THE FACTS
A tenant and a landlord represent themselves without lawyers at a Rental Board hearing. The landlord, to prove the damages caused to him by the tenant's unjustified abandonment of the dwelling, verbally referred to the existence of a real estate brokerage contract and to contracts for newspaper ads.
At the hearing the commissioner did not object to this verbal proof and accepted the landlord's testimony as admissible evidence. The tenant, who was ordered to pay damages, decides to appeal the decision to the Court of Quebec. The Court of Quebec granted the tenant permission to appeal and rendered a judgement to the effect that the commissioner should have intervened as a matter of course to disallow this verbal evidence and to require written proof of the contract.
THE LAW
In theory a Court should not intervene automatically, i.e. without anyone asking it to do so, when a party has failed to respect the rule of ideal proof (1).
Moreover, article 2859 of the Civil code of Quebec states that the Court should not intervene:
“Art 2859. The Court may not of its own motion invoke grounds of inadmissibility under this chapter which a party who is present or represented has failed to invoke.”
In our case, the tenant did object to the verbal evidence because he was unaware of the existence of the rule of the ideal proof. According to this rule, if there is a written contract, one must prove the existence of the contract by producing the original or a copy. The tenant has failed to raise the inadmissibility of the proof because of his ignorance of the rule.
According to article 63 of the Act respecting the Québec Rental Board, the director must provide equal help to all parties:
“Art 63. At the time fixed for the proof and hearing, the commissioner shall call the case, acknowledge the presence or absence of the parties and proceed with the proof and hearing.
Rules.
The commissioner shall summarily instruct the parties on the rules of evidence and each party shall state his pretensions and introduce his witnesses.
Assistance.
The commissioner shall give equitable and impartial assistance to each party so as to render effective the substantive law and to ensure that it is carried out.”
According to the judgment of the Court of Quebec, the rules of proof of the Rental Board take precedence over the general rules of evidence of the Civil code of Quebec:
“Thus, article 75 of the Act respecting the Québec Rental Board states that the seventh book of the Civil code, namely the book on evidence applies to the proof made before the Rental Board, subject to articles 76 and 77 (2).
Article 76 of the Act respecting the Québec Rental Board provides that the proof of a legal act made in writing or the contents of the writing can be made by any means when a party establishes that, in good faith, it can produce neither the original, nor a copy of the aforesaid act. In other words, for a verbal evidence to be allowed by the Court, a party must first establish that in good faith, it is unable to produce this writing”.
CONCLUSION.
The Court of Quebec concludes that the commissioner should have intervened automatically during the hearing of the file and should have asked for the production of the writings before allowing verbal proof of the real estate brokerage contract and the contract for newspaper ads:
“Given that under the terms of article 63 of the Act respecting the Québec Rental Board, the commissioner must bring to each party an equitable and impartial help in order to reveal the law and to ensure the sanction, the Court thinks that if a self-represented party wishes to make testimonial proof without establishing beforehand that it can produce neither the writing, nor a copy of this writing, the commissioner must intervene in order to reveal the law and to ensure its sanction” (3).
The Court of Quebec referred the file back to the Québec Rental Board to re-hear the case.
(1) Dumouchel vs. Dufour-Tremblay, 2006, QCCQ 3629, par. 34.
(2) Robert vs. Riberdy 2011, QCCQ 7065, par.10.
(3) Opus citare, note 2.
A tenant and a landlord represent themselves without lawyers at a Rental Board hearing. The landlord, to prove the damages caused to him by the tenant's unjustified abandonment of the dwelling, verbally referred to the existence of a real estate brokerage contract and to contracts for newspaper ads.
At the hearing the commissioner did not object to this verbal proof and accepted the landlord's testimony as admissible evidence. The tenant, who was ordered to pay damages, decides to appeal the decision to the Court of Quebec. The Court of Quebec granted the tenant permission to appeal and rendered a judgement to the effect that the commissioner should have intervened as a matter of course to disallow this verbal evidence and to require written proof of the contract.
THE LAW
In theory a Court should not intervene automatically, i.e. without anyone asking it to do so, when a party has failed to respect the rule of ideal proof (1).
Moreover, article 2859 of the Civil code of Quebec states that the Court should not intervene:
“Art 2859. The Court may not of its own motion invoke grounds of inadmissibility under this chapter which a party who is present or represented has failed to invoke.”
In our case, the tenant did object to the verbal evidence because he was unaware of the existence of the rule of the ideal proof. According to this rule, if there is a written contract, one must prove the existence of the contract by producing the original or a copy. The tenant has failed to raise the inadmissibility of the proof because of his ignorance of the rule.
According to article 63 of the Act respecting the Québec Rental Board, the director must provide equal help to all parties:
“Art 63. At the time fixed for the proof and hearing, the commissioner shall call the case, acknowledge the presence or absence of the parties and proceed with the proof and hearing.
Rules.
The commissioner shall summarily instruct the parties on the rules of evidence and each party shall state his pretensions and introduce his witnesses.
Assistance.
The commissioner shall give equitable and impartial assistance to each party so as to render effective the substantive law and to ensure that it is carried out.”
According to the judgment of the Court of Quebec, the rules of proof of the Rental Board take precedence over the general rules of evidence of the Civil code of Quebec:
“Thus, article 75 of the Act respecting the Québec Rental Board states that the seventh book of the Civil code, namely the book on evidence applies to the proof made before the Rental Board, subject to articles 76 and 77 (2).
Article 76 of the Act respecting the Québec Rental Board provides that the proof of a legal act made in writing or the contents of the writing can be made by any means when a party establishes that, in good faith, it can produce neither the original, nor a copy of the aforesaid act. In other words, for a verbal evidence to be allowed by the Court, a party must first establish that in good faith, it is unable to produce this writing”.
CONCLUSION.
The Court of Quebec concludes that the commissioner should have intervened automatically during the hearing of the file and should have asked for the production of the writings before allowing verbal proof of the real estate brokerage contract and the contract for newspaper ads:
“Given that under the terms of article 63 of the Act respecting the Québec Rental Board, the commissioner must bring to each party an equitable and impartial help in order to reveal the law and to ensure the sanction, the Court thinks that if a self-represented party wishes to make testimonial proof without establishing beforehand that it can produce neither the writing, nor a copy of this writing, the commissioner must intervene in order to reveal the law and to ensure its sanction” (3).
The Court of Quebec referred the file back to the Québec Rental Board to re-hear the case.
(1) Dumouchel vs. Dufour-Tremblay, 2006, QCCQ 3629, par. 34.
(2) Robert vs. Riberdy 2011, QCCQ 7065, par.10.
(3) Opus citare, note 2.