2016 QCCQ 10578, 2016 QCCQ 10578

Coles c. Coles 2016 QCCQ 10578 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF CHÂTEAUGUAY Civil Division No: 760-32-017252-158 DATE: September 27, 2016 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Ricky COLES Plaintiff v.

Terrance Gordon Thomas COLES Kathleen THOMPSON COLES Michael COLES and Carlie LAMBERTSON Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ricky Coles claims from his father Terrance Coles and his wife Kathleen Thompson Coles the reimbursement of the sum of $ 15 000 that he paid them by bank transfer on January 13, 2008. Ricky Coles paid that amount as a deposit on the future purchase of Mr. and Mrs.

Coles’ house located on Des Satellites Street in Chateauguay. [ 2 ] Ricky Coles also sues Michael Coles and Carlie Lambertson, who bought the house in June 2015. THE FACTS: [ 3 ] At the end of 2008 or the beginning of 2009, Ricky Coles decided to buy Mr. and Mrs. Coles’ house in Chateauguay. Despite the fact that no formal document was made between the parties, everyone recognized in Court that such was the project. Mr. and Mrs. Coles filed as exhibit D-2 a document stating a selling price of $ 200 000, the amount of the mortgage as of December 30, 2008.

This document, that was never signed, also shows the $ 15 000 deposit. [ 4 ] This document states no other information than those numbers, not even the address of the property, or any time frame. [ 5 ] As Mr. and Mrs. Coles were leaving the house, Ricky Coles and another member of the family, Ms Theresa Coles, decided to occupy it, provided that they paid the monthly costs of the house, which was about $ 1000 per month, representing the amount of the mortgage, taxes, insurance, and electricity. [ 6 ] Though the testimony of Ricky Coles is contradictory with the ones of Mr. and Mrs.

Coles, it was established that Ricky Coles lived in that house between January 2009 and the spring of 2011, though some of his possessions remained in the house until October 2011. [ 7 ] At that time, Mr. and Mrs. Coles came back to the house, after Ms Theresa Coles’ wedding, in the summer. [ 8 ] After Ricky Coles moved out of the house in Chateauguay, he gave no news to his family for four years. [ 9 ] In the spring of 2015, Ricky Coles says that he learned from a social media that Michael Coles was to make an acquisition, though no document was filed in support of this allegation.

[ 10 ] Ricky Coles sent a first registered letter to Mr. and Mrs. Coles on February 16, 2015, to ask for the reimbursement of his down payment. Three others followed on April 21, 2015, May 8, and June 11, 2015. The Demand was filed on November 9, 2015. [ 11 ] In his Demand, Mr. Coles alleges that the house was sold without any regards to his right to buy it as per the 2008 agreement, and that collusion occurred between Mr. and Mrs. Coles, and the new buyers. [ 12 ] In their contestation, Mr. and Mrs.

Coles plead that the action is prescribed as three years have elapsed since the $ 15 000 was paid (Section 2925 of the Quebec civil code). As for Michael Coles and Miss Lambertson, they allege that they were not aware of the situation and deny any collusion. ANALYSIS AND DECISION: [ 13 ] It is true that three years have passed since the amount of $ 15 000 was paid by Ricky Coles, and that no payment whatsoever was made to reimburse that amount of money. If such payment of $ 15 000 represented a “prêt à demande”, it would have been prescribed. But this is not the case here. [ 14 ] It is admitted that Mr.

Coles paid $ 15 000 as a down payment on the house. If Ricky Coles had indeed bought the house, such $ 15 000 would have been deducted from the sale price. As the house was never sold to Ricky Coles, that amount had to be reimbursed. There is no written document stating what would happen in such a situation; it is then possible for the Court to establish a term according to

Section 1512 of the Quebec civil Code which reads as follows: 1512. Where the parties have agreed to delay the determination of the term or to leave it to one of them to make such determination and where, after a reasonable time, no term has been determined, the court may, upon the application of one of the parties, fix the term according to the nature of the obligation, the situation of the parties and any appropriate circumstances.

The court may also fix the term where a term is required by the nature of the obligation and there is no agreement as to how it may be determined. [ 15 ] It is at the sale of the house that it became clear that Ricky Coles would not be buying the house, and this is the date where the prescription starts. [ 16 ] Moreover, in their letter dated April 28, 2015, Mr. and Mrs.

Coles state the following: “So, in closing, if the house sales, maybe we could arrange to give you $ 100/month or if we declare bankruptcy, I guess you would have to get in line with all the other creditors.” [ 17 ] In his letter dated June 16, 2015, Mr. Coles says the following: “Received your letter today, June 16, 2015 and as I stated in the last letter sent to you, we told you that we would make arrangements to pay you once the house was sold. As soon as it is finalized, we will be making arrangements.” [ 18 ] This constitutes an acknowledgment of the debt which interrupts prescription, as per

Section 2898 of the Quebec civil Code . [ 19 ] The amount of $ 15 000 has to be reimbursed by Mr. and Mrs. Coles. [ 20 ] As for the action against Michael Coles and Carlie Lambertson, it is totally unfounded. [ 21 ] As no written document was signed, Ricky Coles had no priority right established. Had he signed a formal promise to purchase within a specified delay, things might have been different. Mr. Ricky Coles could not think that after vanishing from his family’s life for four years, the verbal agreement would hold forever.

Even if he was aware of it, Michael Coles was right in thinking that Ricky Coles had renounced to his project of buying the house. [ 22 ] As Miss Lambertson testified that it was the first time that she met Ricky Coles on the day of the hearing, the Court cannot conclude to any collusion on her part to deprive Ricky Coles of his rights. [ 23 ] This action will be dismissed against them, but Ricky Coles will have to reimburse Michael Coles and Carlie Lambertson the judicial fees of $ 190 that they had to pay for their contestation.

FOR ALL THESE MOTIVES, THE COURT: GRANTS the action; CONDEMNS defendants, Terrance COLES and Kathleen THOMPSON COLES, solidarily, to pay to plaintiff, Ricky COLES, the amount of $ 15 000 with interest at the legal rate plus the additional indemnity provided for by

Section 1619 Q.c.C., since November 25, 2015, date of the application, with costs of $ 200;

DISMISSES the action against Michael Coles and Carlie Lambertson, with costs of $ 190. __________________________________ CÉLINE GERVAIS, J.Q.C.