A tenant can cancel his lease, if he acts as an elderly person and if he is admitted in a permanent way into a “foyer d’hébergement”. It is enough to send a notice to the owner and the cancellation takes effect three months after the sending of this notice. Article 1974 of the Civil Code of Quebec gives this privilege to an elderly person:
Art. 1974 - “A lessee may resiliate the current lease if he is allocated a dwelling in low-rental housing or if, by reason of a decision of the court, he is relocated in an equivalent dwelling corresponding to his needs; he may also resiliate the current lease if he can no longer occupy his dwelling because of a handicap or, in the case of an elderly person, if he is admitted permanently to a residential and long-term care centre or to a foster home, whether or not he resides in such a place at the time of his admission….”
The problem of interpretation of the law
The legislator did not define in a text of law the expression “foster home - foyer d’hébergement”, contrary to the expression “lodging house and centre for long-term care” used in the Act Respecting Health Services and Social Services. L.R. Q., C. S-4.2 The mission of such a centre can include the exploitation of a day centre or of a day hospital.
The difficulty is that there are elderly people who are autonomous and certain types of establishment have developed which include residences that lodge elderly people and where there are some services offered: a cafeteria, service of nurses, small safety bells, etc…These establishments do not have to hold licences to offer these residences, whereas the lodging house and the care of long duration really is an establishment of health and social services with an obligatory licence.
According to the doctrine (1) a residence will be regarded as a “foster home - foyer d’hébergement” if it places only people to which it offers services of assistance, of support and of monitoring having become necessary because of their age or their failing health.
The judgment of the Court of Quebec
The Court privileges a broad interpretation, which takes account of reality in our society, where autonomous elderly people need assistance who sometimes find themselves without resources because of the “virage ambulatoire”.
The Court makes a distinction between the “residences” and the “foyers” for elderly people, according to the Larousse dictionary, a residence is a “group of dwellings of a certain comfort” and a “foyer” is “a dwelling reserved for certain categories of people and where certain equipments and services are placed at the disposal of the community.
The Court of Quebec has decided:
Each situation will have to be examined attentively since not every residence is necessarily a “foyer”. It will be necessary to check the vocation of the residence, the customers placed there, to make sure that the services given aim at filling needs for support, assistance and monitoring generated by ageing or by failing health and are included in the cost of the rent, that the customers decide to rent at this place precisely because these needs are fulfilled there. (2) In the present case, there are two sisters of more than 90 years old, living together, considered to be autonomous but requiring domestic support, assistance and monitoring, services, male nurses and safety. Moreover, the Court allows the cancellation of the lease by an elderly tenant to move from one “foster home - foyer d’hébergement” to another one.
1) Vente, louage, contrat d’entreprise ou de service. Deslauriers. Jacques, Wilson and Lafleur 2005/p. 528
2) Bureau e. Résidence du Carrefour. J.L (2007) p. 340 to 345