2016 QCCQ 14367, 2016 QCCQ 14367

Cressaty c. Turcot 2016 QCCQ 14367 COURT OF QUEBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-02-217497-168 DATE: November 3, 2016 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ ALAIN CRESSATY Plaintiff v.

BIANCA TURCOT PATRICK RACICOT Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Alain Cressaty (the “ Tenant ”) seeks leave to appeal from a decision of the Régie du logement (the “ Régie ”) dismissing his motion for revocation of a prior decision of the Régie that condemned him to pay arrears of rent of $5,320, resiliated his lease with Defendants (the “ Lease ”) and ordered his eviction. [ 2 ] By separate motion entitled Defendant’s Motion to Oppose Writ of Expulsion (the “ Opposition ”), he also seeks the suspension of the execution of the Régie decisions pending the appeal.

FACTUAL CONTEXT [ 3 ] On January 2016, Defendants filed proceedings before the Régie seeking the resiliation of the Lease and the eviction of the Tenant for non-payment of rent. The parties were convened for hearing on March 17, 2016, but Tenant failed to appear and the hearing proceeded in his absence. On March 18, 2016, the Régie ordered that he pay arrears in rent of $2,325 for the months of January to March 2016, resiliated the Lease and ordered his eviction. [1] [ 4 ] Plaintiff sought the revocation of this first decision on the basis that he had a medical appointment on March 17, 2016.

The revocation was granted on May 3, 2016 and the first decision was revoked. [2] [ 5 ] The case was called again for hearing on July 5, 2016, but the Tenant again failed to appear. On July 6, 2016, the Régie rendered a decision (the “ July Decision ”) that condemned the Tenant to pay arrears in rent of $5,320 for the months of January to July 2016, resiliated the Lease and ordered his eviction. [3] [ 6 ] The Tenant then sought the revocation of the July Decision, claiming that he was sick in hospital on July 5, 2016. On August 10, 2016, the Régie dismissed his motion for revocation (the “ August Decision ”).

It found that the Tenant had not proven that he was prevented from appearing at the hearing of July 5, 2016 and, in any event, that the Tenant offered no valid grounds of defence, as he admitted owing arrears in rent of at least 5 months. [ 7 ] The Régie stated, more particularly: “[4] La preuve révèle que le locataire était absent à l’audience.

Il mentionne qu’il était malade à l’hôpital. [5] Questionné par le Tribunal, le locataire n’a pas été en mesure de faire la preuve documentaire d’une présence à l’hôpital. [6] Il avait cependant en sa possession des documents qui auraient attesté de sa présence auprès des médecins ou d’hôpitaux à des dates antérieures. [7] Quoi qu’il en soit, le locataire n’a aucune défense à faire valoir au fond, reconnaissant devoir au locateur au moins 5 mois de loyer . [8] Tout ce qu’il espère de sa procédure de rétractation, c’est d’obtenir une entente de remboursement avec le locateur, ce qu’il n’est pas obligé de faire et de retarder l’exécution du jugement .” [Emphasis added] [ 8 ] Following the August Decision, the Tenant was served with a Notice of Eviction ordering him to leave the dwelling within five days.

He attempted to proceed ex parte on the Opposition, but the Court ordered that he serve both the Opposition and the Motion for Leave to Appeal to Defendants, postponed the hearing to a later date and suspended the execution process.

THE MOTION FOR LEAVE TO APPEAL

a) The Conditions Applicable to an Appeal from a Decision of the Régie [ 9 ] The Act respecting the Régie du logement [4] (the “ Act ”) provides that leave to appeal from a decision of the Régie may be granted “when the matter at issue is one which ought to be submitted to the Court of Québec”. [5] [ 10 ] Generally speaking, a matter will 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. [6] [ 11 ] 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, a clear and manifest error in the appreciation of the facts or a violation of the rules of natural justice. [7] [ 12 ] The Court has frequently stated that leave to appeal should not be granted when a party simply disagrees with the decision rendered without demonstrating an error [8] or where the appeal is simply an attempt to re-examine the evidence provided before the Régie [9] . [ 13 ] The Court has wide discretion to determine whether leave should be granted, keeping in mind the legislator’s intent that frivolous, dilatory or manifestly ill-founded appeals should not be allowed. [10]

b) The Applicant’s Grounds for Appeal [ 14 ] The Tenant argues, in essence, that there was a miscarriage of justice and that the Régie violated his right to a full and complete defence: ➢ by refusing to allow him to provide additional evidence after the close of the hearing to explain his absence at the July 5, 2016 hearing; ➢ by conducting the hearing in French; and ➢ by hearing the matter and rendering a decision when the dispute was already the subject of another pending demand before the Régie. [ 15 ] The Court is of the opinion that leave to appeal should not be granted for the following reasons. [ 16 ] As to the Tenant’s first ground of appeal, it should be noted that the Régie’s decision not to allow him to provide additional evidence after the close of the hearing is similar in nature to a decision to refuse a postponement and to proceed with a hearing in the absence of a party.

To obtain leave to appeal from such a decision, which is discretionary in nature, an applicant must demonstrate, at least prima facie , that the discretion was exercised in a clearly inappropriate or unreasonable manner. [11] [ 17 ] Moreover, in Labelle v. Société d’habitation Chambrelle [12] , the Court added that in such a case and, more generally, when the applicant claims that his right to a full and complete defence was violated, he or she must also have valid grounds of defence to offer on the merits of the dispute. [13] [ 18 ] The Court shares this view.

In order to succeed on his Motion for Leave to Appeal , the Tenant must demonstrate, at least prima facie , not only that the Régie’s decision not to allow him to provide evidence after the close of the hearing was clearly inappropriate or unreasonable, but also that he has valid grounds of defence to offer on the merits of Defendants’ demand. [ 19 ] The Tenant has not made this demonstration. On the contrary, he admitted before the Régie and to this Court that he owes the arrears of rent in dispute.

Non-payment of rent appears to be caused by personal difficulties. [ 20 ] In the absence of any reasonable, or even potentially viable, grounds of defence on the merits of the dispute, the Court considers that the Tenant’s appeal would be manifestly ill-founded. Leave to appeal must be refused on this basis only. [ 21 ] As to the other grounds of appeal, the Tenant has not established that the hearing was conducted in French. Curiously, he objected to the filing by Defendants of the audio recording and an unofficial transcript of the July 5, 2016 hearing, but provided no evidence that it was conducted in French.

The Court accepts the statement of Defendants’ attorney who attended the hearing that it was conducted mostly in English. [ 22 ] Also, it appears plainly from the record that the other pending matter to which the Tenant refers is distinct from the dispute at issue in the August Decision.

Although it originally sought arrears of rent from April 2016 onwards, it was later amended to claim a relocation indemnity and damages rather than arrears of rent. [14] THE OPPOSITION [ 23 ] Plaintiff stated at the hearing that although a number of arguments are set out in the Opposition, its only object is to stay the eviction process pending the appeal. [ 24 ] Given the Court’s conclusion that leave to appeal should not be granted to the Tenant and that the Tenant has raised no valid grounds to oppose the eviction, it follows that the execution of the decisions rendered by the Régie cannot be stayed any further.

FOR THESE REASONS, THE COURT:

DISMISSES Plaintiff’s Motion for Leave to Appeal; DISMISSES Plaintiff’s Motion for Opposition to the Notice of eviction; WITHOUT LEGAL COSTS. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: September 6, 2016 Mr. Alain Cressaty For himself Me Brigitte Faquette Me Gabriel Leblanc Leblanc Faquette Attorneys for Defendants