2023 QCCQ 4383, 2023 QCCQ 4383

Chen c. Perazzo 2023 QCCQ 4383 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-22-269396-217 DATE: June 28, 2023 ______________________________________________________________________ PRESIDED BY THE HONORABLE CATHERINE PILON, J.C.Q. ______________________________________________________________________ KAI CHEN Plaintiff/Cross-Defendant v.

CLAUDIA PERAZZO Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT RENDERED ON THE BENCH ______________________________________________________________________ [ 1 ] The Plaintiff/Cross-Defendant Kai Chen (Mr. Chen) claims $49,332.10 from the Defendant/Cross-Plaintiff Claudia Perazzo (Ms. Perazzo). He blames her for not having provided the correct area of her property prior to selling it to him. [ 2 ] Ms. Perazzo has brought a cross claim of $21,000 alleging the Mr. Chen’s lawsuit is abusive. Context [ 3 ] Ms.

Perrazo, a real estate broker, offered her condominium unit for sale in March 2018. She prepared a description of the property which indicated a square footage of 1, 442. [ 4 ] Mr. Chen showed interest in the property and a promise to purchase was signed on May 4, 2018. This promise to purchase also indicated a square footage of 1,442. The sale was notarized on June 29, 2018, for a purchase price of $542,000. [ 5 ] A few years later, Mr. Chen attempted to sell the property.

While preparing a description with his real estate broker, he discovered that 1,442 was the gross square footage, and that the net square footage was rather 1,335, a difference of 107 square feet. [ 6 ] Mr. Chen is of the view that Ms. Perazzo misled him into purchasing her property for which he would not have given her such high price had he been aware of the net footage. He further blames her for having failed her professional duties as real estate broker. Mr. Chen calculates the value of his damages on a prorata basis of his mortgage payments and his transfer taxes based on the area of the property.

He claims an additional $5,000 for trouble and inconvenience. [ 7 ] Ms. Perazzo is of the opposite view and argues that Mr. Chen had all the accurate information about the net square footage prior to the sale, and that his claim is abusive thus causing her prejudice for stress and legal fees. Analysis [ 8 ] Articles 1400 and 1401 of Civil code of Quebec ( C.C.Q. ) provide: 1400 . Error vitiates the consent of the parties or of one of them where the error relates to the nature of the contract, to the object of the prestation or to any essential element that determined the consent.

An inexcusable error does not constitute a defect of consent. 1401. Error on the part of one party induced by fraud committed by the other party or with his knowledge vitiates consent whenever, but for that error, the party would not have contracted, or would have contracted on different terms. Fraud may result from silence or concealment. [ 9 ] The remedy for vitiated consent is contained at

article 1407 of C.C.Q.: 1407 . A person whose consent is vitiated has the right to apply for annulment of the contract; in the case of error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claim damages or, where he prefers that the contract be maintained, apply for a reduction of his obligation equivalent to the damages he would be justified in claiming. [ 10 ] A co-contractor has a duty to inform his other co-contractor of any information which he possesses and is relevant to the contract.

However, this duty does not entail providing information of which the other party is aware or should be aware. [ 11 ] Mr. Chen has chosen to apply for a reduction of his obligation equivalent to the damages he feels justified to claim, essentially a

reduction in the purchase price. [ 12 ] As Plaintiff Mr. Chen had the burden of proof in accordance with

article 2803 C.C.Q.: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. [ 13 ] This burden of proof that weighs on the Plaintiff/Cross-Defendant/Cross-Plaintiff must be met with a balance of probability pursuant

article 2804 C.C.Q.: 2804 . Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 14 ] In the instant case, Mr. Chen had the burden to show by balance of probability that Ms. Perazzo provided inaccurate information in respect of the area to the property and, that had he been made aware of the proper area, he would not have paid the purchase price, entitling him to a reduction and damages. [ 15 ] The Court finds that Mr. Chen has not proved that Ms.

Perazzo misled him on the area of the property, and that he did not know the net footage. The property description indicates the footage without specifying that it is gross, but does not purport to represent that it constitutes net footage either. In any event, all rooms are individually described by net area. Additionally, a caveat preceded with three asterisks indicates that all measures are approximate and gross. There is no misrepresentation. [ 16 ] Mr. Chen visited the property twice on May 1 and 3, 2018, before signing his promise to purchase.

On the second visit, he measured all the rooms, therefore obtaining the net footage and being able to compare it with the footage disclosed in the description of the property. [ 17 ] On May 4, 2018, Ms. Perazzo sent him plans of the property as well as the certificate of location. Both indicate all measurements and, in particular, the certificate of location mentions an area of 124 m 2 . Easily converted into square footage, this corresponds to the net square footage of 1, 335 . [ 18 ] These facts allow the Court to determine that not only was there no misleading information nor omission by Ms.

Perazzo in her declaration of the area, but that Mr. Chen knew or should of have known what the net square footage of the property was. In this regard, if there was an error, this error was inexcusable. [ 19 ] The Court also notes that Mr. Chen had made a number of real estate transactions in the past, and that he was not a neophyte in real estate. [ 20 ] Mr. Chen insisted at the hearing that Ms. Perazzo had breached her ethical duty as a real estate agent and that the industry standard was to provide the net area, rather than the gross area, in the description of a condominium unit.

He relied on a bulletin of the OACIQ which indicates that the broker must use the net area of a condominium unit in the brokerage contract. [ 21 ] This bulletin does not have an impact on this case. [ 22 ] First, the area is not included an any brokerage contract with Mr. Chen. [ 23 ] Second, if this were to constitute an ethical breach, the Court explained to Mr. Chen at the hearing that is not bound by any finding of the OACIQ in respect of his complaint against Ms. Perazzo. It was further explained that he would nonetheless have to show before this Court that he suffered a prejudice in a civil context.

No such demonstration was made. [ 24 ] As detailed above, Mr. Chen knew or should have know what the net area was. He did not adduce any evidence that the value of the property would have been different based on its net area. No comparables were provided to allow the Court to determine what would have constituted the value of the property based on this net area. A statement from Mr. Chen that he would not have paid the purchase price is not sufficient to determine the difference in value, if any.

It also noteworthy that although he had the information with respect to the proper net area for several days before the transaction at the notary, he did not try to negotiate a lower price. [ 25 ] In conclusion, Mr. Chen has not succeeded in convincing the Court that Ms. Perazzo withheld information or provided misleading information, nor that any ethical fault she may have committed has led him to suffer a prejudice. [ 26 ] Turning now to the Cross-Claim, although the Court has dismissed Mr.

Chen’s claim, it does not consider that it was so unreasonable as to justify damages for abuse of right or abuse of proceedings. The basis of the lawsuit, although unfounded, was not devoid of reason given the discrepancy in the measurements of the gross and net areas, nor was the conduct of the proceedings themselves by Mr. Chen.

FOR THESE REASONS, THE COURT: [ 27 ] DISMISSES the Motion to Introduce Proceedings of the Plaintiff/Cross-Defendant; [ 28 ] CONDEMNS the Plaintiff/Cross-Defendant to pay to the Defendant/Cross-Plaintiff the Court costs; [ 29 ] DISMISSES the Cross-Claim of the Defendant/Cross-Plaintiff without costs.

__________________________________ CATHERINE PILON, J.C.Q. Kai Chen Plaintiff/Cross-Defendant/Cross-Plaintiff unrepresented Mtre Valérie Tellier Alepin Gauthier Avocats Attorneys for the Defendant/Cross-Plaintiff Claudia Perrazo Hearing date: June 28, 2023