2014 QCCQ 5275, 2014 QCCQ 5275

Barwick Wall c. Armand 2014 QCCQ 5275 JQ0059 COURT OF QUEBEC Administrative and Appellate Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division N° : 500-80-026602-137 500-80-026756-131 DATE : June 23, 2014 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ 500-80-026602-137 DEANNA BARWICK WALL Petitioner-Tenant c. GEORGES ARMAND Respondent-Landlord 500-80-026756-131 DEANNA BARWICK WALL Petitioner-Tenant c.

GEORGES ARMAND Respondent-Landlord ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized with two Motions for Leave to Appeal by the Petitioner-Tenant, Deanna Barwick Wall ( Wall ) of four decisions rendered by the Régie du logement (the Régie ) in two Court records. [ 2 ] Respondent-Landlord, Georges Armand ( Armand ) contests Wall’s Motions for Leave to Appeal.

He also presents two Motions asking the Court to declare Wall’s proceedings abusive and dilatory. [ 3 ] Initially, Armand was asking the Court to declare, in both Court records, that the abuse resulted from Wall’s quarrelsomeness. These Motions were continued sine die . [ 4 ] Both records were joined and the Court proceeded in one hearing. THE FACTS [ 5 ] Since 1987, Wall has been renting from Armand a house located at 365, Lansdowne, in Westmount. [ 6 ] The difficult relationship between the parties appears to start in 2009.

Wall states that when a Sears’ technician suggested that the furnace had to be replaced, Armand would have agreed, but only in exchange of a $300 a month rent increase. [ 7 ] According to Wall, Armand would also have threatened that, should she refuse the rent increase, he would request the Régie’s permission to repossess the house for his 19 years old son. [ 8 ] At the time, the rent paid by Wall for a ten room house was less than $1,400 a month. [ 9 ] On August 1 st , 2010, a new lease was concluded at a monthly rent of $1,425 [1] . [ 10 ] On November 19, 2010, Armand did in fact file an Application before the Régie to obtain the permission to repossess the house, which was refused in a January 21, 2011 decision by Commissioner Luce De Palma [2] .

[ 11 ] She stated that the son’s reasons to inhabit the house were vague and uncertain.

She concluded that Armand’s primary objective was to evict Wall who was paying a modest rent. [ 12 ] On August 25, 2011, following an Application by Armand, Special Clerk, Me Isabelle Hébert, increased the rent by $82 a month to $1,507, as of August 1 st , 2011 [3] . [ 13 ] The Court can conclude that, as of the August 25, 2011 decision, Wall became more acrimonious towards Armand and the Régie. [ 14 ] Three major contentious issues developed before the Régie, the rent increase, the repossession of the house and the resiliation of the lease, which ended in the decisions that are the subject of the Motions for Leave to Appeal before this Court.

The questions in issue [ 15 ] The Court identifies the following questions: 1. Should leave to appeal the decisions of December 6, 2012, March 6, 2013, August 29, 2013 and September 18, 2013 be granted? 2. Should the Motions for Leave to Appeal be declared abusive and dilatory, and in the affirmative? 3. Should Wall be condemned to pay damages, representing the extra judicial fees and disbursements paid by Armand, including damages for stress and inconvenience? 1.

Should leave to appeal the decisions of December 6, 2012, March 6, 2013, August 29, 2013 and September 18, 2013 be granted? [ 16 ] For the purpose of the Motions presented by both parties, it is necessary to list the proceedings filed before the Régie: - In June 2011, Armand requests permission from the Régie to gain access to the dwelling to inspect the repairs asked by Wall. Notwithstanding that Wall complained that the roof and skylight needed repairs, she refused access.

She insisted that the Régie proceed first with her claim for punitive damages for harassment; - On August 25, 2011, Special Clerk, Me Isabelle Hébert, increases the rent by $82 to $1,507 per month, as of August 1 st , 2011 [4] ; - On September 21, 2011, Wall files an Application for Review of Me Hébert’s decision [5] ; - On November 3 rd , 2011, Commissioner Serge Adam renders a decision ordering Wall to provide access to the premises to Armand [6] ; - Several days later, Wall files a Motion in Revocation [7] of Commissioner Adam’s decision.

Commissioner Claudine Novello, in her decision of January 12, 2012 [8] , summarises as follows the arguments presented by Wall: 1. Part of the application was not adjudicated upon. 2. Decisions were made beyond the application. 3. Fraud was committed by the landlord perjuring himself with the full knowledge of his lawyer who used the false testimony as a basis for a cause against me. This fraud combined with breaches of natural justice prevented me from giving a full and complete defence . Commissioner Novello reminds Wall that a dissatisfaction with a decision does not constitute grounds to revocate it.

She concludes that Wall was not prevented from providing a full and complete defence. The other grounds are also dismissed; - Some days later, Wall asks that this decision be rectified to correct the hearing date referred to in paragraph 4 of the decision. The verification is made on February 13, 2012 [9] ; - One month later, Wall files before the Court du Québec a Motion for Leave to Appeal of Commissioner Adam’s decision and Commissioner Novello’s decision on the Motion in Revocation; - In his decision [10] , Mr.

Justice Lareau concludes that the Motion for Leave to Appeal, containing 22 pages, is characterised by repetitions and a high level of preoccupation for facts irrelevant to the issue. He concludes that Wall simply disagrees with the decisions rendered and seeks a second hearing, which does not fall within the criterias established at

article 91 of the

Loi sur la Régie du logement ; Mr. Justice Lareau also dismisses Armand’s Motion to Declare the Appeal Dilatory and Abusive and his claim in damages; It is of interest to note that Mr. Justice Lareau concludes that Wall was not represented by a lawyer and had little or no knowledge of the law to appreciate the fact that the arguments raised in her Motion for Leave to Appeal were doomed to failure; - On June 21, 2012, Commissioner Eric-Luc Moffat proceeds with Armand’s Motion in Repossession of the dwelling.

At this hearing, Wall is accompanied by her son and she requests that he act as interpreter as both Armand and his lawyer speak French; During the hearing, a possibility was raised that Wall’s son could be called as a witness. Commissioner Moffat decides that Wall must retain the services of a certified interpreter and for this purpose, the hearing is postponed; - Some two months later, Wall files a Motion in Recusation of Commissioner Moffat [11] on the grounds that he gave advice to

Armand regarding the advisability of separating two cases previously joined.

Wall states that Commissioner Moffat gave the impression of having an interest in favouring one of the parties and there was a lack of impartiality; - On September 2012, Armand files an Application in resiliation of the lease, on the grounds that Wall did not comply with Commissioner Adam’s decision, giving him access to the premises; - The hearing proceeds before Commissioner Hélène Chicoyne on November 21, 2012; At the outset of the hearing, as appears from a transcript [12] , Commissioner Chicoyne inquires as to the presence of Wall’s son.

At first, she stated he was there to give her moral support but it soon became evident that Wall wanted him to act as interpreter; She insists that she has the right to a fair hearing, but cannot afford an interpreter. Wall immediately asks that Commissioner Chicoyne recuse herself. The latter concludes that, should she refuse to recuse herself, this would only entail an additional delay.

She recuses herself and the hearing is postponed to December 20, 2012; - On December 6, 2012, Commissioner Daniel Laflamme dismisses Wall’s Motion in Recusation of Commissioner Moffat [13] , on the grounds that no evidence was presented that Commissioner Moffat was partial; - Some days later, Wall files a Motion to have the decision corrected to modify the name of the lawyer present at the hearing before Commissioner Moffat [14] ; - Following the Recusation of Commissioner Chicoyne, the hearing on the resiliation of lease is scheduled for December 20, 2012, before Commissioner Louise Fortin; At the outset of the hearing, again Wall presents her son as an interpreter; Commissioner Fortin reminds Wall that Commissioners Moffat and Chicoyne had advised her that a certified interpreter was required.

Again, Wall insists she cannot afford an interpreter and refers to the Quebec Charter of Rights .

Following a brief discussion, Wall requests that Commissioner Fortin recuse herself, on the grounds that she refused to translate the hearing and allow her son to act as interpreter; On the same day, Wall files her Application in Recusation of Commissioner Fortin [15] , in which she alleges reasonable fear of bias and lack of impartiality, and willingness demonstrated by the tribunals to diminish my rights rather than to uphold them ; - On February 13, 2013, a hearing before Commissioners Jodoin and De Palma proceeds on Wall’s Motion for Revision of the Decision rendered by Special Clerk Hébert of August 25, 2011; Once again, at the outset of the hearing, Wall asks that Commissioners Jodoin and De Palma translate the hearing for her, or summarize it; As Armand would not be testifying, his lawyer, Mtre Matte agreed to proceed in English.

Immediately, Wall asks that Commissioners Jodoin and De Palma recuse themselves, on the ground that the Régie has a systematic bias against her. She adds that her rights cannot be granted by Armand’s lawyer; After a short recess, Commissioners Jodoin and De Palma refuse to recuse themselves, forcing the postponement of the hearing to allow Wall to file her Motion in Recusation; Armand’s lawyer requests that an Order barring Wall from filing any other proceeding be issued. As Commissioners Jodoin and De Palma refused to recuse themselves, they could not proceed on this motion.

The matter was adjourned. - On March 18, 2013, Wall requests that the Motion in Resiliation of Lease be declared abusive and dilatory [16] ; - On July 11, 2013, a hearing before Commissioner Laflamme proceeds on Wall’s Application in Recusation of Commissioners Jodoin and De Palma and in Rectification of Commissioner Laflamme’s decision; On August 29, 2013, Commissioner Laflamme dismisses Wall’s Motion in Rectification of his December 6, 2012 decision [17] , on the grounds that disagreement with the decision, may give rise to another recourse, but a Motion in Rectification is not the proper recourse; - On September 18, 2013, Commissioner Laflamme dismisses Wall’s Motion in Recusation of Commissioners Jodoin and De Palma [18] concluding to an absence of evidence in support of the Motion; Commissioner Laflamme states that, at the hearing Wall also requested that he recuse himself, which he refused.

He also refused to postpone the hearing; He grants Armand’s Motion and orders that Wall be barred from instituting any other proceeding in the two records involving the increase in rent and in resiliation of lease. THE ANALYSIS [ 17 ] An appeal is governed by

Section 91 of An Act Respecting the Régie du logement which states : 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. […] [ 18 ] Numerous decisions of this Court have concluded that leave can only be granted when the question in issue is serious, is novel, is of general interest, when it deals with a controversial matter or when there is an apparent weakness in the decision. [ 19 ] In Court record 500-80-026602-137, Wall recites her arguments over 116 paragraphs, while in Court record 500-80-026756-131 her Motion has 68 paragraphs.

Both motions essentially raise the same arguments. [ 20 ] Wall tries to show that the issues are of general interest, when she states the following: 2. The issue in this application for leave to appeal are of general interest and are issues on which the Court of Quebec’s decision could provide guidance to administrative law tribunals which would serve as precedents for future hearings and decisions. 3. There is an inherent imbalance of power in any landlord and tenant relationship in favour of the landlord. This imbalance was exacerbated in many ways by the tribunal hearings, at issue, as shown below. 4.

Guidance from the Court of Quebec would benefit tenants, especially more vulnerable tenants, who appear before administrative tribunal representing themselves, from this inherent imbalance of power. I believe that the Court of Quebec’s guidance would undoubtedly lead the RDL tribunals to a more rigorous consideration of the balancing of landlord and tenants rights. 5. Guidance from the Court of Quebec on the necessity of RDL Commissionaires applying the Régie du logement Act equitably while taking into account the Rules of Procedures (RRQ., c. 8.1, R-1) would undoubtedly be of benefit. 14.

While the issues in this application specifically concern recusal issues and natural principles it also concerns a bigger picture covering a controversial topic….. namely inequality of treatment of citizens before the RDL tribunal. […] [ 21 ] The December 6 th , 2012 decision of Commissioner Laflamme [19] , dismisses the Motion in Recusation of Commissioner Moffat. Commissioner Laflamme aptly reminds Wall that a Motion in Recusation is not an appeal of a decision.

A mere suspicion of partiality is insufficient, a real probability of partiality must be presented. [ 22 ] The March 6, 2013 decision [20] by Commissioner Laflamme deals with Wall’s request that Commissioner Laflamme correct his decision of December 6, 2012, to specify that Mtre Stéphanie Chartray was at the hearing instead of Mtre Matte. He dismisses the Motion on the grounds that the error had no bearing on the outcome of the Motion. [ 23 ] The August 29, 2013 decision [21] dismissed Wall’s Motion in Rectification. [ 24 ] Clearly, these three decisions do not fall within the criteria stated at

article 91 of the Law. [ 25 ] In Court record 500-80-026756-131, in appeal of Commissioner Laflamme’s September 18, 2013 decision, Wall basically repeats the same arguments in all of her previous motions presented before the Régie. [ 26 ] She gives the impression of being the sole party having language rights before Tribunals or Courts, on the ground that Armand and his lawyer can speak English. [ 27 ] She concludes that the Régie, in granting Armand’s Motion requesting access to the dwelling, constitutes a bias against her. [ 28 ] She raised the same argument against Special Clerk Hébert’s decision of August 25, 2011 granting an increase in rent. [ 29 ] A review of the proceedings filed by Wall since early 2012 leads the Court to conclude that the objective is to prevent the Régie to enforce the increase in rent, granted since August 2011, and render a decision on the access to the dwelling or in cancellation of the lease. [ 30 ] The Court concludes that no error was committed by Commissioner Laflamme in his four decisions that justify a leave to appeal.

None of the Motions presented before this Court by Wall falls within the criterias stated in

article 91 of the Law. [ 31 ] Wall raises several complaints, however, none are supported by evidence. 2. Should the Motion for Leave to Appeal be declared abusive and dilatory? [ 32 ] Commissioner Laflamme decides this issue. 3.

Should Wall be condemned to pay damages representing the extra judicial fees and disbursements paid by Armand, including damages for stress and inconvenience? [ 33 ] Throughout the proceedings filed before the Régie since January 2012, Armand only asked once the Régie to declare Wall’s proceedings abusive and dilatory, which gave rise to Commissioner Laflamme’s September 2013 decision. [ 34 ] Since the amendment to the Law, it is the Régie who has exclusive jurisdiction to declare a proceeding to be abusive or dilatory, either on a motion or ex officio .

The Régie can also impose conditions on a recourse, as concluded by the Court of Appeal in Pickard c. Olivier [22] : [ 16 ] Puisque la Régie a la compétence pour réagir, même d’office, à un recours abusif, c’est devant elle que les intimés doivent faire valoir leur prétention que le recours des appelants est abusif. Prétendre qu’on peut aussi plaider une telle nature d’un recours pendant à la

Régie devant la Cour du Québec ou la Cour supérieure, selon le montant des dommages réclamés, m’apparaît contraire à l’intention législative de conférer à un organisme administratif spécialisé les litiges relatifs aux baux résidentiels, lequel est forcément le mieux placé pour décider si une procédure devant lui est abusive ou dilatoire, et exposerait les parties au danger de décisions contradictoires (cours de justice versus Régie). [ 17 ] En résumé, il revient à la Régie de statuer sur la nature du comportement des appelants devant elle, notamment le caractère abusif de leurs demandes et amendements. [ … ] [ 19 ] … la Régie se voit accorder par l’article 63.2 le pouvoir non seulement de rejeter la procédure abusive ou dilatoire; mais aussi celui d’assujettir sa continuation de conditions. [ 35 ] Once, the Régie establishes that a proceeding is abusive or dilatory, the Court can be seized of a Motion in damages: [ 20 ] Ensuite, le droit de réclamer des dommages pour abus du droit d’ester devant la Régie ne peut naître qu’à la suite d’une décision de cette dernière ayant conclu à un recours abusif ou dilatoire.

Par analogie avec la jurisprudence de la Cour sous l’art. 524 C.p.c ., on peut dire que la détermination du caractère abusif de la procédure (la faute) relève exclusivement de la Régie, alors que le tribunal judiciaire saisi du recours civil n’aura qu’à quantifier le préjudice découlant de cette faute. [ 36 ] However, as indicated in Pickard , once the proceeding is dismissed, because of its abusive or dilatory nature, the prejudice will be far less important: [ 21 ] De toute façon, dans la plupart des cas, le rejet rapide d’un recours abusif ou dilatoire fera en sorte que le préjudice subi par la

partie abusée sera de peu d’importance, s’il en est. Il s’agira donc, dans la majorité des cas, du remède approprié pour la

partie visée par la procédure abusive. [ 37 ] The Régie concluded that Wall’s proceedings were dilatory and abusive and ordered that Wall be barred from filing any other proceeding in the records active at the Régie, that deal with the increase in rent and the resiliation of lease. [ 38 ] This is appropriate and is the most effective measure to allow the Régie to proceed on the outstanding motions. [ 39 ] Should the abusive manner by Wall continue, Armand can present before this Court a claim in damages.

FOR THESE REASONS, THE COURT : In record No. 500-80-026602-137 DISMISSES the Motion for Leave to Appeal of three decisions rendered by the Régie du Logement on December 6, 2012, No. 31 120308 010 J 120830, March 6, 2013, No. 1 120308 010 J 120830 and August 29, 2013, No. 31 120308 01031 201 203 308X; WITH COSTS . In record No. 500-80-026756-131 DISMISSES the Motion for Leave to Appeal of the decision rendered by the Régie du Logement on September 18, 2013, No. 31- 110415-144 31 20110415 J and No. 31-120927-012 31 201 20927 J; WITH COSTS . __________________________________ DIANE QUENNEVILLE, J.C.Q.

Ms Deanna Barwick Wall Personally Petitioner-Tenant Mtre Sébastien Matte DUFOUR MOTTET, AVOCATS Lawyer for Defendant-Landlord