a visit of the premises by the court is possible !

Article locked Published on by Me Jean-Olivier Reed

Topic(s): Legal

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

a visit of the premises by the court is possible !

It is article 68 of the Act respecting the Administrative Housing Tribunal that allows the administrative judge, also known as a “member” of the Tribunal, to physically travel to the premises of the dispute, to carry out a visit for the purpose of examining or assessing the facts relating to this dispute.

But how can this article apply in practice?

In a decision rendered in August 2021, the tenant claimed to be inconvenienced by cigarette smoke from her next-door neighbour. She claimed a reduction in rent from the landlord, moral and material damages and an order to provide her with the peaceful enjoyment of the premises.

From the outset, the Court explains in the judgement that the tenant did not report the problem to the landlord for several years. She verbally notifies the owner for the first time of the situation in 2019.

She claims that her health problems are due to exposure to smoke, and that sometimes the air was unbreathable.

Although the tenant has taken some measures such as the purchase of purifiers and caulking, she claims that nothing makes the smoke less present.

Several witnesses corroborate her testimony.

The owner on his part will inquire about the problem in situ and does not smell anything on a few occasions. His wife confirms this.

Moreover, it is important to mention that none of the leases prohibit smoking in the dwellings.
The neighbour who is the subject of the complaint admits that he smokes on the balcony, but his wife, who also testifies, confirms that it is out of the question that her spouse smokes indoors as she is very intolerant to these odours. She explains that he even washes his hands and brushes his teeth after each time he smokes outside.

Due to the irreconcilable positions of the parties at that time, the judge decides to visit the premises concerned at the end of the hearing, which the parties accept.

When asked about this the tenant claims not to have smelled anything particular on the morning of the hearing.

The parties, the prosecutors, the neighbours and the judge meet at the building a few minutes later and visit the 2 apartments and common corridors.

At the next hearing, it is mentioned in the judgement that the owner for his part did not smell cigarette smoke in any of the 2 dwellings during this visit.

They notice that there is no ashtray in the housing of the neighbour accused of smoking.

It is relevant to mention that the visit had not been announced, so the neighbours could not have cleaned or eliminated the evidence or odours from their dwelling.

The administrative judge explains to us in paragraph 137 that she uses the testimonies, the documents, as well as the visit of the premises to make an inquiry. There is no odour in the 2 dwellings or in the corridors.

She gives a lot of credibility to the testimony of the smoking tenant’s spouse.

The visit of the premises confirms the testimony of the owner and his witnesses.

However, the visit of the site is not the sole basis of her decision.

Indeed, the judge also mentions contradictions between the testimonies, in the dates, and also in the claiming-time period of the plaintiff tenant.

Indeed, the tenant insists on filing at the last hearing photos of the neighbour showing a large quantity of cigarette butts and him smoking on the balcony in the summer of 2021 while at the previous hearing she explained that the smoking problem had greatly decreased since November 2019 and that her claim stopped on that date.

After analysis, the judge dismisses the request.

Used infrequently, the advantage of visiting the site is that it allows the judge to see the situation rather than he or she getting an idea of the situation solely based on testimonies, photos and writings.


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