012; • a subsequent notice of the city inspector dated October 11, 2012 advised the Lessor that the dwelling was "no longer considered a public health and public safety hazard, in accordance with the applicable by-law"; • the Lessor ought to have informed the Lessee that the dwelling was now fit for habitation and failed to do so, which resulted in the resiliation of the lease as of right; • the Lessee abandoned the dwelling lawfully, and therefore owes nothing to the Lessee, except with respect to the costs of cleaning and repair that the Lessor incurred because the Lessee failed to return the dwelling in a proper state; • the Lessee is entitled to various damages relating to moving and storage.

The object of the appeal [ 12 ] The conclusions sought in the motion for leave to appeal were limited to authorizing the appeal. The conclusions sought in the appeal itself were not written out. Implicitly, thought, it can be understood that the object of the appeal is to obtain a judgement of this Court imposing the conclusions that were sought in first instance by the Appellant / Lessor in her demand and refusing those sought by the Respondent / Lessee. [ 13 ] At the hearing, the Appellant produced an outline of argument. It contained an articulation of the conclusions sought on the appeal.

These conclusions, in some respects, went beyond the object of the appeal as confined to the reversal of the decision of the Board. [ 14 ] The total of the amounts claimed in first instance by the Lessor was composed of an initial claim for the rent owed with respect to August 2012, $ 1,850, plus an additional eight months of rent from September 2012 to April 2013, $ 14,800 plus hydro bills, $ 500 and heating oil, $ 1,400. [ 15 ] At the hearing before the Commissioner, other amounts were added, including damages, totalling another $ 17,006.80, plus punitive damages and more heating oil. [ 16 ] With various redundancies that are explained by the Commissioner, the case was considered to be a claim for $ 60,000 " à parfaire " for a total not to exceed the Board's monetary limit of $ 69,999. [ 17 ] At the hearing on the merits of the appeal before the undersigned, the claim was restated as a total of $ 75,489.90.

The appellant conceded however that it could not exceed the monetary limit referred to above. [ 18 ] Apart from the final statement of the amounts that were previously expressed to be "sauf à parfaire" what stands out in particular in the claim is the amount of $ 35,624.70 for extra-judicial costs. [ 19 ] This new claim is dealt with below in the Analysis portion of the judgment. The grounds of appeal permitted [ 20 ] The undersigned, sitting in the practice division of the DAA, permitted the appeal on the first three grounds proposed by the Appellant as follows: 1.

The Régisseur Ross Robins made a manifest error in appreciation of the documentary evidence and of the testimony by failing to take into account all the documentary evidence and testimony presented at the hearing. 2. The Regisseur Ross Robins manifestly erred in fact and in law by concluding that the expertise produced by Petitioner / Lessor had no impact on the outcome of the case and by further not awarding any expert’s costs to Petitioner / Lessor. 3.

The Regisseur Ross Robins declared the lease to be resiliated at October 1 st , 2012, while solely compensating Petitioner / Lessor for sixty percent (60%) of the rental due for the month of September 2012. [ 21 ] The fourth and fifth grounds of appeal sought by the Appelant related to the conduct of the hearing.

They were considered to be redundant, in that the procedure on appeal permits the parties to bring evidence on the grounds of appeal permitted, so that the failure alleged on the part of the Commissioner to allow the Appellant's representative to conduct the evidence and the failure to provide a complete recording of the hearings was no longer a live issue. [ 22 ] The first ground of appeal is extremely broad, and when it is read in light of the argument raised in the motion for leave and the decision appealed from, it is clear that the factual and legal determinations that were essential to the decision prevented the Commissioner from considering some major portions of the evidence, most notably the expert opinions and any other factual material about the alleged state of the premises leading up to the notices.

This is because the Commissioner considered the initial notice of the

City as determinative of the issue that the dwelling was unfit for habitation and the Lessee could vacate the premises. [ 23 ] The second ground opens the door to examining the entire context of the notices issued by the City and the true condition of the premises. Depending on the legal determination of the effects of those notices, the evidence about the condition of the dwelling may or may not be of interest.

Pending that determination, it was necessary to have a complete evidentiary file about those facts. [ 24 ] The third issue opens the door to a debate about the true measure of damages in the event that the resiliation was due to the fault of the Lessee, from the date of the Lessee's departure.

Because the Commissioner considered the resiliation to have been as of right on the part of the Lessee, it followed that a claim for damages in the form of lost rental revenue could only result from the Lessee having, in the words of the Commissioner, "left the premises in such a state of repair as to preclude her from re-renting it within a reasonable delay". Thus, the loss of rental per se and the issue of mitigation were not dealt with in the usual manner, i.e. as damages for a wrongful resiliation by the Lessee, only in relation to the "mess left by the tenant" upon a resiliation that was otherwise lawful.

The procedure on appeal [ 25 ] The judgment rendered on the motion for leave to appeal states that "the essential factual and legal questions mentioned above will permit the parties to adduce evidence on all aspects of the case, in the manner of a trial de novo ". [ 26 ] The term de novo created some controversy between the parties as to the scope of the evidence that would be permitted. The use of that expression was perhaps not the best, because the procedure on appeal is not truly a trial de novo in the classic sense.

As one author [1] points out, it is really a “hybrid” proceeding with some aspects of the appeal depending on a consideration of evidence, and other aspects being decided on the basis of the record. [ 27 ] Be that as it may, the parties decided to substitute the filing of the expert reports as testimony rather than calling the experts as witnesses, and the Court permitted full proof on all other factual issues in the case.

In a practical sense, this was more efficient than presenting a transcript of all the evidence given on several dates before the Régisseur and then trying to dissect out the parts that would be considered part of the record and then supplementing them with other elements. The hearing of the evidence as reduced by certain joint admissions was complete within one day of hearing, a more efficient use of the time of the Court and of the attorneys than would have otherwise been the case. Questions of fact [ 28 ] The factual material relevant to the appeal touches on the following subjects: 1.

The situation leading up to the notice issued by the city of Dorval (P-8). 2. The notice and the communications that follow. 3. The subsequent notice (P-10). 4. The technical reports produced at the parties' request. 5. The Lessee's departure from the dwelling prior to the end of the lease and the consequences thereof. [ 29 ] We will deal with these factual elements in that sequence. 1.

The situation leading up to the notice issued by the City of Dorval (P-8). [ 30 ] The part of the narrative dealing with the alleged discovery of a marijuana grow op is set out by the Commissioner in a series of paragraphs which we summarise as follows: 1. After they had been living in the dwelling for about a month, the tenant's girlfriend, who suffers from asthma, found it increasingly difficult to breathe. There is no medical evidence of a relationship between this condition and the quality of air in the dwelling (par. 24 and 25). 2.

The tenant contacted the City of Dorval seeking an air-quality analysis, but the city did not respond (par. 26). 3. The tenant discovered some articles in the attic: a light fixture, wires, garbage bags, masks and gloves. When he confronted the Lessor's man of business, her son-in-law Mr Bumbar, he admitted a previous tenant had cultivated marijuana in the lower level of the dwelling, giving many details as to the operation (par. 27-29). 4.

The tenant then called in the police who investigated, but the police wrote a report concluding that there were no signs of there having been a "serre hydroponique" (par. 30). [ 31 ] The Commissioner recounts this evidence from the point of view of the Lessee, but offers no analysis as to the credibility of the testimony and makes no mention of any contradicting evidence from the Lessor. [ 32 ] Thus it is impossible to determine what the Commissioner's factual determination would have been on this point.

It became irrelevant for the Commissioner to consider this point and the expert opinion about the actual state of the dwelling, because of his finding in paragraph 40: [40] Pursuant to

Article 1913 of the Civil Code , the inspector’s notice constituted a declaration by a competent authority that the dwelling was unfit for habitation.

«1913. The Lessor may not offer for rent or deliver a dwelling that is unfit for habitation.

A dwelling is unfit for habitation if it is in such a condition as to be a serious danger to the health or safety of its occupants or the public, or if it has been declared so by the court or by a competent authority». [ 33 ] The involvement of the City of Dorval's inspector is interrelated with the expert studies carried out by the parties following the surfacing of the allegations about a previous marijuana growing operation. [ 34 ] The sequence of facts as related in the Decision are as follows: [ 35 ] The Lessee's attorney writes to the Lessor on August 17, 2012 (P-4) asserting that there is mould, that the premises are unsafe and calling upon the Lessor to take certain steps with the Régie du bâtiment. [ 36 ] The Lessor replies to the attorney on August 22, 2012 to say that the Régie du bâtiment does not involve itself in Lessor and Lessee disputes and suggesting that a technical report be obtained. (P-5) [ 37 ] The contradictory expert reports follow, with the Thorpe report of September 14, 2012, concluding there is a health risk, calling upon the occupants to leave pending decontamination and verification. [ 38 ] The Lessee had already instituted his recourse at the Rental Board for resiliation on September 10, 2012 (P-6) The Lessee's attorney informs the Lessor or this on September 17, 2012 (P-7) forwarding a copy of the Thorpe report and advising as well that a copy of the report has been forwarded to Daniel De Coene, a city inspector. [ 39 ] The Lessor obtains her own report by Paul Trudel dated October 3, 2012 (the “Airbabs Report”), the results of which show the absence of any contamination.

A copy of this report is sent to De Coene. 2. The notice and the communications that follow. [ 40 ] Upon reading the Thorpe report, De Coene issued a notice (P-8), which we reproduce below: NOTICE OF EVICTION BY-LAW CONCERNING THE SANITATION AND MAINTENANCE OF DWELLING UNITS RCM-6-2005

article 7,

article 11,

article 13,

article 16,

article 18,

article 19,

article 21,

article 22,

article 23,

article 24

article 25 RÉFÉRENCE: […], Dorval (Québec) […]____________ Mr. and Mrs. Chen Chih Chen Liao, Upon receipt of an air quality investigation report, on September 17 th , 2012, mandated by the tenant of your building, we assessed that the cited building may constitutes a public health and public safety hazard because of the use that it made of it and the condition it is in, therefore possibly contravening the cited by-law.

From the opinion of the mandated party; “ The house poses a substantial health risk to the occupants…and should not be reoccupied until all recommended decontamination procedures are complete and the house conditions are verified…” Therefore upon considering the cited report and the state of this dwelling, take notice that this building is now unfit for occupancy and will remain closed off to prevent access and to avoid any accidents until this building is investigated by a specialist on air quality and mold and certified as being safe, in accordance with the cited by-law.

Consequently you have ten (10) days upon reception of this notice to comply with the provisions of the CITY OF DORVAL BY-LAW CONCERNING THE SANITATION AND MAINTENANCE OF DWELLING UNITS therefore a report and certificate of safety by a recognized specialist on air quality and mold must be given to the undersigned, in compliance with the cited by-law. Be advised, no building that is evacuated and closed down, in accordance with this by-law, may be inhabited again until the required work has been carried out, if necessary.

Furthermore, be advised that anyone who contravenes any of the provisions contained in this by-law may be liable to a fine of at least FIVE HUNDRED DOLLARS (500.00$) and no more that TWO THOUSAND DOLLARS (2000.00$) for each infraction. To ensure compliance with the provisions of this By-law, the City of Dorval may exercise, cumulatively or alternatively with those provided by this By-law, any appropriate civil or penal recourse prescribed by law.

Also, the competent authority, may, in case of default by the owner of an immovable, use any recourse prescribed by Law to ensure the enforcement of this by-law or to remove any unsanitary conditions, at the owner’s expenses. The costs incurred by the city for any measure taken under this by-law, constitute a charge equivalent to the property tax against the immovable. Failure to take the corrective measures required in this notice will result in legal proceedings without further notification and without delay. We therefore ask for your cooperation in this matter.

Should you need additional information please contact the undersigned. [ 41 ] At first blush, the document appears to be a notice of eviction because the dwelling has been found to be unfit for occupation:

the declaration of a competent authority as defined in the law. [ 42 ] On a closer reading, however, the document reveals a more complex expression of a possible infraction of the by-law, of an assessment "that the cited building may constitute a public health and public safety hazard…" [ 43 ] Mr De Coene testified in clarification of the ambivalent terms of the notice. [ 44 ] He spoke of the visual criteria applicable to the characterisation of mould. [ 45 ] Having visited the dwelling in August, 2012 in the company of the Lessee (he gave two possible dates, one of them being the 15 th of August), he came to the conclusion that the mould visually detected did not constitute a danger to the occupant (ne portait pas atteinte à la santé et la sécurité de l'occupant).

The Lessee did not agree, and Mr De Coene suggested that he obtain a report from a competent expert. [ 46 ] After seeing the report of Mr Thorpe, Mr De Coene was still of the view that the property did not represent an imminent threat for the health and safety of the occupants; it was simply a question of cleaning and maintenance, of a presence of water stains as opposed to dangerous black stains characteristic of mould. [ 47 ] He felt that it was nevertheless his duty to call upon the Lessor to obtain a report.

He spoke to the Lessor and prepared the notice of eviction, P-8. [ 48 ] He stressed in his testimony that he did not wish to "statuer" on the condition of the dwelling, he thought only that it may constitute a danger; he saw the document (P-8) as a way of inciting the Lessor to provide technical information.

He wanted to give the Lessor the opportunity to do so, because the City is not equipped to test the air. [ 49 ] What he wrote was not his opinion, it was based on the report mandated by the Lessee. [ 50 ] He was aware that the building was already vacant since September 17 when he acted on October 1. [ 51 ] He also informed the Court that his superior, the general director of the City, had written an email to the police department and that the communication coming back from the police was that there was no evidence of a marijuana operation in the premises. [ 52 ] His superior agreed with him that there was no danger.

The Mayor spoke to him and he gave his opinion that it was simply a question of maintenance, and that the City by-law was not violated. [ 53 ] His purpose in writing the notice of eviction was to obtain a report on the air quality from the Lessor, as a preventative measure, in order to have a more complete file. He remitted it by hand to the Lessor, having not been successful in sending it by registered mail. [ 54 ] This would suggest that the notice dated October 1, 2012 is a second document printed to replace the document that he had sent earlier by registered mail, unsuccessfully. 3.

The subsequent notice (P-10). [ 55 ] When, on October 9, 2012, he received the report obtained from the Lessor, the “Airlabs report”, which concludes that there is not any contamination from airborne mould spores, he wrote the second letter, dated October 11, 2012, which the Lessor's attorney refers to as a "notice of repeal". The operative text of the document reads: […] Upon receipt and analysis of an air quality investigation report, from “airlabs analyse / diagnostic” , dated October 3 rd , 2012, for the cited property, mandated by the owners, we repeal our prior assessment of the cited building.

Consequently we accept the conclusion stated on the above mentioned report. Therefore, the cited building is no longer considered a public health and public safety hazard, in accordance with the applicable by-law. Should additional information be required, please do not hesitate and contact the undersigned. [ 56 ] The Commissioner interpreted this document as establishing that the dwelling had become fit for habitation again, and, invoking the relevant provision, wrote: [44] Having received this notice, it was incumbent upon the landlord to advise the tenant that the dwelling was now fit for habitation. «1916.

As soon as the dwelling becomes fit for habitation again, the Lessor is bound to inform the Lessee, if the Lessee has given him his new address; the Lessee is then bound to notify the Lessor within the following 10 days as to whether or not he intends to return to the dwelling. Where the Lessee has not given the Lessor his new address of fails to notify him that he intends to return to the dwelling, thte lease is resiliated of right and the Lessor may enter into a lease with a new Lessee.» [45] This was never done. [46] The evidence reveals that the Lessee did not advise the landlord of his new address.

However, the landlord had, in the recent past, corresponded with Me Perlini and could have attempted to communicate with Drakapoulos through his attorney. That she failed to do so should come as no surprise. Drakapoulos was (as the landlord’s application alleges) a chronically late payor and she wanted him out of the dwelling permanently. In any event, the silence of the parties engendered the resiliation of the lease «as of right». [47] It follows that the landlord’s claim for $ 14,800 in lost rental income from September 2012 to August 2013 cannot be justified on

the ground of an unlawful abandonment or, as

Article 1975 C.c.Q. would have it, an abandonment «without any reason». [48] The Lessee moved out on September 18, 2012 but not before his attorney had advised the landlord on September 17, 2012 that according to the Thorpe Report – a copy of which was attached thereto – the dwelling was unfit for habitation. In respect, the requirements of

Article 1915 C.c.Q. were met in full. «1915. A Lessee may abandon his dwelling if it becomes unfit for habitation, but he is bound to inform the Lessor of the condition of the dwelling before abandoning it or within the following 10 days.

A Lessee who gives such a notice to the Lessor is exempt from rent for the period during which the dwelling is unfit for habitation, unless the condition of the dwelling is the result of his own fault». [49] Subsequently, on October 1, 2012, the municipality formally advised the landlord that the dwelling was «unfit for occupancy». [50] Following the tenant’s departure and the resiliation of the lease «as of right», the landlord was free to sign a lease with a new tenant. [ 57 ] We will refer to this in the Analysis section. [ 58 ] Despite the factual conclusion of the Commissioner at paragraph 46, the evidence is quite clear however that the Lessor did provide the Lessee's attorney with a copy of this repealing notice.

It was received by the Lessor's attorney on October 22, 2012 (P-11). 4. The technical reports produced at the parties' request. [ 59 ] The parties agreed that the technical reports that were part of the record at the Board would be produced in the appeal in lieu of the testimony of the two experts. [ 60 ] The Thorpe report, purporting to be a "general microbial evaluation" details several deficiencies in the building and suggests corrections for each of them.

There are, according to this report, concerns about the possible proliferation of moulds. [ 61 ] The report seems to be written from the point of view that there was indeed a marijuana grow operation at one time in the building, and the conclusions include the statement that the "data and observations support the conclusions that there was a marijuana grow operation in the two basement levels”. The report suggests some major stripping of finishes and decontamination procedures. [ 62 ] The report concludes, however, with a limitations section: 8.

LIMITATIONS This investigation was limited in scope to a primarily visual inspection of the areas described. This investigation did not include a complete moisture intrusion evaluation. Consequently, these results are suggestive only and should not be relied as absolute conclusions without a repetitive sampling protocol.

EnviroPerfect is not responsible for any actions taken as a result of the recommendations or conclusions contained in this report. [ 63 ] The reader readily understands why the City official wanted to give the opportunity to the Lessor to provide an air quality analysis before coming to any conclusions of his own. [ 64 ] The Lessor's report by “Airlabs”, the result of a series of standardized quantitative tests, concludes that there is not contamination in the five areas of the house tested. [ 65 ] It is a simple, but very convincing report. 5.

The Lessee's departure from the dwelling prior to the end of the lease and the consequences thereof. [ 66 ] The determination by the Commissioner that "by September 18, 2012, Drakapoulos and his co-occupants had left the bungalow for good" establishes the latest date on which they might have left, but it is not a determination of the earliest date on which they decided to leave and what was essential from the Appelant's point of view, i.e. that the departure had, in fact, commenced on September 5 and was complete by September 11. [ 67 ] The significance of that argument is that the departure, according to the Appellant's analysis, was motivated by other concerns, that the condition of the dwelling was used as a pretext, and that the notice of eviction of the City was neither the cause nor the justification for it. [ 68 ] We will now review the evidence on the question of the date of the Lessee's departure. [ 69 ] Mr Bumbar testified that, at a hearing of the Board on Sept 5, 2012 Mr Drakapoulos told the Commissionner that had left the premises but had not taken out all of his belongings.

Later that day he went to the premises and saw that the dogs were still there. He did not try to enter. He could see much from the outside. [ 70 ] He returned to the premises on September 11 and saw that the occupants had moved out and the dogs were no longer there and there were no vehicles in the driveway.

Some items were discarded there, but it was clear that the occupants had vacated the premises. [ 71 ] Mr Drakapoulos testified that he left between September 11 and 17, but he can't remember the exact date. [ 72 ] His co-occupant, Jennifer Décarie, testified that she left in August to live with a family member. She believes they moved out sometime in August. She was not asked any questions about the admission Mr Bumbar allegedly made to Mr Drakapoulos.

[ 73 ] The Court considers the testimony of Mr Bumbar to be more reliable than that of Mr Drakapoulos because it was more definite. The evidence establishes on the balance of probabilities that Mr Drakapoulos had already begun the process of leaving on September 5 and that he and the other occupants had left by September 11.

Analysis [ 74 ] There is one blatant error of fact in the Decision that was essential in the result: the finding that the Lessor failed to notify the Lessee that the building was no longer considered a health hazard. [ 75 ] The communications between the parties were being carried out on the Lessee's behalf by the latter's attorney Me Perlini. It was within the scope of Me Perlini's mandate to receive a copy of the second notice (P-9). Thus, the failure on the part of the Lessee to reply would give rise to the Lessor's right to consider the lease resiliated. [ 76 ] But the application of

article 1916 depends upon the dwelling having been, at the time of the Lessee's departure, unfit for habitation. [ 77 ] In the present case, there were two possible means of proof of the unfit character of the dwelling. The first was factual proof, including testimony on the issue and the Thorpe report. This proof, as a whole, does not demonstrate that the dwelling was unfit for habitation.

It is impossible to analyse the Commissioner's opinion on this point, because he did not offer one. [ 78 ] In the Court's analysis, the Lessee's evidence is not probative for the following reasons: • The anecdotal evidence of Ms Décarie's state of heath does not establish a causal relationship between her asthma, which was a prior condition, and the presence of mould. • The testimony of the Lessee to the effect that he found certain objects that he might have perceived to be remnants of a grow op are not substantiated, and the police, who are accustomed to investigations of this sort, found no trace of one. • The Court accepts Mr Bumbar’s testimony that there was no knowledge on his part of a grow-up and there could therefore have been no admission by him of this fact.

There is no allegation of such an admission in any of the proceedings or documents drafted by the Lessee's attorney. • The Thorpe report, because of it's limitations and, especially because no objective standardised quantitative measurements were taken when it would have been very easy to do so, deprives the expert's opinion of any substantiation.

It is possible that the house is a danger because of mould, because it is in need of certain repairs, but the appropriate testing was not carried out to demonstrate this. • When testing was carried out, in a very objective way, as documented in the Airlabs report, no contamination was found. [ 79 ] The notion that a dwelling is unfit for habitation is a rather extreme one. It is not simply a question that repairs and maintenance, or cleaning, are required to optimise the comfort of the occupant and eliminate any risk.

It is a question that the occupants must leave because of a present danger. [ 80 ] This brings us to the other way in which it can be established that a dwelling is unfit for habitation: the declaration of a competent authority. [ 81 ] The City of Dorval is such a competent authority when acting under its by-law [2] . [ 82 ] What the Civil Code of Quebec requires is a declaration that the dwelling is of such a condition as to be a serious danger to the health or safety of its occupants or the public. [ 83 ] The operative words of the bylaw of the City of Dorval are: 25.

Un bâtiment ou un logement ne doit pas porter atteinte à la santé ou à la sécurité des résidants ou du public en raison de l'utilisation qui en est faite ou de l'état dans lequel il se trouve. [ 84 ] Although the words used are not identical to those of the Civil Code of Quebec , the intent is essentially the same. [ 85 ] The notice, on its face, though it orders an evacuation of a dwelling that the inspector knew was already vacated, does not give such a declaration. [ 86 ] The use of the conditional "may constitutes" [sic] and the words "possibly contravening the by-law" indicate to the reader that the drafter of the notice has not come to any determination that would permit a declaration. [ 87 ] The notice was, however, a notice of eviction and it could have been used to prevent the Lessor from bringing in a new Lessee.

The fact that it was a notice of eviction did not make it a declaration as that term is used in the Civil Code of Quebec . [ 88 ] The inspector actually testified that he did not have the power to order an eviction unless he addressed a demand to a competent judicial authority.

The by-law does not support this view, but the testimony indicated that the inspector was using the eviction notice as a means of obtaining more reliable and complete technical data about the state of the building, not to obtain an eviction because he had come to no conclusions of his own and he knew the premises were vacant. [ 89 ] The repeal, P-10, can be read it two ways. The Commissioner read it as proof that the dwelling, at one time unfit for habitation, had become once again fit for habitation. [ 90 ] The document actually does not say this.

It says that the dwelling, once considered to be a public safety and health hazard, is no

longer considered as such. It is voiced as a repeal of an earlier assessment: i.e. a declaration that the earlier assessment was not valid, not as a change in the quality of the dwelling. [ 91 ] Out of this rather confusing sequence, the only coherent conclusion one can come to is that the City ordered an eviction, without declaring that it had determined the dwelling was unfit, because it had an incomplete set of technical data that said that it might be unfit.

Upon completing it's investigation, it's interim action was rescinded because it had now formed a definitive opinion that the dwelling was not unfit. [ 92 ] As a result of its process, the City stated that the building was allegedly unfit, that it was perhaps unfit, and, finally that it was not unfit or that is was no longer assessed as being unfit. [ 93 ] A rather confusing set of contradictory messages for a Lessee who was seeking a clear reason to justify his departure and a Lessor who was dealing with a Lessee in default to pay rent.

When the Lessor left the dwelling himself, his co-occupants had already left. He had not paid rent that was due. He had not obtained the assistance of the City and the police as he had hoped, to establish the previous presence of marijuana grow op in the house. [ 94 ] Perhaps the Lessee could be seen to have acted reasonably when he left the premises in anticipation of a notice of eviction that the Thorpe report would trigger, but that is not the question to be determined here.

Rather the question is whether the evidence establishes, on the facts, or on the basis of a municipal declaration, that the premises were unfit for occupancy. [ 95 ] The Commissioner only answered the question from the point of view of the municipal declaration.

His analysis is flawed because he did not analyse the contents of the notice, he did not take into account it's repeal and he did not hear the evidence of the person who issued it, who explained that it was not such a declaration. [ 96 ] On the technical evidence, the Court discounts the Thorpe report as being provisional and not supported by the appropriate empirical data which, when obtained through the Airlabs report, showed that there was no danger. [ 97 ] There was a rebuttal by Thorpe (D-2), calling into question the adequacy of the Airlabs findings, from a technical point of view.

The fact remains however that the Thorpe report and the rebuttal proceed on the basis that there was a grow op, presumably because of the alleged admission of the Lessor. This has not been substantiated. Thorpe also states in D-2 that the lab testing might have been successful because the property could have been cleaned before the testing was done.

This is tantamount to saying that a property that has a presence of mould can be cleaned, so that there no longer is any mould. [ 98 ] This begs the question as to why the presence of mould that can be eliminated by a simple cleaning would require the immediate evacuation of all occupants as opposed to requiring a thorough cleaning of the interior surfaces of the residence. Besides, there is no report to establish that there was a presence of mould in dangerous concentrations during the Lessee's occupation. [ 99 ] The burden of proving the unfit state of the premises was that of the Lessee.

A criticism of the probative value of a report that concludes there is no contamination is not the equivalent of a convincing report that there is contamination. [ 100 ] The fact remains that the Thorpe report did not include a simple set of tests that would have had probative value on the issue. [ 101 ] The Lessee did not fulfil the burden of proving that the dwelling was not unfit for occupancy. [ 102 ] This leads the Court to the conclusion that there was no resiliation of the lease as of right in a manner that would be favourable to the interests of the Lessee. [ 103 ] The resiliation results from the departure of the Lessee from the premises at a time when he had not been evicted.

The eviction order was not a justification for his departure: he had already moved out definitively, ostensibly on the basis of an expert opinion, prior to its issuance. [ 104 ] His departure cannot be justified in terms of

article 1915 Civil Code of Quebec because the evidence does not establish that the dwelling was ever unfit for habitation. [ 105 ] The resiliation results from the application of the first part of

article 1975, because the Lessee did not have any reason to abandon the dwelling when he did so, on or before September 11, 2012. Consequences for the disposition of the demands . [ 106 ] Given the Court's findings on the Lessee's unjustified departure from the premises, the Lessee's demand should have been dismissed. [ 107 ] The Lessor's demand should have been allowed in terms of the monetary demands for unpaid rent and a relocation indemnity, reasonable in the circumstances.

The demand formally sought the resiliation based on failure to pay rent on time, but, given the Court's opinion on resilitation as of right, the Board should have simply acknowledged the resiliation as of the departure. [ 108 ] The rent for August was in arrears and the rent for September should have been paid on the first of the month. This is a total of $ 2,333.

A reasonable relocation indemnity would take into account the Lessor's obligation to mitigate her loss, as the lease would have only expired at the end of June 2014. [ 109 ] The Lessor engaged a real estate broker who was successful in leasing the premises as of May 2013 at a slightly lower rent. [ 110 ] The Court is satisfied that the Lessor took reasonable steps. The lost rent from October 2012 to April 2013, $ 12,775 as well as the shortfall during the period until June 2014 inclusively, $ 700 plus the utilities, hydro and heating oil, $ 2,116.42 and the brokerage fees of $ 919.

[ 111 ] The Court sees no basis on which to intervene in the amount arbitrated by the Commissioner for the cleaning carried out by the Lessee herself with help from her son-in-law: $ 600. [ 112 ] Given the Court’s findings on the technical issues, the Lessor’s expert costs will be awarded as they ought to have been given in the Board’s decision. Punitive damages [ 113 ] The claim for punitive damages is not well founded. This is simply a case of the Appellant being successful and the Respondent not being successful.

The departure without a valid reason is a contractual fault that gives rise to an obligation to repair the prejudice caused. Claim for extrajudicial costs [ 114 ] The appellant claims $ 5,000 as compensation for the efforts made my Mr Bumbar in preparing for the case, including legal research and document preparation. A fairly detailed letter was, for example sent to the Board in preparation for the hearing. [ 115 ] This claim cannot overcome several hurdles.

Firstly, a party who is represented at the hearing by someone who is not a lawyer may not pay that person for his services, "such a mandate must be gratuitous" [3] . [ 116 ] The Appellant cannot have suffered a financial impact from her son-in-law's efforts, which were gratuitous. [ 117 ] Even if she had paid for the services, to claim this value as an extra-judicial cost, it would be necessary to meet the jurisprudential criteria of abuse of procedure, articulated in Viel c. Entreprises immobilières du terroir Ltée [4] .

Those criteria are clearly not met here, it is simply a question of a debate between opposing parties having different positions on questions of fact and law. [ 118 ] Finally, the Board does not have jurisdiction to pronounce a judgement on extrajudicial costs, a matter that is not the subject matter of an "application regarding the lease of a dwelling", the operative words that define the jurisdiction of the Board. [5] [ 119 ] The Court of Quebec exercises an appeal jurisdiction not an originating jurisdiction and, in so doing, it does not have jurisdiction to impose extra-judicial costs that the Board did not have the jurisdiction to award. [ 120 ] This disposes of the claim relating to the efforts of Mr Bumbar in assisting the Lessor as her representative. [ 121 ] The considerations concerning extra-judicial costs mentioned above are equally pertinent to the Appellant's claim for some $ 35,624.70 in extra-judicial costs for the work of her attorneys in preparing and presenting the motion for leave to appeal and the appeal presently before the Court. [ 122 ] There is no way in which the Lessee's conduct in the proceedings in the Court of Quebec could be considered abusive.

The Appellant argues that the extra-judicial costs relate to an abuse of right, in the sense that the contractual conduct of the Lessee was reprehensible. The distinction between an abuse of right and an abuse of procedure is explained by Rochon J.A. in Viel in paragraphs 72 to 83 . The procedural abuse of a party is distinct from an abuse of right within the parties conduct in the legal situation, in this case contractual conduct. [77] Soit dit avec égards, les principes de la responsabilité civile m'incitent à apporter une réponse négative à la question posée.

En principe et sauf circonstances exceptionnelles, les honoraires payés par une

partie à son avocat ne peuvent, à mon avis, être considérés comme un dommage direct qui sanctionne un abus sur le fond. Il n'existe pas de lien de causalité adéquat entre la faute (abus sur le fond) et le dommage. La causalité adéquate correspond à ou aux événements ayant un rapport logique, direct et immédiat avec l'origine du préjudice subi. Seul l'abus du droit d'ester en justice peut être sanctionné par l'octroi de tels dommages. Il m'apparaît erroné de transformer l'abus sur le fond en un abus du droit d'ester en justice dès qu'un recours judiciaire est entrepris. Quelques explications s'imposent. [78] Il est acquis au débat qu'une

partie ne peut, règle générale, être compensée des honoraires payés à son avocat pour faire valoir ses droits. Le justiciable devra payer ces honoraires extrajudiciaires qu'il y ait ou non abus sur le fond. Les honoraires ne seraient d'ailleurs pas encourus si la

partie adverse reconnaissait, dès le début des procédures judiciaires, sa faute même si cette dernière peut être qualifiée d'abus sur le fond (conduite abusive, répréhensible, scandaleuse, outrageante, de mauvaise foi). Dans ce cas, malgré la conduite abusive sur le fond, la

partie n'aurait pas à débourser inutilement des honoraires à son avocat. Cet exemple démontre l'absence de lien de causalité suffisant entre la faute et le dommage. [79] À l'inverse, peu importe qu'il y ait abus ou non sur le fond, une

partie qui abuse de son droit d'ester en justice causera un dommage à la

partie adverse qui, pour combattre cet abus paie inutilement des honoraires judiciaires à son avocat.

Il y a, dans ce cas, un véritable lien de causalité entre la faute et le dommage. [ 123 ] While, in a sense, the cost of litigation always results from one party having a responsibility that has not been met, that responsibility, even if it stems from an abuse of rights, does not have a « sufficient » causal relationship to the costs of litigation. [ 124 ] The Court’s appellate jurisdiction would not include considering the extrajudicial costs of the proceedings before it as a damage flowing from an abuse of rights within the factual matter on which the Régisseur decided the case.

The Régisseur could not have ruled on such a matter, because it had not yet occurred! [ 125 ] These aspects of the appeal are therefore ill-founded. BY THESE REASONS, THE COURT: GRANTS the appeal in part;

REFORMS the decision of the Régie du Logement rendered April 7, 2014, in cases number 31-120-802026 G and 31-120910-077 G; DISMISSES the demand made by the Lessee in case number 31-120910-077 G; CONDEMNS, in case number 31-120802-026 G, the Lessee to pay the Lessor the sum of $ 19,443.42 together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from August 2, 2012, together with the filling fee of $ 68 and expert fees in the amount of $ 2,265 . WITH COSTS in the appeal. __________________________________ DAVID L. CAMERON Me Maurice Oiknine Attorney for the Appellant / Lessor Me Joëlle Duranleau Me Joseph Perlini Attorneys for the Respondent / Lessee Dates of hearing: April 8 and May 8, 2015