2022 QCCQ 3580, 2022 QCCQ 3580

Levinson c. Hua Zhao 2022 QCCQ 3580 COURT OF QUÉBEC Administrative and Appellate Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-80-042715-228 DATE: June 8, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Matthew LEVINSON Applicant/Lessee v.

Maureen HUA ZHAO Respondant/Lessor ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Applicant seeks leave to appeal from a decision [1] of the Administrative Housing Tribunal or the Tribunal administrative du Logement (“TAL”) that authorized the lessor to retake possession pursuant to

article 1963 of the Civil Code of Quebec . [ 2 ] The decision concluded, on the basis of an examination of the evidence, that the Lessor, who had recently acquired ownership, truly had the intention to take possession of the dwelling to reside there herself. [ 3 ] In the application for leave to appeal, the tenant makes a very strong and convincing case the judgement is ill-founded and, even, that it constitutes a nullity, perhaps resulting from an absence or excess of jurisdiction, because of the nature of the lessor’s ownership.

The immovable, known as the “Gleneagles, in its entirety, is held in undivided co-ownership by a number of persons, both physical and moral. Each of these undivided co-owners have exclusive use of a specific unit or units, by way of a contract binding on all of them.

Article 1958 of the Civil Code of Quebec would apply: 1958 . The owner of an undivided share of an immovable may not repossess any dwelling in the immovable unless the only other owner is his or her spouse. [ 4 ] Without wishing to express an opinion on the matter, the Court is nevertheless struck by the fact that the attorney representing the Lessor candidly admitted that this situation of co-ownership exists and that he simply did not know of it at the time the case was heard at the TAL.

Neither he nor the member of the TAL presiding realized that the undivided co-owner should not have been successful in her claim to retake possession. At the very least, the decision has a major apparent weakness because the issue was not dealt with. It has all the essential qualities of an appeal that should be authorized: a question of interest for the Court, a question of principal and a question that the member of the TAL simply failed to recognize and deal with, hence a failure in the duty of procedural fairness.

The TAL may also have exceeded its jurisdiction, because it purported to rule on a non-existing recourse. But the Court will refrain from expressing any opinion on the matter. [ 5 ] Yet, the Applicant here states that he made the member of the TAL aware of the fact of the co-ownership in his written submission (P-4) where he wrote: I have been a tenant in Unit A-2 at the Gleneagles since July 1, 2019. Zhao purchased the unit on September 21, 2020.

It is undivided co- proprietorship. [ 6 ] He points out in his application that the Lessor was entirely aware that she could not take repossession, as this was one of the declarations in the act of sale by which she acquired her share in the undivided ownership. [2] [ 7 ] He points out that the provision referred to is quite clear: The Purchaser acknowledges that his share of the immovable is currently occupied by a tenant and that the tenant is entitled to maintain occupancy and he is not able to repossess the immovable in order to move into the premises in which he has a right of use without complying this the legislation applicable to residential leases in Quebec, the whole with respect to

section 1958 of the Civil Code of Quebec .

[ 8 ] The Applicant faces, however an insurmountable obstacle to bringing this appeal: his Application, dated April 8, 2022, was only joined to a notice of representation and filed in the office of the Court on April 11, 2022. It was served on the Respondent only on April 13, 2022. The decision of the TAL is dated February 25, 2022, and the Applicant stated that he received his copy of the decision, and therefore learned of it, on March 9, 2022.

This date of the awareness of the decision was candidly admitted by the attorney for the Lessor. [ 9 ] Articles 92 and 93 of the ACT RESPECTING THE ADMINISTRATIVE HOUSING TRIBUNAL . [3] provide for a strict 30-day time limit: 92. The application for leave to appeal must be made at the office of the Court of Quebec of the place where the dwelling is situated and be accompanied with a copy of the decision and of the documents of the contestation, if they are not reproduced in the decision.

The application together with a notice of presentation must be served on the adverse party and filed in the office of the court within 30 days after the date of the decision. The application must state the conclusions sought, and contain a brief statement by the applicant of the grounds he intends to rely on. If the application is granted, the judgment authorizing the appeal shall serve as an inscription in appeal. The clerk of the Court of Quebec shall transmit a copy of this judgment without delay to the Tribunal and to the parties and their attorneys.

The respondent may bring an appeal or an incidental appeal in the same manner and within the same time limit. 93. Such time limit is imperative and its expiry entails forfeiture of the right of appeal. […] [ 10 ] The deadline expired before he acted in the Court of Quebec. In fact, according to the most favourable application of the law, that which follows the leading case of Hardy c.

Dufour [4] , the last day of the 30-day period starting from the date he acquired knowledge of the decision during which he could act, by service and filing of his Application, was April 8. [ 11 ] Thus, his proceeding was filed only one day late, because April 8 was a Friday, The service was also required on April 8 at the latest.

Service was tardy, two more days late. [ 12 ] All of the reasons the Applicant invokes for having not acted sooner are understandable, given the Covid-19 situation, and they may well have had merit for an extension to a time limit in a procedural system that provides for extensions, such as the general system of appeals under the Code of Civil Procedure, but the time limit applicable here is rather absolute, being “imperative” and giving rise to a forfeiture of the right to appeal, a délai de déchéance .

This is not a system where a judge has discretion to extend a time limit nor is there any other flexibility provided for, such as a recognition of the impossibility to act, or any other relief from forfeiture. The law being applied is a specific law that is not part of the general procedural regime of the Code of Civil Procedure. [ 13 ] The doctrine in Hardy c. Dufour , which is still the leading case in the matter, recognizes that the time limit to act begins when a litigant has become aware of the decision. It is up to the person seeking leave to appeal to establish that date.

In this case the Applicant’s admission establishes a date which sets his application outside the time limit. [ 14 ] The Court mentioned to Mr. Levinson at the hearing that the unavailability of an appeal might still leave open a recourse to a higher court (articles 529 and following of the Code of Civil Procedure) and, there may also be recourse eventually before the TAL under

article 1968 of the Civil Code of Quebec for damages, including punitive damages if, in retrospect, bad faith can be established. [ 15 ] Given the circumstances, there will be no costs on the dismissal of the application. BY THESE REASONS, THE COURT: DISMISSES the Application for leave to appeal, WITHOUT costs. __________________________________ DAVID L. CAMERON, J.C.Q. Matthew Levinson Applicant/Lessee Self-representing

Me Marco VITALE MARCO VITALE, ATTORNEY Lawyer for the Respondant/Lessor Date of hearing: April 26, 2022