Ojaghi c. 9348-0408 Québec inc. 2022 QCCQ 5640 COURT OF QUÉBEC (Administrative and Appeals Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-80-042141-219 DATE: August 29, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ saeid ojaghi - and - RAHELEH PARSEIFAR Appellants v. 9348-0408 QUEBEC INC. - and - spg canada inc.

Respondents ______________________________________________________________________ JUDGMENT (on appeal from a decision of the Administrative Housing Tribunal) ______________________________________________________________________ [ 1 ] Saeid Ojaghi and Raheleh Parseifar (the “ Appellants ”) appeal from a decision of Me Jean Gauthier of the Administrative Housing Tribunal (the “ Decision ”), [1] which granted in part only their application in damages directed against their landlords 9348-0408 Québec inc. and SPG Canada inc. (the “ Respondents ”). [ 2 ] The Respondents did not answer the appeal proceedings and the matter proceeded by default.

CONTEXT [ 3 ] In early March 2019, the parties entered into a 12-month residential lease to occupy an apartment located in a multi-unit building in Montreal starting on April 1 st , 2019 at a monthly rent of $750. [ 4 ] Only a few weeks later, on July 1, 2019, the Appellants vacated the premises.

They contend that the Respondents harassed and intimidated them to such an extent that they were forced to leave. [ 5 ] After vacating the premises, Plaintiffs filed an application with the Administrative Housing Tribunal (the “ Tribunal ”) alleging that: (…) Landlord had a permit to build 8 offices upstairs, but instead [built] 12 illegal apartments (…) When City came around, landlord went to great lengths to hide us, and when they found out the City knew, expel us. Police and City were called several times for various incidents and the landlord was arrested for intimidation. Electricity and water were cut off.

Fire alarm pulled several times in the middle of the night and went on for hours. Break-ins. Were locked out on several occasions. Police had to break door down. We were forced to move out with only a few days’ notice and to accept two sublets. We had to move three times before securing a long-term rental (…). [2] [ 6 ] On the basis of these allegations, the Appellants claimed the following amounts from the Respondents:

a) Reimbursement of overpaid rent (3 months @ 50 $/month): [3] $150.00

b) Moving fees: $233.38

c) Police reports: $16.00

d) Illegal key deposit: $20.00

e) Rent reduction (100% of second half of June): $375.00

f) Additional rent paid for July and August 2019: $350.00

g) Moral damages: $7,000.00

h) Punitive or exemplary damages: $8,000.00 [ 7 ] The matter was heard by the Tribunal on September 21, 2021. Although duly notified of the claim, the Respondents were absent and the case proceeded by default. [ 8 ] The Decision was rendered on October 5, 2021. It grants the amounts claimed for items

a) through

e) and this aspect of the

Decision is not at issue in the appeal. It is silent regarding the additional rent claimed for July and August 2019 (item f)) and it grants$1,000 for each of items

g) and h), rather than the $7,000 and $8,000 sought by the Appellants. [9] The appeal concerns only the Tribunal’s ruling on items f),

g) and h). [10] The Appellants claim that the Decision as concerns these items must be quashed because: (

a) they were not given theopportunity to present their case properly; (

b) the Decision is not sufficiently reasoned; and (

c) it fails to adjudicate their claim for theextra rent for July and August 2019. [11] The appeal was authorized by Justice Enrico Forlini of this Court on the following issues:[4]

a) Was the Applicants’ right to be heard breached?

b) Did the member of the Tribunal provide equitable and impartial assistance to the Applicants as required by

section 63 of theAct?

c) Is the Decision sufficiently reasoned?

d) Did the member of the Tribunal fail to consider the evidence pertaining to the Applicants’ claim for extra rent? [12] Justice Forlini also authorized the Appellants to adduce evidence relating to their claim for moral and punitive damages and forthe extra rent. [13] For the reasons more fully set out below, the Court finds that the Appellants’ right to be heard was breached and that theDecision must be quashed for that reason alone. [14] On the basis of the evidence adduced at the hearing of the appeal, the Court further finds that the Appellants are entitled to anamount of $5,000 in moral damages, an amount of $8,000 in punitive damages and the $350 claimed for the additional rent paid for Julyand August 2019.

ANALYSIS

a) Was the Applicants’ right to be heard breached? - The standard of review [15] The Court must first determine under what standard of review it must consider the question of whether the Tribunal breachedthe Appellants’ right to be heard. [16] The right to be heard (also referred to as the audi alteram partem rule) is one of the fundamental principles of the rules ofnatural justice or procedural fairness that must be followed by decision-makers such as the Tribunal.[5] [17] In a recent judgment,[6] the Supreme Court of Canada ruled that questions of procedural fairness raised in the context of astatutory appeal (as is the case here)[7] are subject to appellate standards of review and, more specifically, to the standard of review ofcorrectness.[8] This is because a decision maker who violates the rules of natural justice or procedural fairness commits an error of lawsubject to the standard of correctness. [18] The Court of appeal describes as follows the approach that a revision or appellate court should take when considering whether adecision has been reached in violation of the rules of natural justice or procedural fairness: [30] Cela étant, l’application des règles de la justice naturelle et de l’équité procédurale est hautement contextuelle et s’évalue généralement selon les critères de l’arrêt Baker30.

Le tribunal qui décide d’un moyen fondé sur ces règles doit se demander si le processus en cause était équitable eu égard à l’ensemble des circonstances31. Le tribunal siégeant en révision doit ainsi décider si unprocessus juste et équitable a été suivi en tenant compte, notamment, de la nature de la décision et du processus décisionnel, des droitssubstantifs en cause et des conséquences pour les parties. Il s’agit d’un processus d’évaluation qui est souple et variable et qui repose surune appréciation du contexte de la loi en cause et des droits visés.[9] __________ 30 Baker c.

Canada (Ministre de la Citoyenneté et de l’Immigration), (SCC), [1999] 2 R.C.S. 817. Voir aussiSyndicat des employés de production du Québec et de l'Acadie c. Canada (Commission canadienne des droits de la personne), (CSC), (SCC), [1989] 2 R.C.S. 879, p. 896; Ruffo c. Conseil de la magistrature, 1995, (SCC), [1995] 4 R.C.S.267, par. 88. 31 Chemin de fer Canadien Pacifique Limitée c.

Canada (Procureur général), 2018 CAF 69, par. 54. [19] In the context of this first question in appeal, the Court must therefore consider whether the Tribunal breached the Appellants’right to be heard in a way that rendered the proceeding unfair under the circumstances.[10] - The right to be heard before the Tribunal [20] In the instant case, the Tribunal is held to a high degree of procedural fairness because it is a quasi-judicial body governed byrules of procedure and evidence similar to those of courts of justice and that it renders decisions affecting the rights of the parties. [21] The right to be heard entails that a person must be given the opportunity to adequately present his or her point of view on

relevant facts and arguments before a decision affecting his or her rights is rendered. [11] [ 22 ] As concerns proceedings before the Tribunal, the right to be heard is specifically provided for in

section 60 of the Act , which stipulates that: 60. Before rendering a decision, the Tribunal shall allow the interested parties to be heard . For that purpose, the Tribunal may convene the parties to a hearing or, if the parties so request or agree to it, proceed on the record. Where the Tribunal proceeds on the record, it shall give the parties an opportunity to send to the Tribunal, within the time it sets, statements deemed to have been made under oath, as well as the evidence relevant to the record. Before holding a hearing, the Tribunal shall send the parties a notice of hearing in the manner provided in the rules of procedure. [Emphasis added] [ 23 ]

Section 63 of the Act also provides the following regarding how a hearing before the Tribunal should proceed : 63. At the time fixed for the hearing, the Tribunal member shall call the case, acknowledge the presence or absence of the parties and proceed with the hearing. The Tribunal member shall summarily instruct the parties on the rules of evidence and each party shall state his pretensions and introduce his witnesses. The Tribunal member shall give equitable and impartial assistance to each party so as to render effective the substantive law and to ensure that it is carried out.

If it is necessary to examine a witness at a distance, the technological means used must allow the witness to be identified, heard and seen live.

The Tribunal may however decide, after consulting the parties, to hear a witness without the witness being seen. [Emphasis added] [ 24 ] Did the Tribunal respect these rules relating to natural justice or procedural fairness in the instant case? - The hearing before the Tribunal [ 25 ] The hearing before the Tribunal took place under unusual circumstances due to the pandemic. [12] [ 26 ] The Appellants were present in the courtroom, but the member of the Tribunal attended by videoconference.

A scanner had been placed in the courtroom so that documents could be scanned and sent to the member of the Tribunal during the course of the hearing. [ 27 ] The Appellants had prepared a 14-page outline of arguments and a series of 18 exhibits (including a USB key containing video footage of certain incidents involving the Respondents’ representatives) which they intended to submit in support of their claim.

They also intended to testify to prove the allegations of their claim. [ 28 ] After greeting the Appellants and asking a preliminary question about their occupancy of the apartment, the member of the Tribunal asked Mr. Ojaghi to scan the first two pages of the outline of arguments, which contained a brief

summary of the Appellants’ position, suggesting that the remainder of their documents be sent later during the hearing. The member of the Tribunal then took a few minutes to read the

summary. [ 29 ] Afterwards, the member of the Tribunal asked Mr. Ojaghi a few general questions about the lease and building and referred briefly to the Appellants’ claim for additional rent. He then mentioned the Appellants’ claim for moral and punitive damages, but when Mr. Ojaghi began to explain the nature of these claims and referred to case law from the Tribunal upon which he intended to rely, the member of the Tribunal stopped him and asked that he simply remit all of his documents to a clerk in the waiting area who would in turn send the documents to him. [ 30 ] Mr.

Ojaghi then offered again to testify on the issue of damages and make closing arguments, but the member of the Tribunal reiterated that he should simply give the clerk the documents and put an end to the hearing. [ 31 ] All in all, the hearing lasted approximately 20 minutes, more than half of which was spent discussing how the Appellants’ documents could be communicated to the member of the Tribunal, scanning the first two pages of the outline of arguments or waiting while the member of the Tribunal read the document. During the rest of the hearing, Mr.

Ojaghi answered general questions, but barely testified on the Respondents’ conduct or its impact on the Appellants. [ 32 ] After the close of the hearing, when the Appellants went to the clerk to submit their documents, she initially refused, but accepted after speaking to the member of the Tribunal. However, she refused to accept the Appellants’ video evidence, informing them that this would have to be submitted online. [ 33 ] The Appellants later tried to submit the video evidence using the online submission tool, but without success.

They were later told by another representative of the Tribunal that this evidence could not be accepted because its submission had not been previously approved. This person also advised them that the documents they had previously submitted were not part of the record and did not appear to have been sent to the member of the Tribunal who presided the hearing. [ 34 ] Taken aback, the Appellants then made an appointment to see the member of the Tribunal on October 8, 2021 to provide him with the documents and USB-key.

At the appointed time, however, the Appellants were told that there was no reason for the appointment

because the Decision had already been rendered. As previously stated, it partly denied the Appellants’ claim for moral and punitive damages, granting only $1,000 each, rather than the $7,000 and $8,000 claimed. [ 35 ] It is clear from the above that the Appellants’ right to be heard was breached and that they were denied a fair process. [ 36 ] Indeed, the Appellants were not given the opportunity to adequately present their case regarding the damages at issue in the appeal.

They were not properly questioned and were prevented from testifying regarding the harassing and intimidating behavior of the Respondents’ representatives and the serious effect it had on them. The member of the Tribunal appeared to be more interested in the documents that they had prepared than to hear their testimony on these facts, which were central to the questions in issue regarding the moral and punitive damages. [ 37 ] To make matters worse, it is unclear from the Tribunal’s record whether the documents that the Appellants remitted to the clerk after the hearing were sent to the member of the Tribunal.

The Decision makes no mention of these documents [13] and there is no evidence that they were indeed given to the member of the Tribunal.

In any event, these documents, which were comprised of exhibits and written arguments, could not replace the Appellants’ testimony on the questions in issue. [ 38 ] Perhaps the member of the Tribunal was influenced by the fact that the matter was proceeding by default, but even when a case proceeds by default, a decision-maker must give the plaintiff the opportunity to present its case adequately if he or she intends to award less damages than what is sought. [14] [ 39 ] Before ruling on the moral and punitive damages claimed, the Tribunal had the obligation to allow the Appellants to testify to prove the alleged nature and extent of the harassing and intimidating behavior of the Respondents and the effect that this behavior had on them.

Effectively, the Appellants were prevented from substantiating their claim for moral and punitive damages and the Tribunal partly denied these claims on the basis of incomplete evidence. Under the circumstances, the Appellants were not afforded a fair hearing. [ 40 ] For this reason alone, the Decision as concerns the moral and punitive damages must be quashed.

b) Did the member of the Tribunal provide equitable and impartial assistance to the Applicants as required by

section 63 of the Act ?

c) Is the Decision sufficiently reasoned? [ 41 ] Given the conclusion reached regarding the right to be heard, it is unnecessary for the Court to consider these two questions. [ 42 ] The Appellants’ claim for moral and punitive damages must therefore be reconsidered on the basis of the new evidence adduced at the hearing of the appeal, as authorized by Justice Forlini.

d) Did the member of the Tribunal fail to consider the evidence pertaining to the Applicants’ claim for extra rent? [ 43 ] In their original application before the Tribunal, the Appellants claimed $350 for extra rent paid for a new apartment in July and August 2019. Mr. Ojaghi was briefly questioned at the hearing on this aspect of the claim, but the Decision is completely silent in this regard. [ 44 ] In the judgment authorizing the appeal, Justice Forlini ruled that although

section 88 of the Act provides that a decision of the Tribunal which omits to adjudicate part of an application constitutes grounds for correction of the decision, it was in the interest of justice and in accordance with the guiding principles of procedure to authorize the appeal with respect to this ground, as leave was granted in respect to the others. [15] [ 45 ] The Court will therefore also reconsider the Appellants’ claim for extra rent on the basis of the evidence adduced at the hearing of the appeal.

e) On the basis of the new evidence, are Appellants entitled to the damages claimed? [16] - The Factual Context [ 46 ] The testimony of the Appellants and supporting documentary evidence adduced at the hearing of the appeal establish the following facts. [ 47 ] Shortly after arriving in Canada from Iran, the Appellants entered into a 12-month lease for the apartment with the Respondents with occupation from April 1, 2019. [17] [ 48 ] Only a few weeks later, at the end of May 2019, the Appellants were advised by representatives of the City of Montreal that the space in the building could not be rented for residential purposes as the Respondents had a permit to build offices rather than residential apartments. [18] [ 49 ] As soon as they realized that the city was aware of the illegal occupation, the Respondents’ representatives embarked on a series of tactics to get rid of the residential tenants in the building, including the Appellants.

They tried to scare the Appellants repeatedly by telling them that the building was unsafe for their health; they activated the fire alarm on several occasions, often in the middle of the night, and for several hours at a time; they repeatedly cut off the water and electricity in the apartment and cut all wifi access in the building. On several occasions, they also deactivated the Appellants’ key cards needed to access the building and the apartment. [ 50 ] The situation escalated to the point that the police was called in twice to intervene, which lead to the arrest of the Respondents’ representatives, Mr.

Quan Sheng Li and Mr. Hao Li, for intimidation and mischief. [19] [ 51 ] In the last days of June 2021, the Appellants found the situation untenable and decided that they had no choice but to leave the

premises on July 1, 2019. Early on that day, they carried some of their belongings to the moving truck they had rented, but when they tried to go back into the building, they realized that the Respondents had again deactivated their key cards again.

The Appellants had to contact the police and wait several hours before police officers eventually broke down the doors so that they could retrieve their belongings. [ 52 ] The Respondents’ conduct is in clear violation of their obligations as landlords and, more particularly, their obligation to provide the Appellants with the peaceful enjoyment of the apartment, [20] their obligation to warrant that the apartment could be used for its intended purpose, [21] their obligation to warrant against legal disturbances to the enjoyment of the apartment [22] and their obligation to comply with the minimum requirements with respect to the maintenance, habitability, safety and sanitation. [23] [ 53 ] The Respondents’ conduct also clearly constitutes harassment within the meaning of

article 1902 CCQ , which reads as follows: 1902. Neither the lessor nor any other person may harass a lessee in such a manner as to limit his right to peaceable enjoyment of the premises or to induce him to leave the dwelling.

A lessee who suffers harassment may demand that the lessor or any other person who has harassed him be condemned to pay punitive damages. [ 54 ] The Court will now consider whether the Respondents’ conduct entitles the Appellants to the damages at issue in the appeal. - The claim for extra rent for July and August 2019 [ 55 ] The Appellants claim $350 for the extra rent paid in July and August 2019 after they vacated the apartment ($250 for July and $100 for August 2019). [24] In September 2019, they were able to find long-term alternative lodging at a lower rent. [ 56 ] The Appellants are entitled to the amount claimed. [ 57 ] On the facts, the Court is satisfied that the Appellants could not find alternative living arrangements at a lower rent because of the short delay within which they had to leave the apartment as a result of the Respondents’ conduct. - The claim for moral damages [ 58 ] The Appellants seek $7,000 in moral damages for the stress, anxiety and uncertainty they felt and for the trouble and inconvenience they suffered as a result of the Respondents’ conduct. [ 59 ] The law entitles the Appellants to compensation for moral injury that is the immediate and direct consequence of the Respondents’ fault. [25] [ 60 ] Evaluating the quantum of moral damages is inherently difficult because no amount of money can truly place a victim back in the situation that he or she was in prior to the fault.

They are not meant to punish. The Court must make a subjective evaluation of the injury suffered based on the evidence, while striving for consistency with similar matters where non pecuniary damages were granted, [26] keeping in mind that amounts awarded as compensation for moral injury following a breach of contract are modest. [27] [ 61 ] There is no doubt that the Respondents’ conduct caused both of the Appellants to suffer a high level of stress, anxiety and uncertainty from the time the conflict arose in early June 2019 until they vacated the premises on July 1, 2019.

As a result of the threats and harassing tactics used by the Respondents’ representatives, the Appellants worried continually about their living situation, all the more so given their vulnerability as newly arrived immigrants with little knowledge of applicable rules. They had trouble sleeping from worry, let alone the repeated triggering of the fire alarm. They could not come and go as they pleased - one of them had to stay in the apartment at all times for fear that they would be locked out.

Fortunately, the Appellants were able to find alternative lodging quickly after vacating the apartment. [ 62 ] That being said, the amount claimed appears exaggerated when compared to awards of moral damages granted in similar situations, [28] including the cases to which the Appellants referred. [29] The Court finds that an amount of $2,500 each ($5,000 in total) is a just and reasonable compensation for the moral damages suffered by the Appellants. - The claim for Punitive Damages [ 63 ] Finally, the Appellants claim $8,000 in punitive damages. [ 64 ] Punitive damages are of a particular nature.

They can only be awarded where the law specifically provides for them, as stipulated in

article 1621 CCQ which reads as follows: 1621. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the reparatory damages is wholly or partly assumed by a third person. [ 65 ] The purpose of punitive damages is to punish a person who commits an unlawful act for doing so intentionally and to deter that person, and members of society generally, from repeating the act by condemning it as an example. [30] An award of punitive damages also aims to denounce offensive behaviour of which society disapproves. [31] [ 66 ] In the instant case, an award of punitive damages is possible because

article 1902 CCQ (reproduced above at para. 53) specifically provides for their award in case of harassment. On the facts, the Court is of the opinion that the Respondents’ conduct

justifies the award of $8,000 in punitive damages. [ 67 ] The Respondents, after knowingly disregarding municipal by-laws by renting out residential units as apartments rather than office space, intentionally and repeatedly violated the Appellants’ rights as tenants. Their representatives repeatedly threatened the Appellants, taking advantage of their vulnerability as newly arrived immigrants, and made their lives miserable until they had no choice but to give into the Respondents’ harassment and vacate the apartment.

Such grave conduct justifies the amount claimed. [ 68 ] No evidence was offered regarding the Respondents’ patrimonial situation, but taking into consideration the compensatory damages that the Respondents’ are condemned to pay to the Appellants and the gravity of the fault, the Court believes that an award of $8,000 in punitive damages is reasonable and appropriate.

FOR THESE REASONS, THE COURT: GRANTS the appeal; QUASHES paragraph 13 of the decision rendered by the Administrative Housing Tribunal on October 5, 2021 in file bearing number 582036 31 20210729 G and replaces it with the following conclusions: CONDEMNS 9348-0408 Québec inc. and SPG Canada inc. solidarily to pay to Saeid Ojaghi and Raheleh Parseifar $624.38 and the judicial fees and cost of notification of $124; CONDEMNS 9348-0408 Québec inc. and SPG Canada inc. solidarily to pay to Saeid Ojaghi and Raheleh Parseifar $5,350 for compensatory damages, together with interest at the legal rate from July 29, 2021; CONDEMNS 9348-0408 Québec inc. and SPG Canada inc. solidarily to pay to Saeid Ojaghi and Raheleh Parseifar $8,000 for punitive damages, together with interest at the legal rate from the date of the present judgment; [32] THE WHOLE, WITH COSTS . __________________________________ DOMINIQUE GIBBENS, J.C.Q.

Saeid Ojaghi Raheleh Parseifar For themselves 9348-0408 Québec inc. SPG Canada inc. (Not present) Date of hearing: June 22, 2022