Can one prevent a tenant from submitting a request for retractation ?

Article locked Published on by Me Robert Soucy

Topic(s): Legal

Source: Messier Soucy Avocats

Can one prevent a tenant from submitting a request for retractation ?

A tenant can misuse his right to ask for a retractation of a decision rendered against him. The tenant can owe the lessor three months of rent. On the day of the hearing, the tenant does not show up. A decision is rendered and condemns him to pay the three months of rent to the lessor. When the tenant receives the decision, he submits within  ten days, a request for retractation which stops the execution of the decision.

 

When the tenant asks for a retractation, the Régie convenes the parties to a new hearing. The tenant calls upon the fact that he did not receive the notification of convocation for the hearing. The tenant does not present himself at this new convocation for the hearing. The Régie renders a new decision that rejected the withdrawal, restoring the original decision that condemns the tenant to pay three months of unpaid rent. However, the new procedure took another extra month. The tenant then owes four months of rent to the lessor.

 

Second request for retractation


When the tenant receives the decision which rejects his request for retractation, he again  submits another request for retractation pretexting that he was sick on the day of the hearing. The Régie du logement does not have the choice, it must convene the parties to a new hearing. The process can take another additional month. The tenant then already owes five months of rent. The tenant has acted in bad faith and he has misused the law which does not limit the number of requests for retractation.

 

The remedy

 

The Régie du logement, in order to mitigate the abuse of procedure at the time of the second request for retractation, refused the request for retractation and declared the tenant foreclosed to deposit any other recourse in retractation in the matter pending, except with the permission of the executive director. The Régie based itself on article 86 of the Act respecting the Régie du logement:

           

« 86. In the absence of provisions applicable to a particular case, a commissioner may

compensate for them by any procedure not inconsistent with this act or the rules of

procedure.

 

The debarment of the request thus prevented a tenant from bringing another action in retractation.

 

 

Judgement of the Court of Quebec

 

The tenant carries the case into appeal before the Court of Quebec. The Judge of the Court of Quebec concludes that the Régie does not have the inherent capacity to render such an ordinance of debarment of the recourse in retractation. The tenant, by request in legal revision, seeks the cancellation of the judgement rendered by the Court of Quebec, qualifying the judgement of being unreasonable to such a degree that the Court of Quebec has lost its jurisdiction while rendering the aforementioned judgement. The analysis of the Court of Quebec put in parallel the incompetence of the Régie to declare a litigant vexatious or abusive, without the inherent power envisaged in the Act respecting the Régie du logement. According to the Court of Quebec, by analogy, the same principle applies to a declaration of debarment.

 

Judgement of the Cour supérieure

 Recently[1], the Quebec Superior Court has decided about the outcome of the debate while refusing to cancel the judgement rendered by the Court of Quebec. According to the Court, the Régie du logement is not invested with the inherent capacity conferred on the courts “to make all ordinances suitable to provide for the cases where the law did not envisage a specific remedy (article 46 of the Code of civil procedure)”. Only courts and judges designated in article 22 of C.c.p. have these inherent capacities. As for article 86 of the Act respecting the Régie du logement, it does not apply because in this particular case it is not a question to compensate a rule of procedure but to block the exercise of a right. The Superior Court recognizes that the repetitive demands for retractation without valid reason constitute obvious abuses and lead to absurd situations. The fact of trying to cure the abuses by the declaration of debarment, is not a suitable legal solution:

           

“The effort is praiseworthy but for lack of competence, unless the legislator intervenes, nothing will be able to change since neither constitutional law nor the Règlement sur la procédure/Procedural regulations before the Régie du logement allow for such a declaration.[2] 

 



[1] Superior Court 500-17-046391-085

[2] Ibid. Judge Francine Nantel, p. 6

1 Response(s) to “Can one prevent a tenant from submitting a request for retractation ?”

Jiayun Han

Thank you for posting this article

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