2021 QCCQ 123, 2021 QCCQ 123

5610-5660 Bois-Franc RD Holdings c. Espiritu 2021 QCCQ 123 COURT OF QUÉBEC Practice Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-22-264607-204 DATE: January 15, 2021 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ 5610-5660 BOIS-FRANC RD HOLDINGS ULC Plaintiff v.

GENEROSO ESPIRITU Defendant ______________________________________________________________________ JUDGMENT On an application for orders relating to the rights and obligations Resulting from a lease and for an order of eviction (Article 25 an 49 Code of Civil Procedure ) ______________________________________________________________________ INTRODUCTION (

a) The Parties [ 1 ] Plaintiff 5610-5660 Bois-Franc Rd Holdings ULC (the “Plaintiff” or the “Lessor”) is a real estate management corporation, the whole as appears from an excerpt from the Quebec Business Registry, filed herewith as Exhibit R-1. [ 2 ] Defendant Generoso Espiritu (the “Defendant” or the “Lessee”) is an individual corporation specialized in lettering and graphics, the whole as appears from an excerpt from the Quebec Business Registry, filed herewith as Exhibit R-2. [ 3 ] The Lessor is the owner of an immovable situated at [...], Borough of Saint Laurent (Quebec) [...] (the “Building”), the whole as appears from an extract of the index of immovables of the Land Registry Office, filed herewith as Exhibit R-3. [ 4 ] The Lessor purchased the Building from Kesmat Investments Inc. (“Kesmat”) in April 2020, the whole as appears from Exhibit R-3. (

b) The Agreement of Lease [ 5 ] On or about March 22, 2016, the Lessee entered into an Agreement of Lease with Kesmat (the “Agreement of Lease”) to lease the area containing approximately 2,325 gross square feet bearing civic address 5626 Bois Franc, contained within the Building (the “Leased Premises”), the whole as appears from the Agreement of Lease, filed herewith as Exhibit R-4. [ 6 ] The term of the Agreement of Lease was for a period of two years, commencing on April 1, 2016 and ending March 31, 2018 (Exhibit R-4). [ 7 ] After March 31, 2018, the Agreement of Lease was renewed on a month-to-month basis per

section 2.2 of the Agreement of Lease (Exhibit R-4). [ 8 ] Following the purchase of the Building, the Lessor sent a Notice and Direction to Tenants informing all of the Building’s tenants, including the Lessee, that all of Kesmat’s interest in the Building was assigned to the Lessee, the whole as appears from a copy of the notice, filed herewith as Exhibit R-5. [ 9 ] Furthermore, per the Agreement of Lease, in the event of the sale of the Building, the Lessee is bound to the new owner (section 18.1 of the Agreement of Lease, Exhibit R-4). [ 10 ] Thus, all amounts owed or owing and all obligations due to Kesmat by the Lessee pursuant to the Agreement of Lease became owed and due to Petitioner. [ 11 ] The monthly rent, including taxes and additional costs, is $3,019.26 as of April 2020, the whole as appears from the 2020 Rental

Schedule for the Leased Premises, filed herewith as Exhibit R-6. II. LESSEE’S DEFAULTS PURSUANT TO THE AGREEMENT OF LEASE

[ 12 ] The Lessee has committed numerous defaults pursuant to the Agreement of Lease. [ 13 ] On October 1, 2019, the Lessee admitted that its rental payments for the Leased Premises were in arrears and undertook to vacate the Premises within 30 days following receipt of a notice from Kesmat asking the Lessee to vacate the Premises, the whole as appears from Defendant’s signed recognition filed herewith as Exhibit R-7. [ 14 ] On February 20, 2020, Kesmat sent the Lessee a formal notice demanding that they vacate the Leased Premises by March 22, 2020, the whole as appears from a copy of the notice, filed herewith as Exhibit R-8. [ 15 ] The Lessee ignored Kesmat’s notice. [ 16 ] The Lessee failed to pay rent between April 2020 and November 2020, inclusively.

The rental arrears owed to the Lessor for this period total $24,154.08, the whole as appears from the statement of account for the Premises, filed herewith as Exhibit R-9. [ 17 ] Per

section 3.6.3 of the Agreement of Lease, rental arrears accrue interest at a rate of eighteen (18) percent per annum compounded monthly (Exhibit R-4). [ 18 ] Triovest - the property manager for the Building - repeatedly followed-up with the Lessee regarding rental arrears, namely with:

i) A visit to the Premises to discuss the rent on June 9, 2020; ii) A visit to the Premises to collect rent on June 25, 2020; iii) A telephone call to

schedule a meeting to collect rent on July 9, 2020; iv) A telephone call to

schedule a meeting to collect rent on July 16, 2020;

v) A telephone call to

schedule a meeting to collect rent on July 22, 2020; vi) A telephone call to

schedule a meeting to collect rent on July 28, 2020; vii) A telephone call to

schedule a meeting to collect rent on July 30, 2020. [ 19 ] On June 8, 2020, Jeff Kostin a representative of Triovest, wrote to the Lessee reminding them that rent for April 2020, May 2020 and June 2020 were due, the whole as appears from Mr. Kostin’s email, filed herewith as Exhibit R-10. [ 20 ] On June 16, 2020, Mr. Kostin informed the Lessee that he would be in the area the next day, requested a check for rental arrears and invited Defendant to contact him, the whole as appears from Mr. Kostin’s email, filed herewith as Exhibit R-11. [ 21 ] The Lessee never responded to Triovest’s emails. [ 22 ] Failure to pay rent constitutes a default on the part of Respondent under

section 23.1 of the Agreement of Lease (Exhibit R-4):

ARTICLE 23 - DEFAUT BY TENANT 23.1 Each of the following events (hereinafter called an “Event of Default”) shall be a default hereunder by TENANT and a breach of this Lease: (

a) If any payment of rent, Including increased rent or additional rent, is not completely paid when due and such violation shall continue for five (5) business days: […] [ 23 ] In light of the Lessee’ repeated failure to pay the rent owed under the Agreement of Lease, Plaintiff is entitled to terminate the Agreement of Lease, pursuant to sections 23.2 and 23.3 of the Agreement of Lease (Exhibit R-4): 23.2 Notwithstanding: (

a) any provisions of law to the contrary, including without restriction,

Article 1595 of the Civil Code of Quebec ; (

b) any defect if any notice given by LANDLORD, including without limitation, an error in the amount of rent in arrears (provided however, that rent is, in fact, in arrears) or a failure of the notice to require TENANT to make compensation in money or remedy the breach; and (

c) LANDLORD’S election not to give notice of TENANT in respect of a breach; upon the occurrence of any such Event of Default, LANDLORD may, at its option, (

i) give to TENANT a written notice of its intention to terminate this Lease, and the term hereof shall expire at noon upon the fifth day following the date upon which such notice is given as fully and completely as if that day were the date fixed for the expiration of the term without the necessity of any mise en demeure or legal process whatsoever, provided always, however, that TENANT shall remain liable to pay all amounts and damages then due or to become due, including the liquidated damages as may hereinafter be provided, and/or (ii) to remedy or attempt to remedy any default of TENANT under this Lease for the account of TENANT and to enter upon the Premises for such purposes.

No notice of LANDLORD’S intention to perform such covenants need be given TENANT unless expressly required by this lease. LANDLORD shall not be liable to TENANT for any loss, injury or damage caused by acts of LANDLORD, its agents, employees, contractors or any persons for whom LANDLORD is responsible at law, in remedying or attempting to remedy such default and TENANT shall pay to LANDLORD all

expenses incurred by LANDLORD in connection with remedying or attempting to remedy such default. 23.3 TENANT, upon such a termination of this Lease, shall thereupon quit and surrender the Premises to LANDLORD or if not yet in possession, shall no longer have any right to possession of the Premises. LANDLORD, its agents and servants, may immediately or at any time thereafter, re​enter the Premises and dispossess TENANT, and remove any and all persons and any or all property therefrom, either by

summary dispossession proceedings or by any suitable action or proceeding at law, or by force or otherwise, without being liable to prosecution or damages therefor. [ 24 ] Thus, on September 8, 2020, the Lessor sent the Lessee a formal notice of termination of the Agreement of Lease demanding that the Lessee vacate the Leased Premises within thirty days (the “Notice of September 8 th ”), the whole as appears from a copy of the notice, filed herewith as Exhibit R-12. [ 25 ] In light of the defaults committed by the Lessee and the Notice of September 8 th , 2020, the Lessor is entitled to resiliate the Agreement of Lease and take possession of the Leased Premises, the whole in accordance with

section 23.1 etseq of the Agreement of Lease (Exhibit R-4). [ 26 ] However, without any admission whatsoever, without prejudice to its rights, out of an abundance of caution and without renouncing to its rights under the Agreement of Lease, the Lessor hereby requests this Court’s de bene esse declaration that the Agreement of Lease is resiliated a toutes fins que de droit. [ 27 ] The Lessee ignored Lessor’s Notice of September 8 th , 2020 and continued to occupy the Leased Premises without paying the rent due for the month of October and November or any other rental arrears. [ 28 ] Out of an abundance of good faith, on October 16, 2020, the undersigned emailed Respondent to confirm, without prejudice, that the Lessor had no other choice but to take the necessary measurers to evict the Lessee from the Leased Premises, the whole as appears from a copy of the email, filed herewith as Exhibit R-13. [ 29 ] On October 19, 2020, the Lessee called the undersigned and ultimately agreed to vacate the Leased Premises by October 30, 2020.

In addition, the Lessee admitted to owing rental arrears to the Lessor and undertook to submit a payment plan for these arrears following a discussion with the Lessee’s accountant. [ 30 ] On October 22, 2020, the undersigned wrote to the Lessee, without prejudice, and confirmed the Lessee’s undertaking to vacate the Leased Premises by October 30, 2020, the whole as appears from a copy of the letter to the Lessee, filed herewith as Exhibit R-14. [ 31 ] The Lessee failed to vacate the Leased Premises on October 30, 2020 and never submitted a payment plan. [ 32 ] As such, the Lessee continues to occupy the Leased Premises illegally despite the termination of the Agreement of Lease. [ 33 ] On November 2, 2020, the undersigned wrote to the Lessee, without prejudice, to confirm that the Lessee would file proceedings to evict them from the Leased Premises, the whole as appears from a copy of the email, filed herewith as Exhibit R-15. [ 34 ] The Lessee never responded to the undersigned’s emails of October 22, 2020 or November 2, 2020. [ 35 ] In light of the foregoing, it is imperative that this Court order and declare that the Agreement of Lease is indeed restated a toutes fins que de droit as of October 8, 2020 and that the Lessee be ordered to vacate the Leased Premises without delay. [ 36 ] Furthermore, per sections 24.3 and 24.12 of the Agreement of Lease, Plaintiff is entitled to claim all judicial and extra-judicial fees incurred to enforce the Agreement of Lease and to retain the Lessee’s remaining deposit of $2,500. [ 37 ] The present Application is well founded in fact and law.

THEREFORE, the Court: GRANTS the present Demand for Orders Relating to the Rights and Obligations Resulting from a Lease and for an Order of Eviction', DE BENE ESSE, ORDERS AND DECLARES that the Agreement of Lease dated March 22, 2016 for the area containing approximately 2,325 gross square feet bearing civic address 5626 Bois Franc, contained within the immovable situated at 5610-5660 Bois Franc, Borough of Saint Laurent (Quebec) H4S 1A9 (the “Leased Premises”) is resiliated and cancelled; ORDERS that within 72 hours of the receipt of a notice from the Lessor, the Defendant Generoso Espiritu is to vacate and surrender the Leased Premises and to restore same to their original conditions, ordinary wear and tear excepted, failing which it shall be expelled by the hand of justice; ALLOWS the Lessor 5610-5660 Bois-Franc Rd Holdings ULC to evict the Defendant Generoso Espiritu from the Lease Premises, by force if necessary, to change the locks, change security protocol, and take any and all other measures required to ensure such eviction, should Defendant fail or refuse to vacate the Leased Premises within 72 hours of the receipt of a notice from the Lessor to that effect; ORDERS the provisional execution of the judgment to be rendered herein, notwithstanding appeal and without the necessity of furnishing security; AUTHORIZES the service of the judgment to be rendered herein to Defendant Generoso Espiritu at any time, outside of the legal hours of service, and during non-juridical days, whether personally, to a reasonable person at their domicile, at the head office or place of

business, and whether by fax, by electronic mail, by leaving same under the door, in the mailbox or by any other means; ORDERS the Defendant Generoso Espiritu to pay to the Plaintiff 5610-5660 Bois-Franc Rd Holdings ULC the sum of $24,154.08, sauf à parfaire, with interest at a rate of eighteen (18) percent per annum compounded monthly; ORDERS the Defendant Generoso Espiritu to pay the Plaintiff 5610-5660 Bois-Franc Rd Holdings ULC the sum of $15,000, sauf à parfaire, in compensation for the legal fees incurred by Plaintiff along with the additional indemnity pursuant to

article 1619 of the Civil Code of Québec , DECLARES that, in light of his defaults under the Agreement of Lease, Defendant Generoso Espiritu is not entitled to receive the remaining security deposit of $2,500; RESERVES Plaintiff’s rights in respect of any other recourses provided for under the Agreement of Lease; THE WHOLE with costs. __________________________________ DAVID L. CAMERON, J.C.Q. M e Alexandra Quigley, (Dentons Canada LLP) for the Plaintiff Date of hearing: December, 20 th 2020