2023 QCCQ 4172, 2023 QCCQ 4172

Shieh c. Xie 2023 QCCQ 4172 JG2338 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No. : 760-32-701973-218 DATE : MAY 12, 2023 BEFORE THE HONOURABLE PHILIPPE DE GRANDMONT, J.C.Q. XAO-LINH SHIEH Plaintiff v. MING YING XIE Defendant JUDGMENT [ 1 ] The Plaintiff, Ms. Xao-Linh Shieh, claims various amounts in relation to the Defendant’s (Ms. Ming Ying Xie) tenancy of commercial premises located in Vaudreuil-Dorion. [ 2 ] Ms. Xie is the tenant of Ms. Shieh pursuant to a lease entered into on January 1, 2015, for a term ending on January 1, 2020. [ 3 ] In accordance with

Article 2803 of the Civil Code of Québec (the “ C.C.Q. ”) [1] , a person seeking to assert a right shall prove the facts on which his or her claim is based. [ 4 ] The Court is unable to grant some of the amounts claimed, as they are not supported by evidence. [ 5 ] Such is the case of the claim in the amount of $1,750 for rent due on account of business tax incurred by Ms. Shieh, as lessor, for fiscal year 2019. No documentation is filed in evidence in respect of fiscal year 2019. [ 6 ] In addition, Ms.

Shieh claims an amount of $3 794.18 with regards to snow removal services, but the lease does not impose an obligation on the lessee in respect of such services. [ 7 ] Moreover, Ms. Shieh alleges that failure by Ms. Xie to take out liability insurance coverage and keep the same in full force, in accordance with the lease’s provisions, has resulted in damage in the amount of $1,000. No evidence has been filed in support of such allegation; therefore, such portion of the claim is dismissed. [ 8 ] Ms.

Shieh also claims an amount of $656, representing the total amount of fine and costs paid as a result of her being convicted of a penal offence under the Règlement de zonage n° 1275 of the Ville de Vaudreuil-Dorion. Ms. Shieh was charged wth having tolerated, as owner of the leased premises, the occurrence therein of activities of an erotic nature. [2] [ 9 ] Ms. Shieh testifies that she never noticed any illegal activity taking place in the leased premises. [ 10 ] Ms. Xie replies that, before she initially became tenant in 2007, Ms. Shieh herself operated a business of an erotic nature in these same premises.

She argues that she was unaware that such activities are restricted by municipal by-law, and merely followed Ms. Shieh’s “example” by conducting her business in the same manner. [ 11 ] Such argument cannot stand. Ignorance of the law is not an excuse, and it was incumbent upon Ms. Xie to conduct her business and use the leased premises in a lawful manner. Moreover, under

section 6

b) of the lease, Ms. Xie must “comply with any and all requirements of the By-Laws of the City of Montreal or other municipality […] when applicable in relation to the business of the LESSEE” [3] . [ 12 ]

Article 1863 of the C.C.Q. provides that the nonperformance of an obligation by one of the parties to a lease entitles the other party to apply for damages. In this case, the Court is satisfied that Ms. Shieh’s conviction is a direct result of Ms. Xie’s failure to perform one of her obligations pursuant to the lease, namely compliance with applicable municipal by-laws. Consequently, Ms. Shieh is entitled to damages in the amount of $656. [ 13 ] Finally, Ms. Shieh claims as damages the total price of three invoices filed in evidence. [4] She alleges having paid said invoices for work performed to remediate damage caused to the leased premises during Ms. Xie’s tenancy.

[ 14 ] In considering such claim, the Court refers to the following provisions of the C.C.Q.: 1590. An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay.

Where the debtor fails to perform his obligation without justification on his part and he is in default, the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence, (1) force specific performance of the obligation; (2) obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation; (3) take any other measure provided by law to enforce his right to the performance of the obligation. 1594.

A debtor may be in default for failing to perform the obligation owing to the terms of the contract itself, when it contains a stipulation that the mere lapse of time for performing it will have that effect. A debtor may also be put in default by an extrajudicial demand to perform the obligation addressed to him by his creditor, a judicial application filed against him or the sole operation of law. [ 15 ] In the present case, Ms.

Xie, as debtor of the obligation under the lease to effect repairs, has not been put in default, neither by the terms of the lease itself, nor by an extrajudicial demand to perform such obligation. [ 16 ]

Section 5 of the lease does provide that failure by the lessor to give to the lessee notice of a requirement to effect repairs does not relieve the lessee of her obligation to maintain the leased premises in good order. But this language does not amount to a stipulation in the lease whereby the mere lapse of time would result in Ms. Xie being in default of an obligation to pay for the repairs already effected by Ms. Shieh. [ 17 ] Also, the letter addressed to Ms. Xie by Ms. Shieh’s lawyer [5] demands payment for the cost of repairs already effected by Ms. Shieh. [ 18 ] Assuming that Ms.

Xie did in fact incur repair obligations under the lease (a question as to which the Court makes no determination), she was put before an accomplished fact, and deprived of the possibility to fulfill her obligations in the manner most protective of her own interests. [ 19 ] The following sets out how legal scholars analyse the situation in which the parties find themselves: Il convient toutefois de relever un recours au sujet duquel les tribunaux se montrent particulièrement exigeants et pour lequel l’absence de mise en demeure préalable sera fatale, sauf si les circonstances justifient une demeure par l’effet de la loi ou du contrat.

Il s’agit de l’exécution en nature par remplacement, par laquelle le créancier exécute lui-même l’obligation ou, le plus souvent, la fait exécuter par un tiers, aux frais du débiteur ( art. 1602 C.c.Q. ). Pour se prévaloir de cette sanction, le créancier doit, par une mise en demeure préalable à la prestation exécutée aux frais du débiteur, prévenir expressément ce dernier des manquements qui lui sont reprochés, l’inviter à s’exécuter et lui annoncer la sanction qui sera appliquée s’il fait défaut de s’exécuter dans le délai imparti.

La sévérité démontrée par les tribunaux dans l’application de ce recours s’explique par la volonté de s’assurer que le débiteur soit conscient des frais – souvent considérables – qu’il risque d’encourir par cette sanction extrajudiciaire, s’il n’exécute pas son obligation.

Selon une jurisprudence très abondante et d’une rare constance, malgré la sévérité des principes qui y sont énoncés, le créancier qui prive le débiteur de la faculté d’exécuter son obligation ou de constater son inexécution, en l’absence de mise en demeure préalable ou à la suite d’une mise en demeure déficiente, ne pourra réclamer au débiteur les frais engendrés par l’exécution de remplacement, à moins de profiter d’un cas de demeure par l’effet de la loi ou du contrat ( art. 1602 al. 2 in fine C.c.Q . ). [6] [ 20 ] The absence of a prior letter of demand if fatal to this portion of Ms. Shieh’s claim.

WHEREFORE, THE COURT : GRANTS the claim in part; CONDEMNS the Defendant Ming Ying Xie to pay to the Plaintiff Xao-Linh Shieh the sum of $656 with interest at the rate of five percent (5%) per annum and the additional indemnity provided for by

Article 1619 of the Civil Code of Québec , as of January 19, 2020 ; WITH LEGAL COSTS awarded in favour of the Plaintiff. Philippe de Grandmont, J.C.Q. NOTICE TO THE PARTIES

FILING OF PLEADINGS AND DOCUMENTS Code of Civil Procedure (CQLR, c. C-25.01 ), Art. 108 , 2 nd par.: Any document or real evidence that is filed in the record as an exhibit must remain in the record until the end of the proceeding, unless all the parties consent to its being removed. Once the proceeding has ended, the parties must retrieve the exhibits they have filed; otherwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading terminating the proceeding. In either case, the chief justice or chief judge, if of the opinion that the exhibits can still be useful, may stay their destruction .