2016 QCCQ 10638, 2016 QCCQ 10638

Law c. Blain 2016 QCCQ 10638 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146357-159 DATE: July 11, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ John Law Plaintiff v.

SebastiEn Blain Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant an amount of $4,203.08 representing unpaid rent and late payment fees pursuant to a commercial lease agreement. [ 2 ] Defendant contests the claim on various grounds. He argues: (

a) that Plaintiff has no recourse against him because he sublet the leased premises; (

b) that the claim is abusive because no amounts were due when it was filed; and, (

c) as a subsidiary argument, that he is entitled to a rent reduction because the heating system was not functional and other problems affected the premises. [ 3 ] By way of a cross-demand, he also seeks damages of $2,000 for the cost of purchasing and running plug-in heaters to compensate for the defective heating system.

FACTUAL CONTEXT [ 4 ] On June 28, 2010, the parties executed a commercial lease agreement (the « Lease ») for premises located at […] (the « Leased Premises »). [1] Defendant was already renting unit 1605, where it operates a restaurant, pursuant to a separate lease agreement. [ 5 ] The Lease originally provided for a two-year term (September 1, 2010 to August 31, 2012) and monthly base rent of $1,200, plus applicable taxes. [2] The term was extended in 2011 [3] and again in March 2013, when the base rent was also adjusted to $1,150 from July 1, 2013, $1,175 from July 1, 2014 and $1,200 from July 1, 2015, all plus applicable taxes. [4] [ 6 ] In December 2014, Defendant sublet the Leased Premises to Mr.

Raghunauth Katwaroo (the “ Subtenant ”) pursuant to a verbal agreement. Plaintiff was verbally advised and indicated that subletting was “Defendant’s responsibility”.

He accepted, however, to collect future rent directly from the Subtenant. [ 7 ] The Subtenant did not pay the rent on time and, on February 17, 2015, Plaintiff sent Defendant a letter of demand seeking payment of the monthly base rent and late payment fees for January and February 2015, [5] the whole totalling $2,744.40. [6] [ 8 ] The January 2015 rent was eventually paid, but on March 20, 2015, Plaintiff filed a claim for the February and March rent and late payment fees, as well as the costs of the registered letters sent for a total of $2,767.40. [ 9 ] The February 2015 rent was eventually paid, and on May 13, 2015, Plaintiff sent Defendant a new letter of demand placing Defendant in default of paying the late payment fee for January 2015 and the rent and late payment fees for March, April and May 2015. [7] [ 10 ] On May 27, 2015, Plaintiff amended his claim to reflect payment of the February rent, while maintaining his claim for the late payment fee for February 2015 ($51.98), the base rent and late payment fees for March, April and May 2015 ($3,966.60 + $150) and the costs of the registered letters of demand ($34.50). [ 11 ] The Lease was terminated on May 30, 2015. questions in issue [ 12 ] Given the respective position of the parties, the resolution of the case requires the Court to answer the following questions:

a) Did the subletting of the Leased Premises release Defendant from his obligations as tenant?

b) Was the tenant in default when the claim was filed and what amounts are outstanding in rent or late payment fees?

c) Is Defendant entitled to a reduction in rent due to the state of the Leased Premises?

d) Is Defendant entitled to the amounts claimed by way of his cross-demand? ANALYSIS

a) Did the sublease of the Leased Premises release Defendant from his obligations pursuant to the Lease? [ 13 ] Defendant argues, firstly, that Plaintiff has no right of recourse against him because he consented to the sublease of the Leased Premises to the Subtenant and collected rent directly from him.

In other words, he claims that the sublease of the Leased Premises released her from any obligations pursuant to the Lease. [ 14 ] Defendant is wrong. [ 15 ] Indeed, a tenant who sublets leased premises to a third party remains entirely responsible for all of his or her obligations as tenant, unless the lessor consents otherwise.

It is only where a lease is assigned to a third party with the lessor’s consent that the original tenant is released from any obligations pursuant to the lease. [8] [ 16 ] It is clear from the evidence that Plaintiff did not intend to release Defendant from his obligations under the Lease and this argument must fail.

b) Were rent payments current when the claim was filed and are the amounts claimed due? [ 17 ] Defendant also argues that Plaintiff’s claim is abusive because the rent was current when it was filed on March 20, 2015 and contests that amount claimed by Plaintiff. [ 18 ] The evidence shows, however, that certain amounts were outstanding when the claim was filed on March 20, 2015.

Indeed, the evidence reveals that the February rent was paid on April 1 st , 2015 [9] and no proof of payment of the March rent was provided. [ 19 ] In fact, Plaintiff has demonstrated to the satisfaction of the Court that the following amounts are due and outstanding pursuant to the Lease and have been so since May 1, 2015: ➢ Late payment fee for February 1, 2015 $51.98 ➢ Rent due on March 1, 2015 $1,322.20 ➢ Rent due on April 1, 2015 $1,322.20 ➢ Rent due on May 1, 2015 $1,322.20 ➢ Late payment fee for March, April and May 2015 $150.00 Total $4,168.58

c) Is Defendant entitled to a reduction in rent due to the state of the Leased Premises? [ 20 ] Defendant argues that he is entitled to a reduction of rent because the heating system in the Leased Premises was not functional. [ 21 ] The Lease provides, however, that Defendant is responsible for any repairs needed to the heating system: “ 8 SERVICES (…) 8.1.2 Equipment 8.1.2.1 The Premises include the following equipment: a.

Heating and air conditioning unit 8.1.2.2 The Lessee accepts full responsibilities for any and all costs related to the repair and/or maintenance of the equipment stated in 8.2.1.1 and agrees to maintain the Premises in proper working order for the duration of the Lease.” [10] [Emphasis added] [ 22 ] Defendant further argues that despite this provision, Plaintiff was obliged to at least deliver the Leased Premises with a functional heating system.

He claims Plaintiff did not, as the heating system never worked, and that he is therefore entitled to a rent reduction. [ 23 ] The allegation that the heating system never worked is not credible, however. It is difficult to believe that a tenant would accept the leased premises without a functional heating system since 2011. Moreover, under

Section 2.3 of the Lease, Defendant had the obligation to advise Plaintiff of any defects within 10 days after taking possession of the Leased Premises in 2011 and no such notice was provided prior to Plaintiff’s claim. [ 24 ] As to the other complaints raised by Defendant and the Subtenant regarding odours in the toilet room and a leak from the roof, Defendant has not established on a balance of probabilities that Plaintiff violated his obligations. [ 25 ] Defendant is therefore not entitled to a rent reduction.

d) Is Defendant entitled to the amounts claimed in his cross-demand?

[ 26 ] Defendant also puts forward a cross-demand on the basis that he had to buy and install plug-in heating units because the heating system was defective, but it too must fail. [ 27 ] Indeed, Defendant and the Subtenant both alleged at trial that it was the Subtenant who purchased and ran the plug-in heating units and not Defendant. Defendant therefore cannot claim damages to recover such costs, as they were apparently incurred by another party. FOR THESE REASONS, THE COURT: GRANTS the principal action. CONDEMNS Defendant Sebastien Blain to pay to Plaintiff John Law the amount of $4,203.08, together with interest at the legal rate and the additional indemnity provided by

article 1619 of the Civil Code of Québec from May 14, 2015. WITH COSTS of $107 representing the judicial costs on the Application. DISMISSES the cross-demand. WITHOUT COSTS as none were incurred by the Plaintiff as a result of the cross-demand. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: March 8, 2016