2011 QCCQ 11035, 2011 QCCQ 11035

Kwateng c. MD Management (Immeubles MDM inc.) 2011 QCCQ 11035 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-115688-097 DATE: September 14, 2011 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ MERCY KWATENG - and - KINGSLEY KWATENG Plaintiffs v. M.D.

MANAGEMENT (LES IMMEUBLES MDM INC.) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On May 17, 2011, a judgment by default was rendered by Mr Justice Armando Aznar dismissing Plaintiffs’ claim against Defendant. An application for revocation of judgment was filed into the Court record on June 13, 2011 and said application was received by Mr Justice Michel Pinsonnault on June 14, 2011.

At the hearing, held on September 6, 2011, the Court granted the application for revocation of judgment considering the medical note related to Plaintiff Kingsley Kwateng’s medical condition on the date of the hearing, together with the fact that Mercy Kwateng is not aware of the circumstances which led to the claim. THE CONTEXT [ 2 ] On September 12, 2008, Plaintiff Kingsley Kwateng went to M.D. Management to meet with Mr Steve Bromberg in order to obtain assistance and counsel for the financing of a duplex he had just decided to buy.

According to Mr Kwateng’s testimony, Mr Bromberg requested that he make a $6,000 deposit to take the necessary steps through private bankers to obtain the financing and two mortgages to secure the loan. Mr Kwateng accepted and gave Mr Bromberg $6,000 in cash, for which he was given a receipt which was filed into the Court record. [ 3 ] In the days and weeks following said meeting, Mr Kwateng tried to obtain a confirmation of the financing but without success. He explained that the duplex he wanted to buy was sold to someone else. He had to work with a real estate agent to find another one, which he did.

On October 16, 2008, he received a letter from Mr Bregman indicating that : “Due to market conditions, there is a delay receiving the final terms and conditions from our lender… we apologize for the delay”. [ 4 ] Given that he was not able to have further cooperation from Defendant, Mr Kwateng decided to mandate an attorney to send a letter of default to obtain the reimbursement of the $6,000 deposit he made a few months earlier. The letter of default is dated February 11, 2009. [ 5 ] Defendant is represented at the hearing by Mrs Wendy Hannah.

According to her testimony, Defendant could not complete its mandate because of Plaintiffs’ lack of cooperation. Namely, Mrs Hannah explained that several documents were requested from Plaintiffs in order for Defendant to go through with the financing, but that the documents were never sent and the information given by Mr Kwateng to Mr Bromberg was not complete or simply untrue. [ 6 ] Mrs Hannah files before the Court a document dated October 30, 2008 referring to the missing information to complete the application for the financing. According to Mrs Hannah, Mr Kwateng saw this document and agreed to its content.

In addition, Mrs Hannah files a letter dated November 12, 2008 entitled “Termination of mortgage commitment” in which Defendant informed Plaintiffs of the termination of its mandate due to misrepresentations on their part. According to Mrs Hannah, this letter was prepared by

Mr Bregman. [ 7 ] Mr Kwateng denied receiving any document from Defendant except for the apology letter dated October 16, 2008. ANALYSIS [ 8 ] Plaintiffs have the burden of demonstrating by preponderant proof that their claim is well founded as per

section 2803 C.C.Q. which reads as follows : 2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. [ 9 ] In the present matter, Plaintiffs’ proof relied on Mr Kwateng’s testimony, the receipt for the $6,000 deposit signed by Mr Bromberg and the letter dated October 16, 2008 signed by Mr Bregman. [ 10 ] As far as Defendant is concerned, only Mrs Hannah testified at the hearing, although she did not prepare the documents alleged by Defendant.

Incidentally, the Court notes that these documents are not signed and the front page of both documents does not refer to the address of Plaintiffs. In addition, neither Mr Bromberg nor Mr Bregman were available to testify at the hearing. [ 11 ] The proof offered brings the Court to the conclusion that Plaintiffs deposited an amount of $6,000 following Defendant’s request, and that Defendant did not fulfill its mandate as no financing was offered to Plaintiffs.

Plaintiffs are entitled to the reimbursement of the deposit they made. [ 12 ] In view of the foregoing, the Court finds that Plaintiffs have demonstrated that their claim is well founded and that Defendant should reimburse the $6,000 deposit they made on September 12, 2008. FOR THEASE REASONS, THE COURT : GRANTS Mercy Kwateng and Kingsley Kwateng’s claim against M.D. Management (Les Immeubles MDM Inc,); CONDEMNS M.D. Management (Les Immeubles MDM Inc.) to pay Mercy Kwateng and Kingsley Kwateng an amount of $6,000 with interests at the legal rate, together with the additional indemnity as per

section 1619 C.C.Q. , as of February 11, 2009; THE WHOLE , with costs ($155). __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: September 6, 2011