2018 QCCQ 6138, 2018 QCCQ 6138

Edwards c.

Office municipal d'habitation de Montréal, secteur Sud- Ouest 2018 QCCQ 6138 COURT OF QUÉBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-80-036283-175 DATE: August 21, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ susan edwards Plaintiff v. office municipal d’habitation de montréal, secteur sud-ouest Defendant - and- Régie du logement - and - VALADE & ASSOCIÉS Impleaded parties ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Susan Edwards (the “ Tenant ”) seeks leave to appeal from a decision of the Régie du logement (the “ Régie ”) dismissing her motion for revocation of a prior decision of the Régie that resiliated her lease with the Office municipal d’habitation de Montréal, Secteur Sud-Ouest (“ OMHM ”) and ordered her eviction.

FACTUAL CONTEXT [ 2 ] The Tenant rents a dwelling in a low-rental housing property of OMHM. The lease between the parties (the “ Lease ”) is governed by articles 1984 and ff. of the Civil code of Québec (“ C.C.Q. ”). [ 3 ] In July 2015, OMHM sought the resiliation of the Lease and the Tenant’s eviction because of her failure to provide the financial information needed to determine her rent. [ 4 ] Before the application was heard, the parties came to an agreement to avoid the resiliation of the Lease.

The Tenant undertook to provide OMHM, within specified yearly delays, certain documents needed to determine the payable rent. She also agreed to the Régie issuing an order to comply pursuant to

article 1973 C.C.Q. The agreement states : « CONSENT TO JUDGMENT WHEREAS the landlord has filed a demand to cancel the lease and evict the tenant with the Régie du logement; WHEREAS the tenant admits having received the said demand; WHEREAS the tenant admits that the demand of the landlord was well founded; WHEREAS the landlord and the tenant wish to enter into an agreement as described hereunder and substitute an order to comply under

section 1973 of the Civil Code of Quebec to the cancellation of the lease and eviction demand ; CONSEQUENTLY THE PARTIES AGREE AS FOLLOWS; 1. The

preamble forms an integral part of this agreement; ORDER the tenant to give a copy of her 2014 provincial notice of assessment to the landlord before January 30 th 2016; ORDER the tenant to give to the landlord the composition of her household, at Ieast three month before the date of the lease renewal for the next three years ; ORDER the tenant to give to the landlord a copy of her 2015, 2016 and 2017 provincial notice of assessment at Ieast before July 1st of each year for the next three years ; ORDER the tenant to give to the landlord the slips corresponding to the income received at least one month after the date of the lease renewal for the next three years ; 2.

Should the tenant disrespect a disposition of the present agreement, the landlord shall introduce a demand with the Régie du

logement to cancel the lease and evict the tenant; 3. The parties agree that the agreement be part of a judgment to be rendered by the Régie du logement ; 4. The parties renounce to their right of judicial review, revocation or appeal of the judgment to be rendered by the Régie du logement; 5. The above mentioned dispositions shall enter in force at the time of acceptance and signature of the agreement and shall be maintained in force for a period of 3 years for every dwelling rented by the landlord to the tenant; 6.

The present agreement was drafted in English as it was the wish of the tenant; The whole without costs » [Emphasis added] [ 5 ] On January 15, 2016, the Régie (Me Éric Moffatt) rendered an order pursuant to

article 1973 C.C.Q. (the “ Order ”) ratifying the agreement and ordering the parties to comply with it. [1] [ 6 ] The Tenant did not, however, provide OMHM with the 2015 and 2016 provincial notices of assessment or with her income slips for these years as provided for in the Order. OMHM was consequently unable to determine the rent payable by the Tenant for the period beginning on March 1, 2016. [ 7 ] In May 2017, OMHM introduced a new application before the Régie seeking the resiliation of the Lease and the Tenant’s eviction given her failure to comply with the Order.

The parties were convened for a hearing of the matter on August 23, 2017, but the Tenant did not appear and the matter proceeded in her absence. [ 8 ] On August 24, 2017, the Régie (Me Eric Moffat) rendered a decision (the “ August Decision ”) [2] resiliating the Lease for failure to respect an order issued under

article 1973 C.C.Q. [ 9 ] On September 25, 2017, the Tenant sought the revocation of the August Decision, [3] but her motion was dismissed by the Régie (Me Jocelyne Gravel). [4] In its decision (the “ Revocation Decision ”), the Régie concluded that the Tenant had been negligent in the exercise of her rights and that she had no valid grounds of defense to the merits of the original application.

The Régie stated : « [1] La demanderesse requiert la rétractation de la décision du 24 août 2017, résiliant son bail pour non-respect d'une ordonnance l'enjoignant à fournir à temps les documents nécessaires à la détermination de son loyer. […] [3] Elle explique avoir négligé à la fois de faire ses déclarations de revenus et de vérifier son courrier .

Elle admet avoir un important problème d’organisation et que les conseils reçus d’un travailleur social désigné par le locateur n’ont pu l’aider efficacement à gérer ses obligations, ce qui explique également le non-respect de l’ordonnance émise contre elle le 15 janvier 2016. […] [8] Le Tribunal conclut que la demanderesse a été négligente dans l'exercice de ses droits .

Bien que les motifs de cette négligence s’expliquent vraisemblablement par des difficultés personnelles d’importances, la locataire n’a offert aucune preuve permettant au Tribunal d’espérer un redressement. [9] À la lumière de ces principes, le Tribunal est d'avis que la demanderesse n'a pas établi, par preuve prépondérante, un motif sérieux de rétractation . [10] En plus de ne pas avoir établi un motif de rétractation, aucun moyen de défense efficace n’a été soumis à l’encontre de la demande originaire .

Il y a lieu de conclure que la présence de la locataire à l’audience tenue le 23 août 2017 n’aurait vraisemblablement pas changé le sort du litige. » [Emphasis added] [ 10 ] The Tenant seeks leave to appeal from the Revocation Decision and, indirectly, from the August Decision. ANALYSIS

a) The Conditions Applicable to an Appeal from a Decision of the Régie [ 11 ] The Act respecting the Régie du logement [5] (the “ Act ” ) provides a limited right of appeal from decisions of the Régie.

An appeal is possible with leave of the Court only “ when the matter at issue is one which ought to be submitted to the Court of Québec ”. [6] [ 12 ] A matter will generally be considered as one which ought to be submitted to this Court if the issues raised by the applicant are serious, new, controversial, or of general interest. [7] [ 13 ] Leave to appeal may also be granted where the issues raised call into question the higher interests of justice such as, for example, where the applicant demonstrates, prima facie , an apparent weakness in the decision because of a clear and manifest error in the appreciation of the facts or an error of law, or if there was a violation of the rules of natural justice. [8] [ 14 ] The Court has wide discretion to determine whether leave should be granted; it must keep in mind the legislator’s intent that frivolous, dilatory or manifestly ill-founded appeals should not be allowed. [9]

b) The Tenant’s Grounds of Appeal [ 15 ] The Tenant argues that the Revocation Decision is affected by an apparent weakness justifying leave to appeal in that:

➢ The Régie violated her right to a fair hearing by not ensuring that she wished to proceed without being represented by counsel; ➢ The Régie violated her right to a fair hearing by thoroughly questioning her on her grounds of defense to the merits of OMHM’s original application; ➢ The Régie acted unfairly and unreasonably by failing to take into account that she was in possession of her 2015 and 2016 tax returns at the hearing of her motion in revocation and by not allowing her to file same; and ➢ The Régie erred in concluding that her personal difficulties were not sufficient grounds to justify the revocation of the August Decision. [ 16 ] The Court is of the opinion that leave to appeal should not be granted for the following reasons. - The Alleged Violation of the Régie’s Obligation of Assistance [ 17 ] The Tenant argues that she was denied a fair hearing because the Régie did not ensure that she wished to proceed without counsel, in violation of the Régie’s obligation under

Section 63 of the Act to “ give equitable and impartial assistance to each party so as to render effective the substantive law and to ensure that it is carried out .” [ 18 ] The Court sees no apparent weakness in the Revocation Decision in this regard. [ 19 ] As appears from the transcript of the hearing before the Régie, [10] the Tenant did not suggest in any way that she wished to be represented by counsel or required a continuance to retain counsel. She made the choice to act on her own behalf.

Under the circumstances, the Régie was under no obligation to verify her intentions or propose that she seek counsel, [11] all the more so given that OMHM was not represented by counsel. - Questioning of the Tenant on the Grounds of Defense to the Original Application [ 20 ] The Tenant further argues that she was denied a fair hearing because the Régie, in addition to delving into her grounds of revocation (i.e. whether she was “ prevented from producing or supplying evidence by surprise, by fraud or by any other reason considered sufficient ” [12] ), questioned her on her grounds of defense to OMHM’s original application for resiliation of the Lease. [ 21 ] This argument does not withstand scrutiny and an appeal in this regard would have no reasonable chance of success. [ 22 ]

Section 44 of the Rules of procedure of the Régie du logement [13] explicitly provides that an application for revocation must include both the grounds of revocation and a brief statement of the grounds of defense to the original application.

This is hardly surprising: revoking a decision where the applicant has no reasonable grounds of defense on the merits of the initial application would be an inefficient use of judicial resources. [ 23 ] Consequently, the Régie was clearly entitled to inquire into what the Tenant’s grounds of defense were. - The Régie’s Alleged Failure to Consider the Documents in Tenant’s Possession [ 24 ] The Tenant further argues that the Régie acted unfairly and unreasonably at the hearing of her application for revocation because it failed to consider that she was by then in possession of her 2015 and 2016 tax returns.

She submits that the Régie should have accepted these documents into evidence and should have revoked the First Decision. [ 25 ] This argument is also clearly ill-founded for the following reasons. [ 26 ] Firstly, the Tenant filed her 2016 tax return after the First Decision had been rendered, as appears from the tax return itself [14] and the transcript of the hearing. [15] She therefore could not have had the documents at issue at the August 23, 2017 hearing that she failed to attend and which led to the First Decision. [ 27 ] Moreover, the documents that the Tenant was ordered to produce yearly to OMHM pursuant to the Order – and which she failed to provide – are not her 2015 and 2016 tax returns, but rather the provincial notices of assessment received by the tax authorities for the years at issue following the filing of her tax returns. [16] The Tenant did not have these notices of assessments. [ 28 ] Under the circumstances, the fact that the Tenant was in possession of her 2015 and 2016 tax returns at the hearing of her application for revocation in October 2016 was manifestly irrelevant to the outcome of OMHM’s application for resiliation. - The Tenant’s Personal Difficulties as a Ground of Revocation [ 29 ] Lastly, the Tenant argues that the Régie erred by not taking into account her personal difficulties as a serious ground of revocation of the August Decision. [ 30 ] The Court sees no apparent weakness in the Régie’s decision in this regard. [ 31 ] A long line of cases recognizes that the revocation of a decision is not justified where the party seeking the revocation was himself or herself negligent in the exercise of his or her rights. [17] [ 32 ] Based on its appreciation of the evidence, the Régie concluded that the Tenant was negligent.

She has not demonstrated, even prima facie , a clear and manifest error in the Régie’s appreciation of the facts in this regard. [ 33 ] On the contrary, the Régie’s conclusion finds ample support in the Tenant’s repeated admissions that she neglected to verify her mail and that this explains why the notice of the August 23, 2017 hearing sent to her by the Régie went unnoticed. Given the general

nature of the Tenant’s statements regarding the personal difficulties that she was going through, the Court does not see a manifest error in the Régie’s conclusion that these difficulties did not constitute sufficient grounds for revocation. [ 34 ] In conclusion, the Tenant has not demonstrated that the proposed appeal raises a question of principle or a question that is new, controversial or of general interest or that the Revocation Decision is affected by any apparent weakness.

FOR THESE REASONS, THE COURT: DISMISSES the motion for leave to appeal; THE WHOLE WITH LEGAL COSTS . __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: June 20, 2018 Me Catherine Damkaoutis Catherine Damkaoutis Avocate Attorney for Plaintiff Me Marie-Pier Durand Martineau & Associés Attorney for Defendant