2015 QCCQ 11620, 2015 QCCQ 11620

Moushian c. Hasan 2015 QCCQ 11620 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No. 500-32-142745-142 DATE: November 9, 2015 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD ______________________________________________________________________ RICHARD MOUSHIAN Plaintiff v.

ALYA HASAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Richard Moushian is claiming $1,075.77 from Alya Hasan for unpaid property management services. [ 2 ] Ms Hasan is contesting that claim and contends that Mr Moushian is not entitled to claim fees for representing her before the Régie du logement and acting as intermediary for the rental of her condominium.

Ms Hasan is also contesting Mr Moushian’s right to claim a penalty from her, that is, $405 in fees for the cancellation of the contract for services intervened between them. [ 3 ] In addition, in her cross-demand, Ms Hasan is claiming $6,686.95 from Mr Moushian, including $5,000 for the injury suffered, stress, anxiety and loss of sleep and time “as a result of dealing with Plaintiff”. [ 4 ] The outcome of this dispute will be decided by the analysis of each party’s claim. Questions in dispute [ 5 ] (

a) Does Ms Hasan owe Mr Moushian management fees from September to November 2013? (

b) Is Mr Moushian entitled to claim $405 from Ms Hasan as a penalty for the cancellation of the contract for services entered into between the parties? (

c) Is Mr Moushian entitled to claim fees from Ms Hasan for representing her before the Régie du logement? (

d) In her cross-demand, is Ms Hasan entitled to claim reimbursement from Mr Moushian for the fees related to the rental of her condominium? (

e) Is the evidence in support of Ms Hasan’s $5,000 claim for the injury she claims to have suffered preponderant? Context and analysis Richard Moushian’s claim [ 6 ] On July 19, 2011, Ms Hasan retained in writing the services of Mr Moushian to manage her condominium. [ 7 ] That contract for services was for six months. It was renewable for the same duration, unless Ms Hasan sent a notice of non- renewal at least 30 days before its expiry. [ 8 ] That contract is governed by the Consumer Protection Act , CQLR, c. P-40.1 ( CPA ), and by articles 2098 et seq. of the Civil

Code of Québec ( C.C.Q. ), which deal with contract for services. [ 9 ] In a letter dated November 20, 2013, Ms Hasan resiliated the contract, as allowed in

article 2125 C.C.Q.: 2125. The client may unilaterally resiliate the contract even though the work or provision of service is already in progress. [ 10 ] The consequences of Ms Hasan’s unilateral resiliation are provided for in

article 2129 C.C.Q.: 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered. [ 11 ] The bill in support of Mr Moushian’s claim refers to the monthly management fees of $135 from September to November 2013 (3 X $135). [ 12 ] Ms Hasan did not contest those management fees, but asked the Court to adjust those for November 2013, since she resiliated the contract as of November 20. That request is well-founded under

article 2129 C.C.Q. [ 13 ] Regarding the management fees, Mr Moushian was well founded in claiming $360 from Ms Hasan ($135 for September and October 2013 and $90 for November 2013), plus the applicable taxes, for a total of $413.91. [ 14 ] The penalty for early cancellation of the contract is illegal under

section 11.4 CPA: 11.4. Any stipulation which excludes the application of all or part of articles 2125 and 2129 of the Civil Code regarding the resiliation of contracts of enterprise and for services is prohibited. [ 15 ] The fees for representation by Mr Moushian before the Régie du logement are also ill-founded, since they are contrary to sections 72 and 74 of the Act respecting the Régie du logement , CQLR, c. R-8.1: 72. A natural person may be represented by his or her spouse, or by an advocate.

If a natural person cannot appear personally by reason of illness, distance or any other cause considered sufficient by a commissioner, he or she may also be represented by a person related to him or her by blood or by marriage or a civil union or, if there is no such person in the territory of the local municipality, by a friend . A legal person may be represented by a director, an officer, an employee exclusively employed by it, or by an advocate. 74.

Where a party is represented by a mandatary other than his spouse or an advocate, the mandatary must furnish to the board a written mandate, signed by the person he represents, indicating, in the case of a natural person, the causes preventing the party from acting himself. Such a mandate must be gratuitous . [Emphasis added] [ 16 ] At the hearing, Mr Moushian acknowledged that his representing Ms Hasan before the Régie du logement was illegal.

Mr Moushian also acknowledged that $10 must be deducted from his claim. [ 17 ] Consequently, Mr Moushian established that his claim against Ms Hasan is well-founded up to $403.91 (management fees from September to November 2013, less $10). Ms Hasan’s cross-demand [ 18 ] In particular, Ms Hasan is claiming from Mr Moushian the reimbursement of $1,270.47, paid as fees for the rental of her condominium. She contends that that payment was illegal, since Mr Moushian does not have a real estate broker’s licence and therefore acted contrary to the Real Estate Brokerage Act , CQLR, c.

C-73.2. [ 19 ] The Court cannot allow that head of claim, since it is prescribed under articles 2921 and 2925 C.C.Q.: 2921. Extinctive prescription is a means of extinguishing a right owing to its non-use or of pleading a peremptory exception to an action . 2925. An action to enforce a personal right or movable real right is prescribed by three years , if the prescriptive period is not otherwise determined. [Emphasis added] [ 20 ] Mr Moushian billed Ms Hasan in April 2011 for his fees as intermediary. Ms Hasan’s cross-demand was filed in June 2014, more than three years after the bill in support and the payment.

Hence, there is prescription.

[ 21 ] In a bill dated November 3, 2013, Mr Moushian charged fees of $336.30 to Ms Hasan for travel and representation before the Régie du logement. As mentioned, that claim was illegal and Ms Hasan is entitled to ask for reimbursement. The same applies to the $70 Régie du logement fee, which is not taxable. [ 22 ] The Court cannot allow Ms Hasan’s $5,000 claim for the injury suffered as a result of the stress, anxiety and loss of sleep and time caused by her dealings with Mr Moushian, since the evidence is not preponderant. [ 23 ] In civil law, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided for in

article 2803 C.C.Q . which states “a person seeking to assert a right shall prove the facts on which his claim is based”. [ 24 ] The Court must weigh the probabilities pursuant to

article 2804 C.C.Q . which states “evidence is sufficient if it renders the existence of a fact more probable than its non-existence”. In other words, the Court must establish what is more probable and likely. [ 25 ] The Court does not doubt that this case may have caused problems for Ms Hasan. However, this does not mean that Mr Moushian is at fault, as he was justified in claiming certain management fees from her.

The Court notes no abuse of rights that would justify awarding damages to Ms Hasan in regard to this case. [ 26 ] Lastly, Ms Hasan is claiming videoconference expenses, since she was in Kuwait during the hearing. [ 27 ] On September 8, 2014, the clerk of the Small Claims division of the Court of Québec informed Ms Hasan that, if she chose to proceed by videoconference, she would have to pay for it. [ 28 ] Since each party is partly justified in claiming expenses from the other, the Court concludes that both parties must pay the whole of the expenses related to this case. [ 29 ] After offsetting the $403.91 owed to Mr Moushian and the $406.30 owed to Ms Hasan, the Court condemns Mr Moushian to pay Ms Hasan $2.39, without interest, additional indemnity or costs.

THEREFORE, the Court: ALLOWS in part Richard Moushian’s claim against Alya Hasan; ALLOWS in part Alya Hasan’s cross-demand against Richard Moushian; CONDEMNS Richard Moushian to pay Alya Hasan $2.39, the whole, with each party paying his or her costs. __________________________________ Henri Richard J.C.Q. Date of hearing: September 21, 2015