2023 QCCQ 10310, 2023 QCCQ 10310

Jia c. 9339-8337 Québec inc. 2023 QCCQ 10310 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-714956-218 DATE: November 10, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ QINGGUO JIA Plaintiff/Cross-defendant v. 9339-8337 QUÉBEC INC.

Defendant/Cross-plaintiff ______________________________________________________________________ JUDGMENT RENDERED FROM THE BENCH ______________________________________________________________________ [ 1 ] On September 3, 2020, defendant promised to purchase a condo located at [...], St-Laurent, P.Q., for $285,000.00. [ 2 ] Plaintiff accepted this offer, on September 4, 2020 (promise to purchase, exhibit P-1). [ 3 ] Defendant’s promise to purchase was made on a mandatory OACIQ form, and states the following: 9.

REVIEW OF DOCUMENTS BY THE BUYER 9.1 This promise to purchase is conditional upon the BUYER’s examination of the declaration of co-ownership and the by-law of the immovable and any amendments thereto, the information provided by the syndicate of co-owners if available, the minutes of meetings of the co-owners and of board meetings for the last 2 years, the financial statements of the co-ownership, including the statement of sums deposited in the contingency fund, and of the following documents: - certificate location - all the payments and bills that declared in seller’s declaration - water heater contract with hydro solution To this effect, the SELLER shall submit to the BUYER a copy of the above documents within 4 days following acceptance of this promise to purchase.

If a true copy of the declaration of co-ownership cannot be provided, a copy certified by the Bureau de la publicité des droits shall suffice. The SELLER shall also supply a copy of the by-law of the immovable certified by the syndicate of co-owners. Should the BUYER not be satisfied upon examining and verifying these documents or should he fail to receive them within the specified time period and wishes to make this promise to purchase null and void as a result, he shall notify the SELLER, in writing, within seven (7) days following expiry of the above time period.

This promise to purchase shall become null and void upon receipt of this notification by the SELLER. Should the BUYER fail to notify the SELLER within the above time period, he shall be deemed to have waived this condition. [ 4 ] Accordingly, plaintiff had 4 days following the acceptance of the promise to purchase on September 4, to provide the documents outlined therein to defendant. [ 5 ] Plaintiff, who had the burden of proof (

section 2803 and 2804 of the Civil Code of Quebec ), was unable to prove to the Court, by a preponderance of evidence), if and when the documents outlined in

section 9 of the contract were sent to defendant. Plaintiff’s real estate agent, who testified, was also unable to provide the information. [ 6 ] Defendant denies receiving the required documents within the prescribed delay. In fact, in a letter dated October 19, 2020, defendant’s lawyer wrote: Dear colleague, I represent the legal interests of 9339-8337 Quebec Inc. and have been mandated to respond to your letter dated October 15, 2020. By these presents , TAKE NOTICE that my client will not proceed with the purchase of the condo bearing civic address 1500 St-Louis, apt. 101, Montreal, Quebec, and referred to as Les Cours Mitchell Phase B, as your client is in breach of

section 9.1 of the Promise to Purchase bearing number PDD70389 and signed on September 3 and 4, 2020. That is to say, your client failed to forward the documents mentioned therein within four (4) days of the acceptance of the promise to purchase. My client finally received them on October 14, 2020 and, among other things, reviewed the minutes of the Annual General Meeting of the Syndicat of Co-Proprietors Les Cours Mitchell Phases A &B dated November 1, 2018 at 7:00pm. During the said meeting, Mr.

Gheorghe Cepreaga, engineer with the firm Wood Infrastructure, explained the abnormalities and most importantly hidden defects discovered by him and his colleagues, when they inspected the façades of 1550 Saint-Louis (Les Cours Mitchell Phase A), as required by Bill 122. I refer you to the said minutes for more details of his report. He evaluated the costs of repairs at over $500,000 and recommended that the work be done within the next 3 years to prevent higher costs and the situation from worsening. He was asked by one of the co-owners, Mrs.

Verger (B111), if there are similar problems for the condo building next door bearing address 1500 Saint-Louis (Les Cours Mitchell Phase

B) and he believes they are but says openings are needed to confirm the State of the façade behind their surfaces. This matter was not disclosed to our client in a timely fashion and will lead to higher maintenance costs and unknown additional structural costs, which our client is not willing to accept.

As a resu l t, TAKE NOTICE that the Promise to Purchase mentioned hereinabove and its related amendments bearing nos: AM55054 dated September 18, 2020, AM57760 dated September 28, 2020 and AM60259 dated October 9, 2020 are null and void and any and all proceedings issued by your client against my client will be vigorously contested by our client. I remain, Me Giulio B. Vani PEIZLER & VANI AVOCATS S.A. 6900 Boul.

Décarie Suite 3552 Montréal, Québec H3X 2T8 T (514) 340-9393 #24 F (514) 340-9332 (exhibit D-1) [ 7 ] Indeed, upon receipt and perusal of some of the documents eventually sent to him, defendant discovered that, inter alia , the facades of 1550 and 1500 Saint-Louis would require extensive work and repairs evaluated at over $500,000. What is more, this information was not disclosed to defendant, by plaintiff or his agent, prior to the promise to purchase. This is contrary to

section 1375 C.c.Q. , which states: 1375 . The parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished. [ 8 ] Defendant was therefore totally justified in deciding not to move ahead with the transaction, as it was unsatisfied with the elements eventually disclosed in the documents sent later. [ 9 ] Defendant’s lawyer notified plaintiff accordingly in writing (exhibit D-1), namely within the 7 day period prescribed in

section 9 of the contract. Since plaintiff did not act within the 4 day time frame, defendant could have pulled out of the transaction earlier. In good faith, it waited until it had received the requested documents, after which it declared itself unsatisfied, in writing, thereby making the promise null and void. [ 10 ] Plaintiff’s claim is therefore unfounded. [ 11 ] As to the cross-demand, it is also unfounded, as:

a) parties are not entitled to extra judicial fees incurred as a result of litigation; [1]

b) this is not a case where punitive damages can be awarded; and

c) losing a case is not tantamount to abuse under

section 51 of the Code of Civil Procedure.

[ 12 ] Lastly, defendant did not prove the damages alleged, by a preponderance of evidence. WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's application; DISMISSES defendant’s cross-application; EACH PARTY paying its own costs. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: November 10, 2023