2015 QCCQ 2397, 2015 QCCQ 2397

Senécal c. Tatignan 2015 QCCQ 2397 COURT OF QUEBEC «Administrative and Appeal Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MOTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-22-219304-154 500-80-030202-155 DATE: March 24, 2015 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ MICHEL SENÉCAL Plaintiff v.

SAKARIS TATIGNAN Plaintiff ______________________________________________________________________ JUDGMENT ON A MOTION FOR LEAVE TO APPEAL AND A MOTION FOR SUSPENSION OF PROVISIONAL EXECUTION (arts. 91 and 94(2) of an Act respecting the Régie du logement [1] ) ______________________________________________________________________ [ 1 ] The Court is seized of a motion for leave to appeal of a final decision of the Régie du logement (the Board). [ 2 ] A motion to suspend provisional execution of the decision is also presented.

However, at the hearing, it was admitted that the tenant Plaintiff (Mr Michel Senécal) has already been evicted from the rented premises. Consequently, this motion is clearly academic and will thus be dismissed. [ 3 ] In its decision, the Board decided, after contested evidence, that the verbal lease existing between the parties was for a monthly rental of $1100.00 rather then $1000.00 as Mr Senécal contended. It was also concluded that the rentals were unpaid in whole or in part, over period of four months. Mr Senécal was therefore condemned to pay $4100.00 and the lease was cancelled.

Provisional execution was also ordered under articles 82 and 82.1 of the A.R.L.

ARTICLE 91 OF THE A.R.L. [ 4 ]

Article 91 of the A.R.L. prescribes the applicable criteria for granting permission to appeal a decision of the Board : 91. An appeal lies, on leave of a judge of the Court of Québec, from decisions of the Régie du logement when the matter at issue is one which ought to be submitted to the Court of Québec . […] (Emphasis added) [ 5 ] These criteria are well known [2] . In order for the Court to grant permission to appeal, Mr Senécal must put forward questions that are serious, new, controversial or of general interest.

More precisely, permission will be granted only if there is an apparent weakness in the decision; a manifest, dominant or gross error in the appreciation of facts; a contravention to natural justice or insufficient reasons. It is not sufficient that the Board commit an error. It is further required that the question justify the permission to appeal (“when the matter at issue is one which ought to be submitted to the Court of Québec”). (Emphasis added) GROUNDS FOR APPEAL [ 6 ] Mr Senécal’s sole ground for appeal is that the commissioner refused his request for a postponement at the hearing on the merits.

He argues, before this Court, that his right to be represented by an attorney was not respected by the Board. He considers that he was not able to cross-examine witnesses as required. This constitutes, in his view, a contravention to the rules of natural justice.

ANALYSIS [ 7 ] The only exhibit alleged in Mr Senécal’s motion for permission is the Board’s decision. None of the exhibits filed at the hearing before the Board nor transcripts of the testimony are filed here. [ 8 ] More importantly, the decision to refuse a postponement was rendered verbally during the hearing. No transcript of this decision is filed. [ 9 ] A decision to refuse a postponement is a discretionary matter. An appeal Court does not intervene in such matters lightly.

An appeal of this type would require a clear demonstration that the Board has not acted in a judicial manner. [ 10 ] Since the verbal reasons given by the commissioner have not been filed, the Court has no way of examining this question. It was Mr Senécal’s burden to prove that he has a serious question to put to the Court. There is nothing in the motion or in Mr Senécal’s verbal arguments to allow the Court to conclude that he has met this burden.

In short, Mr Senécal has not convinced the Court that “the matter at issue is one which ought to be submitted to the Court of Québec”. [ 11 ] However, there is more. [ 12 ] Mr Senécal alleges in his motion that on November 19, 2014, he had already requested and obtained a postponement of his case before the Board, specifically because he wished to be represented by an attorney. [ 13 ] On January 7, 2015, at the new hearing, Mr Senécal alleges that he had retained an attorney who was not available. This attorney did not appear for him at the Board and did not formally request a postponement.

Rather, Mr Senécal requested it himself once again. These are the circumstances in which the postponement was refused. [ 14 ] It was Mr Senécal’s responsibility to retain an attorney who was available for the hearing or at least, available to correctly request a postponement. Mr Senécal has only himself to blame. [ 15 ] Also, on the merits of the appeal, the only issues before the Board were factual.

The main issue was the value of the monthly rent: $1100.00 according to the landlord versus $1 000.00 according to Mr Senécal. [ 16 ] The rental Board concluded in its decision: [4] Le locataire soutient que le loyer est fixé à 1 000 $. [5] À la lumière de la preuve contradictoire présentée, le Tribunal juge plus crédible la version du locateur et fixe le loyer à 1 100 $. [ 17 ] The jurisprudence of the Court of Québec has continually held that questions of credibility are not subject to appeal.

An appeal before the Court of Québec is not a second chance to try the facts [3] . [ 18 ] Mr Senécal has not shown that there is any issue justifying an appeal in this case. FORE THESE REASONS, THE COURT : DISMISSES the motion for suspension of provisional execution; DISMISSES the motion for leave to appeal; WITHOUT COSTS . __________________________________ Scott Hughes, J.C.Q. Michel Senécal Acting without council Me Julien L’Abbée Peter Karavoulias Avocats For the Defendant Date of hearing: February 18, 2015