2013 QCCQ 2784, 2013 QCCQ 2784

2013 QCCQ 2784 Pickard c. 6824901 Canada inc. (Gestion immobilière Quanta) COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL CITY OF GATINEAU Civil Division Nos. 550-32-019664-116 550-32-019665-113 DATE: March 22, 2013 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE LAURIN J.C.Q. ______________________________________________________________________ Andrew Pickard and Anita Barak […] Gatineau (Québec) […] Plaintiffs v. 6824901 Canada Inc., operating under the name Gestion Immobilière Quanta 14-A, rue Cholette Gatineau (Québec) J8Y 1J6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Both parties agreed that the two cases should be heard together and the evidence accounted for in both cases. [ 2 ] Andrew Pickard filed a power of attorney mandating him to represent Anita Barak, who was sick on the day of the hearing. [ 3 ] Mr.

Pickard and Ms. Barak are suing 6824901 Canada Inc., operating as Gestion Immobilière Quanta ("Quanta"), because it refused to grant them the lease of a condo. The defendant was asking for personal information that is not necessary for the purpose of a rental application. [ 4 ] Quanta, through its representative, Mr. Brousseau, submitted a counterclaim against the applicants for $1000 each in damages, on grounds of abusive proceedings.

QUESTIONS IN DISPUTE [ 5 ] Did Quanta refuse to rent a condominium to the applicants on the basis that they did not provide the personal information requested in the application form? [ 6 ] Is the counterclaim presented by Quanta well founded in law? THE FACTS [ 7 ] The parties met in July 2009 to visit a condominium located on rue Lucerne, in Gatineau. Mr. Pickard asked for a reduction in the

rent fees, which was refused by Quanta's property manager following the owner's instructions. [ 8 ] At the end of August 2009, Mr. Pickard discovered that the owner had reduced the monthly rent. He contacted Mr. Brousseau, who asked him to fill out a rental application form that was available on Quanta's website. On August 31, 2009, Mr. Pickard sent an email with his rental application to Mr. Brousseau. None of Ms. Barak's information appeared anywhere in that document. [ 9 ] Some of the application questions were left unanswered, and Mr. Pickard struck out sections of the application, including that referring to the financial institution and a paragraph that states:

b) I authorize QUANTA PROPERTY MANAGEMENT to obtain or exchange personal information with any personal information agent towards establishing or verifying my financial standing. [ 10 ] On August 31, 2009, Mr. Pickard sent a handwritten letter to Mr. Brousseau, in which he gave the names of two previous landlords. He did so by writing in the ''present address''

section since, staying at a hotel, he did not have a current domicile address. He said that he was uneasy divulging his social insurance number, his bank account numbers or his driver's license number. He agreed to give his previous addresses, birth date and references. [ 11 ] On the morning of September 1, 2009, Mr. Pickard sent an email to Mr. Brousseau, asking to meet in downtown Hull in order to pay the $20 deposit for the credit check. Mr. Brousseau emailed a reply, saying that the application submitted was not sufficient for Quanta, as it had too many blank areas and restrictions.

He mentioned: We surely will need to see your driver's licence to confirm your address and date of birth. SIN number allows us to identify an individual at the Credit Bureau without doubts. If an individual chooses not to submit his SIN and it is everyone's prerogative to not give it, we could end up with more than one file to look at and not be able to clearly identify yours. [ 12 ] In the same email, Mr. Brousseau asked for more specific information on the duration of previous rental agreements and for a phone number to reach Mr. Desautels.

The email also stipulated: And by not permitting Quanta to verify your personal information with any personal information agent or verifying your financial credit, we can not do a credit check with the Credit Bureau. I must underling that we must do a credit check in order to refer your application to the owner. [ 13 ] On the same day, Mr. Pickard answered Mr. Brousseau's questions regarding the phone number and the occupancy dates for previous leases.

Also, he explained that he omitted the name of his most recent landlord because he had a claim filed against her with the Régie du logement for uranium found in the drinking water and radioactive radon gas permeating the house. Mr. Pickard also wrote: Concerning the application, all that is required for a credit check is my name, date of birth and previous addresses, all of which have been supplied.

I do happen to have a copies of my Equifax and Trans Union credit reports and FICO scores and I could allow you to take a look at them, to verify that I am in good standing with my creditors and rate in the highest percentage of Canadians. I cannot supply my SIN or drivers license number, and also cannot agree to allow Quanta to exchange any of my personal information. [ 14 ] Afterward, they met and Mr. Brousseau asked Mr. Pickard if he would agree to a credit check with La Ligue des propriétaires de Montréal. The following day, Mr. Pickard sent an email to Mr.

Brousseau, saying that his lawyer advised him against sharing his personal information. The email also referred Mr. Brousseau to the Equifax report submitted the previous day. [ 15 ] On September 2, 2009 Mr. Brousseau replied to Mr. Pickard: We have received your email stating that you are refusing that we run a credit check on you in order to establish your credit situation. I will remind you that this credit check prerequisite was clearly mentioned to you while visiting the condo a month ago. I have reviewed the Equifax credit report you have submitted.

There are two pages missing in the report and the report is dated in February 2009. Without these pages and without an updated report to this date, we must consider that the information supplied is still incomplete, thus preventing the owner to make a clear decision. Consequently, the owner has decided to refuse your application. All the information supplied and the fees cans be picked-up at our office, on weekdays between 8am and 4pm. Except on Fridays since we close at 11h30am.[ sic ] [ 16 ] The applicants picked up their deposit and documents and, on September 3, 2009, they sent a main letter to Quanta.

POSITIONS OF THE PARTIES [ 17 ] Mr. Pickard and Ms. Barak maintain that it is illegal to ask for personal information such as a social insurance number, a driver's license number and a bank account number. Moreover, this information is not required for the object of the file according to the Act respecting the Protection of personal information in the private sector . [1]

[ 18 ] On the other hand, Quanta says that it did not refuse to lease the condo to Mr. Pickard because he did not give the requested personal information, but mainly because he refused to sign the clause that authorizes Quanta to establish his credit and because he gave them an outdated credit report that was missing pages and information. [ 19 ] Quanta filed a counterclaim because it believes the applicants filed abusive applications. Also, Quanta maintain that Ms. Barack was never included in the lease and that that was clearly mentioned when they first visited the condo.

Furthermore, she did not fill out a rental application, and the only application received was from Mr. Pickard. ANALYSIS The law [ 20 ] According to articles 2803 and 2804 of the Civil Code of Québec [2] a person wishing to assert a right shall prove the facts on which his claim is based, and evidence is sufficient if it renders the existence of a fact more probable than its non-existence (according to the balance of probabilities). In Book V of the Civil Code of Québec , "Obligations", the legislator states in

article 1457, under "Civil Liability": 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. . . . [ 21 ] The legislator adopted the Charter of human rights and freedoms, [3] of which

section 5 in particular stipulates that every person has a right to respect for his private life. The legislator also adopted measures to reinforce Charter principles, in

section 49 : [4] 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages. [ 22 ]

Section 5 of the Charter embodies the general principal that includes many aspects of private life. From

Chapter III of the Civil Code of Québec , referring to respect of reputation and privacy, the Court will cite

article 37 in relation to the present case: 37. Every person who establishes a file on another person shall have a serious and legitimate reason for doing so. He may gather only information which is relevant to the stated objective of the file, and may not, without the consent of the person concerned or authorization by law, communicate such information to third persons or use it for purposes that are inconsistent with the purposes for which the file was established.

In addition, he may not, when establishing or using the file, otherwise invade the privacy or damage the reputation of the person concerned. [ 23 ] The legislator adopted specific measures to protect an individual's personal information and to facilitate the exercise of the rights conferred by articles 35 to 40 of the Civil Code of Québec . He did so by adopting An Act respecting the Protection of personal information in the private sector , [5] of which the Court will quote the following pertinent sections: 2.

Personal information is any information which relates to a natural person and allows that person to be identified. 5. Any person collecting personal information to establish a file on another person or to record personal information in such a file may collect only the information necessary for the object of the file. . . . 9.

No person may refuse to respond to a request for goods or services or to a request relating to employment by reason of the applicant's refusal to disclose personal information except where (1) collection of that information is necessary for the conclusion or performance of a contract; (2) collection of that information is authorized by law; or (3) there are reasonable grounds to believe that the request is not lawful. In case of doubt, personal information is deemed to be non-necessary.

Did Quanta refuse to rent a condominium to the applicants on the basis that they did not provide the personal information requested in the application form? [ 24 ] Mr. Pickard did not convince the Court according to the balance of probabilities that Quanta committed a fault by not complying with the Act respecting the Protection of personal information in the private sector . The preponderance of evidence in this file shows that Quanta refused to recommend Mr. Pickard as a tenant to the landlord because it was unable to establish Mr. Pickard's credit situation without the proper authorization.

[ 25 ] The material evidence and the testimonies in this case demonstrate that Mr. Pickard refused to sign the authorization allowing Quanta to do a credit check. In the rental application, he struck out the paragraph regarding authorization and gave Quanta an incomplete and outdated Equifax credit report which was insufficient for its needs. [ 26 ] According to the balance of probabilities, the evidence demonstrates that Ms. Barak did not wish to be involved in the lease. The Court also notes that only Mr. Pickard sent the rental application to Quanta, and it did not contain any information regarding Ms. Barak.

Is the counterclaim presented by Quanta well founded in law? [ 27 ] The Court did not find that Mr. Pickard's application was abusive in this proceeding. The rental application contained some requests for personal information that is not mandatory for the purpose of the application. The evidence shows that the lease was declined because of the refusal to give the authorization to run a credit check and also because of missing pages in an outdated credit report. The Court sees no bad faith in that procedure. [ 28 ] As for Ms. Barack's application, the Court does not see the legal link between the parties.

Because the cases were heard together, and this particular case did not necessitate more Court time or preparation, the Court does not see that Quanta suffered any prejudice as a result of that application THEREFORE, THE COURT: [ 29 ] DISMISSES the application of the plaintiff Mr. Pickard; [ 30 ] CONDEMNS Mr. Pickard to pay Quanta judicial fees of $159; [ 31 ] DECLARES Ms. Barak's application abusive; [ 32 ] DISMISSES the application of the plaintiff Ms. Barak; [ 33 ] DECLARES that no prejudice was suffered by Quanta as a result of Ms. Barak's application; [ 34 ] CONDEMNS the plaintiff Ms.

Barak to pay Quanta judicial fees of $159. __________________________________ SERGE LAURIN J.C.Q. Hearing date: January 30, 2013