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Gabarit EDJ

Lunneterie Newlook inc. c. Édifice 1616 Ste-Catherine Ouest Le Faubourg

2012 QCCS 3855















15 August, 2012







Lunetterie Newlook Inc.












[1]           How many cockroaches are too many before premises are rendered uninhabitable? That is the question!

[2]           Plaintiff (hereinafter referred to as "Newlook"), sues its lessor, Defendant (hereinafter referred to as "Le Faubourg") in cancellation of its lease for those premises situated at 1616 Sainte Catherine Street West, Montreal, Quebec. Newlook also requests reimbursement of the sum of $335,949.56 representing rental paid to Le Faubourg from October 31, 2010, after Newlook vacated the premises, until March 22, 2012. Newlook claims that Le Faubourg failed to provide peaceable enjoyment of the leased premises due to a massive infestation of cockroaches, a problem known to the lessor and undisclosed by it upon the execution of the lease for the premises.

[3]           Le Faubourg contests the action on the grounds that the presence of cockroaches was not unusual, given that there was a food court or locations offering food services in the complex in which the leased premises were located; that Newlook should have been aware of the potential problem; that the cockroaches did not deprive Newlook of peaceable enjoyment of their premises. Le Faubourg claims that the issue of cockroaches is only a pretext for the cancellation of the lease because Newlook failed to attain its projected sale objectives in the leased location. Therefore, Le Faubourg claims the sum of $709,658.95, representing rental of $622,917.67 in addition to GST and QST, due from November 1, 2010 to the expiry of the term of the lease less rentals received from other tenants which have occupied the premises, in addition to costs and extrajudicial costs.

[4]           Newlook contests Le Faubourg's cross-demand and adds that Le Faubourg failed to take measures to minimize its losses i.e. rental revenues.


[5]           By lease entered into between the parties on or about November 20, 2006, Newlook leased from Le Faubourg those commercial premises situated in a complex known as Le Faubourg Inc. at 1616 Sainte-Catherine Street West, Montreal for a term of 10 years for an annual rental of $223,125 (at $80.00 per square foot), with the usual escalation and other clauses relating to shared operating expenses and taxes.

[6]           Newlook is a public company which operates a chain of approximately 70 stores in Quebec and Ontario which offers ophthalmologic services and optical products such as prescription glasses; contact lenses; sunglasses. It has approximately 600 employees which include opticians and optometrists who practice in its locations. It sales for 2011 exceeded 72 million dollars.

[7]           Le Faubourg, which is located at the intersections of Sainte Catherine and Guy Streets in Montreal is a complex which consists of an office tower, commercial premises and a food court. Newlook is a storefront establishment which has direct street level access from Sainte Catherine Street, but is located in the former indoor mall, underneath the food court.

[8]           Newlook took possession of its premises in May 2007, and commenced its operations about July 15, 2007.

[9]           Shortly thereafter, in October 2007, Newlook's employees started to complain about an infestation of cockroaches.

[10]        Newlook informed Le Faubourg's complex manager, Crofton Moore, of the problem immediately, both verbally, and, by emails sent in October 2007. Thereafter, the problem was continuous with Newlook employees complaining to Le Faubourg building managers, and to Newlook's management about the cockroaches, falling from the ceiling, dead and alive, or crawling around their premises, on the floors and desks.

[11]        Notwithstanding attempts by Le Faubourg to deal with the problem through an extermination program, the problem persisted. Le Faubourg undertook an extermination treatment[1] in December 2008, all to no avail. The problem continued notwithstanding almost weekly inspections of and treatments at Newlook's premises.

[12]        Newlook's representatives and employees continued to complain to Le Faubourg representatives about the ongoing problem. They were told, by representatives of the building managers, to collect the specimens of the "pests" they found and to deliver them in Ziploc bags to their offices. Emails were sent on August 21, October 13, 16, and November 11, 2009[2] complaining about the problem.

[13]        On July 30, 2010, Newlook 's attorneys wrote[3] Le Faubourg that the problem was intolerable and had not been corrected notwithstanding numerous verbal and written complaints[4], and, that in view of the fact that this was a question of hygiene, and that the cockroach infestation had persisted for more than two years, it demanded cancellation of its lease.

[14]        Le Faubourg made no attempt to cancel the lease. It effectively denied the seriousness of Newlook's problem and accused it of using the cockroaches as a pretext to cancel its lease[5].

[15]        Newlook instituted the present action in cancellation of the lease on September 29, 2010 on the grounds of being deprived of enjoyment due to the presence of cockroaches.

[16]        The cockroach problem persisted. On September 30, 2010, when the cockroaches were actually being pointed out by its clients, Newlook decided to vacate the premises and did so on October 22, 2010.

[17]        On November 10, 2010, Newlook applied to the Court for an order to be relieved of its obligation to pay its rental for the premises directly to Le Faubourg pending the outcome of proceedings. The parties agreed before Kirkland Casgrain J.S.C that Newlook would continue to pay the rental directly to Le Faubourg.

[18]        Newlook continued to pay the monthly rental as it became due until, by order of this Court on March 22, 2012, it was authorized to make its rental payments in trust to its attorneys of record, pending disposition of the case.


[19]        The questions to be determined by the Court are the following:

1.         Did the infestation of cockroaches originating from the complex owned by Le Faubourg constitute a failure to provide peaceable enjoyment of the premises to Newlook?

2.         Is Newlook using the cockroaches as a pretext to cancel its lease due to its failure to attain its projected sales objectives at Le Faubourg?

3.         Is Newlook entitled to reimbursement of all the rentals paid after it vacated the premises in October 2010?

4.         Is Le Faubourg entitled to collect the rental due by Newlook to the expiry of the term of the lease?

5.         Did Le Faubourg fail to minimize its damages after Newlook vacated the premises?



A.         Introduction

[20]        Was there an infestation of cockroaches in Newlook's premises which deprived it of peaceable use and enjoyment of its premises and rendered them uninhabitable?

[21]        For the purposes of this judgment, the Court declares that a cockroach is a cockroach, whether it is a larva; a nymph; mature; crawling on the floor or furniture or falling from the ceiling; alive or dead: dead ones were obviously alive when they crawled into Newlook's premises. Minimizing the infestation because some of the cockroaches were dead does not alleviate the extent of the infestation.

[22]        It is also true that cockroaches are pests, and a threat to hygiene and sanitation, proscribed by the health departments of our cities. They are definitely not acceptable in an establishment which offers medical and semi-medical services such as those offered by Newlook.

[23]        Finally, it is not unusual that cockroaches and similar pests are found in our cities however, adequate measures of exterminations can usually control the infestations. In the present case, the problem was not controlled for at least 36 months from October 2007 when the first complaint was made until October 22, 2010 when Newlook vacated the leased premises.


[24]        Three groups of witnesses and the extermination inspection reports establish the situation:

1).        the exterminators;

2).        Newlook employees;

3).        Newlook management;

4).        Exhibit P-6 (exterminators Inspection Reports).

1)         The exterminators

[25]        As early as 2006, Le Faubourg had a cockroach problem with an extermination program in place[6]. Four exterminators, one of which was qualified as an expert described the situation.

1(a)     Benoit St-Amand

[26]        In 2007, when Newlook took possession of its premises, the extermination was done by a company called Extermination Group Cameron.

[27]        Benoit St-Amand is an extermination technician employed by Cameron. He testified as to the processes in place for pest control, and the extent of the problem prior to August 2008. The exterminators would get a service order with a list of the premises in the complex to be verified from a Ms. Jovette Whiteman, representative of Crofton Moore, the management company for the complex. The exterminators would then inspect and take whatever measure was required in those premises listed on the service order.

[28]        Following an increase in the infestation, a special extermination treatment was undertaken in parts of the complex on August 13, 2008. A second one was done on November 4, 2008 with a treatment at Newlook's premises on December 12, 2008. According to Mr. St-Amand's testimony and reports, the building was substantially infested; the extermination treatment being undertaken was not guaranteed since it was inadequate: to succeed, it had to be undertaken on a massive scale, which it was not.

[29]        Following the treatments in the fall of 2008, Mr. St-Amand inspected Newlook's premises almost every week before opening hours until July 2010[7]. According to him, the problem persisted. Cockroaches, dead or alive, at different stages of their life cycle, were found in the ceiling; in the electric connections; on the floors and furniture. The cockroaches were moving vertically as well as horizontally from the complex.

[30]        Mr. St-Amand recommended a program to clean the food court. Some of the restaurants on the floor above Newlook were filthy, greasy and required serious cleaning in order to control the cockroach infiltration. He also recommended and set up a system of traps at strategic places as well as used products like Backforce, Conquer, Konk 400 and "produits chasseurs". Notwithstanding his recommendations and treatments, the problem persisted.

1(b)     Harold Leavey

[31]        Mr. Harold Leavey is a specialist in extermination and parasites as well as pesticides. He is the President of Maheu Extermination Ltée.

[32]        In mid-July 2010, the complex managers requested that he submit a proposal for extermination services at Le Faubourg. In his view and as stated in the proposal[8], the entire complex and all common areas had to be treated in an initial treatment, with a complimentary treatment to follow in 30 days. This was to be combined with a service contract in each of the 32 locations within the complex, with treatments to be applied as needed. The fees quoted were $4000 plus taxes for the initial treatment; $850 per month for monthly inspections; and in addition, supplementary treatments "on call" as needed, $50.00 each.

[33]        Mr. Leavey inspected the premises prior to submitting the proposal. He describes the food court area and establishments as being generally dirty and greasy, with a massive infestation of cockroaches which were visible to the naked eye in three-quarters (3/4) of the establishments.

[34]        Mr. Leavey attests to the fact that the representatives of the management company with whom he met were well aware of the extent and seriousness of the infestation. Notwithstanding the problem, the management company refused to undertake the initial treatments and was only prepared to agree to the monthly inspections and treatments.

1(c)     Jean-Louis Lamy

[35]        Jean-Louis Lamy is President of Extermination Trans Metropole which currently provides the exterminating services at Le Faubourg. He has extensive experience in the field as well as a degree in biology.

[36]        In the month of June 2010, he was contacted by Ms. Whiteman from Crofton Moore to submit a proposal for extermination services at the complex. The company's proposal, dated June 28, 2010[9] was faxed to Mr. J. Aronoff of Crofton Moore.

[37]        Prior to submitting his proposal, he inspected the complex, i.e., the food court, the public areas, retail establishments, business offices. He observed cockroaches in several areas and few traps or detection installations.

[38]        In his proposal, he describes the infestation as being "inhabituelle", "inacceptable", and being a situation which required a lot of time and effort to correct. During his testimony, he described the condition of the premises and infestation as being the largest infestation of cockroaches he had seen in his life, "une très grosse presence de blattes", which ranked at number ten, on a scale of one to ten, as being the worst he had ever seen.

[39]        His assessment was that it would take at least a year to clear up the situation.

[40]        On August 1, 2010, Trans Metropole was awarded the extermination contract. The first service call was made on August 6, 2010, which was also the first day that a treatment was given to some of the premises on an "as need" basis.

[41]        The initial treatment to the entire commercial premises and food court recommended in his proposal started on August 31, 2010 but was not done at Newlook until September 8, 2010. On October 22, 2010, the very day Newlook was vacating, during a regular inspection, the exterminators found five cockroaches trapped in Newlook's premises.

[42]        Mr. Lamy described the procedures taken for the treatment of the complex. The premises of Newlook were given special attention. He acknowledged receiving calls from Newlook every week. Service was therefore done there every week. Cockroach traps were installed so the public would not see them.

[43]        He described the procedures used in an attempt to control the problem, i.e.:

1.         installing a system of traps;

2.         inspecting and taking measures every second day;

3.         using products which were not repulsive, i.e. that would not cause the cockroaches to migrate from one area to another e.g. from the food court to Newlook's premises;

4.         ongoing services and treatments every four weeks.

[44]        Mr. Lamy stated that in his view, the entry point for the cockroaches to Newlook's premises was the suspended ceiling where there was an opening to the structure above leading to the food court. He acknowledged being present on September 17, 2010 when five cockroaches were found in the traps. He confirmed that there was a serious ongoing problem of uncleanliness in the food court area which had to be dealt with, failing which the infestation could not be controlled.

1(d)     Ronald Maheu

[45]        Mr. Maheu is the former owner of Maheu Extermination Ltée which is now owned by Mr. Harold Leavey[10].

[46]        Mr. Maheu has had extensive experience in extermination for over 56 years. He. has testified and been qualified as an expert in pest control at least fifty times by the Court and by the Régie du Logement. Mr. Maheu does not have a degree in microbiology or chemistry. He has however taken courses in entomology. He has been extensively involved in pest control, taken and given training programs to exterminators and inspectors throughout his career. Based on his extensive experience in the field, the courses he has attended and given, he was declared an expert in pest control but not in microbiology or chemistry.

[47]        Mr. Maheu received his mandate to do an expertise a few days before October 14, 2010. Before rendering his report[11], Mr. Maheu read the summaries of the exterminators' inspection reports, the emails, and the proceedings and met with Mr. Faucher and Ms. Methot. He also visited the food court and restaurant area, and the commercial premises occupied by Bell, SAQ and Place du Bagel, all of which are street fronts similar to Newlook. He also had occasion to visit Tailleur Johnny (Suite 2060). The representatives of all of these establishments confirmed that they had problems with cockroaches.

[48]        He described the state of the premises of the restaurant area and public washrooms as being unsanitary and dirty. The owner of one of the food establishments he visited told him that three to four live cockroaches had been found there that morning. He found dead cockroaches in the ceilings.

[49]        He visited Newlook's premises three times, October 21, 26 and November 10, 2010. On October 21, during his first visit, he found two live cockroaches in Newlook's premises: one in a display case and the other near the water cooler.

[50]        Mr. Maheu described the conditions necessary for cockroaches to propagate and survive. They require water, nourishment and garbage in which to propagate. They reproduce every 28 days and yield 40 to 50 larvae in each cycle. It takes 30 to 75 days for them to become adults and to reproduce. The dirtier the establishment, the faster they reproduce.

[51]        In his view, none of the extermination programs at Le Faubourg were adequate or efficient. The cockroaches were migrating from location to location within the complex and propagating in untreated areas. There had never been a massive complete initial treatment to the entire complex, including the common areas, office tower, commercial and restaurant areas and vacant premises. Treatment also had to include the ceilings and toilet areas. This treatment program had to be undertaken by a reliable company which guaranteed results. It had to be followed up by an inspection within seven to ten days of the initial treatment, with more treatments and regular inspections to follow, in a preventative program. Treatments had to be with a non-repulsive substance, i.e. a product which would kill the cockroaches but not repulse and incite them to migrate elsewhere. Prior to treatments, a detection or trap system, had to be set up and kept free of dust throughout the complex e.g., example, glue traps. On his first visit to the complex, he saw no traps. He subsequently saw them later.

[52]        Mr. Maheu's view was that the treatment required to purge the complex of the infestation would take considerable time and require several treatments.

2)         The Newlook employees at Le Faubourg

[53]        Some of the employees of Newlook at Le Faubourg who lived with the problem describe their experiences.

2(a)     Alexandre Binette

[54]        Mr. Binette worked as a manager of the Newlook branch in Le Faubourg from September 2007 to April 2008. There was a problem of cockroaches. He called his superior, Faucher, in 2007 to complain about it. He received several complaints from the employees about the cockroaches, and he saw the exterminator on two occasions during that time.

2(b)     Dr. Marylyn Pierre-Antoine

[55]        Dr. Pierre-Antoine is an optometrist, graduate of the University of Montreal who has worked in her profession since 1999. From August 2007 to October 2010, she worked at the Newlook premises at Le Faubourg three days a week, between Monday and Thursday. Her office was at the back.

[56]        At the end of 2007 or beginning of 2008, she noticed the infestation of cockroaches. The problem intensified during 2008 and 2009. The infestation was larger at the front of the store than in her office, but, she did see them in her office. At the end of August or early September 2010, she found one on her desk near her examination table, another on the floor while patients were present.

[57]        She complained to Mr. Chap, the manager, as did everybody working there. They found out that treatments had been done. She was very nervous about the problem and afraid to take cockroaches home. When she went home, she left her purse in the garage or her automobile. In her office, she would always hang up her purse and never put anything on the floor.

[58]        Dr. Pierre-Antoine has never seen a similar problem in other branches, notwithstanding that she has been with the Newlook organization for more than 10 years.

2(c)     Rithy Chap

[59]        Rithy Chap worked as an assistant optometrist at Newlook from March to December 2009. During the summer, he was in charge of the personel. He attests to the fact that there was a problem of cockroaches. They fell from the ceilings, especially towards the front of the store where the public came. At the beginning of his employment, there was one incident every two to three weeks: at the end, there were three to four a week.

[60]        Mr. Chap described the reactions of others with whom he worked: they were all terrified of taking the infestation home. All the employees had the same reaction. When a cockroach fell from the ceiling onto the sleeve of his colleague Bellolo, he complained to management[12].

[61]        Mr. Chap described inspections every week by the exterminators; of trying to reach Mrs. Whiteman whenever there was a problem e.g. on November 19, 2009; of being told that there was going to be a treatment to be done in December 2009; of being asked to collect the cockroaches, put them in a Ziploc, and deliver them to Mrs. Whiteman. He states that he collected and sent her at least 20 Ziploc bags with captured cockroaches during that nine-month period.

2(d)     Prosper Bellolo

[62]        Mr. Bellolo is a practicing optician since 1977.

[63]        He was been with Newlook since May 2009. He started at the Le Faubourg branch in October 2009, and remained there until Newlook vacated. He attests to the fact that he saw cockroaches on his desk two or three days after he started at Le Faubourg.

[64]        He saw cockroaches regularly, not only on his desk but also in the reception office, on other desks and the reception desks. The staff was collecting them in plastic bags to give them to Le Faubourg building management. The specimens they collected were delivered at least twice a week. They were adults and younger cockroaches. The problem intensified and he complained regularly to his manager. It seemed to him that the more treatments they did, the more cockroaches appeared. Once, a cockroach fell on his sleeve. Another time, around September 2010, just before Newlook vacated its premises, he found one under his sandwich.

[65]        Mr. Bellolo described the stock and procedures regarding the stock at Newlook. All glasses or contact lenses were delivered in small boxes inside sealed brown boxes which he opened and placed into the counters and storage areas which were cleaned every week. In his view the premises operated by Newlook were very clean.

2(e)     Tania Methot

[66]        Ms. Methot was general manager of the Newlook branch at Le Faubourg from January 2009 to October 2010.

[67]        When she first arrived she learned of the problem of cockroaches. At first, there were one to two sightings per week. By the middle of 2010, there were more i.e., four to five a week, usually at the optometrists' stations, the opticians' desks and in the reception area.

[68]        Ms. Methot sent ongoing emails to her superiors complaining about them. She called Ms. Whiteman directly several times. Ms. Whiteman came to Newlook's premises two to three times: she was told that Newlook was the only one with the problem[13]. Ms. Whiteman made her feel as if she was crazy.

[69]        Crofton Moore, via Ms. Whiteman, asked Ms. Methot to collect the cockroaches they caught, to put them in Ziploc bags, and to call security to have them delivered to Crofton Moore. She collected victims in at least thirty bags which she gave to security and, on occasion delivered some herself.

[70]        Ms. Methot adds that when the premises were opened on Monday mornings, the staff would always check for the presence of the cockroaches: these routinely would scatter and disappear when they opened the lights.

[71]        She confirmed that there were inspections when the premises were closed and that the exterminators came every Friday but it was useless. She felt helpless and concerned about the employees, the effects of the pesticides upon everybody, and the entire situation since they operated in the health field. She produced and referred to emails where she expressed her concern about the treatments and the chemicals that were being used, the cockroaches being found and the fact that the traps were visible to the public. She also states that her concerns were such that she attempted to quit her job on two occasions. Besides her other sightings, she attests to the fact that she personally found two cockroaches in the presence of clients and killed them on August 31, 2010; one in the kitchen on September 10, 2010; and another on the magazine table in the reception area on September 30, 2010[14].

3)         Newlook's corporate management

[72]        The managers and administrators from Newlook's head office also recounted their experiences.

3(a)     Jean Faucher

[73]        Mr. Faucher has been in the real estate department of Newlook, as a "technicien en immobilier"since April 2001. As such, he is responsible for day to day support at the branches, regarding their locations, and attending to the services that they require there.

[74]        He first learned of the problem of cockroaches from Mr. Binette in 2007 or 2008. He contacted the management of Le Faubourg, namely Ms. Whiteman and Mr. Aronoff concerning the problem. By October 2009 the situation had deteriorated and he referred to a number of emails sent from October 2009 to August 2010 to Crofton Moore, and his superiors[15] concerning the presence of cockroaches, and the reports of the employees e.g. that one had fallen down on Mr. Bellolo, another that they were finding cockroaches on a regular basis.

[75]        Mr. Faucher was aware of the employees' concerns and complaints about the treatments. He too had seen the cockroaches. When the infestation persisted, he had to deal with employees who wanted to leave their employment e.g. Mme Methot, branch manager in January 2010 and March 2010. Cockroaches were still being found in June 2010 which meant it had been fifteen months that Ms. Methot had been dealing with the problem at the branch. Therefore, he wrote to his superiors concerning the problem. In September 2010, Mme Methot complained an employee found one in or under his sandwich. Again he wrote to his superiors.

[76]        Mr. Faucher was aware of the extermination treatments that were being given. He acted as a liaison between the branch and the complex's management and testified that Ms. Whiteman was always cooperative and always tried to deal with the problem. However, in his capacity as liaison, Mr. Faucher found that the versions of the employees and Ms. Whiteman were usually contradictory or inconsistent.

[77]        Mr. Faucher was aware that, without his authorization, an exterminator had been called by somebody at Le Faubourg branch, to do a treatment. Service was only done once, on October 20, 2009[16]. It was not followed up by Newlook since extermination was the responsibility of the lessor under the terms of the lease.

3(b)     Jacinthe Laurendeau

[78]        Ms. Jacinthe Laurendeau is a graduate in optometry who has been a regional director for Newlook since 2000. In 2008, 2009, she was responsible for ten branches. In her role as regional director, she was responsible for sales, the operations of the branches, human resources and problems such as conditions of work. There were no cockroach problems in any of the other branches she supervised even when they were close to a food court or restaurant areas.

[79]        The Newlook at Le Faubourg was under her responsibility from the summer of 2007. In that capacity, she learned of the problem of the infestation of cockroaches, for example, that a cockroach had fallen on an employee; Dr. Pierre-Antoine's complaint that she had seen several cockroaches in October 2009; the correspondence from Mr. Faucher; the fact that there were ongoing extermination inspections and sightings etc.

[80]        Ms. Laurendeau complained about the cockroaches to her vice-president in August, October and November 2009, June 2010 and September 2010[17]. The problem persisted.

3(c)     Claire Boulanger

[81]        Claire Boulanger, a graduate of McGill and Concordia and a chartered accountant, has been Vice-President in charge of real estate development for Newlook since December 2005. In that capacity, she negotiated the lease for the premises at Le Faubourg. It was never disclosed to her that there was a cockroach problem in the complex.

[82]        Newlook took possession and commenced its operations in Le Faubourg on July 15, 2007. It terminated its operations and vacated the premises on October 22, 2010 as a result of the persistent infestation of cockroaches it had endured since 2007.

[83]        Ms. Boulanger attempted to deal with the cockroach problem in 2008 following recurrent employee complaints. She complained to the complex manager. She wrote emails demanding resolution of the problem in August, October, November 2009 as well as July and August 2010[18]. Newlook had standards of cleanliness to maintain: it was impossible to maintain them in the circumstances.

[84]        When the problem was not resolved, she requested that a formal letter be written by Newlook's attorneys informing Le Faubourg of the extent of the problem, that it had been persistent for more than two years, that the measures taken to deal with it had been ineffective, that the infestation was causing problems and constituted a prejudice to Newlook, its operations and reputation and requesting that arrangements be made to cancel the lease[19]. By letters dated August 5, 2010 and September 16, 2010[20], Le Faubourg's attorneys replied that the infestation of cockroaches was being used as a pretext by Newlook to avoid its obligations under the lease: Le Faubourg effectively denied the existence or seriousness of the infestation at Newlook. Legal proceedings to resiliate the lease were then instituted at the end of September 2010.

[85]        Notwithstanding the letter of July 30, 2010 to Le Faubourg, and the legal proceedings being instituted to cancel the lease, the infestation continued. The final straw came at the end of September, when cockroaches were making appearances or "visits" in the presence of clients. After consultation with Newlook's President  and management committee, a decision was then made and acted upon. Newlook vacated the premises in the interests of its reputation, image, the health of its employees and to retain them, and the serious prejudice and potential damages which the entire organization faced by operating in unsanitary premises.

4.         The Exterminators' Reports, Exhibit P-6

[86]        To appreciate the extent of the infestation, the evidence gleaned from the inspection reports, consisting of two volumes[21], of the various exterminators who were on site supplements the versions of the eyewitnesses.

[87]        In a written analysis of the reports submitted by attorneys for Defendant dated March, 9, 2012, Le Faubourg admits that between December 12, 2008 to October 22, 2010, a period of twenty two months, its exterminators found evidence of cockroach activity in Newlook's premises a total number of twenty seven times[22]. This is the minimum. Many of these incidents involve multiple findings of cockroaches. Certain pages, (e.g. pages 856 and 872) are vague as to whether there was evidence of dead cockroaches found on site. Le Faubourg does not take into account the period prior to December 12, 2008 since it submits there is no evidence of any specific cockroach activity at Newlook's premises mentioned in the reports prior to then.

[88]        On the other hand, Newlook's attorneys have submitted an analysis of Exhibit P-6 tracing the development of the problem from October 2006 within the complex until the date that Newlook vacated the premises[23]. According to Plaintiff's version, the problem commenced in October 2006[24], and spread during 2007, especially in the food court area[25], where the cockroaches started to spread out from an establishment called Hot & Spicy.

[89]        The problem deteriorated. In 2008 the entire food court was infested. The restaurateurs were failing to cooperate with the exterminators in their treatments, by failing to clean their establishments, or refusing the exterminators access to their premises[26]. Cockroaches visited or dropped down into Newlook's premises regularly.

[90]        By 2009 the infestation was intolerable at Newlook, notwithstanding the weekly presence and treatments by Le Faubourg's exterminators. At this point the problem was generally severe throughout Le Faubourg which was obviously unable to control the infestation[27]. Cockroaches were found in the food court and adjoining commercial establishments such as SAQ and l'Espace Bell. Cockroaches, dead and alive, were being found in Newlook's premises, the first being mentioned on March 6, 2009, and thereafter on April 10, 2009, October 16, 2009, November 20, 2009, November 27, 2009, and December 18, 2009[28].

[91]        According to the reports, in 2010, the infestation was still not under control. Cockroaches were present endemically at Newlook's notwithstanding the weekly inspections and treatments by the exterminators. Between January 15, 2010 to November 12, 2010, cockroaches were discovered on the premises by the exterminators on 14 occasions[29] in addition to those found in the food court establishments, and other commercial establishments.

[92]        The exterminators' reports are supplementary to the evidence of the employees and eyewitnesses who recounted their visual experiences to which the exterminators were not privy. Nor do the exterminators appear aware of the fifty Ziploc bags containing captured cockroaches delivered to Ms. Whiteman by Newlook's employees at her request.

[93]        In sum, Newlook employees saw cockroaches in addition to those mentioned in the extermination reports. These, combined with the Ziploc specimens well exceeded 100 "visits" or sightings in 22 months[30] without accounting for multiple cockroaches in any incident. The premises were rendered uninhabitable. Newlook was being deprived of the enjoyment of the premises for the objects for which they had leased them.


[94]        All of the exterminators including Mr. Maheu, the expert, agreed that the infestation of cockroaches originated from the complex, notably, the food court and not from Newlook's premises. All of them testified that a great number of the food establishments were filthy, greasy and unsanitary. This included some vacant establishments which were under the direct control of Le Faubourg. All agree that the unsanitary state of these establishments complicated and impeded the extermination process[31].

[95]        Moreover, they all agreed that the infestation migrated from place to place[32] within the complex. So not only was the extermination work undertaken by Le Faubourg not guaranteed[33] but in addition it was ineffective. Even Newlook's employees testified that the more treatments there were, the more cockroaches appeared!

[96]        Mr. Maheu commented on the products being used to exterminate, Konk 400 and Maxforce[34]. Konk 400 repulses the cockroaches which then migrate on to another location. Products which were not repulsive would have been preferable. Moreover, the repulsive products, eg Konk 400 were used in conjunction with other incompatible products such as Maxforce, the result of which neutered both products and rendered them inefficient.

[97]        Le Faubourg knew the extent of the problem, that the services were not guaranteed, nor efficient. It never disclosed the problem during the negotiation of the lease. It minimized the problem and demonstrated a careless disregard and attitude by failing to comply with the professional advice received from the exterminators whose opinions it sought. It failed to implement a proper extermination program commencing with a full initial treatment throughout the building complex, including public areas and vacant areas within its exclusive control, to be followed by treatments within a period of weeks and periodically thereafter until such time as the problem was eradicated.

[98]        Le Faubourg has nobody else to blame for the problem but its own indifference and failure to act.

[99]        The infestation at Newlook was major, uncontrolled, increasing and long standing. There was no hope that it could be controlled. Its employees were being exposed to a serious health hazard. Its business image and reputation were at risk, not just at that branch, but throughout the chain which was only as strong as its weakest link.


[100]     The Civil Code of Quebec provides that a lessor must deliver the leased property to the lessee in a good state of repair, with "peaceable enjoyment of the property throughout the term of the lease", as well as maintaining the property for the purposes for which it was leased throughout the term of the lease[35].

[101]     Art.1863 C.C.Q[36]. provides that where a party to a lease fails to perform its obligations, the other party is entitled to apply for specific performance of the obligation, in addition to damages. It may also demand a resiliation of the lease where the non-performance causes it serious prejudice or injury.

[102]     Newlook demands the resiliation of its lease on the grounds that Le Faubourg has not provided peaceable enjoyment of the premises caused by an infestation of cockroaches and, that the non-performance has caused it serious prejudice. Therefore it requests the reimbursement of the rental it paid to Le Faubourg after it vacated the premises which were rendered uninhabitable.

[103]     The essential criteria for the cancellation of a lease under which the demand for cancellation and abandonment of the premises are justified are:

A.         a substantial failure to perform its obligations by the lessor;

B.         a resulting prejudice caused by the breach;

C.        notice or knowledge by the lessor that the tenant is being disturbed in its enjoyment of the premises as a result of the lessor's failure to perform.

[104]     The failure to execute which causes a serious prejudice means that where the premises are rendered unfit for the purposes for which they have been leased or there has been a substantial diminution of enjoyment which causes prejudice to the tenant.

[105]     Pierre-Gabriel Jobin[37] defines serious prejudice, at pages 465- 466:

"Évidemment, on entend d'abord par «prejudice sérieux» l'état inutilisable du bien ou l'état inhabitable des lieux. Cependant, même une diminution substantielle de jouissance qui ne va pas jusqu'à rendre le bien inutilisable strictement parlant, suffit pour constituer un préjudice sérieux donnant ouverture à la résiliation (par exemple le vacarme cause par des locataires voisins). Le caractère sérieux du préjudice s'apprécie de façon objective, comme par exemple, la gravité d'un problème d'aptitude."

[underling added]

[106]     Me Jobin then describes the problems and conditions of abandonment, at pages 472-475:

«[] C'est pourquoi le regime juridique de l'abandon dans le louage non residential est devenu, aujourd'hui, en quelque sorte, le régime de base. Deux conditions sont exigées par la jurisprudence: une inexécution substantielle de la part du locateur et la denunciation du trouble de jouissance à celui-ci par le locataire.

La première condition est une inexécution des obligations du locateur causant au locataire un préjudice sérieux. À vrai dire, cette condition est le plus souvent formulée en des termes plus forts: ainsi, on décide que les lieux doivent être inhabitables ou inutilisables pour les fins pour lesquelles ils ont été loués, qu'ils doivent être insalubres ou encore qu'ils doivent presenter des dangers sérieux pour les occupants (par exemple, la vermine en quantité importante et l'absence de chauffage en hiver)


Cependant, l'abandon n'est pas réservé à l'impossibilité d'utiliser les lieux loués ni aux dangers graves pour la santé ou la sécurité. Les tribunaux acceptent maintenant qu'il puisse y avoir abandon des lieux quand il y a simplement une diminution substantielle de jouissance causant un préjudice sérieux au locataire.


Comme seconde condition du droit d'abandonner les lieux dans le louage non résidentiel, la jurisprudence exige que le locateur soit averti du trouble de jouissance et qu'il dispose d'un délai raisonnable pour y remédier avant que le locataire abandonne les lieux.»

[underlining added]

[107]     Resiliation generally takes effect on the date upon which the breach by the lessor has become certain or crystallized, pursuant to Me Jobin at pages 468-469:

"La résiliation prend effet généralement à la date à laquelle la violation des obligations du locateur est devenue certaine, au moment où elle s'est «cristallisée», selon l'expression d'un juge. Ainsi, quand le locataire a déguerpi parce que les lieux sont inhabitables, les tribunaux, la plupart du temps, prononcent la résiliation en date de l'abandon des lieux parce qu'ils estiment que c'est à cette époque que la faute s'est cristallisée; cette façon de faire est commode, mais non obligatoire, car elle procède parfois d'une analyse superficielle des faits: la faute peut bien être devenue certaine et sérieuse avant que le locataire décide de s'en aller."

[underlining added]

[108]     Vermin or cockroaches have been held to constitute prejudice which interferes with enjoyment and are therefore cause for resiliation in several instances[38].

[109]     Le Faubourg leased the premises to Newlook to operate an establishment offering services within the medical field. It had high standards of cleanliness to uphold. Le Faubourg had an obligation to provide sanitary premises to Newlook based on the objects for which the lease was signed, and not the cockroach infested premises it provided. Newlook had the right to expect and enjoy sanitary, not pest infested, premises.

[110]     Newlook's premises were infested by cockroaches commencing in 2007, deteriorating in 2008, becoming intolerable in 2009 and 2010, thereby causing a serious prejudice to Newlook by not providing it with a pest-free environment. In addition thereto, it exposed Newlook to a serious risk and threat of damages to its reputation.

[111]     Newlook operated a facility which offered medical services, i.e., the analysis of ophthalmologic problems and the optical needs of its clients. It had a laboratory for examinations. It fitted and prepared contact lenses and prescription glasses for its patients. It required sanitary premises in which to operate and serve its patients and clientele: certainly the ongoing presence of cockroaches precluded that. Newlook endured the problem over a period of three years. The very existence of the cockroach infestation caused it a serious prejudice. Imagine the horror of going to work in premises with the fear that cockroaches would fall from the ceiling or crawl onto the furniture! And how does one explain the presence of a cockroach sitting on a desk to a client whose eyes are being examined or who is being fitted for contact lenses or prescription glasses?

[112]     Notwithstanding the implementation of the extermination programs by Le Faubourg, all interventions were inadequate and unsuccessful. The efforts undertaken do not absolve it, as lessor, from providing pest-free premises, and the enjoyment of same over the term of the lease. This is an obligation of result[39] to which the lessor is held, and in the present circumstances failed to fulfill.

[113]     Le Faubourg has not even claimed that the infestation was insolvable or beyond its control (not that that would exonerate it) but only that it was not serious and still in the process of being resolved. But the resolution of the problem would take at least twelve more months. And it had not yet commenced.

[114]     Newlook persistently complained about the infestation: that cockroaches were falling from the ceiling and being sighted on the premises. It gave Le Faubourg more than a reasonable delay and many opportunities to deal with the problem. Complaints were made by the managers at the premises to the representatives of Le Faubourg, by telephone and by email; by emails from middle management of the organization like Mr. Faucher, Ms. Laurendeau, and from its Vice-president Ms. Claire Boulanger to the lessor's representatives on August 21, October 13, November 11, 2009 and June 30, 2010[40] demanding that Le Faubourg resolve the problem which had become intolerable.

[115]     Newlook staff successfully hid the problem from its clients. But, when the clients began to see the cockroaches, in August and September 2010, and then, when a client informed Ms. Methot of the presence of a cockroach, it became obvious that notwithstanding the complaints, warnings and extensive delays given to Le Faubourg to resolve the problem[41], that the ongoing infestation represented a serious threat to its operations, to the morale and health of its employees, and to its reputation at large.

[116]     In the present circumstances, the conditions necessary for resiliation and abandonment have been proven. Plaintiff's action for resiliation and, its subsequent abandonment, are well founded on the grounds of a massive infestation of cockroaches during an unreasonable delay, in its premises, originating from the property of the lessor, propagated by its failure to deal with the problem, which rendered the premises uninhabitable and constituted a substantial prejudice and loss of enjoyment of its premises as well as representing a serious threat to its reputation in the field and health of its employees. Newlook was one of 72 stores. Any damage to its reputation would tarnish the image of the whole chain.


QUESTION 2: Is Newlook using the cockroach issue as a pretext to cancel its lease due to its failure to EARN its projectED sales objectives at Le Faubourg?

[117]     Le Faubourg claims that the cockroaches are a pretext to cancel Newlook's lease because the branch failed to earn its projected sales objectives: simply put, Newlook was dissatisfied with the results of its operations, therefore it sued for cancellation and vacated the premises.

[118]     While it is true that Newlook never attained its expected sales objectives at Le Faubourg, Le Faubourg has failed to prove its "pretext" theory.

[119]      Defendant invokes the following elements of fact from which it draws a deduction as to Newlook's true motive to resiliate its lease and cease its operations:

A.         Newlook's failure to earn the annual sales objectives which it had projected in the studies it had made prior to committing to the lease at Le Faubourg in a report submitted to the Board of Directors of Newlook on July 28, 2006[42];

B.         a letter to Le Faubourg by the Vice-president of Newlook, Claire Boulanger[43] on October 17, 2008 indicating that the new branch was not attaining its projected sales levels; was losing money on a month to month basis; complaining of the lack of customer traffic in the store; proposing to negotiate a reduction of rental effective from November 28, 2008 until July 2010, or until such earlier date as its sales objectives were attained; proposing a formula whereby if, at any time prior to July 30, 2010, the sales objectives were not attained, and Newlook was compelled to cease operating the store, to compensate the lessor for losses in rental;

C.        Newlook's alleged failure to implement the recommendations of the Market Research Focus Group Study prepared by students of Concordia University[44] received in March 2009, to improve Newlook's performance at Le Faubourg which enumerated a number of recommendations to be implemented by Newlook to increase its sales, make the premises more visible, and improve the atmosphere in the store;

D.        Newlook's failure to install a new sign for its premises after December 2009 after actively pursuing Le Faubourg from 2007 to obtain regulatory and by-law changes from the city of Montreal and Province of Quebec permitting it to install a new visible modern sign outside of its premises[45]. Newlook failed to install the sign after authorization was obtained following a discussion at a Newlook Management Committee meeting of December 9, 2009[46] of the necessity to improve sales at the branch in 2010.

[120]     Le Faubourg submits that the date of July 2010 referred in the letter of October 17, 2008 constitutes evidence of its intention, formulated as early as October 2008, to cease operating the store in the future due to disappointing results.

[121]     With respect, the Court finds no evidence of the formulation of such a plan or existence of any intention or surreptitious plan to vacate for the reasons invoked by Le Faubourg.

[122]     With regard to the letter of October 2008, Ms. Boulanger explained the circumstances under which the letter was sent. During the negotiations of the lease, Newlook had requested a similar clause concerning the right to close. Such a clause, which links its projected volume of sales to the right to cease operations, is usually a standard clause in all of its other leases, had been submitted and refused by Le Faubourg. Given the disappointing performance at the branch, she therefore attempted to reopen these negotiations, but they were rebuffed by Le Faubourg.

[123]     Thereafter, Newlook simply continued its operations without further discussion of the issue.

[124]     With regard to the alleged failure to implement the recommendations of the Focus Group Study, as the President of Newlook, Mr. Martial Gagné, testified the report presented nothing new. Management knew what had to be done to improve its sales. It chose to implement those measures it felt were appropriate. No logical inference can be drawn to link Newlook's failure to implement the report's recommendations to a foreseeable intention to vacate the premises.

[125]     In fact, as attested to by Mr. Gagné and Ms. Boulanger, the chain has never closed a store prior to the expiry of the term of the lease.

[126]     With regard to Newlook's failure to install the new sign for the premises after authorization was obtained, Ms. Boulanger testified that the project was put on hold given the existence of other problems to deal with at the branch, particularly the increasing cockroach infestation in the fall of 2009 and all of 2010. Furthermore, discussion as to the expansion of future sales was a normal preoccupation of Newlook management every year.

[127]     With respect, to impute to Newlook, plans, or an intention formulated in October 2008 that it would vacate its premises after July 2010 if it did not attain satisfactory sales objectives is not a conclusion, nor is it the only conclusion, that can be logically deducted from the facts relied upon.

[128]     Moreover, such a conclusion would constitute speculation in the face of the evidence and uncontradicted testimony of the witnesses involved in the decision to move i.e. President Martial Gagné and Vice-president Claire Boulanger that the infestation, not the store's performance was the cause. Their testimony has not been impeached.

[129]     According to Ms. Boulanger, on September 30, given the sighting of cockroaches by clients, following two months of intensive cockroach sightings and the institution of the action to resiliate, she consulted with the Senior Vice-president. This was followed by a conference call with the President and the Vice-president of Human Resources, the Senior Vice-president, and herself, concerning the cockroach problem. A decision was made during that telephone discussion to vacate the premises due to the uncontrolled infestation and its visibility. Newlook is a public company which has standards of cleanliness to observe, and its reputation was now at stake.

[130]     Moreover, the version of Mr. Gagné and Ms. Boulanger is corroborated by the evidence of Newlook management or employees[47] involved in the operation of the store who testified they were unaware of the likelihood of a potential move due to unsuccessful operations at the branch. They were informed of the move, welcome news to some, after the end of September 2010, due to the ongoing infestation of cockroaches which was now visible to the public. Neither Mr. Faucher nor Ms. Laurendeau, nor Ms. Methot appeared surprised about the move being made due to the infestation.

[131]     With respect, Le Faubourg has failed to prove that Newlook's actions were a pretext for its poor performance at Le Faubourg. Even if this was one of the underlying motivating factors, the principal reason was the uninhabitability of the premises caused by breach of its obligations by Le Faubourg. Le Faubourg has only itself to blame for providing Newlook with a justifiable cause to sue and vacate: it failed to provide peaceable enjoyment of the leased premises due to the massive infestation of cockroaches which Newlook had endured, over a period of three years, without hope of resolution.



[132]     Given the lessor's failure to provide peaceable enjoyment of the premises as a result of a massive infestation of cockroaches which Newlook endured for more than three years, Newlook's action to resiliate the lease retroactive to October 30, 2010 and for reimbursement of all the rentals it paid after that date is well founded.

[133]     This was an action by a serious responsible tenant in good standing under the terms of the lease who was subjected to intolerable conditions and a serious immediate prejudice by the breach of the lessor.

[134]     Art.1863 C.C.Q[48]. provides that either party to a lease may demand its resiliation in addition to damages. A lessee may also demand a reduction in rental. Resiliation takes effect from the date the prejudice becomes certain or crystalizes[49]. The Court holds that the date was October 22, 2010.

[135]     There is no logical or legal reason under which the lessee should be bound to pay rental in the present circumstances after it vacated.



[136]     Given Le Faubourg's failure to fulfil its obligations under its lease with Newlook by failing to provide peaceable enjoyment of the premises to its tenant, Le Faubourg's demand for the rental due for the premises abandoned by Newlook is unfounded.

[137]     Nor is Le Faubourg entitled to claim any rental on the basis that Newlook left a paper sign in its window informing the public of its departure. Le Faubourg was served with proceedings in resiliation in September 2010. It had access to the premises. Le Faubourg knew that the premises were vacated. It could have removed the sign at any time. If in doubt, it could have called upon Newlook to remove the sign. The presence of the sign could not be construed, in the present circumstances, as constituting continued occupancy of the premises by Newlook.


[138]     Le Faubourg, through its managers commenced negotiations in February 2011 with Juliette et Chocolat for the rental of the premises formerly occupied by Newlook[50].

[139]     Le Faubourg refused to lease the premises to Juliette et Chocolat, unless Newlook intervened as sublessor to sublet the premises to Juliette et Chocolat[51], and, undertook to pay for any shortfall in the rentals till the end of the lease.

[140]     Newlook refused to do so with justification:

A.         it was of the opinion that its lease no longer existed due to the lessor's failure to provide peaceable enjoyment, had sued to resiliate the lease, and vacated the premises;

B.         it could not, morally or legally, enter into any lease with a food establishment for premises it knew were uninhabitable, due to a long standing infestation of cockroaches;

C.        it was not prepared to assume future rental for premises under a lease, the resiliation of which was being sought, on grounds of breach by the lessor of its obligations.

[141]     Given the findings of the Court, the question of minimization of damages is not relevant at this stage of the proceedings. However, the Court is of the view that Le Faubourg, did in any event, fail to minimize its damages. Notwithstanding its own breach of its obligations, Le Faubourg tried to transfer the economic losses it would sustain from its own breach unto its lessee or victim of that breach, Newlook.



[142]     A.         GRANTS Plaintiff's Action;

[143]     B.         RESILIATES the lease, Exhibit P-1, entered into between the parties for those premises situated at 1616 Sainte Catherine Street West, Montreal, Quebec retroactive to October 31, 2010;

[144]     C.        ORDERS Defendant to pay to Plaintiff the sum of $335,949.56 in reimbursement of the rental paid by Plaintiff to Defendant subsequent to October 31, 2010, the whole with legal interest plus the additional indemnity foreseen by Art. 1619 C.C.Q.;

[145]     D.        DISMISSES Defendant's Defense and Cross-Demand;

[146]     E.         ORDERS provisional execution of this judgment notwithstanding appeal;

[147]     The whole with interest and costs including the costs of all expert fees.







Me Céline Tessier

Me Andrei Pascu

for Plaintiff

McMillan S.E.N.C.R.L.


Me Ronald Levy

for Defendant

DeGrandpré Chait


Dates of hearing:

December 5, 6, 7 and 8, 2011; March 21, 22 2012


[1] Exhibit P-2, Notice by Service Cameron Exterminators, December 18, 2008.

[2] Exhibit P-7; P-4A, B, Emails.

[3] Exhibit P-5, Letter from MacMillan to Le Faubourg in care of Crofton Moore dated July 30, 2010. Also see Exhibit P-24, Letter from McMillan to DeGranpré Chait dated August 24, 2010.

[4] See emails by Claire Boulanger, August 21, 2009, October 13, 2009, November 11, 2009, June 30, 2010. Exhibits P-7A, P-7B, P-7C and P-4J respectively.

[5] Exhibits P-22 and P-24, Letters by attorneys for Defendant to attorneys for Plaintiff dated August 5 and September 16, 2010 respectively.

[6] Exhibit P-9A, B, D, E, F - Emails between Jovette Whiteman and Group Cameron.

[7] Exhibit P-3, List of exterminators' entries and exits, December 8 to August 2010.

[8] Exhibit P-11, Proposal dated July 28, 2010.

[9] Exhibit P-12, Proposal dated June 28, 2010.

[10] Mr. Leavey submitted a proposal to do the extermination services at Le Faubourg and also testified in the present matter.

[11] Exhibit P-27, Report by Consultation Ronald Maheu Inc. dated December 14, 2010.

[12] Exhibit P-7C, email dated November 11, 2009.

[13] Exhibit P-41, email dated June 17, 2010.

[14] Exhibit P-7D, email dated September 30, 2010.

[15] Exhibits P-4 and P-7, emails.

[16] Exhibit P-29,

[17] See Exhibits P-7A, P-7B, P-7C, P-4B, P-4-I, P-4-L.

[18] Exhibits P-7A, P-7B, P-7C, P-4J.

[19] Exhibit P-5, Letter dated July 30, 2010.

[20] Exhibits P-22 and P-24.

[21] Exhibits P-6, Rapports d'Inspection des Exterminateurs du Faubourg Sainte Catherine à compter du  13 janvier 2006 jusqu'au 3 décember 2010, en liasse

[22] Defendant's "Comments on Exhibit P-6 En Liasse" dated March 9, 2012 filed into the record by attorneys for Defendant.

[23] Plaintiff's "Extraits pertinents de la pièce P-6", dated March 19, 2012.

[24] Exhibit P-6A, pp.114-116, pp.132-134.

[25] Exhibit P-6B, pp. 190-193, pp. 257-260, pp 308-377.

[26] Exhibit P-6C, pp. 395-398, pp. 549-575, pp.520-524 and pp. 549-575.

[27] See Exhibit P-6D, pp.632-636, pp. 646-650, pp. 658-660, pp. 674-679, pp. 696-699, pp. 700-703, pp. 730-734.

[28] See Exhibit P-6D, pp. 810-814, pp.820-822, pp.835-840, pp.841-845, pp. 860-864

[29] See Exhibit P-6E, pp. 877-881, pp. 894-897, pp. 904-908, pp. 925-931, pp.932-938, pp. 957-961, pp. 962-965, pp. 1021-1024, pp. 1027, 1030, 1079, 1080, 1099 and 1126.

[30] Le Faubourg discounts the employees sightings and admits only 27 incidents. However; a total of all the proven sightings, plus those captured in the Ziploc bags, plus those mentioned in the reports (P-6) would well exceed 100 sightings in 22 months.

[31] Evidence of Benoit St-Amand, Harold Leavey, Jean-Louis Lamy, Ronald Maheu, Exhibit P-6D, pp.617-621; pp.835 to 841.

[32] See Exhibit P-6D, pp. 827-830, pp. 835-840 and pp.932-938.

[33] Evidence of Mr. St-Amand and Exhibit P-6C pp. 486-498.

[34] See Exhibits P-6B, pp.256 and 280, P-6C, p.454, P-6D, pp. 681, 710 and 764, P-6E, pp.879, 892, 955, 965, 1002 and 1013.

[35]    Art.1854. Le locateur est tenu de délivrer au locataire le bien loué en bon état de reparation de toute espèce et de lui en procurer la jouissance paisible pendant toute la durée du bail.

      Il est aussi tenu de garantir au locataire que le bien peut servir à l'usage pour lequel il est loué, et de l'entretenir à cette fin pendant toute la durée du bail.


Art. 1854. The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease.

      He is also bound to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease.


[36]    Art. 1863. L'inexécution d'une obligation par l'une des parties confère à l'autre le droit de demander, outré des dommages-intérêts, l'exécution en nature, dans les cas qui le permettent. Si l'inexécution lui cause à elle-même ou, s'agissant d'un bail immobilier, aux autres occupants, un prejudice sérieux, elle peut demander la résiliation du bail.

      L'inexécution confère, en outre, au locataire le droit de dmander une diminution de loyer; lorsque le tribunal accorde une telle diminution de loyer, le locateur qui remédie au défaut a néanmoins le droit au rétablissement du loyer pour l'avenir.


Art. 1863. The non-performance 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 non-performance causes serious injury to him, or, in the case of the lease of an immovable, to the other occupants.

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


[37] Pierre-Gabriel Jobin, Le Louage, 2è éd., Éditions Yvons Blais, Cowansville, 1996.

[38] Jacques Deslauriers, Vente, Louage, Contrat d'entreprise ou de service, Wilson & Lafleur, Montréal, 2005, pp. 344-345; Vertefeuille c. Béton mobile des cantons ltée, 2002 CanLII 7204 (C.S) paras. 45-47 and 52-53; Muckler c. Boucher, 2003 CanLII 878 (C.S.) para. 10; Huyen c. Kortbawi-Khoury Group Inc., 2006 QCCS 300 (CanLII) paras. 30 and 32.

[39] Supra, Footnote 38, Jacques Deslauriers, pp 344-345.

[40] Exhibits P-7A, P-7B, P-7C and P-4J.

[41] According to the evidence of Mr. Lamy and Mr. Maheu, cockroaches were sighted until mid-December 2010 when the inspection reports ended.

[42] Exhibit D-15, Memorandum to Board of Directors dated July 28, 2006, Schedule B.

[43] Exhbit D-1, Letter from Claire Boulanger dated October 17, 2008.

[44] Exhibit D-12, Market Research Study, CSBC Bureau, March 9, 2009.

[45] Exhibit D-7.

[46] Exhibit D-13, Minutes of Newlook's Management Committee meeting held on December 9, 2009, p.2.

[47] See evidence of Ms. Methot; Mr. Faucher and Ms. Laurendeau.

[48] Supra, footnote 36, Article 1863 C.C.Q.

[49] Supra, footnote 37, P.G. Jobin, pp. 468-469.

[50] Exhibits P-17, P-18, P-31, P-32 and P-34.

[51] Exhbit P-19C, Letter form DeGrandpré Chait to MacMillan dated April 12, 2011.

Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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