ECONOMIC DAMAGE IS NOT ALWAYS NECESSARY TO OBTAIN THE TERMINATION OF THE LEASE FOR FREQUENT DELAYS

The facts

By an appeal introduced on March 6, 2013 the owner requests the termination of the lease and the eviction of the tenant, the recovery of the rent ($1400) as well as the rent due at the time of the hearing. Moreover, the owner asked for termination of the lease on the grounds that the tenant often pays the rent late. The owner, at the hearing, acknowledged that the tenant had paid the rent due, together with court costs and that no money was owed to him.

For his part, the tenant admits, in the past, to have experienced delays in paying his rent. Considering that the payment was made, and that the tenant is not in arrears for more than three weeks for the payment of rent, termination of the lease cannot be granted by the Court.

With respect to the request for frequent delays the Régie du logement, following the parties’ agreement, reminded the tenant that the rent is payable, under section 1903 of the Civil Code of Quebec, on the first day of each month. For these reasons, the Régie du logement took note of the admissions and agreement between the parties.

On November 19, 2013, the owner mistakenly seized the Court with a request for lease termination because the tenant had not complied with an order of the Court in the decision of 15 May 2013 in which the Régie had taken note of the admissions and agreement between the parties. The owner believed falsely that the decision of May 15, 2013 amounted to a Court order and that failure of the order could result in termination of the lease. To correct the error, through his attorney, the owner modifies his request for termination of the lease for frequent delays, causing a serious damage to the owner.

The objection of tenant

The owner wants to bring into evidence the delays of the tenant in paying his previous rents to the decision rendered by the Régie on May 15 2013. The tenant is opposed, arguing the res judicata as to such rents. The Régie reminded that in Section 2848 of the Civil Code of Quebec which establishes the criteria of res judicata: a claim based on the same cause and the issue estoppel by the same parties, that the thing requested is the same when a judgment has already been rendered based on the same premises. However, according to the Régie, it is clear that the Court did not rule on the delays prior to May 15, 2013, it does not decide on any reason given by the parties and it renders no decision or order. This is also why the request to terminate the lease for non-compliance with an order of 19 November 2013 was ill-founded because no order had been made. The Régie had merely given evidence of admissions and agreements between the parties, without more, and without constraining them in any way or ruling itself on the issues of the request.

Consequently the Régie rejects the objection of the tenant and decided that there was nothing judicata of the earlier delays prior to 15 May 2013, which can be raised again in evidence in this case.

Proof of the delays

The agent of the owner demonstrates that the owner and he himself are quite tolerant about delays. But things had gone too far when the tenant had given him two cheques without provision for the payment of the rent for October and November 2012, followed by a complete lack of rent payment in December 2012. In the month of January 2013, the tenant issued a cheque to cover delays and expenses but
the tenant asked him not to cash it. It was in the month of February 2013 that the tenant paid a portion of his rental arrears. He then promised full payment for the following week, which he did not make
while still delivering a partial payment and this time expressing his wish to be updated by1 March 2013. Since no payment supplement had reached him, on March 6, 2013 the owner files a request for rent and frequent delays. On 11 March 2013, the tenant pays the balance and fees before the hearing of the case. The Régie renders its decision on May 15, 2013 and reminds the tenant to pay the rent on the 1st of each month. On April 1 and May 1, 2013, the tenant pays his rent on the first day of the month. Beginning in June 2013, he began to pay late again with an exception for the months of March and April 2013. On 1 December 2013, the tenant handed a check without provision.

No financial loss

The building belongs to a testamentary trust. In terms of serious injury caused by delays to the trust, the trust excludes any financial loss. The Trust is not deficient on this ground. Rather, it reports about the administrative problems all of this causes, up to the threat of its agent to stop collecting rents. The agent spends an excessive time dealing with the question posed by the repeated violation of the tenant of his obligation to the lease to pay his rent on the first of the month. He further added that the situation was becoming so complicated that he felt he needed to enlist the services of a lawyer because he is not himself familiar with the laws and regulations governing a residential lease.

The defense of the tenant

The tenant argued that several tenants pay their rent late without them being subject to similar steps by the landlord. He claims the same right to pay late. Moreover, he argues that since the landlord, by his own admission, incurs no serious economic harm because of his tardiness, he cannot claim serious prejudice on the grounds of Section 1971 of the Civil Code of Quebec. Also, because the landlord takes time to deposit the rent, he should not be in a hurry to receive it at the beginning of the month.

The decision of the Régie

According to the Régie du logement, the evidence shows that the tenant takes liberality with the payment of his rent, delaying his payment according to his financial situation. He cannot invoke the tolerance of the landlord with respect to his neighbours. The evidence shows that the tenant has also benefited from the tolerance of the landlord. Long before the landlord began his first steps in the month of March 2013, the tenant had made it a habit of not meeting his obligation under the lease. The evidence shows that in 2013, delays had become longer and more important, up to a few months late. Longer delays than those of which the neighbours had testified. Anyway, it is not for the tenant to interfere in the administrative decisions of the landlord in terms of the means he takes to
ensure compliance with the lease. The Régie concludes that the tenant often pays the rent late.

As for the lack of serious economic harm the Régie cites case law:

“In the case Leboeuf (1) concerning frequent delays, the Court of Quebec concluded that 20 delays in the payment of rent is a disorder of fact and also a disorder of law in contravention of the terms of the lease and those of Section 1903 of the Civil Code of Quebec. One concluded then that these disorders of fact and of law justify the termination of the lease.” (2)
According to the decision, the evidence shows that the tenant is guilty of numerous delays,
some lasting a few months. He also remitted cheques that were not honoured for lack of provision. The delays of the tenant require the representative of the landlord to take many steps to obtain the payment of the rent. Excessive steps according to the Court.

The Régie terminates the lease and states that the frequent delays cause serious harm to the owner:

“The undersigned assents that the repeated delays of the tenant certainly cause to the landlord serious harm as much as a result of the many administrative and judicial steps which he must take to obtain payment of the rent as because of the legal prejudice repeated because of the fact that the tenant does not comply with his obligation to the lease in this matter, the obligation that he has freely
subscribed to, let us underline it.” (3)

1. Leboeuf vs. Louafi, 500-80-007640-064, Court of Quebec, July 6, 2007 Judge Jacques Paquet.
2. R.L. Demands met, 1363920,42275, 1423837. Bureau of Montreal. Linda Boucher, Administrative Judge. Page 7, paragraph 84.
3. Opus citare. Page 7, paragraph 88.