2014 QCCQ 7268, 2014 QCCQ 7268

Guerrero Gomez c. 9062-6698 Québec inc. 2014 QCCQ 7268 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-129747-111 DATE: July 4, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ FERNANDO GUERRERO GOMEZ Plaintiff v. 9062-6698 QUÉBEC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Plaintiff sues Defendant on the basis of breach of a promise to purchase, in particular that the stipulated date of delivery of the condominium unit was not respected and that Plaintiff suffered damages as a result. Although Defendant filed a contestation and Cross- Demand, no representative of Defendant appeared at Court on the date of the hearing. As such, Plaintiff proceeded by default.

The questions in issue are whether there was a breach of contract and if so, what is the amount of damages owed to Plaintiff, if any. Cause of action: breach of the terms of the Promise to Purchase [ 2 ] Plaintiff filed the accepted Promise to Purchase with Defendant dated December 7, 2010 (Exhibits P-6 and P-7). Despite the fact that Defendant did not appear at the hearing, one of its witnesses did, namely Mr. Jacques Perron, who acted as the real estate agent of Defendant. Mr.

Perron gave his testimony regarding the relevant facts in issue. [ 3 ] The accepted promise to purchase states at clause 2.3 paragraph 7.1 that the following is to take place “Act of Sale on or before December 23, 2010.” [ 4 ] However, the proof showed that the condo unit was not ready for occupation on that date. Equally, Defendant refused to give the notary authorization to proceed to the Act of Sale on that date.

Plaintiff had to wait for the Defendant to finish work and render the premises in a liveable state as well as to wait for Defendant to give instructions to the notary to prepare the notarial documents of sale. Plaintiff explains in his testimony that it was fully discussed with Defendant’s representative before signing the Promise to Purchase that it was essential for him that the deadline of December 23 be respected as Plaintiff had taken measures to vacate his previous residence. The e-mails exchanged between the parties support Plaintiff’s contention (Exhibit P-3) in that regard.

Plaintiff was even reassured that there was “no doubt you will be in your new home on or before December 23” (Exhibit P-3, e-mail dated December 16, 2010).

[ 5 ] Despite Plaintiffs repeated requests, Defendant wrongfully did not make ready the premises for December 23, 2010 nor did it undertake any arrangements to have the assigned notary prepare the Deed of Sale for that time. Plaintiff was therefore left with no place to reside on December 23, 2010. It appears from the proof that Defendant simply promised the requested date of December 23, 2010 in order to secure Plaintiff’s consent to the Promise to Purchase.

The proof shows that beyond the unready state of the physical premises, the legal documents were in no way ready to proceed on that date or even for one month later. Based on the above, Plaintiff has established that Defendant was in breach of his obligation to sign the Deed of Sale and deliver the property on the stipulated promised date (

Article 1716 of the Civil Code of Quebec ), despite Plaintiff’s numerous putting of Defendant in default (

Article 1594 of the Civil Code of Quebec ) and Defendant’s default of right (

Article 1597 of the Civil Code of Quebec ) in not respecting his obligations in that regard within the certain time and deadline agreed to by the parties, and in particular, committed to by Defendant. [ 6 ] Plaintiff then had to rearrange his life and plans in extremis and the Deed of Sale (Exhibit P-1) was only finally executed on February 18, 2011.

Analysis and Decision: Damages Claimed [ 7 ] Given that the breach of the Promise to Purchase has been established, the next question for the Court is to determine the damages that Plaintiff is entitled to, in particular with regard to the heads of damages claimed in his proceedings. [ 8 ] After the breach on December 23, 2010, the parties agreed to enter into an interim occupation agreement on January 4, 2011 (Exhibit P-8). [ 9 ] Plaintiff asks for damages of five (5) different types:

a) Plaintiff is employed in the financial sector and he claims that he lost $3,680 as a result of the premature sale of stocks made by him in order to have the purchase funds available on December 23, 2010. Plaintiff complains that the money was not needed then and that it was only needed on February 18, 2011. The Plaintiff files into the Court Record various documents, statements and tables showing that the investments sold to obtain the purchase funds went up during that period.

Plaintiff states that had he been told that the purchase funds were only necessary two months later, he would not have sold those investments at that time and would have earned more money on his investments, namely $3,680. Although the Court questions whether such damages are an immediate and direct consequence of the breach (

Article 1613 of the Civil Code of Quebec ), as we are in the contractual sphere, as a general rule only damages that are objectively foreseeable to the defaulting party are claimable (Article 1613 of the Civil Code of Quebec ). There is no sufficient proof to show that Plaintiff advised Defendant of this financial scenario and the possible consequences of default. This amount will not be granted.

b) As Plaintiff could not move into the property or purchase the condominium unit on December 23, 2010, he had nowhere to put his personal belongings. Defendant offered Plaintiff to put his belongings in the promised condo unit and assured Plaintiff that they would be safe there during the completion of the work. On December 26, 2010, there was a break in at the unit and Plaintiff’s personal belongings were stolen. Plaintiff has a police report detailing the property stolen (Exhibit P-4). The proven value of the items is $1,700. Plaintiff had no insurance since he was not yet owner of the condominium unit as a result of the default of Defendant. The Court will grant this amount as damages.

c) Plaintiff complains that Defendant promised as part of the Promise to Purchase to replace a defective front window and never did so. The cost to replace it is $1,000. Based upon the proof, this allegation is well founded and this amount will be granted.

d) Plaintiff claims $500 for additional inspector costs since his inspector charged him for three (3) visits when only one is normally necessary. Plaintiff came down with his inspector on the two previous inspections because he was assured that the premises were finished and they were not. Plaintiff has established by proof the additional $500 charge was paid by him and this amount will be granted.

e) Plaintiff claims $120 to replace a defective bathroom fan. According to the proof, the Court is satisfied that this was a latent defect

( Article 1726 (2) of the Civil Code of Quebec ) given the brand new state of the premises and that amount will be granted. [ 10 ] The Defendant makes a Cross-Demand for $650 for unlawful use of the premises. There is no proof or coherence of such a demand and it will be dismissed. FOR THESE REASONS, THE COURT: GRANTS in part Plaintiff’s motion; CONDEMNS Defendant to pay Plaintiff the amount of $3,320 with legal interest of 5% per year plus the additional indemnity provided by

Article 1619 of the Civil Code of Quebec starting from the demand letter (Exhibit P-6) dated April 13, 2011; DISMISSES Defendant’s Cross-Demand; WITH JUDICIAL COSTS of $159 in favour of Plaintiff. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: April 22, 2014