Quebec: Loophole in Rental Law….

By Allison Lampert, The Gazette July 5, 2011

MONTREAL – Pierre Aubry thought he’d seen the last of what some in real estate circles call “professional renters.”

Examples he’d seen of tenants living rent-free for five, six, or even nine months as their cases dragged on at the Quebec Rental Board had all but disappeared following a change in provincial law last December, said Aubry, president of the Property Owners’ League of Montreal.

But a recent case involving a Côte des Neiges landlord who lost five months’ rent, or $3,750, before being able to evict his deadbeat tenant has Aubry thinking otherwise.

In the case, Rental Board president Luc Harvey agreed to put off two decisions favouring the landlord after the tenant complained she was unable to attend the two hearings.

“If you are being taken to court by someone then you have the right to be heard,” Aubry said. “The problem that I’ve seen is that there are also cases where tenants deliberately don’t show up to (the Rental Board). Each time it was delay after delay. This was the problem with the old way of operating.”

At the Rental Board, both tenants and landlords have the right to ask for the revocation of a tribunal decision if either party is prevented from attending, or presenting evidence at the hearing for a legitimate reason like illness.

To stop landlords or tenants from abusing that right, the new law gave the Rental Board’s commissioners, or administrative judges, something they didn’t have in the past – the power to reject either side’s request to put off a decision if they felt it was being used as a tactic to stall proceedings.

But that new power came with a caveat: the board’s top executives could overrule a decision rendered by one of their own commissioners.

In this case, Harvey, who is a lawyer and tribunal commissioner, agreed to give the tenant another day in court even though she’d missed the two earlier hearings.

“They left the door half open at the Rental Board,” Aubry said. “I thought that this (the potential for multiple revocations) was effectively blocked, but now I see that it wasn’t blocked.”

Harvey made his decision based on the tenant’s request and on the previous decisions. He never heard from the owner’s lawyer, who’d argued that the tenant had lost a previous case over unpaid rent.

“He (Harvey) granted this based on what was written in the request,” said Rental Board spokesperson Jean-Pierre Leblanc.

The tenant said she’d been in a car accident and just got out of the hospital; her former landlord claimed he saw her shopping that day with her boyfriend and a friend, Rental Board decisions show.

The real question, asks Hans Brouillette, spokesperson of the Corporation des propriétaires immobiliers du Québec, is “we don’t know how many times the Rental Board will tolerate the repeated requests.”

The Rental Board isn’t frequently asked to put off its own commissioners’ decisions. Across Quebec, landlords filed 456 requests for revocation, compared with 1,934 sought by tenants during the 2009-2010 year.

But while not common, their potential for abuse has led to some outrageous cases in the past. Take Montreal landlord Serge Feldman, who lost thousands of dollars in unpaid rent and legal fees after one of his tenants filed nine requests for revocations.

Feldman, who was finally able to evict the tenant after taking him to Quebec Court, said the experience was so stressful it motivated him to sell off the majority of his revenue properties.

“Essentially, the tribunal has to be careful not to give the impression that they are the instrument of delay for tenants who refuse to pay their rent,” said Daniel Rafuse, lawyer for the Côte des Neiges landlord who didn’t want to talk publicly about the case.

According to Rental Board decisions, the Côte des Neiges tenant was first ordered out of her Linton St. apartment in February 2011 after she failed to pay her $750 monthly rent since December 2010. However, it took two more decisions to get the tenant to leave.

“The tenant had the opportunity to be heard on three occasions and continues to fail to meet her obligations to her landlord,” administrative judge Francine Jodoin wrote in her April decision. “The tribunal concludes that the tenant’s absences constitute a tactic to excessively delay the decision in favour of the landlord.”

In April, the tenant moved out.

“I’m happy that I got the outcome I did for my client,” Rafuse said.

“The Rental Board is an excellent tribunal. But in this case it’s disappointing that the board was an impediment to an efficient pursuit of justice.”