2020 QCCQ 2063, 2020 QCCQ 2063

4439066 Canada inc. c. Singh 2020 QCCQ 2063 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-148060-157 DATE: May 14, 2020 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ 4439066 CANADA INC. Plaintiff v.

HARPREET SINGH Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Parties and proceedings [ 1 ] The Plaintiff, 4439066 CANADA INC., the lessor of a commercial space used as a boutique, (the “Premises”), sues the Defendant Harpreet Kaur Singh, the lessee of these Premises, for arrears of rent of $ 4,272.91 as of the end of the term of the lease ( D-3 ), March 31, 2015.

The Plaintiff also sues for rent during a period of the lessor’s alleged occupancy of the Premises for two months after the end of the term charged at 175 % of the monthly rate as stipulated in the lease, an amount of $ 3,420.52. [ 2 ] In the Application filed, the total claim is stated as $ 6,768.43.

A computation based on the Plaintiff’s allegations written in the Application, however, gives a total of $ 7,693.41. [ 3 ] The letter of demand dated March 3, 2015 claims $ 6,122.91, because the overholding rent is not charged with the 75 % premium. [ 4 ] A second letter of demand dated June 25, 2015 makes the claim for overholding rent with the 75 % premium, but takes into account an additional payment by the Defendant of $ 925.00 on April 15. [ 5 ] An accurate accounting of the Plaintiff’s claim could therefore be expressed as arrears of $ 3,347.91 up until the end of the lease on March 31, 2015 plus $ 3,420.52 for the months of April and May 2015, at the rate of 175 %, for a total of $ 6,768.43, with interest at the legal rate and the additional indemnity. [ 6 ] The Defendant asserts that she is exonerated from paying rent because of damages that occurred when water infiltrated from the premises of an upstairs tenant.

She alleges damage to her stock, clothing on sale in the boutique and that she had to close the boutique for two months because of a foul smell and excess humidity. She blames the Plaintiff for not permitting a claim to be paid by its insurer and asserts that the lease was terminated under clauses 13.1 to 13.4 of the lease because the lessor failed to repair the premises. [ 7 ] In addition to her denial of the claim for rent, she makes a counterclaim of $ 15,000.00 for damage to property, and loss of revenue and of clients. Issues [ 8 ] The Court must consider the following questions: 1.

What amounts are owed for unpaid rents? 2. Is the Lessor liable to the Lessee for any loss of property or any economic loss because of damage to the premises? Analysis The incidents of water infiltration and steps taken by the lessor

[ 9 ] The Premises are on the ground floor a building having three upper floors. The entrance to the ground floor, where the Defendant’s boutique was located is 1470 Shevchenko Boulevard, in the Borough of Lasalle. The infiltration of water occurred on several different dates from mid-May until the end of the summer 2014, from inside the ceiling of the boutique. The video and photographic evidence provided by the Plaintiff shows that there was a stream of water coming down from the ceiling into the boutique, damaging clothing on display.

The court accepts the Plaintiff’s testimony that the leaks occurred on several occasions, that it was unpredicted and uncontrolled, that it caused damage to stock and disrupted business, that she attempted each time to inform the Lessor by telephone and that the problem persisted.

The Plaintiff speaks of the water as not being clear, and she states in her defense and counter claim that it came from the upstairs tenant’s leaky toilet. [ 10 ] The Plaintiff sent letters dated August 21 st and September 28 th , 2014, the second letter being a request to terminate the lease. [ 11 ] The source of the water was in an upper floor, and, according to the witness provided by the Plaintiff, Mr.

Arturo Segrera, who provided services to the Plaintiff on a contractual basis, a plumber was called in to check the plumbing of a leased dwelling on the second floor, from which the water apparently originated, known as apartment 24 (the residential entrance being 1454 Shevchenko). [ 12 ] A handwritten bill from a plumber dated July 29, 2014 ( P-1 ) indicates that the plumber reported finding no leaks in the plumbing but that a leak coming from between the floor of the bathroom and the toilet was detected “when water is on bathroom floor”.

He states the service provided as “applied sillicone [sic] around toilet and educated tenant”. [ 13 ] Mr. Segrera testified to his belief that the problem occurred when the tenant used the shower without using the shower curtain properly to prevent water from leaking onto the floor. He confirms that the water infiltration he saw in the boutique was gray water, not clear water. [ 14 ] He claims to have attempted several times to instruct the tenant as to the proper use of the shower to prevent his flow of water.

He states having communicated with the tenant each time he received a complaint from the Defendant. [ 15 ] He says that he tried several times to seal the floor with silicone, but that he was not very successful. He believes that the problem and the complaints ceased when the tenant left the premises. A manuscript document dated Aug 19, 2014 ( P-2 ) apparently signed by the tenant and a representative of the Plaintiff shows a resiliation of the lease and vacating of the premises on August 30, 2014.

Clauses in the lease pertaining to losses and insurance [ 16 ] The lease sets out the obligation of the lessee to be insured, among other things, “all-risk property damage insured for all property owed and/or installed by Lessee in the Leased premises […]” (clause 12.1.1) and a correlative obligation to save the Lessor harmless from any claims etc. in connection with damage to or loss of property “[…] arising out of any occurrence in or about the Leased Premises […] (clause 12.7). [ 17 ] These clauses preclude a claim for damage to the movable property, in other words the stock, arising from the water infiltrating into the premises such as what is reported to have occurred here. [ 18 ] The Defendant asserts that her own insurer refused to cover because it was the Plaintiff’s fault, and that she therefore called upon the Lessor to give access to its insurance to make a claim.

This is probably a misunderstanding. If the Defendant had all-risk property damage for her stock, as the lease required, the insurer would not have such an excuse to not cover the loss.

The lease provides a waiver of all claims against the Lessor, to the extent that the occurrence is one that would have been covered by such insurance obtained by the Lessee. [ 19 ] The lease requires the Defendant to insure its property, but it makes no provision about the interruption of business or the reduction in the value of the premises if peaceful enjoyment is not provided by the Lessor. [ 20 ] The underlying cause of the series of incidents was only corrected by the Lessor in August 2014.

The problem ceased at the end of August, but it had caused several incidents for several months, and resulted in the closure of the premises, according to the Defendant, for two months because of humidity and bad odour. The obligation to provide peaceful enjoyment, on an ongoing basis, is an obligation of result, not merely of means, in the contractual relationships between the lessor and the lessee and it is a fundamental obligation.

The fact that the leakage problem from another premises within the building owned occurred and reoccurred despite the lessor taking reasonable steps to avoid the problem is not a defense. [ 21 ] There is a series of clauses in the lease about total or partial destruction of the premises that permit the termination of the lease under certain criteria. If the Lessor does not terminate the lease it must repair the damage, within a certain time, and the rent abates if the premises are unfit for occupancy during a whole or part of that period.

This is a specific clause (13.4) that operates notwithstanding the general principal of no set off, compensation or deduction of rent stipulated in clause 3.3. [ 22 ] According to the Defendant, the premises were eventually repaired, and she mentions an agreement with Mr. Rubenfeld, with whom she was dealing, that the rent would not be owed for two months of closure.

The proof of such an agreement is not sufficiently made, but the Court is of the view that, peaceable enjoyment being of the essence of the lease, and, in light of clause 13.4, there should be an abatement of rent equal to two months. [ 23 ] The general allegation that there was a business loss through loss of clientele and profits is not substantiated by evidence of any substantial amount. It would be hard to make such evidence, because the business did not have any substantial history in these premises from which projections could have been made. Vacating the premises

[ 24 ] At the hearing, the Defendant’s representative stated that she left the premises at the end of March, 2015. [ 25 ] In an email sent March 8, 2015 to R & H Management, the latter acting on behalf of the Plaintiff, the Defendant stated her intention not to renew the lease and to move out the contents by April 10, 2015. [ 26 ] The Defendant was unable to give an exact date when she left, but she states that she gave the keys to the neighbouring tenant, calling the Plaintiff to advise him of this, and vacated the premises at the end of March 2015. Mr.

Segrera states that he contacted the tenant to try to get payment of arrears of rent but has no recollection of the date on which he obtained the keys. The keys were eventually returned: to the recollection of Mr. Hersch Rubenfeld, the Plaintiff’s representative, it would have been in June 2015.

This would explain his claim for the rents of the months of April and May 2015. [ 27 ] The Court takes the Plaintiff’s point, that there was property found left in the premises when the lessor entered and cleaned up the premises, and this suggests a presence after the end of the lease, but, apart from the notification of the Defendant’s intention to remain in possession until April 10, 2015, there is no probative means of evidence to disprove the latter’s assertion that she vacated the premises at the end of March. [ 28 ] In the Court’s view, the lessor, having been informed that the premises would be vacated on April 10, cannot claim rent beyond that date if it cannot show it was prevented from having effective control of the premises thereafter.

Even if its representatives did not understand that there was an arrangement to leave the key with the neighbour, which is unlikely, because they eventually did get the key, they could have enquired immediately upon the 10 th of April 2015 and acted to retake control, since the lessee had left. Thus, the Plaintiff’s opportunity to re-lease the premises was only delayed by 10 days. [ 29 ] The premises were not left in a broom-swept condition and some material was left behind, that had to be disposed of, but the Plaintiff has not made any claim for this.

The Court’s conclusion on the issues [ 30 ] The arrears of rent for the term of the lease should be reduced by an amount equal to two months of rent ($ 1,954.58) to the sum of $ 1,393.33. [ 31 ] The Defendant, by her own admission, only offered the premises back on April 10, and as such was an overholding tenant. She should not be charged with rent for the entire month, because her advice to the lessor that she would vacate by April 10 was simply ignored. The Lessor, implicitly, accepted this short prolongation of the tenant’s control of the premises and did not act immediately to regain possession afterward.

The rent should be pro-rated to 10 out of 30 days, but the rate of 175 %, somewhat punitive, but not unduly so, should be respected. Those 10 days result in additional rent of $ 570.09. [ 32 ] The total of the two types of rent is $ 1,963.42. [ 33 ] The only claim of the Defendant that the Court accepts is the reduction of two months of rent. The counterclaim for economic loss is therefore not allowed. [ 34 ] Since both parties were successful in part, there will be no award as to legal costs.

BY THESE REASONS, THE COURT: GRANTS the Plaintiff’s claim in part; CONDEMNS the Defendant to pay the Plaintiff the sum of $ 1,963.42, together with interest at the legal rate and the additional indemnity provided at

article 1619 of the Civil Code of Québec , calculated from July 14, 2015; DISMISSES the Defendant’s counter claim; THE WHOLE without legal costs. __________________________ David L. Cameron, J.C.Q. Dates of hearing: December 12, 2016, September 23, 2019 and January 6, 2020