By Mtre Gérald Denoncin
In the Spring 2023 edition, we presented the rights, obligations and limitations of the Syndicate in the event of a claim following the adoption of Bill 141, which substantially amended the provisions of the Civil Code of Québec (hereinafter the "CCQ") relating to divided co-ownership of an immovable.
We have also discussed the position of the syndicate in relation to a tenant in the same context, who is a third party in relation to the first.
In the following article, we discuss the convoluted nature of the procedural exercise of a recourse involving the tenant in this circumstance.
PROCEDURAL MATTERS
While it seems obvious that a direct recourse by a syndicate against a co-owner or conversely will be instituted before the Court of Quebec or the Superior Court, depending on the amount claimed or the conclusions sought following a loss, the situation is considerably more complicated if the tenant is brought into the case by either party. In fact, as soon as the case is "tripartite", the procedure becomes complex under current law. This is the case, for example, when a tenant sues his landlord and the syndicate for the damage he suffers as a result of a loss, preventing him from peacefully enjoying the dwelling.
For example, imagine a situation where the washer in a condominium unit leaks, causing damage to property in which a syndicate has an insurable interest (i.e. the entire building, including the private portions, but excluding improvements made by a co-owner to his portion), and the cost of repairs is $25,000. If the damage results from the tenant's faulty handling of the washer, the syndicate will take the tenant to the Court of Québec. However, if the tenant contests this version of the facts and maintains that the washer began to leak without any intervention on his part, and that he wished to call in warranty his landlord, owner of the unit and, in this example, of the washer, the situation becomes more complex. During the term of the lease, the lessor is required to make all necessary repairs to the leased property, with the exception of minor conversation repairs, which are the responsibility of the lessee, barring obsolescence or major force[1]. The presumption of fault under article 1465 CCQ does not always apply to the tenant. Furthermore, the presumption of fault under article 1074.2 CCQ does not always apply to the tenant. In fact, articles 1864, 1465 and 1074.2 CCQ are all misused.
Unicity of proceedings is the rule that all the issues in dispute must be debated in a single trial before a single court. By virtue of this rule, it would be logical to claim that the Court of Quebec, in our example, will decide all the issues in the case.
This is not the case.
Indeed, under section 28 of the Act respecting the Tribunal administrative du logement, the Tribunal administrative du logement (hereinafter the "TAL") hears in first instance, to the exclusion of any other court, any application relating to the lease of a dwelling where the amount claimed or the value of the thing claimed or the interest of the claimant in the object of the application does not exceed the amount of the jurisdiction of the Court of Québec. This is an exclusive jurisdiction of the TAL. It is a matter of public order.[2].
On the one hand, according to the Court of Appeal, the exclusive jurisdiction of the TAL cannot be disregarded, as it must take precedence over the fairness of proceeding with a single trial[3]. In the Thabbel case, the Court of Appeal considered that only the TAL had jurisdiction because of the tenant's lease, even though she was suing her landlord and the City of Montreal before the Court of Quebec for damages she had suffered as a result of water backing up from the bath and toilet in the dwelling. The Court concluded that the Court of Quebec did not have jurisdiction under section 28 of the Act respecting the Régie du logement, with regard to the claim against the landlord. Indeed, article 66 of the former Code of Civil Procedure (since replaced by the new article 143 of the Code of Civil Procedure) provides that several causes of action may be brought together in the same application, provided that the recourses exercised are not incompatible or contradictory, that they tend to condemnations of the same nature, that their combination is not expressly prohibited, and that they are subject to the same mode of investigation. In other words, the Court of Québec had to remain seized of the dispute opposing the tenant and the City, and the TAL had to be seized of the part of the dispute opposing the tenant and his landlord.
On the other hand, the Superior Court[4] also ruled in the same vein in a case where the tenant was seeking to have the landlady condemned to a reduction in rent and damages, even though the landlady had called the syndicate of co-owners as guarantor. The Court concluded that the TAL had jurisdiction, but not to hear the warranty claim against the syndicate, because of the legal relationship between the landlady and the syndicate, which was governed not by the lease contract, but by the declaration of co-ownership.
In our example (the washerwoman), the syndicate's application against the lessee is extra-contractual in nature. It is therefore governed by article 1065 CCQ. On the other hand, the tenant's warranty claim against his landlord is based on the obligations of the lease. As a result, under section 28 of the Act respecting the Tribunal administrative du logement (TAL), and as analyzed by case law, only the TAL has jurisdiction over the portion opposing the tenant and his landlord. There will therefore be two applications before the courts: one before the Cour du Québec and the other before the TAL. In our opinion, and with all due respect to the opposing view, this situation is likely to result in contradictory decisions and deprive a party of its right to a full and complete defence. Although sections 58 and 104 of the Act respecting the Tribunal administrative du logement provide for the suspension of proceedings in certain circumstances, sometimes by the TAL, sometimes by the Court of Québec (or the Superior Court), nothing is provided for in cases similar to our example.
We could imagine the Court of Quebec ruling that the tenant is not liable for the syndicate's damage and, at the same time, the TAL ruling that the landlord or tenant is liable under the lease and its obligations under the CCQ. As the syndicate is not a party to the proceedings before the TAL, it cannot take direct advantage of the decision. It will have to prove its case again. Furthermore, if the syndicate has carried out repairs to the dwelling unit, the TAL's decision is of no interest to the co-owner-landlord, since he then suffers no damage by virtue of which he could claim compensation from the tenant. So, even if the tenant is found liable, he won't have to pay any compensation to the syndicate, since he is only liable to the TAL toward the landlord.
The nature of the provisions of the Civil Code of Québec relating to divided co-ownership, which oblige the syndicate, as director of the property of others, independently of any liability, to see to the execution of repairs required following a loss (1039 and 1074.1 CCQ), creates a situation that requires a uniqueness of procedures for a complete and coherent decision. As in the case of civil liability (1457 and 1457 CCQ), there is no direct relationship between the person who suffers the damage and the wrongdoer who is liable for reparation. There is a third party, the syndicate, which by law (1074.1 CCQ) must diligently see to the repair of damage most often caused by a third party (landlord or tenant, by hypothesis).
We therefore believe that the Quebec government must legislate in this area. The Court of Quebec (or Superior Court) must be able to hear all parties in a single trial as soon as there is an appeal in warranty between a landlord and a tenant in the presence of the syndicate. The syndicate must not be deprived of the provisions applicable to leases and the liability of the landlord and/or tenant.
Failing this, we recommend that article 1079 CCQ be amended to allow the syndicate to take action before the TAL against the landlord and tenant in the event of a loss in the building. Article 1079 CCQ already allows the syndicate, despite the fact that it is not a party to the lease, to request its termination. In so doing, the Syndicate could bring its application against a landlord and tenant before the TAL.
With either solution, the uniqueness of the procedures is respected, avoiding contradictory judgments or situations in which one party is deprived of a full and complete defence.
In Part III, we'll look at certain clauses of the Declaration of Co-ownership that deserve special attention, namely joint and several liability clauses and compromissory clauses, in the context of a syndicate-landlord-tenant relationship. We will also discuss the question of the enforceability of the declaration of co-ownership (constituting act, by-laws and description of fractions) against the tenant.
[1] Art. 1864 CCQ.
[2] 9305-7396 Québec inc. c. Syndicat des copropriétaires Altoria, 2021, QCCS 1329.
[3] Thabbel c. Union canadienne (L’), compagnie d’assurances, 2006 QCCA 771. Voir également Paradis c. 9287-2613 Québec inc., 2016 QCCQ 4365 et Houshmand c. Livingston, 2018 QCCQ 4284.
[4] Mérineau c. Champoux-Tanner, 1998, QCCS, J. L. 51.
