A landlord can ask for the resiliation of the lease when a tenant does not pay his rent on the first day of each month and thus causing the landlord serious prejudice. According to article 1973 of the Civil Code of Quebec, the judge has the discretion to order the rent to be paid on the first day of each month instead of pronouncing the resiliation of the lease.

In theory, proving that the tenant is not respecting the order should lead to the resiliation of the lease (1).

But for how long is the tenant required to follow this order? Until the end of the lease? For a year?

The Cour du Québec, on appeal from the Régie du logement, had to answer this question in Roland Carrier v. Coop La Voie Lactée (2).

The facts had been established as following before the Régie du logement:

The tenant was a member of the La Voie Lactée Cooperative (hereafter “the Coop”), to which he was also bound by his lease, for a rent of $573.00 per month reduced to $315.00 because of his membership. On August 23rd 2004, the Régie du logement ordered the tenant to pay on the first of each month instead of granting the resiliation of the lease in accordance with article 1973 of the Civil Code of Quebec.

On December 6th, 2005, the Régie du logement granted the resiliation of the lease and ordered the expulsion of the tenant and all other occupants of his apartment because a cheque deposited November 3rd, 2005 by the Coop could not be processed due to lack of funds.

The tenant testified before the Régie du logement saying that he had had the necessary funds but that they had been frozen by his bank.

Judge Renaud concluded that the order against a debtor continues to be valid after the expiry of the first term of the lease and its renewal.

The Court adds : “[TRANSLATION] …if an order does not mention a timeframe or a time limit, there may be circumstances (for example, a tacit acceptance of the creditors) that can make us believe that a debtor, despite everything, conformed himself to the order. It will be dangerous to have an automatic enforcement.”

After studying all relevant facts, and taking in consideration that the tenant had followed the order by regularly paying his rent for more than a year, the Court allowed the appeal, and set aside the Régie du logement’s decision, rejecting the resiliation of the lease.

In another judgement pronounced on April 7th, 2010, Sodhac v. Dieu (3), Judge André Renaud overruled a decision of the Régie du logement dated May 8th, 2009 and ordered the resiliation of the lease.

In this case, a first judgement of the Régie du logement, dated November 3rd, 2007, stated that “[TRANSLATION] if the tenant does not pay his rent on the first of each month, the court will resiliate the lease at the landlord’s request”. Because the tenant’s cheque bounced in February 2009, the landlord asked the Régie du logement for the resiliation of the lease. On May 8th, 2009, the administrative judge refused the resiliation of the lease according to article 1973 C.c.Q. because no notification was sent to the tenant.

Considering that the evidence proved the non-respect of the court order, Judge André Renaud wrote that the second paragraph of article 1973 C.c.Q. “[TRANSLATION] appears to allow no latitude to the administrative judge”. He added that the court order establishes the resiliation of the lease as sanction in case of default. Consequently, he set aside the Régie du logement’s decision, resiliated the lease and ordered the eviction of all tenants.

However, in Marcellus v. Rositi (4), Judge Jean-F Keable arrives at a different conclusion in his judgment pronounced on September 14th, 2010.

In fact, on May 19th, 2009, the Régie du logement ordered the tenant to pay on the seventh of each month. On September 28th, 2009, after the lease’s renewal, the Régie du logement resiliated the lease and ordered the eviction of all tenants because the court order was not respected.

The judgement reviews the jurisprudence of the Cour du Québec and finds two jurisprudential currents. On one side, there is a 2004(5) decision of judge Dortelus that limits the duration of an order of the Régie du logement to that of the lease in force. On the other side, there is the judgement in Roland Carrier v. Coop La Voie Lactée, mentioned above.

Judge Keable wrote that “[TRANSLATION] A Court order […] must always be clear, precise and susceptible of enforcement. A person has the right to know exactly the nature of his obligations. Ambiguity must be banished. […] In principle, the Régie should pronounce an order regarding the lease mentioned in the landlord’s application. Nevertheless, the Régie can pronounce an order that touches a subsequent period, if the renewal of the lease and its conditions were proven.”

Judge Keable adds that a tenant can give clear and convincing explanations to avoid resiliation.

The court granted the appeal and, cancelling the Régie du logement’s decision, ordered the tenant to pay on the seventh of each month for the duration of the lease ending on June 30th, 2011.

Currently, the order to pay on the first of each month is in force and, therefore, the lease is resiliated, if the default happens in the year following the Régie du logement’s decision, even when the lease has been renewed. Each case has to be reviewed individually and the court retains its power of discretion where exceptional and unique circumstances apply. However, it is possible for the jurisprudence to develop following the principles enunciated by judge Keable.

(1) Office municipal d’habitation de Montréal c. Cour du Québec, EYB 1995-72999
(2) EYB 2007-115662
(3) EYB 2010-172067
(4) EYB 2010-179521
(5) James c. Benzion, AZ-50258281 [2004]