2021 QCCQ 1454, 2021 QCCQ 1454

Leiffer c. 4400 Sainte-Catherine Ouest inc. 2021 QCCQ 1454 COURT OF QUEBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-80-040948-201 DATE: March 8, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ LYDIA LEIFFER Plaintiff v. 4400 SAINTE-CATHERINE OUEST INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lydia Leiffer seeks leave to appeal from a decision dated June 18, 2020, of the Régie du logement (as it was then called) in file No. 479210 which resiliates her residential lease, orders her expulsion, and condemns her to pay costs to her landlord 4400 Sainte- Catherine Ouest Inc. (“ June 18 Decision ”). [1] [ 2 ] Ms.

Leiffer argues that leave to appeal should be granted because the June 18 Decision rests on flimsy evidence, the landlord’s witnesses were not credible, the administrative judge interpreted the evidence in a patently unreasonable manner and disregarded her evidence, he erred in law in evicting her because she was not given every chance to remove the boxes which encumbered the leased premises, and finally, that she would suffer serious injustice if the decision were to stand. [2] [ 3 ] The landlord, 4400 Sainte-Catherine Ouest Inc., argues that leave should not be granted because Ms.

Leiffer’s appeal aims at retrying the matter and submitting anew all the arguments that she already put before the administrative judge. Analysis and Decision A. Background [ 4 ] The Application for Leave to Appeal arises in the following context. [3] [ 5 ] Ms. Leiffer and the landlord are bound by a residential lease. She has lived in the leased premises since 1997. [ 6 ] On September 4, 2019, the landlord filed an application for specific performance and asked the Régie to order Mrs.

Leiffer to allow access to the leased premises so that it could carry out the replacement of the windows and a door, and to remove some of her personal property from the apartment given that it was allegedly overly cluttered (file No. 479210 of the Régie du logement). [ 7 ] The hearing of the landlord’s claim in file No. 479210 was scheduled to proceed on November 14, 2019. On or about that day, Ms.

Leiffer and the landlord entered into a settlement agreement with respect to the landlord’s claim (“ Settlement Agreement ”) and submitted the agreement to the administrative judge for his homologation. [ 8 ] On November 15, 2019, administrative judge Michel Huot homologated the Settlement Agreement and ordered the parties to comply with it [4] . [ 9 ] According to the Settlement Agreement, the Parties agreed as follows: 9.1. Mrs. Leiffer is to clean and declutter the leased premises by November 27, 2019, in order to allow the landlord to proceed with the replacement of the windows and door; 9.2. Mrs.

Leiffer is to allow for the inspection of the leased premises on November 27 at 2 PM; 9.3. The Landlord will change the windows and the door on November 28, 2019, beginning at 7 AM; 9.4. If Mrs. Leiffer fails to comply with the settlement agreement, the Landlord reserves all his recourses. [ 10 ] On November 27, 2019, the landlord inspected the apartment and concluded that Ms. Leiffer had not cleaned it up. It was still

excessively cluttered, so much so that the landlord could not access the windows and thus could not replace them as planned the following day. [ 11 ] On November 29, the Landlord filed a new application with the Régie in file No. 479210 in which it asked the administrative tribunal to resiliate the lease and evict the tenant on the grounds that

i) Mrs. Leiffer had not complied with the Settlement Agreement, ii) the tenant breached her obligations under the residential lease in that the premises were so overly encumbered and cluttered that they posed a fire hazard, and iii) the tenant failed to maintain the leased premises in a proper state of cleanliness, which breach caused serious injury to the landlord. [ 12 ] The landlord’s November 29 Application was heard by the Régie du logement over three days, namely on January 30, February 6 and February 12, 2020, and was presided by administrative judge Michel Huot. Mrs.

Leiffer was represented by counsel, as was the landlord. [ 13 ] Numerous witnesses were heard including a city inspector who visited Ms. Leiffer’s apartment four times: on September 26, 2019; November 27, 2019; February 5, 2020; and February 20, 2020. [ 14 ] The record also shows that following the February 5, 2020, visit, the city issued Ms.

Leiffer a notice of infraction and gave her 14 days to cure the defects mentioned in the notice: • The accumulation of combustible objects in her apartment is considered a fire hazard; • The high level of accumulation must be reduced by 50%; • She must clear the hallway to create a free width of 5 feet [5] . [ 15 ] On June 18, 2020, administrative judge Huot issued his decision. Firstly, he determined that the resiliation of the lease was justified considering that Mrs. Leiffer did not comply with her obligations under the lease and under articles 1855 and 1911 of the Civil Code of Québec (“ C.C.Q. ”).

He further held that these breaches caused the landlord serious injury which justified the resiliation of the lease. [ 16 ] Secondly, he held that Mrs. Leiffer failed to comply with her obligations under the Settlement Agreement. [ 17 ] For these reasons, the Régie du logement resiliated the lease, ordered Mrs. Leiffer’s expulsion from the leased premises. [ 18 ] Following this decision, Mrs. Leiffer filed two applications for revocation. Both were dismissed by the Régie du logement and the Tribunal administratif du logement [6] . [ 19 ] On November 20, 2020, Mrs.

Leiffer filed an Application for Leave to Appeal of the June 18 Decision. This application was amended twice. B. The Criteria to Obtain Leave to Appeal from a Decision of the Tribunal administratif du logement to the Court of Québec [ 20 ] The Act Respecting the Administrative Housing Tribunal ( R.S.Q. ch. T-15 .01; the “ Act ”) provides a limited right of appeal from decisions of the Administrative Housing Tribunal [7] .

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”. [ 21 ] 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. [ 22 ] 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. [ 23 ] 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.

C. The Questions that Ms. Leiffer Intends to Submit to the Court and her Grounds for of Appeal [ 24 ] The Application for Leave to Appeal does not indicate the questions that Mrs. Leiffer intends to submit to the Court of Québec if leave to appeal is granted. [ 25 ] While

section 92 of the Act does not specifically oblige an applicant to indicate in the application the questions that he or she intends to submit to the Court of Québec, the Court believes that this obligation is implicit from the wording of sections 91 and 92 of the Act . [ 26 ] The landlord did not raise this irregularity at the hearing of the Application for Leave to Appeal. [ 27 ] That said, based on the Court’s reading of the Application for Leave to Appeal and the oral submissions, the Court determines that Mrs.

Leiffer maintains that the following questions ought to be submitted to the Court of Québec: 1) Did the administrative judge commit a palpable and overwriting error in determining that the tenant failed to use the leased premises with prudence and diligence and to keep it in clean condition, thereby causing serious injury to the landlord and warranting the resiliation of the lease?

2) Did the administrative judge commit an error in fact and in law in determining that the tenant failed to respect her obligations under the Settlement Agreement homologated by the Régie du logement in its November 15, 2019 Decision? 3) Did the landlord waive his right to enforce the June 18 Decision considering that beginning in July, he accepted and cashed 7 rent cheques? [ 28 ] Each of these questions will be addressed below in light of the criteria set forth in

section 91 of the Act . Questions 1) and 2) [ 29 ] Questions one and two will be addressed together since they raise common questions and the test to obtain leave is identical. [ 30 ] Over a hearing that spanned three days and during which numerous witnesses were heard, including a neutral city inspector, the administrative judge sided with the landlord and held that Mrs. Leiffer breached her obligations under the lease, and the Civil Code of Québec . He also concluded that these breaches caused serious injury to the Landlord. Finally, he decided that Ms.

Leiffer did not respect her obligations under the Settlement Agreement. His essential reasons are as follows: [36] Pour obtenir la résiliation du bail, la locatrice doit faire la preuve qu’au moins une des obligations imposées à la locataire n’a pas été respectée et que l’inexécution lui cause un préjudice sérieux.

La locataire avait l’obligation d’entretenir son logement, de le maintenir en bon état de propreté et d’en user avec prudence et diligence. [37] Le Tribunal, après avoir analysé la preuve présentée, conclut que la locataire n’a pas rempli ses obligations d’entretenir son logement pour le maintenir en bon état de propreté et qu’elle n’en a pas usé avec prudence et diligence. [38] Le Tribunal retient que le logement était toujours encombré en date du 27 novembre 2019.

Il n’y avait pas d’espace pour circuler et il n’y avait pas un dégagement de cinq pieds autour des fenêtres pour permettre de les installer. [39] De plus, le témoignage de Monsieur Risuké Pilon, inspecteur municipal à la ville de Wesmount, a convaincu le Tribunal que le logement était et est toujours encombré depuis l’été 2019. [40] Le Tribunal constate que la situation s’est légèrement améliorée par le fait que la locataire a engagé quelqu’un. [41] Le rapport de l’inspecteur municipal du 20 février 2020 permet de constater cette amélioration, puisqu’il considère que le logement est maintenant acceptable pour l’habitation.

Toutefois, il confirme qu’il y a toujours un encombrement dans la chambre et le bureau. [42] La locatrice a dû assumer des frais pour reporter les changements de fenêtres. Le risque d’incendie existe toujours dans les pièces encombrées et la sécurité de l’immeuble et des autres occupants est toujours un sujet d’actualité. Le Tribunal est satisfait de la preuve du préjudice sérieux qui lui a été faite. Le Tribunal considère que, dans les circonstances actuelles, la résiliation du bail est justifiée. (…) [45] La locataire savait, depuis juin 2019, que les fenêtres seraient changées à compter du 8 août 2019.

Elle n’a pas agi pour permettre leurs remplacements et elle n'a pas désencombré son logement. Toutes les autres fenêtres de l’immeuble ont été changées. [46] La locataire a fait fi de l’ordonnance rendue le 15 novembre 2019 prévoyant entre autres le désencombrement des lieux et l’accès aux lieux pour permettre des travaux. [47] Le Tribunal croit que la locataire a eu toutes les chances possibles de corriger la situation, mais plus de sept mois se sont écoulés depuis la réalisation des travaux dans les autres appartements, sans que celle-ci respecte ses obligations.

Le Tribunal considère qu’elle offre très peu de collaboration à la locatrice. [ 31 ] The issues before the member of the Tribunal administratif du logement were entirely factual. [ 32 ] The first two questions that Ms. Leiffer intends to submit to the Court of Québec raise questions of fact or mixed fact and law. [ 33 ] The standard of review on appeal for such questions is the palpable and overriding error. [ 34 ] In Hydro Québec v. Matta, the Supreme Court of Canada recently explained what is meant by a palpable and overriding error.

An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result. The Supreme Court added that such an error is one that is obvious and plain to see; it is one in the nature not of a needle in a haystack, but of a beam in the eye. [8] [ 35 ] As the Court of Appeal explained in Delisle v. Desjardins Sécurité financière, compagnie d'assurance-vie , to succeed in showing a palpable and overriding error, the appellant cannot “… pull at leaves and branches and leave the tree standing.

The entire tree must fall” . [9] [ 36 ] At the stage of an application for leave to appeal, Ms. Leiffer had the burden of showing on a prima facie basis that the member of the TAL committed a palpable and overriding error of fact. [ 37 ] She has not discharged this burden. As her Application for Leave to Appeal plainly shows, she wants the Court of Québec to reconsider all the evidence. [ 38 ] It is plain and obvious from Mrs.

Leiffer’s Application for Leave to Appeal and her oral submissions that she is dissatisfied with the results of the trial before the Tribunal administratif du logement and wishes to relitigate anew before the Court of Québec all the

issues of fact and of law that were decided by this tribunal. [ 39 ] For example, her Application for Leave to Appeal states: 39.1. The testimonies of the janitor and the maintenance man are not credible recounting events that are false and for the sole purpose of evicting the applicant from her dwelling; [10] 39.2. The administrative judge interpreted the flimsy evidence before him in a patently unreasonable manner whereas the uncontradicted evidence is that the applicant had always respected her neighbours and her civic obligations; [11] 39.3. The witnesses lied in court and were unreliable; [12] 39.4.

The administrative judge disregarded the tenant’s overwhelming medical evidence before him; [13] 39.5. The administrative judge erred in his decision causing a grave injustice to the applicant since he allowed the termination of the lease based on false facts and testimony on the part of the landlord and his unreliable witnesses and disregarded the applicant’s bona fide evidence; [14] 39.6. The administrative committed obvious errors in assessing the testimonial evidence; [15] 39.7.

By granting the termination of the lease on the basis of the testimony that contradicted each other, the administrative judge clearly erred in his decision; [16] [ 40 ] Ms. Leiffer’s Application for Leave does not show prima facie that the member of the Tribunal committed a plain and obvious error in his

interpretation of the evidence. [ 41 ] During oral submissions on the Application for Leave to Appeal, Mrs. Leiffer was forthright and honest about her goal in seeking leave to appeal to the Court of Québec: she wants to present her evidence anew before the Court of Québec and present her case again. [ 42 ] This is not the role of an appellate court. [17] [ 43 ] It is obvious that Mrs. Leiffer is not satisfied with the outcome of the hearing before the Tribunal administratif du lodgement nor the June 18 Decision. [ 44 ] Following this decision, Mrs.

Leiffer filed two applications for revocation. [ 45 ] On July 17, 2020, Mrs. Leiffer filed an application for revocation of the June 18 decision. [ 46 ] On August 21, 2020, the Tribunal administratif du lodgement dismissed Mrs. Leiffer’s application for revocation. [18] [ 47 ] On September 15, 2020, Mrs. Leiffer filed a second application for revocation and sought the revocation of the August 21, 2020, decision. [ 48 ] By decision dated October 22, 2020, the Tribunal administratif du logement dismissed Mrs.

Leiffer’s second application in revocation and confirmed the August 21, 2020, decision. [19] The member of the TAL writes in this decision: [8] Elle [Ms. Leiffer] est insatisfaite du jugement et veut, à nouveau, obtenir une nouvelle appréciation afin de bonifier sa preuve. [ 49 ] In the same decision, the TAL, relying on the powers provided for in paragraph 2 of

section 63.2 of the Act respecting the Administrative Housing Tribunal , held that since Ms. Leiffer was making abusive use of proceedings to prevent the execution of the June 18 Decision, it enjoined her from filing any new application before the Tribunal except with the authorization of and subject to the conditions determined by the chairman of the Tribunal. [20] [ 50 ] The proposed appeal raises only questions which involve the assessment of the facts by the member of the Tribunal and their application to known principles of law.

They relate to matters which are of interest only to the parties and which are specific to their situation. The Application for Leave to Appeal does not raise any issue which merits the attention of the Court, within the meaning of

section 91 of the Act. Question 3): Did the landlord waive his right to enforce the June 18 Decision considering that beginning in July, he accepted and cashed 7 rent cheques? [ 51 ] Since the June 18 Decision, Mrs.

Leiffer claims that the landlord accepted and cashed seven rental cheques covering the months of July 2020 through February 2021. [ 52 ] She argues that by cashing these cheques, the Landlord has waived the right to enforce the Decision. [21] [ 53 ] It is true that in certain specific circumstances, the Court of Québec may conclude that a landlord has waived the right to enforce a decision if he continues to collect rent from his tenant after the TAL has cancelled the lease and ordered the tenant’s eviction.

[ 54 ] Whether the acceptance of rental payments amounts to waiver is a question of fact. As my colleague É. Dufour wrote in Tremblay v. Di Scalfani , the evidence must show that the landlord unambiguously and explicitly waived his right to enforce a TAL decision which orders the resiliation of a lease. [22] [ 55 ] In the instant case, owing to the fact that the execution of the June 18 Decision was suspended until at the earliest November 28 because Mrs. Leiffer filed two applications for revocation [23] , the Court cannot fault the Landlord for accepting Ms.

Leifer’s payments of rent for the months of July through November 2020. In these circumstances, the Landlord’s cashing of the rent cheques does not constitute an unambiguous and explicit waiver. [ 56 ] The same reasoning applies for the cashing of the rent cheques for the time period from December 2020 to February 2021. On November 22, 2002, Ms. Leiffer filed her Application for Leave to Appeal, which included a conclusion in which she sought a stay of the execution of the June 18 Decision.

Out of goodwill, the Landlord refrained from executing the June 18 Decision until a judgment on the application for leave was issued. This conduct does not establish waiver. [ 57 ] Secondly, even if Ms. Leiffer had succeeded in proving the landlord’s waiver, this waiver would constitute at best an argument that could be raised in the context of an opposition to eviction proceeding, but not within an application for leave to appeal. [24] [ 58 ] Finally, the Court notes that Ms.

Leiffer insisted during oral submissions that leave to appeal should be granted because she would suffer serious prejudice if the June 18 Decision were to stand and if she were to be evicted from an apartment in which she has lived for over twenty years, all the more so during a pandemic caused by COVID-19. [ 59 ] Doubtless, most tenants who are evicted suffer some form of prejudice. But that is not the test that the Court must apply in determining whether leave should be granted. [ 60 ] The test is the one outlined in

section 91 of the Act, and Ms. Leiffer has not convinced me that any of the questions raised in her Application for Leave to Appeal are ones which ought to be submitted to the Court of Québec. FOR THESE REASONS, THE COURT: [ 61 ] DISMISSES Lydia Leiffer’s Application for Leave to Appeal from the June 18, 2020 decision of the Tribunal administratif du logement in case No. 479210. __________________________________ ENRICO FORLINI, J.C.Q. Lydia Leiffer Self-represented Me Valérie Cuierrier-Besner Gagnon & Associés Defendant’s lawyer Date of hearing: February 17, 2021