Executive Summary: Key Legal and Evidentiary Issues

• Allocation of responsibility under a commercial lease for restoring premises to their initial condition at the end of the term, subject to normal wear and tear
• Evidentiary burden on the landlord to prove that specific damage exceeds ordinary “usure normale” and is attributable to the tenant rather than pre-existing condition or age
• Scope of the guarantor’s (caution’s) solidarity and liability for the tenant’s obligations under the lease, including end-of-lease repair costs
• Assessment of conflicting testimony about the initial and final condition of the premises, including the reliability of a landlord’s child witness versus the tenant and independent witnesses
• Application of the presumption that the tenant in control of the premises is responsible for damage (e.g., garage door panel) absent convincing contrary proof
• Recoverability of pre-litigation huissier (bailiff) fees as costs chargeable to the defendants when service was unsuccessful and not shown to be reasonably incurred

Facts and contractual framework

The dispute arises from a commercial lease granted by Carmelo Polito, as landlord, to Valcan Technologies Inc., as tenant, for the occupation of industrial premises that included a warehouse area, office space, a garage door and certain lighting and ventilation fixtures. During the lease, Francisco Valverde signed as a caution (guarantor), agreeing to guarantee the performance of the tenant’s obligations toward the landlord. After Mr. Polito’s death, his estate became the creditor of any outstanding lease-related claims, and his liquidator, Isabella Colaniro, brought the action in the name of the Succession de Carmelo Polito in the Small Claims Division of the Court of Québec.

The relationship between the parties was governed by a written commercial lease that contained several clauses central to the dispute. First, the tenant acknowledged having taken the premises in the condition in which they were found at the beginning of the lease. The tenant undertook to “entretenir et réparer les lieux loués,” to keep the premises in good repair throughout the term, and to assume both minor and major repairs. At lease expiry, the tenant was obliged either to abandon improvements and additions without compensation if required by the landlord or, if the landlord preferred their removal, to remove them and “remettre les lieux loués dans le même état qu’au début de la prise de possession, sous réserve de l’usure normale.” The lease further stipulated that the tenant had to maintain at its expense the ceiling light fixtures and guards in good working order, and to return the premises in a good state of cleanliness at the end of the lease.

These provisions created a contractual framework in which the tenant bore a broad duty to maintain and to restore, but always subject to the caveat of normal wear and tear. The presence of a personal guarantor meant that if the tenant was found liable for any non-compliance with these maintenance and restoration obligations, the guarantor would be solidarily bound to pay. The estate of the landlord, through the liquidator, alleged that the tenant had failed to honour these obligations and sought compensation for a series of remedial works it claimed were necessary to restore the premises.

Claims and items in dispute

At the end of the lease, after the tenant had vacated, the landlord’s estate claimed a total of 5,425.31 CAD as the cost of bringing the premises back to their allegedly original condition. The claim was broken down into discrete items that the court examined one by one. First, there was a charge of 1,162.52 CAD for the repair of a damaged panel on the garage door that had been replaced during the lease. Second, the landlord sought 319.63 CAD for the replacement of ceiling fans said to have been defective by the end of the tenancy. Third, the estate claimed 2,678.56 CAD for work on the luminaires: this included costs for replacing fluorescent tubes and ballasts, renting a scissor lift to reach the high ceilings, and paying an electrician.

Additional items concerned the general condition and cleanliness of the premises. The landlord demanded 378.84 CAD for degreasing the concrete floors inside the leased premises, alleging that the tenant had left them dirty and greasy. For the walls of an office area, it claimed 632.36 CAD in repair costs, maintaining that the tenant’s occupation had left the walls damaged. Another significant claim was 1,092.26 CAD for environmental “décontamination” work in the rear yard, where the landlord alleged that the tenant had spilled oil onto the ground, requiring the removal of a substantial volume of contaminated soil. Finally, the estate attempted to recover 89.11 CAD in huissier (bailiff) fees related to a prior attempt to serve a demand letter that ultimately did not reach the defendants.

The tenant and the guarantor contested most of these items, insisting that they had left the premises in substantially the same condition as at the outset, apart from deterioration caused purely by the passage of time. They asserted that some of the issues either pre-dated the lease or were consistent with normal wear and tear over roughly nine years of commercial use. They also took the position that certain installations, such as some luminaires and fans, had not been used or were already defective when they took possession.

Assessment of evidence and witness credibility

In resolving these disputes, the Court of Québec placed considerable emphasis on the quality and weight of the evidence offered by each side about the condition of the premises both at the start and at the end of the lease. On the landlord’s side, a key witness was the landlord’s son, who had been only about 10 years old when the lease was signed. His recollections of the original condition of the premises, including the fans and office walls, were treated cautiously by the court because of his age at the time and the lapse of time.

By contrast, the guarantor, Mr. Valverde, testified in detail about what he observed when taking possession and when returning the premises, and his testimony was supported in several respects by an independent friend who had assisted with clean-up and move-out. The court found these defence witnesses both credible and coherent. When the landlord’s evidence did not convincingly contradict these accounts, the court preferred the tenant’s and guarantor’s version of events.

The documentary record also played a role. At the beginning of the lease, the parties had signed a document identifying two ceiling fans as being in good condition. This contemporary writing corroborated the defence position that not all fans were in new or fully functional condition at the outset. As a result, the court was reluctant to infer that later defects in the fans were the fault of the tenant rather than the result of age and normal deterioration.

Garage door panel: tenant’s responsibility confirmed

On the issue of the garage door panel, the court accepted that the door had been replaced during the lease and that one panel was damaged while the tenant occupied the premises. The tenant could not identify precisely how or by whom the damage occurred, but it was undisputed that it had not been repaired before the premises were returned. Given that the tenant had custody and control of the premises, the court applied a presumption of responsibility for physical damage occurring during the lease in the absence of any credible alternative explanation.

Since the tenant failed to rebut that presumption with specific evidence, the court held that Valcan Technologies Inc. was responsible for the cost of repairing the damaged panel. The lease clauses requiring the tenant to keep the premises and installations in good repair, subject only to normal wear, reinforced this conclusion. A broken garage door panel is not mere wear and tear but a discrete instance of damage. Accordingly, the court ordered the tenant to pay the full amount claimed for this item, 1,162.52 CAD, and this item became the only substantive head of damages ultimately allowed.

Fans, luminaires and normal wear and tear

For the ceiling fans, the landlord’s claim was undermined by both the testimony and the documents. The guarantor stated that, at the beginning of the lease, there were three fans: one did not work, one worked poorly and only one functioned properly. The landlord’s son attempted to contradict this, but his very young age at the time of the lease limited the weight of his recollection. The early inspection document confirming only two fans in good condition suggested that the overall fan installation was already old and partly defective at the start. After about nine years, the court accepted the defence argument that any non-functioning fans were the result of “usure normale” rather than tenant-caused damage or neglect. As a result, the claim of 319.63 CAD for fan replacement was dismissed.

The luminaires claim was more substantial in amount and more complex in its factual underpinnings. The tenant testified that it had not used the original ceiling luminaires because it had installed its own lighting system early in the lease. It acknowledged that some fluorescent tubes no longer worked by the end of the term but said that it had left on site a box of unused tubes and ballasts. Again, the tenant contended that the non-functioning neon tubes and ballasts were simply the predictable outcome of years of disuse and aging components, and therefore part of normal wear and tear.

In assessing this claim, the court emphasized that the landlord bore the burden of proving that the defects in the luminaires were due to a failure to maintain them or active deterioration by the tenant, rather than normal deterioration over nearly a decade. The lease did require the tenant to maintain ceiling fixtures in good working order, but this obligation did not relieve the landlord of proving that any specific failure was beyond what could reasonably be regarded as wear and tear. The court concluded that the record did not justify inferring misuse or neglect by the tenant. In these circumstances, the court refused to order the tenant or the guarantor to reimburse 2,678.56 CAD in lighting-related costs, and this claim was rejected in full.

Floor degreasing, wall repairs and prior condition

Similar reasoning led the court to deny recovery for the costs of degreasing the concrete floors and repairing the office walls. The landlord insisted that the floors had not been properly degreased before the tenant vacated, whereas the tenant and his friend testified that they had thoroughly cleaned the floors and that, at move-out, the floors were in the same condition as at the start of the lease. Crucially, the landlord failed to present persuasive evidence documenting the condition of the floors when the lease commenced.

With no convincing proof that the floors were originally cleaner than when returned, and having accepted the credibility of the defence witnesses, the court found that the landlord had not discharged its burden of showing a deterioration attributable to the tenant. It therefore rejected the 378.84 CAD claimed for degreasing.

For the office walls, the guarantor and his friend testified that the walls were already damaged at the beginning of the lease. Again, the landlord’s counter-evidence consisted essentially of the testimony of the landlord’s son, whose recollection from childhood lacked persuasive detail. The court preferred the defence account and held that the landlord had not demonstrated that the tenant caused any additional damage beyond that pre-existing condition. As a result, the claim of 632.36 CAD for wall repairs was also dismissed.

Alleged contamination and environmental remediation

The alleged oil contamination in the rear yard raised questions not only of responsibility but also of causation over time. The landlord argued that the tenant had spilled oil in the yard, requiring the removal of a six-by-six-foot area of soil to a depth of four feet, and sought 1,092.26 CAD in remediation costs. The guarantor categorically denied both using the rear yard for operations and spilling oil there, and further asserted that the contamination problem pre-dated the lease.

The court scrutinized the evidence for a clear link between the tenant’s use and the contamination and found it wanting. With no robust proof that the tenant had caused or aggravated the contamination, and some indications that the problem might have existed before the lease, the court concluded that the landlord had not met the evidentiary threshold required to shift responsibility onto the tenant. Consequently, the decontamination claim was rejected in its entirety.

Bailiff fees and recoverable costs

The landlord’s attempt to recoup 89.11 CAD in huissier fees associated with serving a demand letter also failed. The bailiff’s report showed that the defendants were “unknown” at the address where service was attempted, and there was no showing that this expense was reasonably incurred in a way that could properly be shifted to the defendants in the context of a small-claims judgment. On those facts, the court found that the landlord had not established that these bailiff costs were recoverable from the tenant or the guarantor, and the claim for reimbursement was dismissed.

Outcome and monetary award

At the conclusion of its detailed item-by-item analysis, the Court of Québec found that the tenant had, as a general matter, returned the premises in substantially the same state as when it took possession, subject to normal wear and tear, with the notable exception of the damaged garage door panel. This single item grounded the only award of substantive damages. The court therefore allowed the action in part and condemned Valcan Technologies Inc. and Francisco Valverde, in solidum, to pay 1,162.52 CAD to the Succession de Carmelo Polito, together with interest at the legal rate and the additional indemnity provided by article 1619 of the Civil Code of Québec from 11 July 2024, plus 213 CAD in judicial costs. The successful party is thus the landlord’s estate, represented by its liquidator, and the fixed total monetary amount ordered in its favour is 1,375.52 CAD (1,162.52 CAD in principal plus 213 CAD in court costs), with legal interest and the statutory additional indemnity on the principal to be calculated separately and therefore not precisely determinable from the face of the judgment.