2019 QCCQ 2103, 2019 QCCQ 2103

Deng c. Wang 2019 QCCQ 2103 COURT OF QUEBEC (Administrative and Appeal Division) “Practice Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-80-036229-178 DATE: January 16, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ SUET YAN DENG and YEONG SHIEUR HUANG Petitioners v.

YU-KANG WANG and RAMIN MOHAMMADA ALIKHANI Respondents ______________________________________________________________________ JUDGMENT ON MOTION FOR LEAVE TO APPEAL FROM DECISIONS OF THE RÉGIE DU LOGEMENT ______________________________________________________________________ [ 1 ] Petitioners seek leave to appeal three decisions of the Régie du Logement ( R.L. ) rendered in files which can be summarized as follows : YEONG SHIEUR HUANG v. RAMIN MOHAMMADA ALIKHANI (FILE NO.: 31-121128-081 31 20121128 G) [ 2 ] Petitioner Mrs.

Huang, the lessor, seeks to appeal the decision rendered on June 28, 2016, by the R.L. in which Mtre Rosario Nobile dismissed her claim for damages in the amount of $30,800.00 against Mr. Alikhani, the lessee (Decision # 1). [ 3 ] Said claim regards damages to the supporting wall near the driveway of the dwelling located at 2665 Desjardins, Apt. # 1 in Montreal. The hearing before the R.L. was held on October 21, 2013, October 5, 2014, and June 27, 2016. [ 4 ] The R.L. reviewed the proof offered by Mrs.

Huang, more specifically the testimony given by her expert to the effect that the stability of the supporting wall was compromised by the weight of the Mr. Alikhani’s truck parked in the driveway. [ 5 ] Mr. Alikhani explained that he has parked his truck in the same parking space for the last few years and that his lease included said space. Mr. Alikhani’s expert testified that although the supporting wall is inclined, it is in good condition, and it is rather the freeze/thaw that caused the tilt. From his standpoint, it is impossible for Mr.

Alikhani’s truck to have caused the damages to this wall which, incidentally, was built more than 50 years ago. [ 6 ] Referring to

article 1863 of the Civil Code of Québec , the R.L. concluded that the preponderant proof is to the effect that Mr. Alikhani is not liable for the damages claimed by Mrs. Huang. [ 7 ] Mrs. Huang later filed a first Motion in revocation of this decision because she was not present at the last hearing before the R.L. , held on June 27, 2016, although her attorney at the time was. [ 8 ] On the day of the presentation of her first Motion in revocation, Mrs. Huang was again absent, but represented by another attorney who requested a postponement. The R.L. refused the request. Considering that no proof was offered by Mrs. Huang, her first Motion in revocation was dismissed on February 16, 2017.

[ 9 ] A second Motion in revocation was presented on July 26, 2017, and dismissed on October 24, 2017 (decision # 2). Said decision will be discussed below. [ 10 ] According to Mrs.

Huang, the following question should be submitted to the Court of Quebec regarding decision # 1: Did Administrative Judge Rosario Nobile commit an error by allowing the Defence’s so-called expert testimony to be heard and/or so-called expert report to be filed into evidence and considered for the purposes of judgment in the absence of the Petitioner and/or her representative or counsel at court and the absence of any consent by Petitioner as to an admission of the content of said report? [ 11 ] She submits the following arguments: - Her attorney was present for only five minutes at the June 27, 2016, hearing and left because he had no mandate to proceed; - The administrative judge failed to explain why he considered Mr.

Alikhani’s expert more persuasive than her expert; - The administrative judge allowed the filing of Mr. Alikhani’s expert report and his testimony without Mrs. Huang’s consent and even though she did not have the chance to cross-examine him. [ 12 ] She filed the transcripts of the June 27, 2016, hearing notably to show that her attorney left just a few minutes after the beginning of the hearing. SUET YAN DENG AND YEONG SHIEUR HUANG v. RAMIN MOHAMMADA ALIKHANI (FILE NOS.: 31-130306-099 31 20130306 T, 31-130211-141 31 20130211 T AND 31-121128-081 31 20121128 T) [ 13 ] Petitioners Mrs. Huang and Mr.

Deng both seek leave to appeal the decision rendered on October 24, 2017, (Decision # 2) in which the R.L . dismissed their Motion in revocation and declared said Motion abusive. [ 14 ] At the hearing of this second Motion in revocation, Mrs. Huang and Mr. Deng both complained about their lawyer at the presentation of the first Motion in revocation. The R.L. also referred to Mr.

Deng’s medical appointment in China but nevertheless dismissed the second Motion in revocation considering that Petitioners and their representatives were aware that no postponement would be granted for the presentation of the first Motion in revocation. [ 15 ] Mr. Alikhani filed a motion to have the second Motion in revocation declared abusive. The R.L. referred to

section 63.2 of the Act respecting the Régie du Logement ( A.R.L. ) [1] and reviewed its jurisdiction with respect to abusive proceedings. [ 16 ] Considering Mr. Deng’s and Mrs. Huang’s recklessness in failing to attend the presentation of the first Motion in revocation, considering the attempts by Mr. Deng and Mrs. Huang to reopen the debate, and considering Mr. Deng’s and Mrs. Huang’s allegations of their previous lawyer’s incompetence, the R.L . declared the second Motion in revocation abusive.

The R.L. also forbade them from filing any other Motions in revocation or incidental Motions without prior authorization from the R.L. ’s President. [ 17 ] Mr. Deng and Mrs. Huang are of the view that the following question ought to be submitted to the Court of Quebec with respect to decision # 2: Did the administrative judge fail to correctly apply and interpret the law with respect to

section 63.2 of the A.R.L. ? [ 18 ] Petitioners dispute the fact that their proceeding before the R.L. is abusive and argue that the decision carries serious consequences for them. SUET YAN DENG v. YU-KANG WANG (FILE NOS.: 31-120808-046 31 20120808 G AND 31-110928-052 31 20110928 G JOINED BEFORE THE R.L. ) [ 19 ] This motion was heard ex parte as Mr. Wang was not present or represented at the hearing before the Court of Quebec. [ 20 ] Petitioner Mr.

Deng, the lessor, seeks leave to appeal the decision rendered on June 9, 2014, in which the R.L. dismissed his claim for damages and payment of rent against Respondent Mr. Wang, the lessee. Mr. Deng contended that Mr. Wang was his sub-lessee (Decision # 3). [ 21 ] The R.L. referred to a lease between Mr. Deng and Mrs. Shiela Hoeng Yeong from July 1, 2010, until June 30, 2011, and found that there was no contract between Mr. Deng and Mr. Wang for the relevant period. The R.L . also referred to a lease between Mr. Deng and Mr. Alikhani for the same period. [ 22 ] Mr.

Deng presented a first Motion in revocation of this decision, which was dismissed on March 17, 2015. A second Motion in revocation was also presented, and it was dismissed on February 16, 2017. Finally, a third Motion in revocation was presented, and it was dismissed on October 24, 2017, (decision # 2) referred to hereinabove. [ 23 ] According to Mr.

Deng, the following question should be submitted to the Court of Quebec regarding decision # 3: Did Administrative Judge Rosario Nobile fail to properly appreciate/understand the capacity and role of the respective parties in the case, thereby tainting his final judgment? [ 24 ] Mr. Deng alleges that the decision shows a flagrant weakness as there is confusion among lessees for the period between July 1, 2010, and June 30, 2011. In addition, he contends that the administrative judge did not properly appreciate the documentary proof

offered. ANALYSIS [ 25 ] In order to decide whether the issues raised by Petitioners ought to be submitted to the Court of Quebec as per

Section 91of the Act respecting the Régie du Logement ( A.R.L. ), [2] the Court must decide if these issues are serious, new, of general interest or refer to a controversy in the case law. [3] The Court must also analyze the arguments submitted in order to avoid an appeal which is likely to fail. [ 26 ] There are additional criteria to be considered such as the apparent weakness of the decision, errors in the appreciation of facts and administration of proof, breach of natural justice, insufficient reasons for the decision or the refusal of the R.L. to exercise its jurisdiction. [4] [ 27 ] The Court is of the opinion that the issues raised with respect to decisions # 1, # 2 and # 3 are not issues that ought to be submitted to the Court of Quebec as they do not meet the criteria mentioned above for the following reasons.

Decision # 1 [ 28 ] Obviously, Petitioner does not agree with Mtre Rosario Nobile’s findings of fact following his analysis of the proof offered by the experts. Her appeal of said decision is an attempt to have the Court of Quebec reanalyze the credibility of witnesses, namely the experts.

The Court reiterates that an appeal with respect to the R.L. ’s appreciation of the proof is exceptional. [5] [ 29 ] As regards the fact that Petitioner was absent at the last hearing before the R.L. and that her attorney left just a few minutes after it began, the Court cannot consider this to be an issue related to natural justice.

The history of the proceedings filed by Petitioner, together with her propensity not to attend hearings convinces the Court that there was no violation whatsoever of the audi alteram partem rule. [ 30 ] In addition, it is the Court’s opinion that Petitioner’s appeal would most likely fail as she neglected to identify any error having an impact on the decision in her Motion to appeal. [ 31 ] The reasons provided for the decision are sufficient for the parties to understand what led Mtre Nobile to dismiss the claim: the burden of proof with respect to the application of

article 1863 of the Civil Code of Québec . [ 32 ] Finally, the Affidavit filed by Petitioner’s attorney does not in any way demonstrate that she was unaware of the date of the last hearing. [6] Decision # 2 [ 33 ] The sole issue raised by Petitioners with respect to this decision is the conclusion that their proceeding is abusive. [ 34 ] The Court considers it most appropriate to underline the fact that in its decision, the R.L . thoroughly reviewed the evidence adduced and proceeded to analyze the request made by the lessee while referring to relevant case law of the Court of Appeal. [7] [ 35 ] Petitioners have also neglected to identify an error in their Motion to appeal.

Rather, they make a general allegation of misinterpretation of the relevant

section of the A.R.L. , namely

section 63.2 . Decision # 3 [ 36 ] Decision # 3 is rather short and refers to two different lessees for the period between July 1, 2010, and June 30, 2011. A Motion in revocation of said decision was filed by Mr. Deng, who neglected to attend the hearing before the R.L. on March 10, 2015. [ 37 ] The issue raised by Petitioner is of most private interest and does not seem to be serious as no transcripts were given to the Court in order for it to appreciate what Petitioner considers to be confusion as to the parties to the lease.

Although there seems to be a contradiction with respect to the lessee for the period between July 1, 2010, and June 3, 2011, this does not, in itself, qualify the issue raised as being one which ought to be submitted to the Court of Quebec. FOR THESE REASONS, THE COURT: DISMISSES the Motion for leave to appeal from decisions of the Régie du Logement in files number: 31-121128-081 31 20121128 G; 31-130306-099 31 20130306 T; 31-130211-141 31 20130211 T; 31-121128-081 31 20121128 T; 31-120808-046 31 20120808 G; and 31-110928-052 31 20110928 G. _______________________________ JULIE VEILLEUX, J.C.Q.

Date of hearing: October 10, 2018

Mtre Daniel Sklar For the Petitioners Mtre Julien Delangie For the Respondent, Ramin Mohammada Alikhani