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In a recent Quebec decision, the tribunal refused to ratify part of an agreement between a landlord and a tenant that was contrary to the government’s order implementing a moratorium on evictions.

What Happened?

On April 15, 2020, the landlord applied to the Régie du logement to terminate her tenant’s lease and order the immediate eviction of the tenant. 

The landlord asked the tribunal to make the order despite the Quebec Minister of Health and Social Services’ Order dated March 17, 2020 (the “Ministerial Order”), which read as follows:

“The effects of any judgment by a tribunal or any decision by the Régie du logement authorizing the repossession of a dwelling or the eviction of the lessee of a dwelling are suspended, as are the effects of any judgment or any decision ordering the eviction of the lessee or occupant of a dwelling, unless the lessor rented the dwelling again before the coming into effect of this Ministerial Order and the suspension would prevent the new lessee from taking possession of the premises. Despite the foregoing, the tribunal or the Régie du logement may, when exceptional circumstances justify doing so, order the enforcement of one of its judgments or one of its decisions, as the case may be.”

The Agreement 

However, at the hearing, the tenant and landlord entered into an agreement and asked the tribunal to ratify it. 

In the agreement, the landlord and tenant agreed that the lease would terminate no later than August 10, 2020, at which point the tenant would be required to move out. The agreement also allowed the tenant to move out earlier, with 10 days notice to the landlord.

COVID-19 Context

Additionally, the agreement included the following paragraphs:

5. The Tenant acknowledges that the Termination Date is mandatory and the Tenant must therefore move no later than the Termination Date. The Tenant expressly and irrevocably renounces invoking force majeure, including the COVID-19 pandemic, to justify not being able to give vacant possession of the Accommodation to the Landlord no later than the Termination Date.

8. The Tenant agrees to comply at all times with the containment and distancing measures put in place by the Landlord in connection with COVID-19.

13. The Tenant, in the event that the latter contracts COVID-19, undertakes to comply with all the measures necessary for the protection of other residents according to the directives of Public Health, the Ministry of Health and services social, CIUSS and CLSC. 

19. [T]he parties recognize that the exceptional circumstances justify that the court or the Régie du logement order the execution of the conclusions of this agreement in the event of non-compliance, as provided for in Ministerial Order no. 2020-005 of March 17, 2020. [translated]

Decision

The tribunal took issue with paragraph 19 of the agreement. 

While that paragraph stated that the parties recognized that there were exceptional circumstances at hand, the tribunal found that it was premature to use its discretion to make an order implementing the agreement against the Ministerial Order.

The tribunal explained that the Ministerial Order aimed to suspend the effects of any decision ordering the eviction of the tenant of a dwelling in order to protect the health of the population in the context of the state of health emergency decreed on March 13, 2020 by the Government of Quebec under the Public Health Act in connection with the COVID-19 pandemic.

While the Ministerial Order provided for the possibility for a court or tribunal to lift the suspension of the execution of one of its decisions if exceptional circumstances justified it, the tribunal found that the parties could not, by mutual agreement, replace the discretion of the court and determine for themselves whether or not exceptional circumstances existed to justify the execution of an order. The tribunal explained that it was not bound by such an agreement, stating: 

“In these proceedings, given that the termination of the lease will be effective no later than August 10, the tribunal does not see how it can determine, in advance, whether or not there will be exceptional circumstances which may justify overriding the Ministerial Order at the time when the eviction of the tenant becomes effective, as the case may be.

Furthermore, the tribunal has no idea whether the Ministerial Order will still be effective as of August 10, 2020.” [translated]

As a result, the tribunal ratified the agreement as an enforceable decision, with the exception of paragraph 19 of the agreement. 

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Baker & Company has adopted all of the COVID-19 safety precautions and vulnerable employees have been invited to work from home. We are fully operational and continuing to work on client assignments. Where possible, meetings are being held via video link or by telephone conference.

At Baker & Company in Toronto, our real estate lawyers take the time to speak with you and understand your unique needs in order to guide you through your real estate matter, whether commercial or residential. We rely on our broad base of experience and expertise to provide exceptional legal advice and risk management in a variety of leasing issues. Call us at 416-777-0100 or contact us online for a consultation.

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