2013 QCCQ 2451, 2013 QCCQ 2451

Snowdon c. McDermit Turnbull & Associates 2013 QCCQ 2451 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-190649-122 DATE: March 25, 2013 ______________________________________________________________________ BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ ROBERT SNOWDON and SNOWDON & ASSOCIATES Plaintiffs v.

MCDERMIT TURNBULL & ASSOCIATES and KAREN PRATT TURNBULL Defendants ______________________________________________________________________ CORRECTED JUDGMENT ______________________________________________________________________ This judgement is corrected to rectify an error in calculation committed by inadvertence. [ 1 ] The parties are debating the amount of rent payable by Defendants ("Mrs. Turnbull") to Plaintiffs ("Me Snowdon") for the period of March 1st to October 31st, 2009 while Mrs.

Turnbull occupied the premises that were rent (the “Leased Premises”) by Me Snowdon from Witt Dental Supplies Ltd. (the “Landlord”). [ 2 ] Me Snowdon, a notary, claims $ 15,366.33, namely $7,462.92 for base rent and $7,903.41 for the surtax on non-residential immovable (the “Surtax”) for the period from August 1st, 2006, to October 1st, 2009. During her closing argument, Mrs. Turnbull, a trade mark agent, has admitted that she owes $2,400. QUESTIONS IN DISPUTE

A) Is there a connection at law (a "lien de droit") between Me Snowdon and Mrs. Turnbull?

B) Is the demand of Me Snowdon for payment of the Surtax, in addition to the monthly base rent of $1,150.00, prescribed?

C) What is the total amount owed by Mrs. Turnbull? THE FACTS [ 3 ] From the evidence adduced at trial, the Court summarizes hereafter only the relevant facts. [ 4 ] From 1991 until July 31, 2006, Mrs. Tunbull leases office space on the second floor of the building where are situated the Leased Premises. In late May, early June 2006, she approaches Me Snowdon to enquire if she could sublet some of his office space in the Leased Premises. He answers that he will think about it, "crush some numbers", and get back to her. [ 5 ] Costs is the most important consideration for Mrs.Turnbull. Her partner, Mr. McDermid, is withdrawing from the business.

She needs to reduce office expenses. The fact that the Leased Premises are a short distance from her house is also an advantage. [ 6 ] End of June, beginning of July, she meets again with Me Snowdon who agrees to a sublease, but the version on the agreement that ensued varies. [ 7 ] According to Me Snowdon, he wanted to share the costs on a fair basis.

Therefore, the base rent and the additional costs to maintain and use the Leased Premises and the contribution to the payment of the Surtax were to be paid and the amount was to be calculated prorata of the number of persons using full-time the Leased Premises. [ 8 ] Mrs. Turnbull testifies that she never agreed to a net net lease. The rent was to be gross. [ 9 ] Both parties agree that Mrs. Turnbull, prior to entering the Leased Premises, asked Me Snowdon to put their agreement in writing. She presented him with a draft. Me Snowdon testifies that the proposed document was too complicated for their needs.

According to Mrs. Turnbull, Me Snowdon's answer was that they were two reasonable people : she would pay the rent and they did not need to sign a lease. Therefore, the agreement remained verbal. [ 10 ] Originally, Me Snowdon asked $1,100 per month plus GST and QST. Then, at the end of November 2006, he requested an additional $47.89 per month, inclusive of GST and QST, for the cleaning costs of the Leased Premises. Mrs. Turnbull testifies that she was unhappy with said increase but she did not want to argue with him over such a relatively small increase. [ 11 ] In October or November 2007, while Mrs.

Turnbull was considering joining forces with Mr. Anglehart, a patent agent, she discussed with Me Snowdon the possibility to sublet the two remaining empty offices of the Leased Premises. At that time, she considered that her agreement with Me Snowdon did not have a term and was flexible. They agreed on a rent increase to $1,900 all included. Shortly prior to the arrival of Mr. Anglehart and of his assistant in December 2007, Me Snowdon asked for an additional $50.00 for cleaning costs and Mrs. Turnbull once again agreed. [ 12 ] Mr Anglehart left at the end of May of 2008. Mrs.

Turnbull asked Me Snowdon for a reduction in rent. She states that Me Snowdon was delaying addressing the issue per se, but once in a while, he would say yes, adding that they had to discuss business tax. [ 13 ] When, in March 2009, Notary Fournier joined Me Snowdon and started to use the office of Mr. Anglehart, Mrs. Turnbull told Me Snowdon that she would not be paying anything further until they agree on the new rental amount. [ 14 ] Mrs. Turnbull left the Leased Premises on October 31, 2009. The week prior to her departure, Me Snowdon left a document in Mrs.

Turnbull's office, namely page 2 of Exhibit D-3, with his calculation of her indebtedness towards him. [ 15 ] The parties met and discussed the situation. There was even an exchange of emails and further calculations but they were unable to resolve their conflict amicably. ANALYSIS

A) Is there a connection at law (a "lien de droit") between Me Snowdon and Mrs. Turnbull? [ 16 ] Irrespective of who signed the Lease, Exhibit P-1, with the owner of the building, Mrs. Turnbull sublet the Leased Premises from Me Snowdon, as appears from the cheques, Exhibit P-8. Judgment will therefore be rendered accordingly.

B) Is the demand of Me Snowdon for payment of the Surtax, in addition to the monthly base rent of $1,150.00, prescribed? [ 17 ] The action was instituted on March 15, 2012. The invoices, Exhibit P-5, show that prior to March 15, 2009, Me Snowdon knew of the Surtax claimed by the Landlord for the years 2006, 2007 et 2008. His claim for said years, totaling $5,944.25 [1] is therefore prescribed. [ 18 ] Considering that Mrs.

Turnbull acknowledged in her testimony that the Landlord was always late in informing its tenants of their contribution to the payment of the Surtax for a given year, the Court will accept Me Snowdon's evidence that he did not know of the amount of the Surtax for the year 2009 prior to March 15, 2009, and will determine his entitlement to receive the amount of $1,959.16 claimed in that respect.

C) What is the total amount owed by Mrs. Turnbull? [ 19 ] The Court is confronted with a "he said, she said" situation, involving two professionals with legal ability and experience. It will

therefore apply

Article 1426 C.c.Q. [ 20 ] Me Snowdon chose not to put the agreement in writing, despite the wish of Mrs. Turnbull. He admits that, to the knowledge of Mrs. Tunbull, he did some calculations prior to consenting to the sub-lease. When a Notary, businessman and holder of an MBA, tells that to a businesswoman, who, to his knowledge, is looking for a deal that will allow her to reduce her expenses, it is logical to conclude that the calculations will consider all the expenses relating to the Leased Premises. [ 21 ] The fact that Mrs.

Turnbull knew the owner of the Immovable and that she had to pay him additional rent for the Surtax when she was renting premises directly from said owner, does not make it automatically and implicitly part of her agreement with Me Snowdon. [ 22 ] The Courts notes that when Me Snowdon invoiced his firm for the Surtax it had to pay to the owner of the Immovable, Exhibit P-5, he did not invoice Mrs. Turnbull. Again, he has to live with the consequences of his decision which is an indication that, at the time, the agreement did not provide for the participation of Mrs.

Turnbull to the payment of the Surtax. [ 23 ] The fact that Mrs. Turnbull, during the term of the sub-lease, accepted an increase in rent justified by the costs of cleaning the Leased Premises is also not an admission that she knew the rent was not net net. Quite the contrary. She could have refused and left. She chose to stay, knowing exactly what were her monetary obligations were for the future. [ 24 ] Finally, the discussions that followed Mrs. Turnbull's announcement that she was terminating the sub-lease are just negotiations aimed at avoiding litigation.

The Court cannot conclude that any admissions were then made. In fact, to do otherwise would only add to Mrs. Turnbull's demonstration that Me Snowdon's decision to claim for Surtax or rent based on the number of persons occupying the Leased Premises was an afterthought. [ 25 ] Therefore, the Court concludes that nothing is payable by Mrs. Turnbull for the amount of the Surtax stated in paragraph 18 above . [ 26 ] During her closing argument, Mrs. Turnbull accepted Me Snowdon's claim that since the departure of Mr. Anglehart, he is entitled to receive $1,150 as base rent for the Leased Premises.

Where she differs of opinion with him, is as of when Mr. Anglehart left the premises. According to Mrs. Turnbull, he left at the end of June 2008, when according to Me Snowdon, the reduction in rent is only acceptable starting January 2009. [ 27 ] Considering that the court concludes that the rent was negotiated by the parties and did not depend on the number of people occupying the Leased Premises, it follows that the reduction of the base rent could not be unilaterally decided by Mrs. Turnbull. Me Snowdon had to agree. [ 28 ] Mrs.

Turnbull's indebtedness towards Me Snowdon will therefore be reduced by the amount of her overpayment for the months of January and February 2009, which Me Snowdon acknowledges to be $ 799.50 per month . FOR THESE REASONS, THE COURT : GRANTS Plaintiffs’ action; CONDEMNS Defendants to pay Plaintiffs the sum of $7,651.00 plus interest thereon and the additional indemnity provided for in

Article 1619 C.c.Q. from December 20, 2011; THE WHOLE with costs. __________________________________ MARTINE L. TREMBLAY, J.C.Q. Laurent Kanemy Nelson Champagne Plaintifffs' Attorney Angela Di Virgilio Dionne Di Virgilio Defendants' Attorney Date of hearing: January 23 & 24, 2013