[1]      Two applications have been joined for common proof and hearing.

[2]      The tenant’s application was filed on September 8, 2015.

[3]      He asks that the lease be cancelled - in his favor - as of August 26, 2015.

[4]      He alleges that the elevator in the building broke down and was never repaired or replaced.

[5]      His wife was pregnant with twins and had to drive their toddler to day care every week day.

[6]      He says that she found it difficult - and dangerous - to use the stairs.

[7]      He assails the landlord for its failure to restore the elevator service and adds that his peaceable enjoyment was also undermined by the noise of construction nearby.

[8]      Apart from the cancellation of the lease, he asks that the rent be reduced by $50 per month from December of 2014 to August of 2015.

[9]      He also claims moral damages in the amount of $2,000 ("troubles et inconvénients, perte importante de qualité de vie, obligation de cesser l’allaitement, détresse psychologique, stress et anxiété.")

[10]   Finally, he asks for $100 for « les frais postaux ».

[11]   The corporate landlord’s application was filed shortly thereafter.

[12]   On September 10, 2015, it prevailed upon the Tribunal to award it $900 in arrears of rent and an additional quantum of $1,700 for income lost over the months of September and October of 2015.

[13]   It alleges that the tenant quit the dwelling without right on August 26, 2015.

[14]   At the time of his premature departure, the tenant owed a balance of $50 for July’s rent and failed to pay August’s rent in its entirety.

[15]   Given that the application was filed on the 10^th of September 2015, the tribunal is perplexed as to why the landlord saw fit to claim lost income for the month of October 2015.

[16]   Suffice it to say that actionable claims cannot be grounded on clairvoyance or mere speculation.

[17]   What does the pertinent evidence reveal?

[18]   The lease that the parties signed on November 30, 2014 specifies that the term of 12 months began on November 1, 2014 and would expire on September 30, 2015.

[19]   Simple arithmetic dictates that a term that begins on the 1^st of November and expires on the 30^th of September is a term that consists of 11 months, not twelve.

[20]   The landlord’s representative told the tribunal that someone had made a mistake and argued that whoever prepared the lease - presumably a mandatary of the landlord - should have specified that the term would end on the 31^st of October 2015.

[21]   The tenant did not concur.

[22]   On June 23, 2015, he advised the landlord, in writing, that he did not intend to renew the lease when it expired on September 30, 2015.

[23]   As we know, September 30, 2015 is the termination date that appears on the lease.

[24]   If the landlord truly believed that the lease was meant to expire on the 31^st of October as opposed to the 30^th of September, it should have responded to the tenant’s Notice of non-renewal immediately in order to point out that from the landlord’s point of view, the lease would not expire before the 31^st of October.

[25]   Ultimately, it was not until the 11^th of August 2015 that the landlord told the tenant, in writing, that the lease that began on November 1, 2014 would expire on October 31, 2015.

[26]   Moreover, Article 1432 of the Civil Code of Quebec says that in case of doubt, “a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it.”

[27]   Consequently, the tribunal will interpret the lease in the tenant’s favor and conclude that the term was meant to expire on the 30^th of September 2015.

[28]   The quantum of rent was at issue as well.

[29]   In its application of September 10, 2015, the landlord alleged that the tenant paid rent in the amount of $850 per month.

[30]   This allegation contradicted the lease that the parties signed on November 30, 2014. Here, the parties agreed that the tenant would pay rent in the amount of $800 per month. Moreover, in his own application of September 8, 2015, the tenant asserted that his monthly rent was $800.

[31]   In its capacity as plaintiff, it was incumbent upon the landlord to prove, by preponderance, that the tenant had agreed to pay $850 per month rather than the rent of $800 that was stipulated in the lease.

2803. A person seeking to assert a right shall prove the facts on which his claim is based.

A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim.

[32]   The landlord offered not one iota of evidence in support of the notion that the tenant had agreed to an amendment whereby the rent would be increased by the rather substantial sum of $50 per month. Consequently, the tribunal will conclude that the quantum of monthly rent to which the parties agreed was $800.

[33]   Having resolved the foregoing contradictions, the tribunal will now address the claims of the parties.

[34]   The tenant wants the lease to be cancelled in his favor and seeks a retroactive reduction of rent. Moral and material damages are claimed as well.

[35]   The tenant admitted that he moved out of the dwelling on the 26^th of August 2015 but insists that he had every right to do so.

[36]   He told the tribunal that he and his family occupied a dwelling on the third floor of the landlord’s three storey building.

[37]   On or about the 1^st of December 2014, the elevator became dysfunctional.

[38]   The landlord’s representative said that a technician would, from time to time, reactivate the elevator in order to accommodate tenants who had to move heavy furniture and appliances in and out of the building. However, its quotidian use was, from the 1^st of December going forward, a thing of the past.

[39]   The representative went on to say that an inspector from the Régie du Bâtiment inspected the elevator and determined that failing the requisite repairs, it would have to be replaced outright.

[40]   The representative explained that the elevator - installed in the 60s - was old and that replacement parts were no longer available. The landlord then decided that a new elevator would be too costly and decided that henceforth, the tenants would have to make do without one.

[41]   The elevator’s demise resulted in the loss of a service to which the tenant was entitled. As such, pursuant to Article 1863 of the Civil Code of Quebec, the tenant’s request for a rent reduction would appear to be well founded.

1863. The nonperformance of an obligation by one of the parties entitles the other party to apply for, in addition to damages, specific performance of the obligation in cases which admit of it. He may apply for the resiliation of the lease where the nonperformance causes serious injury to him or, in the case of the lease of an immovable, to the other occupants.

The nonperformance also entitles the lessee to apply for a reduction of rent; where the court grants it, the lessor, upon remedying his default, is nonetheless entitled to the re-establishment of the rent for the future.

[42]   The foregoing text also says that the tenant may ask that the lease be cancelled when the non-performance of the landlord’s obligation engenders a “serious injury”.

[43]   When the elevator went out of service, the tenant had a toddler of 18 months. His wife was pregnant with twins and not surprisingly, found it difficult to navigate the three flights of stairs from the parking garage to her dwelling with a child and a stroller in tow.

[44]   After the twins were born, the absence of the elevator was more keenly felt.

[45]   Having heard the tenant, the tribunal will conclude that far from being a mere convenience, the use of the elevator was, for him and his young family, an essential component of the lease. Moreover, it is safe to say that had the elevator broken down before the 1^st of November 2014, he would not have agreed to occupy the dwelling on the third floor.

[46]   When the elevator was found to be beyond repair, the landlord decided, for business reasons, that it would not be replaced. As the owner of the building, that was the landlord’s prerogative. Nevertheless, when a business decision - no matter how financially sound it may be - deprives a tenant of an essential service, appropriate sanctions are in order.

[47]   The tribunal believes that the tenant was justified in cancelling his lease prematurely and will conclude that the lease terminated on the date of his departure, i.e. the 26^th of August 2016.

[48]   However, the landlord proved, by preponderance that the tenant failed to pay the rent for 26 days in August and will be awarded a quantum of $672 (800 x 84% = 672).

[49]   The balance of $50 that the landlord claims for the month of July 2016 will be denied because the claim is grounded on the false assumption that the tenant was supposed to pay $850 per month as opposed to the quantum of $800 that was stipulated in the lease.

[50]   It now remains to be determined whether the foregoing award of $672 should be offset, whether in whole or in part, by the monetary claims of the tenant.

[51]   The tenant proved that from the 1^st of December going forward, his peaceable enjoyment of the dwelling was undermined by the loss of the elevator.

[52]   His request for a rent reduction in the amount of $50 per month - roughly 6% per month - is not unreasonable.

[53]   However, no reduction will be forthcoming for the period of occupancy after the 15^th of July 2015.

[54]   Here is why.

[55]   On April 13, 2015, the tenant wrote to advise the landlord that he intended to move out on the 1^st of July 2015. In his letter, he made it abundantly clear that the demise of the elevator had made the life of his family exceedingly difficult.

[56]   The landlord’s representative told the tribunal that the landlord was fully prepared to allow the tenant to truncate the term of the lease without penalty.

[57]   However, on the 1^st of August, the landlord discovered, to its chagrin, that the tenant was still in the dwelling.

[58]   On the 11^th of August, the landlord advised the tenant, in writing, that his failure to move out on the 15^th of July had precluded a new tenant form moving in on the 1^st of August.

[59]   The landlord reserved its recourses and reminded the tenant that the rent for August had not been paid.

[60]   The tenant told the tribunal that the landlord had never consented to his early departure - he said that he had been told to sublet the dwelling - but the landlord’s attempt to install a new tenant on the 1^st of August is consistent with its position that it fully expected the tenant to leave on the 15^th of July.

[61]   The tenant had the opportunity to move out on the 15^th of July but failed to do so. (As it happened, he signed a lease for a dwelling elsewhere on the 1^st of August and moved out on the 26^th of that month). Given the tenant’s failure to mitigate his damages pursuant to Article 1479 of the Civil Code of Quebec, the tribunal will calculate the aforementioned rent reduction from December 1, 2014 to July 15, 2015 for a total of $375. ($50 x 7.5 months = $375)

[62]   In like manner, the tribunal’s assessment of the tenant’s claim for moral damages will take his failure to mitigate his damages into account.

[63]   The tenant believes that he is entitled to a quantum of $2,000 under this heading.

[64]   Apart from the trouble and inconvenience engendered by the loss of the elevator, he invokes his wife’s medical problems - an infection following a caesarian section, post-partem depression and heightened anxiety.

[65]   The tribunal is persuaded that the tenant and his family had to contend with the inconvenience engendered by the elevator’s absence but is equally persuaded that the landlord cannot be held to account for the foregoing panoply of medical issues.

[66]   Simply stated, the tenant failed to make proof of a causal nexus between the loss of the elevator and the medical problems with which his wife had to contend following the birth of the twins.

[67]   In light of the foregoing, the tribunal deems it fair to award the tenant damages for trouble and inconvenience in the amount of $500.

[68]   The tenant also assailed the landlord for the noise and dust engendered by a nearby construction site but the evidence revealed that the building undergoing construction did not belong to his landlord.

[69]   Landlords are obliged to provide their tenants with peaceable enjoyment but cannot be expected to sue the owners of neighboring properties on their behalf.

[70]   Finally, the tenant offered no evidence whatsoever in support of his claim for “frais postaux”.

FOR THESE REASONS, THE TRIBUNAL:

In the file of the tenant:

[71]   GRANTS the application in part;

[72]   CONDEMNS the landlord to pay to the tenant the sum of $875 with interest at the legal rate plus the indemnity pursuant to Article 1619 C.c.Q. calculated from September 8, 2015 plus judicial costs in the amount of $80;

[73]   DISMISSES the other conclusions.

In the file of the landlord:

[74]   CONDEMNS the tenant to pay to the landlord the sum of $672 with interest at the legal rate plus the indemnity pursuant to Article 1619 C.c.Q. calculated from August 1, 2015 plus judicial costs in the amount of $80;

[75]   DISMISSES the other conclusions;

[76]   AUTHORIZES the parties to operate compensation whereby all sums awarded to the tenant will be offset by the sums awarded to the landlord.