The law
The tenant can make a claim for damages caused when the landlord repossesses the dwelling in bad faith. He may also ask that the landlord be condemned to pay punitive damages. Thus, it is up to the tenant to prove that the repossession by the landlord was done in bad faith, from the sending of the notice of intention to repossess, to the repossession itself. The tenant must provide this evidence according to the principle of preponderance of proof required by the Québec Civil Code:
“Art. 2803 : A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation.”
“Art. 2804 : Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. ”
What is bad faith?
According to the Québec Rental Board, bad faith is a form of duplicity where through mischieviousness, a person aims to convince another person to agree or accept a fact for reasons that he believes to be true on the landlord's word. The tenant thus develops the erroneous conviction that the landlord is acting lawfully or truthfully. A person is in bad faith when they cause others to believe something to be true or lawful when in fact this is untrue.[1]
For the Court, it can be difficult to ascertain a person's motivation, and determine to what extent they were motivated by a desire to mislead another person as to their real intentions. To do this, the Québec Rental Board must weigh the value of their testimony, their tone, the way they phrased it, how they nuanced it, or any contradictory testimony, as well as any reasons to reproach the witness.
The credibility of the witnesses and the appraisal of the evidence is the role of the Court. The Court must also compare the witness' testimony with the documentary evidence.
“Art.
Some legal authors define good faith in the following way:
“Good faith became the ethics of behaviour required in contractual matters (as in many other matters.). It supposes a loyal and honest behaviour. One then speaks of acting according to requirements of good faith. Thus, a person can be in good faith (in the subjective sense), i.e. not to act in a malicious way or to act in the ignorance of certain facts, and to act, all the same, against the requirements of good faith, or by violating objective and generally allowed standards of behaviour in society.[2]
Certain concrete facts, if they are proven, can contribute to an inference bad faith: Did the landlord or a member of his family live in the dwelling and if not, why? Other incidental evidence can also imply bad faith: Why did the person receiving the dwelling leave so quickly following the repossession? What was the landlord's real objective at the time of the sending of the repossession notice? Were the reasons given for the repossession convincing, reasonable, coherent and credible?
An example of bad faith
Recently, the Québec Rental Board condemned a landlord to pay damages to a tenant. The father (the landlord) sent a repossession notice to the tenant, stating his intention to repossess the dwelling to house his daughter, who at that point lived with her parents but wanted her own apartment. He also gave the reason that his daughter wanted to live closer to her place of work.
The evidence given at the hearing before the Rental Board showed that she returned to her parents home every day. She said that she was closer to her work, whereas the distance between her parents' residence and her place of work was not measurably farther than from the apartment to her place of work. The electric consumption of the apartment showed that, in all probability, there had never been anyone truly and permanently living in the apartment. Lastly, another tenant living nearby testified never having seen the landlord's daughter in the repossessed apartment. In fact, the owner and his daughter had simply furnished the dwelling to make the repossession of the apartment believable . Consequently, the evidence showed that the daughter had never lived in the apartment and the landlord was ordered to pay damages to the former tenant.[3]
[1] Rental Board 31
[2] Baudouin and Jobin. Les obligations, 6th edition, p. 143 and 144.
[3] Opus CITARE note 1.