Preparing for a Hearing
Notifying the application
The party against whom the action is being taken must know the grounds and the object of the application in order to be able to prepare his response at the hearing.
The applicant must, as soon as possible after filing the application, notify a copy on the other party (defendant). The applicant has the responsibility to prove, at the hearing and to the satisfaction of the commissioner, that the other party received a copy of the application.
The applicant may notify the application by:
- registered mail;
- hand (person to person).
Since January 1, 1999, there are three methods to prove the other party received a copy of the application:
On Canada Post website, you will obtain a confirmation of the sending and delivery dates.
By telephone request at Canada Post (1 800 267-1155 or 1 888 550-6333), you will obtain, by fax, a confirmation of the sending and delivery dates.
It is important to note that these means are free, but they do not permit to know the name of the person who signed for the reception. Therefore, if at the hearing the proof of the reception is contested, the commissioner may require the proof of it by the signature confirmation.
If the signature of the person who signed for the reception is required, you can call Canada Post to obtain a photocopy of the register entry showing the signature and date of receipt of the mailed application. This information will be sent to you COD (Collect on Delivery).
The bailiff's Affidavit of service constitutes proof that it was received.
Hand (person to person)
If the application is notified by hand, the confirmation of receipt signed by the addressee, or the testimony of someone who was present when the copy was received by the addressee, may constitute proof that it was received.
The applicant may also use any other methods that will allow him to prove that the application was received.
However, regardless of the method used, if the commissioner is not satisfied with the proof presented at the hearing by the applicant to the effect that the other party received a copy of the application, he may request that the proof be completed or order that it be notified again.
If the applicant is unsuccessful in notifying an application by any of these methods (e.g., the application is sent back to him by return mail), a commissioner may at any time and upon request authorize another methods to notify it. If this occurs, you should contact one of the Régie's offices immediately.
Costs of notification
If the applicant wants the defendant to be condemned to reimburse the costs of notifying the application, he must give to the commissioner the receipt from Canada Post or the bill of the bailiff to prove he paid those costs. However, the commissioner has discretion to grant or not those costs.
The applicant may, without charge, complete or modify the application by an amendment. This amendment must be filed and notified on the other party before the hearing. You must submit to the commissioner, at the beginning of the hearing, proof that your amendment was notified.
If an amendment adds a new party, a copy of the original application must also be notified on the new party.
Please note that a commissioner may, during the hearing and in the presence of the other party, accept a verbal amendment.
If, for a serious reason, you are unable to attend the hearing, you may mandate someone else to represent you.
Who may represent you?
A lawyer, your spouse, a relative, an in-law (e.g., brother-in-law or sister-in-law) or, if need be, a friend.
A corporation or cooperative may be represented by an officer, a director, an employee exclusively employed by it, or a lawyer.
If the application only concerns a claim of $15,000 or less, a lawyer cannot represent you.
How do you give a mandate?
Unless you are represented by a lawyer or your spouse, the mandate must be in writing, signed by you, and must indicate the reasons for your absence. The person to whom you give the mandate must agree to represent you without being paid to do so.
Except for lawyers, the mandatary of a corporation or cooperative must be authorized to act by a resolution of the Board of Directors.
Role of the mandatary: At the hearing, your mandatary acts in your name. He must have first-hand knowledge of the facts or, barring that, be in a position to prove the facts through witnesses or otherwise, as you would have done.
For more information, please see the chart Who may represent a person at a hearing.
You may obtain a postponement of the hearing to a later date by filing the written consent of the other party.
Barring that, you or your mandatary may request a postponement in writing or verbally at the hearing. In this instance, the request for postponement is not granted automatically. It is the commissioner's responsibility to decide whether it is justified given the circumstances of the case.
However, you should give the other party a copy of your request for postponement or inform him that you or your mandatary will ask for a postponement at the hearing.
Agreement before the hearing
If, before the hearing takes place, you reach an agreement, the Régie will close the case upon the filing of a copy of the agreement signed by the parties. However, should the applicant require it in writing, the case will be suspended. Thereafter, the case will only be placed on the roll upon the written request of one of the parties.
Read carefully the application and its amendments, if any. In it, you will find all the elements you will have to prove or refute during the hearing.
The applicant must prove each allegation in the application by means of documents and testimony.
In the same way, the application informs the other party of the elements that he must admit, clarify or refute, through documents and testimony.
However, the person claiming to have fulfilled his obligation must prove it (e.g., a tenant who claims that he paid his rent or the landlord who claims that he did repairs).
The law establishes the rules about how evidence can be given before the Régie, and the commissioner must apply these rules.
Proof to present at the hearing
In all cases, you must submit:
- proof that the application and amendments have been notified, if applicable (for the applicant);
- the lease and subsequent notices of modification;
- the mandate, if any.
Depending on the nature of the application, you may need the following additional proof:
N. B.: When you send documents to the other party, you must keep the proof that they were sent and received and bring you must produce this at the hearing.
- notices required by law (e.g., Notice of rent increase and modification of another condition of the lease, Notice of repossession);
- the formal notice;
- the new tenant's lease after, for example, the former tenant abandoned the premises;
- the former tenant's lease, in the case of an application for the fixing of rent filed by a new tenant;
- proof of advertising (newspaper clippings and corresponding invoices);
- invoices and proof of payment;
- temperature and humidity-level readings;
- all other useful documents.
If there is something in writing that you want to use as proof, you must produce it at the hearing.
N. B.: Petitions are only admissible if the signatories are present at the hearing.
To ensure the presence of a witness, you must, at your own expense, have a bailiff notify him, at least 3 days before the date of the hearing, with a subpœna issued by a commissioner of the Régie du logement. A commissioner may reduce this time limit.
The witness must have first-hand knowledge of the facts. Having been told that facts occurred or that something was said proves neither the facts nor what was said. Only the person having first-hand knowledge of the facts, or who participated in or was present during a conversation, may testify about it.
Depending on the nature of the application, you may require the testimony of an estimator, expert or inspector. Such witnesses must be present at the hearing in order to present their estimation, expertise or report. Do not forget to summon the person who signed the document (signatory), with a subpœna, as soon as you receive the notice of hearing.
If the other party agrees, a written declaration may replace personal testimony at the hearing.
If the other party does not agree, the commissioner may, in exceptional circumstances, accept the written testimony of a person who is not present. The party wishing to obtain such an authorization must so advise the other party or give him a copy as early as possible before the hearing, unless the commissioner decides otherwise.
The commissioner will only accept the document if it is demonstrated that it is impossible for the witness to appear or unreasonable to require it, and that the declaration was made under circumstances that reasonably guarantee its accuracy.
It must be absolutely impossible for a witness to appear (e.g., a deceased witness or one living out of the province). Simple difficulties, such as the witness not wishing to appear, the witness expressing fear or the witness having to work the day of the hearing, are not sufficient.
In certain cases, the law allows a report to be presented even if the author is not present. These cases involve reports from certain municipal and provincial inspectors.
Remember that these are exceptional cases and that, as a general rule, witnesses must appear.