[1]      The landlord, Mr. Silvander, filed an application on December 1, 2020.

[2]      He prevails upon the Tribunal to revoke a decision that was rendered in favor of his tenant, Mr. Taghi, on October 27, 2020.

[3]      Here, the administrative judge, Michel Huot, dismissed the landlord’s application to cancel the lease on account of the tenant’s alleged failure to pay the rent in a timely manner. Moreover, he granted the tenant’s application for a specific performance order, a reduction of rent ($300 per month retroactive to September 1, 2018), punitive damages ($2,000) and moral damages ($1,000), the whole with interest, indemnity (article 1619 C.c.Q.) and judicial costs.

[4]      The decision reveals that when the parties were convened for proof and hearing on August 6, 2020, the landlord was not in attendance.

[5]      The landlord’s request for revocation is grounded on Article 89 LTAT.

« 89. Where a decision has been rendered against a party who was prevented from producing or supplying evidence by surprise, by fraud or by any other reason considered sufficient, that party may apply for the revocation of the decision.

A party may also apply for the revocation of the decision where the Tribunal has omitted to adjudicate upon part of the application or has decided beyond the application.

The application for revocation must be made in writing within ten days after the decision is known or from the time the cause of prevention ceases, as the case may be.

The application for revocation suspends the execution of the decision and interrupts the time allowed for appeal or review until the parties are notified of the decision.

It is not possible for a party who fails to inform the Tribunal or the other parties of a change of address in accordance with section 60.1 to apply for the revocation of a decision rendered against him by claiming not to have received the notice convening the party if the notice was sent to his previous address. »

[6]      The foregoing text informs us that the revocation remedy is open to litigants who can prove, by preponderance, that they were denied their proverbial “day in court” through no fault of their own.

[7]      In his application of December 1, 2020, the landlord alleges that he never received the Notice that the Tribunal invariably sends to all litigants in advance of their hearings.

[8]      It is instructive to note that Article 16 of the Tribunal’s Procedure Rules creates a rebuttable presumption that all Notices sent by the Tribunal are deemed to have been received.

[9]      Mr. Silvander explained that Mr. Taghi occupies a basement apartment in the triplex on King Edward Avenue. Silvander occupies the unit on the ground floor. Another tenant occupies the dwelling upstairs.

[10]   As it happened, the three occupants of the triplex shared a common letter box. Moreover, Silvander and Taghi shared the same civic address, namely, 5251 King Edward. The tribunal does not deem it likely that some ne’er do well pilfered the Notice that was addressed to Silvander. Nor does it believe that Taghi snagged Silvander’s copy of the Notice with a view to ensuring that the latter would not attend the hearing scheduled for the 6^th of August 2020.

[11]   That said, the patently unwise presence of a common, unsecured letter box, in conjunction with the parties’ shared civic address, was an invitation to a mishap. Nevertheless, the tribunal does not believe that this maladroit arrangement was tantamount to gross negligence and as such, will give the landlord the benefit of the doubt.

[12]   But there is more.

[13]   Before the undersigned judge, the tenant’s attorney argued that the landlord’s application was irrecevable. More specifically, he pointed out that the application contravened Article 44 of the Tribunal’s Procedure Rules in that it failed to include a summary defense to the tenant’s claims.

44. The application for revocation of a decision must include not only the grounds in support thereof, but also, if filed by the defendant to the original application, a brief statement of the grounds of defence to the original application.

[14]   The landlord explained that when he took cognizance of Judge Huot’s decision on November 30, 2020, he met, very shortly thereafter, with one of the Tribunal’s clerks who are mandated to assist litigants with the preparation of their applications. The clerks are not lawyers and are precluded from offering legal advice. Nevertheless, they perform a valuable service by succinctly transcribing, on the standard application form, the litigant’s allegations, and the conclusions that he wishes the Tribunal to grant.

[15]   The landlord went on to say that the assisting clerk made no mention of the summary defense that according to the Procedure Rules, must form an integral part of any application that aims to revoke a decision of the Tribunal. Nor, as it happened, did the application that the landlord signed on December 1, 2020, offer a designated space for the inscription of his grounds of defense.

[16]   It is all well and good to argue that nul n’est réputé ignorer la loi but the laudable assistance that our Tribunal offers to lay persons should not, it seems to me, exclude information with regard to basic procedural requirements.

[17]   The evidence also reveals that when the parties were first convened for the hearing of the revocation application on December 17, 2020, the landlord was accompanied by his recently mandated attorney. The hearing was postponed at the tenant’s request, but the landlord’s application was not amended - neither then and there nor thereafter- with a view to adding a summary defense.

[18]   Pursuant to the Honorable Justice Pratte’s ruling in Cité de Pont Viau vs. Gauthier Mfg. Ltd., (1978) 2 S.C.R., 516, the undersigned cannot penalize the landlord for the foregoing omission.

[19]   According to Justice Pratte, “The party itself acted with diligence and I do not see what more it could have done in order to act sooner… The last part of 523 C.C.P. was enacted in favour of the party itself in order to temper the strictness of the automatic forfeiture of the right of appeal when the holder of the right - the party itself - was unable to act in time. The impossibility to act must therefore be assessed from the point of view of the person who will have to bear the consequences of the foreclosure if he is not relieved of it.”

[20]   The tenant’s preliminary objection was well argued but in light of the foregoing evidence and jurisprudence, the undersigned is loath to dismiss the landlord’s application for his non-compliance with Article 44 of the procedure Rules.

[21]   But what of the fact that the landlord failed to file his application within the statutory delay?

[22]   As we know, the Huot decision was rendered on October 27, 2020. The application that aims to revoke that decision did not see the light of day until December 1, 2020.

[23]   The evidence reveals that on August 6, 2020, Mr. Taghi advised Mr. Silvander that a hearing had taken place and that a judgement would be forthcoming.

[24]   Silvander telephoned the Tribunal and was advised to wait until a decision had been rendered.

[25]   When the decision was sent to the parties, by regular mail, after the 27^th of October 2020, Silvander was in Mexico and did not return to Montreal before the 15^th of November. However, on account of the Pandemic, the public health authorities required that he be quarantined until the 30^th of November. He said that he had no access to the decision beforehand and underscored the fact that his application to revoke was filed on the very next day.

[26]   The tenant testified that he had advised the landlord of Judge Huot’s decision in an email dated November 23, 2020 and assailed him for his failure to respond with the requisite celerity.

[27]   The tenant’s point was not without merit but given the upheaval engendered by Covid-19, the tribunal will risk erring on the side of audi alteram partem.

[28]   Moreover, the evidence adduced at the hearing was not congruent with the notion that the landlord conducted himself as an insouciant litigant.

FOR THESE REASONS, THE TRIBUNAL:

[29]   REVOKES the decision of October 27, 2020;

[30]   CALLS UPON the Master of the Rolls to schedule a date of hearing on the merits and to allocate no less than three (3) hours toward this end.