2014 QCCQ 7554, 2014 QCCQ 7554

Datta Realty Inc. c. Hassan 2014 QCCQ 7554 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-209025-140 DATE: August 18, 2014 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ DATTA REALTY INC. Plaintiff v.

IZHAR HASSAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The lessor Datta Realty Inc. ( Realty ) sues his lessee Izhar Hassan and demands to have the lease entered into on December 1, 2006 cancelled as of the date of judgment. Realty also wishes that Mr. Hassan vacates the premises within forty-eight hours of the judgment to intervene. [ 2 ] Mr. Hassan wants to remain in the leased premises until the expiry of the term of the lease, on November 30, 2016. QUESTIONS OF LAW [ 3 ] A.

Does Realty have the right to expel Mr. Hassan based on

article 1887 of the Civil Code of Quebec ? B. Did Realty provide the necessary written notice to comply with

article 1887 of the Civil Code of Quebec ? CONTEXT [ 4 ] A chain of owners and lessors for the building bearing the civic numbers from 2479 to 2499 Centre Street in Montreal existed, throughout the relevant time, where Realty is the current owner. [ 5 ] Mr.

Hassan, as lessee, dealt with all the lessors. [ 6 ] Indeed, a first lease [1] was concluded for the period of May 1, 2001 to April 30, 2011, for the rental of commercial premises. [ 7 ] In view of a change of owner, a second lease [2] was then signed for the period of December 1, 2006 to November 30, 2016. [ 8 ] These two leases identify the same commercial premises located at 2489 Centre Street in Montreal where Mr. Hassan and his wife operate a store at that address. [ 9 ] On November 26, 2012, while the second lease was in force, Bulu Datta and Supta Rani Debroy [3] bought the building.

As new owners, they had to consider the lease already in force between Mr. Hassan and the previous lessor. [ 10 ] In November 2012, two letters [4] were issued and are at the heart of this litigious matter. The first letter was issued by a notary and was dated November 26, 2012. It contained a general notice ( the General Notice ) to all tenants for the sale of the building. It requested that all future payments of rent be made to the new purchasers, Bulu Datta and Supta Rani Debroy [5] , who bought the property from Raj Kumar and Indu Rani.

The other letter was a notice of termination ( the Notice of Termination ) issued by Bulu Datta and Supta Rani Debroy and dated November 27, 2012. It was addressed to Mr. Hassan solely and it requested him to vacate the premises for November 27, 2013. [ 11 ] One of these two Notices was sent by registered mail to Mr. Hassan. The key question is to determine which one. [ 12 ] On June 18, 2013, Mr. Datta and Mrs. Debroy sold same property to Realty [6] where Mr. Datta acted as president.

[ 13 ] Since these owners sold the property to Realty, the latter requested that the Notice of Termination of November 27 th , 2012 be respected by Mr. Hassan. [ 14 ] The debate is whether or not Mr. Hassan acknowledged receipt of the Notice of Termination dated November 27, 2012 [7] . ANALYSIS [ 15 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [8] . In this regard, the burden of proof lies on the party presenting a demand.

That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence . This implies that the demand must demonstrate that the existence of a fact is more probable than its non-existence [9] . [ 16 ] All relevant elements of evidence are analysed by the Court. The probability is evaluated based on the direct evidence, the circumstances and the presumptions [10] . [ 17 ] The Court summarizes as follows the relevant facts from the evidence presented. A. Does Realty have the right to expel Mr. Hassan based on

article 1887 of the Civil Code of Quebec ? [ 18 ] In this specific case, the lease was not registered and nothing in the deed of sale obliged the new owner to respect the existing lease of the building [11] . [ 19 ]

Article 1887 of the Civil Code of Quebec sets the conditions to terminate a lease of an immovable property where a fixed term with “ more than 12 months remains from the date of alienation ”. The lease may then be cancelled “ upon the expiry of the 12 months delay by giving the lessee a written notice of six months ”. [ 20 ] Upon reviewing the dates of the lease and of the act of alienation, the Court first concludes that the lease had a fixed term of more than 12 months and that Realty, the new owner, could cancel the lease as long as all conditions were met.

Furthermore, the delay provided in the Notice of Termination respected the requirements of the law. [ 21 ] At first sight, the preliminary conditions have therefore been met and Realty had the right to expel Mr. Hassan based on

article 1887 of the Civil Code of Quebec , subject to establishing having provided the written notice. B. Did Realty provide the necessary written notice to comply with

article 1887 of the Civil Code of Quebec ? [ 22 ] To answer this question and conclude, the Court must pay attention to the documents sent to Mr. Hassan, analyse whether or not proof of receipt has been made and look carefully at the addresses on the documents. [ 23 ] Indeed, are also part of the debate and raised by Mr. Hassan, the different addresses indicated on the documents:

a) home address of Mr. Hassan: 2522 Centre Street, in Montreal;

b) business address of Mr. Hassan: 2489 Centre Street, in Montreal;

c) unexplained erroneous address: 2526 Centre Street, in Montreal. [ 24 ] According to Mr. Hassan, the different addresses used could explain why he did not receive the Notice of Termination [ 25 ] The Tribunal notes the problem with the various addresses. Indeed, the Notice of Termination [12] and the letter of notice [13] did not refer to the personal address of Mr. Hassan nor to the address of the rented space. It referred to an erroneous address. The motion to institute proceeding referred to the home address of Mr.

Hassan. [ 26 ] Contrary to the General Notice, the Notice of Termination, dated November 27, 2012 [14] , was addressed directly and solely to Mr. Hassan and indicated the following: You have recently received a letter of transfer of property from Raj Kumar and Indu Rani to us, the purchasers, Bulu Datta and Supta Rani Debroy, said transfer having been executed on November 26 th 2012. Your lease as (sic) been renewed by the previous owner for a term of 10 years from May 1 st 2011. We are sorry to tell you but we will need your premises on November 27 th 2013. We are giving you a notice under the

Article 1887 of the Civil Code of Quebec to vacate the premises for November 27 th 2013. [ 27 ] Mr. Hassan and his wife deny having received and having knowledge of the Notice of Termination prior to receiving the motion to institute proceedings in 2014. According to them, the only document drawn to their attention was the General Notice. [ 28 ] The burden of proof lies on Realty in this matter to establish whether or not the Notice of Termination was indeed given to Mr.

Hassan at the time. [ 29 ] Contradictory evidence is presented by both parties. [ 30 ] To justify his position, the representative of Realty explained that the Notice of Termination and the General Notice were drafted by a notary. However, he was the one who sent by registered mail the Notice of Termination and gave the business’ address of Mr. Hassan. His explanation rendered, according to him, the question of the different addresses irrelevant.

[ 31 ] With respect to the General Notice sent to all tenants, the representative of Realty indicated that the document was given hand to hand to Mr. Hassan. [ 32 ] To contradict such evidence, Mr. Hassan has first filed a written affidavit signed by the witness Robert Bombardier. The latter was helping sometimes at the store. Mr. Bombardier was assigned by subpoena and testified at the hearing. [ 33 ] According to Realty, Mr. Bombardier accepted the Notice of Termination dated November 27, 2012 on behalf of Mr. Hassan. The Canada Post document establishes that Mr.

Bombardier accepted a registered document on December 5, 2012. [ 34 ] The question remains: which document was that? [ 35 ] Mr. Bombardier testified that he indeed received a document on that date and read it to Mr. Hassan. However, both Mr.

Hassan and him explained that the registered document was the General Notice dated November 26, 2012 [15] addressed to all tenants in the building located at 2479 to 2499 Centre Street in Montreal indicating that the building had been sold on November 26, 2012 and that all future payment should be made to the new owner as of December 1, 2012, and not the Notice of Termination. [ 36 ] It was obvious for the Court that Mr. Bombardier wanted to help Mr. Hassan and his wife with his testimony. Mr. Hassan’s wife indicated that she liked Mr. Bombardier as her own kid. Mr.

Bombardier’s version was unclear as to which documents he had seen and read with Mr. Hassan. He pointed out having seen the three letters [16] but added that he would not have read them all. [ 37 ] Considering that Mr. Bombardier is offering free labour and giving a hand to Mr. Hassan and his wife on a regular basis at the store, the Court finds it unlikely that the three letters received were not discussed with Mr. Hassan. [ 38 ]

Article 2849 of the Civil Code of Quebec allows the Court to rely on presumptions to conclude as long as they are serious, precise and concordant. [ 39 ] Under the balance of probability, the Court finds that the letter sent by registered mail must have been the Notice of Termination of lease dated November 27, 2012 [17] . [ 40 ] In view of that conclusion, the lease could be terminated as of the date indicated in the Notice of Termination, namely November 27, 2013. [ 41 ] Considering that time has elapsed since that date and that Mr. Hassan has paid all the monthly rents, the Court will give Mr.

Hassan the delay to appeal to vacate the premises. [ 42 ] The facts do not justify to apply the provisional execution, notwithstanding appeal [18] . Indeed, Mr. Hassan has respected his obligation to pay the rent. Furthermore, as indicated by the caselaw, the same judgment cannot conclude on the right to terminate the lease and to expel the lessee and on the right to the provisional execution [19] .

FOR THESE REASONS, THE COURT: RESILIATES the lease entered into on December 1, 2006, between Place 905 and Defendant Izhar Hassan for the premises located at 2489 Centre Street in the City of Montreal; ORDERS Defendant Izhar Hassan to deliver possession of the premises located at 2489 Centre Street in the City of Montreal at the expiry of the delay to appeal, failing which ORDERS the eviction of Defendant Izhar Hassan from said premises; THE WHOLE, without cost. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Me David Rosenzveig ROSENZVEIG STRAUBER WAXMAN Lawyer of Plaintiff Mr.

Izhar Hassan By himself Date of hearing: June 13, 2014