2016 QCCQ 5906, 2016 QCCQ 5906

Sadek c. Main 2016 QCCQ 5906 COURT OF QUEBEC (Administrative and Appeal Division) « Practice Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N° : 500-80-032474-166 DATE : MARCH 3, 2016 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ HANY SADEK Petitioner-lessee v.

COLEEN MAIN Respondent-lessor ______________________________________________________________________ JUDGMENT ON A MOTION FOR LEAVE TO APPEAL FROM A DECISION OF THE RÉGIE DU LOGEMENT ______________________________________________________________________ [ 1 ] Petitioner requests the permission to appeal a decision rendered by the Régie du Logement (the Board) on December 23 rd , 2015, by Commissioner Luce De Palma where the Board: - authorized Respondent to repossess the dwelling as a residence for herself; - ordered Petitioner to be evicted on July 1 st , 2016; and - condemned Respondent to pay Petitioner an amount of $2,000.00.

QUESTION IN DISPUTE Should the issues raised by Petitioner be submitted to the Court of Québec, as per

section 91 of the Act respecting the Régie du Logement [1] ? [ 2 ] According to Petitioner, the relevant issues are the following: - Is the sole testimony of lessor on her financial condition sufficient to discharge her burden of proof when applying

section 1963 C.C.Q. ? - When applying

section 1964 C.C.Q. , does the burden of proof fall only upon the lessee to demonstrate that the conditions are met? - When a lessor owns many units, should the Board require that evidence be presented regarding the turnover of the lessees, the value of the units offered for rent, and their specific features? - Can the Board decide what rents are to be deemed equivalent when the difference in the rent can be explained by their location in the building, their characteristics or the fact that the rent has been set over a long period of time?

DECISION OF THE BOARD [ 3 ] The relevant part of the decision can be summarized as follows. [ 4 ] Commissioner De Palma referred to Respondent's testimony regarding her wish to live in the dwelling rented by Petitioner (the dwelling), a four room and a half (4 ½): - She lives in an apartment located on the second floor of an immovable and her monthly rent is of $1,500.00. - She wishes to lower her expenses and in this respect, considers that the dwelling suits her as the rent is less expensive.

- The rent of the dwelling is of $514.00. - The dwelling is located on the last floor of a triplex, on the corner and is the only unit with two balconies. [ 5 ] Petitioner doubts Respondent’s intention and her good faith. He considers that her request to repossess the dwelling is nothing but an excuse to evict him. Nine years ago, his sister appeared before the Board and successfully requested a rent reduction.

He now benefits from this reduction. [ 6 ] In addition, Petitioner explains that Respondent owns other triplexes in the same neighborhood and that the rents in these dwellings are significantly higher. [ 7 ] Petitioner is of the opinion that Respondent’s intention to leave her 1,100 square foot apartment to move into the dwelling, much smaller, is rather an attempt to make profits.

He testifies that the dwelling is located in an area where many students live, in a noisy neighborhood. [ 8 ] Commissioner De Palma was rather of the opinion that Respondent wished to repossess the dwelling in order to live in it and that she complied with the law. Respondent's choice to repossess a dwelling with a lower rent was not an indication of bad faith on her part. [ 9 ] From Commissioner De Palma's standpoint, the other dwellings that were recently available did not have an equivalent rent.

The fact that Respondent decided not to repossess another apartment was neither a demonstration of her bad faith nor an excuse to evict Petitioner considering all of the circumstances of the file. ANALYSIS Should the issues raised by Petitioner be submitted to the Court of Québec, as per

section 91 of the Act respecting the Régie du Logement ? [ 10 ] In order to answer the question in dispute, the Court must decide whether the issues raised are serious, new, of general interest or refer to a controversy in the present jurisprudence.

The Court must also analyze the arguments submitted by Petitioner in order to avoid an appeal which would most likely be doomed to fail [2] . [ 11 ] The following criterias can also be considered [3] : - Apparent weakness in the decision; - Error in the appreciation of facts; - Error in the administration of proof; - Breach of the natural justice; - Refusal of the Board to exercise its jurisdiction; - Insufficiency of the reasoning of the decision. [ 12 ] Petitioner pleaded that the Commissioner erred in fact and in law with respect to the burden of proof in the application of

section 1963 C.C.Q. From his standpoint, the proof he offered regarding Respondent’s real intentions was wrongfully dismissed. Should the authorization be granted, he will demonstrate Respondent’s real motive to repossess the dwelling and her ”high net worth”. He also intends to demonstrate that the immovable is subject to a very high turnover of lessees and that similar units became available, and/or regularly become available without having to repossess and evict anyone. [ 13 ] In addition, he argued that the Commissioner erred when she decided that

section 1964 C.C.Q. was not applicable due to the fact that the rent of other dwellings was not equivalent. [ 14 ] Finally, Petitioner argued that the issues raised are very much similar to questions allowed by the Honourable Jacques Tremblay in Bolduc c. Paris [4] .

Since the appeal in Bolduc was never heard on the merits, the issues remain unanswered. [ 15 ] The Court finds that the issues raised do not meet the criteria mentioned above as the appeal seeks: - the Court's appreciation of the proof offered before the Board, namely the evaluation of the credibility of the parties; - the possibility to offer additional proof before the Court. [ 16 ] In addition, Petitioner did not demonstrate an apparent weakness in the decision but rather raised arguments to interpret differently of the proof offered.

The decision of the Board is motivated as the Commissioner explained her reasoning in the application of the relevant law. No controversy in the present jurisprudence was revealed and it is the Court’s opinion that this case is one of private interest. [ 17 ] Finally, the mere fact that similar questions were allowed in another case does not prevent the Court from exercising its discretion differently in the present matter.

In other words, the Court is not bound by the decision in the Bolduc case. [ 18 ] In view of the foregoing, Petitioner failed to demonstrate that the issues raised ought to be submitted to the Court of Québec. FOR THESE REASONS, THE COURT:

DISMISSES Petitioner’s Motion for leave to appeal; THE WHOLE, with legal costs. _______________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: February 10, 2016 M e Christian Dubé-Rousseau For Petitioner-lessee M e Guy Audet For Respondent-lessor