2011 QCCQ 8346, 2011 QCCQ 8346

Cour du Québec Référence : Remax Ambiance Inc. c. Shen [2011] RL 408 REMAX AMBIANCE INC. demanderesse c. RUI SHEN défenderesse C.Q.M. n° 500-22-174063-100 12 juillet 2011 Présent: Le juge David L. Cameron Résumé de la Revue légale LÉGISLATION — Code civil du Québec, L.Q. 1991, c. 64: 1458, 2125, 2138. —

Loi sur le courtage immobilier, L.R.Q., e. C-73.1. — Règles de déontologie de l’Association des courtiers et agents immobiliers du Québec, D. 1867-93, (1993) 125 G.O. II, 9156: 5, 6, 10,18, 23, 24, 29, 30. JURISPRUDENCE — Royal Lepage Des Moulins inc. c. Baril, (QC CA), REJB 2004-54921 (C.A.). — Re/Max Le Hameau inc. c. Bélair, EYB 1991-59291 (C.A.). — Immeubles Di Sabato inc. c. Guerrera, 2007 QCCQ 4644.

Contrat d’entreprise ou de service — Responsabilité — Courtage immobilier — Obligation de renseignement — Langue du contrat —Client ne parlant que le mandarin Responsabilité — Courtage immobilier — Obligation de renseignement — Langue du contrat — Client ne parlant que le mandarin Manque à son devoir d’information et à son obligation d’agir dans l’intérêt de son client, le courtier qui ne s’est pas assuré que son clientqui ne parle que le mandarin, a bien compris le contrat de courtage et les offres d’achat reçues. • Requête en réclamation d’une commission, rejetée.

Jugement TEXTE INTÉGRAL [1] Remax Ambiance inc. («Remax»), a real estate broker, sues its client, Rui Shen, pursuant to an exclusive brokerage contract,signed by the parties on May 21, 2010, claiming a commission of $9,933, taxes included. [2] Remax alleges that madam Shen deliberately prevented Remax from carrying out its performance under the contract by notfollowing up on two offers to purchase that met all of the conditions set out in the exclusive brokerage contract and by refusing to followup on requests to visit the property submitted in writing and, finally by taking the property off the market during the term of the mandate. [3] In her defence, Rui Shen alleges that she accepted one of the offers and was prepared to complete the sale but the purchaserrefused to complete it.

QUESTIONS IN ISSUE [4] The Court must determine whether the Plaintiff is entitled to its commission based on a proposed sale of the property becauseof the Defendant’s failure to respect her obligations under the exclusive brokerage contract. FACTUAL MATERIAL [5] At the time of the signing of the exclusive brokerage contract (P-2), March 21, 2010, Mario Hébert has been a broker withRemax since October 2009.

[ 6 ] He is aware that properties similar to that owned by madam Shen, a condo on [Street A] in Brossard, are in demand: he is confident that he can produce willing buyers. [ 7 ] He is aware of Mrs Shen’s property because it has already been listed in the market on two previous occasions and he, therefore, solicits Mrs Shen on behalf of Remax to become the listing broker. [ 8 ] Mr Hébert is a francophone and madam Shen speaks Mandarin Chinese. The two share a certain ability in the English language.

Mr Hébert is functional in the language but madam Shen is just barely able to understand and speak the language. [ 9 ] To be sure that madam Shen will understand the nature of the brokerage contract he is proposing, Mr Hébert procures the services of a person fluent in Mandarin, French and English to be available on the telephone during his meeting with madam Shen, on March 21, 2010. [ 10 ] At the meeting, he provides her with an English form entitled “EXCLUSIVE BROKERAGE CONTRACT SALE OF A CHIEFLY RESIDENTIAL IMMOVABLE”. [ 11 ] With the aid of this ad hoc translator, who is present by telephone, he succeeds in filling out the contract form and having it signed by madam Shen. [ 12 ] Madam Shen has a fairly lengthy discussion with the translator on the telephone and Mr Hébert infers that she has understood the contract when she signs it. [ 13 ] Madam Shen has made it clear that she is not often available to receive visitors and the listing, which is published on the MLS system, restricts availability for visits to Saturday between 1:00 pm and 4:00 pm. [ 14 ] There is a substantial interest in the property after the first visit and, on May 14, 2010, another Remax broker, Mr Bouchaib Gouriche, presents, an offer (the “first offer”) meeting the listed price of $220,000 from a client of his (P-3).

Neither brokers notice that the contract is dated, just after the signature line, “14-06-2010” i.e.

June 14, 2010, when, in reality, the contract is really submitted one month earlier, on the 14th of May. [ 15 ] Mr Hébert also has an interested purchaser from whom he obtains an offer (the “second offer”) on May 15, 2010, for $222,000, slightly more than the listed price. [ 16 ] Both of these offers are made conditional on a visit of the property, with the following wording: «cette offre est conditionnelle à la visite de la propriété et la satisfaction totale de l’acheteur». [ 17 ] The first offer is also conditional on financing and a professional inspection as well as the review of «des documents de copropriété» and a certification of the materials used in the backfill of the foundation and the garage. [ 18 ] The second offer is also conditional on financing, a professional inspection and the sale of the purchaser’s property on or before August 31, 2010. [ 19 ] The first offer is stated in paragraph 10.1 to be irrevocable until 22:00 hours «le 15/06/2010».

The person who wrote the offer, presumably the broker acting for the purchaser, seems to have made the same mistake in this part of the document as in the signature, in referring to the month of June rather than the month of May. [ 20 ] The second offer expires at 14:00 hours, May 16, 2010. [ 21 ] Both offers are based on the same standard-form contract providing, in clause 10.1, for a time until which the offer is irrevocable and a subsequent period within which the accepted offer must be notified to the purchaser. [ 22 ] The first offer states a delay of 24 hours after the expiry of the irrevocability to notify the purchaser of an acceptance and the second offer, which expires May 16, 2010, provides for notification of the acceptance within 48 hours of the expiry of that deadline. [ 23 ] In practical terms, the first offer, if, according to its true intent, it is made as of May 14, provides for an acceptance to be notified to the purchaser no later than 22:00 hours on May 15.

The second offer, for higher amount presented by Mario Hébert himself, provides for an acceptance notified to the purchaser no later than 14:00 hours, May 18, 2010. [ 24 ] The circumstances of the communication of these two offers by Mr Hébert to his client, madam Shen, are singular, to say the least. According to Mr Hébert’s testimony, he goes to her residence on May the 15th, but she does not let him in. He returns later and remits to her the two sealed envelopes. Not understanding what there are, Mrs Shen decides to call in her brother-in-law, Mr Ning Ding.

Mr Hébert explains to him the nature of the documents. Madam Shen then signs a delivery receipt. (P-3 en liasse) [ 25 ] The delivery receipt reads: “1 enveloppes 9 × 12 – 1 enveloppe 9 × 12”. It is dated «15 MAi 2010 16h30». [ 26 ] Then, Mario Hébert, back at the office sends an email to [...] with one PDF attachment, on May 16, 2010. [ 27 ] The text reads: “Hi Mrs Shen, In attachment is a promise to purchase your condo at 220000 $ like the original I give you today at 16h30 at your home. You receive another promise to purchase at 222000 $ in the another enveloppe I’ve give you at the same time.

I need to know what is your answer.

Thank you and have a nice evening Mario Hébert Courtier immobilier Remax Ambiance 514-207-0257” [ 28 ] Mr Hébert testifies, however, that the PDF attachment contained the two offers remitted in the two separate envelops earlier that day. [ 29 ] Having no reply, Mr Hébert sends another email May 17th: “Hi Mrs Shen, I’m waiting your answer about the two offers (220000 $ and 222000 $) for the purchase of your condo.

You can call me or e-Mail Thank you and have a nice day, Mario Hébert Courtier immobilier Remax Ambiance 514-207-0257” [ 30 ] Finally, on May 18th, he sends a third message: “Hi Mrs Shen, I want to know what is your intention for the sale of your condo? I send you two offers and you denied to answer. Thank you and have a nice evening, Mario Hébert Courtier immobilier Remax Ambiance 514-207-0257” [ 31 ] Exhibit P-6 is a reproduction of a printed document addressed to Mario Hébert from Shen, Rui. [ 32 ] The copy that is produced bears a manuscript inscription «reçu le 19 05 2010» written by Mario Hébert.

It reads: “Mr Mario, On 5 th April, Miss Hellen (who represent me) inform you by phone our condo should be out of market right way due to our personal reason. You knew it and agreed whit us. It surperised me the listing of our condo is still active and you said you have offfers for the condo. We have to make it clear we don’t want to sell the condo and we can’t accept any offer right now. Please get the listing out of the market right way. If we planned to sell my condo in the future, we would thought of you. Best Regards!

Shen Rui” [ 33 ] Mr Hébert testifies that the document he printed was an attachment to an email he received from Mrs Shen on May 19th. [ 34 ] Mario Hébert sends an email to Mrs Shen on May 20, 2010 (P-8): “Hi Mrs Shen, I don’t know any person who’s call Helen and I didn’t talk with this person. If you wanted to put your condo out to the market, you have to write me a e-mail like you did 2 days ago.

I want to send the modification to put end to the contract. Have your a fax number I can send you the paper. [soulignement ajouté pour emphase] You need to sign it with the time and the date and to return me. After I send it to CIGM (chambre immobilière du Grand Montréal) and they put out of the market your propertie. Thank you and have a nice day.

Mario Hébert Courtier immobilier Remax Ambiance 514-207-0257” [ 35 ] Mario Hébert produces P-7, a modification form, making reference to the exclusive brokerage contract and, under the heading M 2.3 «Autres modifications», bearing the manuscript text: “the property [...] is out of the market.” [ 36 ] Mr Hébert’s signature is preceded by the date 19th, May 2010. Madam Shen’s signature is preceded by the date May 28, 2010. [ 37 ] From the fax inscription it appears that the document was sent out May 21, 2010.

An email dated 26th, May 2010 (P-8) from Mario Hébert calls upon madam Shen to return the document. [ 38 ] It reads: “Hi Mrs Shen, I’ve fax the modification to put out your condo of the market at the number you send me last week, but I need you sign it for I fax it to CIGM (Chambre immobilière du Grand Montréal) to be effective.

Thank you and I waiting your signature please, Mario Hébert Courtier immobilier Remax Ambiance 514-207-0257” [ 39 ] It is noteworthy that the modifications form is in French but the manuscript body of the text is in English. [ 40 ] Then, on June 4, 2010, Remax, through its attorneys sends a formal letter of demand claiming the commission and a fee for the mise en demeure. [ 41 ] Following the receipt of the modification taking the property off the market, Mr Hébert communicates with the broker involved in the first offer and with his customer who made the second offer informing them that the property is off the market and that there will be no follow up on their offers. [ 42 ] After the letter of demand, Mrs Shen, with the assistance of her brother-in-law, responds to the attorney (P-10), on June 10, 2010. [ 43 ] It is worthwhile quoting the letter at length because it expresses, in a capsule version, the position taken by Mrs Shen or on her half from the moment she realises she is being faulted for taking the property off the market. [ 44 ] It forms the foundation of the rest of her communications in the file, her position at trial and, along with her brother-in-law’s testimony, and the exchange of correspondence, clarifies the diametrically opposed positions of Plaintiff and Defendant. “Brossard, June 10, 2010 [...] Madam, I acknowledge to have received your letter dated June 4, 2010 on June 7th, 2010.

I am very surprised to learn that Mr. Mario Hebert of Remax wants to sue me. In fact, I am always willing to sell my condo at $220,000.00. That is what I hope Remax can help me. I surely believe that there might be some misunderstanding between me and Mr. Mario Hebert. We have difficulties to understand each other. You may be aware, I do not understand English well, no French at all. Even this letter is translated by my brother in law from Chinese.

I told Mr. Mario Hebert that I am an alone mother living with two school kids, I could not afford that he always let other new face agents coming with visitors but not himself. I felt unsafe. It was Mr. Mario Hebert who introduced me the concept of putting the condo “out of market” and he by self drafted the paper and faxed to me. He said that he needs my signature to withdraw my condo listing from MLS. So that he is the only one who knows the property on sell. I never mean it as to terminate the brokerage contract. And definitely it is not the situation. Mr.

Mario Hebert never showed up an offer to me on the table. While I am replying your letter, my brother in law checked all my files and found two offers sealed in envelopes which Mr. Mario Hebert delivered to me as two simple “envelope” s. I did not touch them after because that he told me they were just some material copies of the condo. I think that it is agent’s responsibility to present to me offers if any. Mr. Mario Hebert failed to do so intentionally or non-intentionally. It was his fault. It is neither fair nor reasonable that you leave me as voluntary based on above facts.

However, thanks to your letter, I have a chance to dig out the hidden offer. I would like to inform you that I accepted and signed the offer by Mr. Mario Hebert at $220,000.00(PA06211). It is delivered directly to both the buyer and agent by bailiff. Enclosed is a copy of the offer. I am looking forward to selling my condo as soon as possible. I could elongate the brokerage contract for one month until Aug. 1, 2010.

Sincerely yours, Rui Shen [...], Brossard, Quebec, [...]” [ 45 ] Upon receiving this letter (P-10) and the accepted offer attached to it, Mr Hébert verifies and understands for the first time that the document has been mistakenly post-dated by its presumed author, the broker Gouriche. [ 46 ] When Mr Hébert speaks to Gouriche, the latter confirms that this was simply a clerical error and that the offer indeed was intended to be irrevocable until May , 15 and not June 15. [ 47 ] Gouriche’s clients, having had no timely response to their offer in May, have since leased premises and are no longer interested in the purchase. [ 48 ] Mr Hébert communicates with his client, the maker of the second offer.

She is still interested and will recommit to her offer of $222,000, on the same conditions, including the condition to be allowed to visit the property before making her final decision. [ 49 ] From this point, there are a series of communications between Mr Hébert and the Defendant, who is now constantly assisted by her brother-in-law. [ 50 ] Mr Hébert is encouraged by the fact that his client is still interested in purchasing, and wishes to take Mrs Shen up on the suggestion to extend the brokerage contract until August.

He sends an email, June 17, stating that the agent of the buyers having offered $220,000 is unable to contact them and suggesting that they accept another offer at $220,000 conditional on the sale of the buyers’ house. [ 51 ] Madam Shen responds June 19, saying that since she has accepted the first offer of $220,000, she does not think she can consider any other offer. She requests news.

She reiterates her willingness to sell (D-1). [ 52 ] Mr Hébert sends an email on June 21 (P-11), attaching a form of modification to the brokerage contract that would extend it to August 1, and confirm that the property is back on the market. [ 53 ] He asks Mrs Shen to sign it and return it. He then refers to the first offer to purchase that has been accepted, calling upon Mrs Shen to allow the visit that is a condition of the offer. [ 54 ] Mrs Shen writes back, June 23 (P-11), accepting a visit as long as she has two days advance notice.

As to the modification of the brokerage contract, she says that if this buyer decides not proceed, she will sign the modification. [ 55 ] On June 25 (P-12), Mr Hébert sends Mrs Shen a document from the makers of the first offer to purchase, a modification form that modifies the promise to purchase with the following phrase: “M 2.3 Autres Modifications: Suite à la réponse hors délai de la vendeuse de la promesse PA 06211, la promesse d’achat devient nulle et non avenue.” [ 56 ] Mario Hébert testifies that this modification form, a copy of which was provided to the Court after the close of the hearing, was, in fact, attached to his email of June 25 (P-12). [ 57 ] The printed version of the email does not indicate that there is an attachment although the text of the email seems to confirm it. [ 58 ] Mrs Shen responds, June 27th (P-12).

Based on her review of the chronology, she refutes the notion that the offer is null and void: “TO SUM UP ABOVE THERE ARE NO EVIDENCES SUPPORTING YOUR CONCLUSING: the promise to purchase is invalid

because you answer out of the delay. As my agent, you should express my opinion to the buyer: A deal is a two way business, both sides have to be satisfied. I cannot force anyone to buy my house. If you buy my house, that is good. If not, that is not a big problem. But it is not acceptable to blame others while you are responsible for your own choice.” [ 59 ] The tone heats up with Mr Hébert’s reply also dated June 27(P-12).

He pleads the case that the offer she has accepted cannot have been made on June 15 because she accepted it on June 9, five days before. [ 60 ] His argument is rendered less effective, however, by his own typographical error in his email: he mistakenly writes the 9th of May rather than the 9th of June. “[...] To confirm this explication, look the signature: the buyers sing the offer 14 th may 2010 and you accept the 9 th of may, (5 days before the offer have be made, it’s illogical). you answer more than 3 weeks, just because I send you a demand to be pay. [...]” [ 61 ] He gives Mrs Shen two choices: “1-Like you write in the letter from Me Ramsay-Lemelin, if you want to sell your condo, you can sign the modification to return you property on the market and view the offers I will submit you or 2-I continue the procedures I begin to have my retribution for the offers 06211 and 08473 I let you a delay of 48h to think about that.

If I have any answer before the end of this delay, I will continue the procedures with the lawyer.” [ 62 ] Mrs Shen replies on June 29 (P-12).

The positions are now radically polarised; Mrs Shen (assisted by her brother-in-law), argues that the offer is valid, the deal should go through and the agent should be working for the seller not for the buyer. [ 63 ] On July 12, Mr Hébert sends an email (D-2) asking for a visit of the condo the next Saturday. [ 64 ] Madam Shen replies on July 14 (D-2), again taking the position that the initial offer is still valid: “I cannot admit any new visits to my condo right now with the offer 06211 is still valid at hand. You are an agent. You should know it more than me.

So, please do some job to finish this offer first, then we can talk about the next step.” [ 65 ] Later that day, Mr Hébert, obviously frustrated, replies: “Hi Mrs Shen, I did something for the offer 06211, I sent you a modification indicates the promise of purchase is invalid because you answer it out of delay.

I have a lady who make the offer at 222000 $ who is very interested, but you don’t want she visits your condo...” [ 66 ] He refers again to the legal proceedings, which will continue and exhorts her to read the brokerage agreement (D-3): “If you read your contract carefully, you understand if your receive an offer at full price, you don’t have obligatory to sale your house but you have to pay the realtors for the job they made like it’s indicates in the contract. See contract 29241

section 7.1. You will receive news from us by our lawyers soon. Thank you, Mario Hébert, CI Remax Ambiance 514-207-0257” [ 67 ] The gulf between the parties widens with madam Shen’s reply of July 15 insisting again on the necessity of going on with the offer 06211: “Hi Mr Mario Hébert, Are you a realtor. You are a puzzle maker. You made me confused again by words. Do you really talk about your commission? You are my agent. You should work for me to sale the condo first and then you get your commission. The situation now is very simple 1. The buyers keep on going with offer 06211 by themselves;

2. The buyers keep on going with offer 06211 regulated by you; 3. The buyers keep on going with offer 06211 forced by law; By all means, at the transaction time, you will get the commission from the notary directly. So, do not worry. Should you have any betters ways to fulfill the offer 06211 early. Please do not hesitate to inform me. Thanks. Shen Rui” [ 68 ] The communications cease and the action is instituted shortly thereafter. [ 69 ] Mrs Shen did not respond to either of the two offers to purchase because she did not know that she had received them.

She did not open the envelopes and later, after the letter of demand, her brother-in-law helped her to go through her papers, opened the envelopes and saw the documents. [ 70 ] Upon becoming aware of these documents, Mr Ding, and therefore Mrs Shen, arrived at the understanding that the erroneously dated document was, in fact, a deliberately post-dated document and that, if accepted, it would constitute a binding offer. [ 71 ] Being blamed in the letter of demand for having not responded to the offers and for having taken the property off the market, the logical thing to do would be to accept the offer, go ahead with the sale thereby solving the problem.

Mrs Shen’s understanding in taking the property off the market was that the brokerage contract was still valid but that there would be no visits. [ 72 ] Exhibit P-6, the document apparently attached to an email received May 19, 2010, might have been written for her by a broker who had a previously listed the property for her / Hong Ling Chen, who goes by the occidental name Helen, Mrs Hong Ling Chen, brought as a witness by the Defendant. [ 73 ] It is obvious from the vocabulary used in that letter and form its relatively good English, that it was written by someone, presumably Hong Ling Chen, for Mrs Shen who may or may not have understood the content of the letter. [ 74 ] Hon Ling Chen’s testimony is particularly unusual.

When shown P-6, and asked whether she recognized it she was extremely unsure initially saying “Yes, I don’t remember, maybe” and later denying that she had anything to do with it. This is the type of evasive testimony that, in a different evidentiary context, would be a commencement of proof. [ 75 ] She states that she received a phone call from Mrs Shen one day when she was receiving a visit from her agent. Mrs Shen spoke of documents being remitted to her in an envelope and asked for advice.

Her advice was “if you don’t understand what the document is don’t touch it”. [ 76 ] She states that Mrs Shen told her that the agent did not want her to open it. She also stated that she assisted Mrs Shen in faxing the modification document (P-7) to Remax but she hesitates and then denies any involvement with exhibit P-6. [ 77 ] Mrs Shen’s own testimony was of very little help except to demonstrate that, despite sixteen years of residence in Canada, her command of the English language is extremely weak.

The only work she has done in Canada has been in the kitchen of a family restaurant business: she has had very little contact with English speakers. [ 78 ] Concerning the incident when she was given the offers to purchase, she recollects that Mario Hébert told her there were documents and pictures and that he told her words to these effects of “don’t open it just sign the receipt”. She claims that he did not tell her it was an offer. [ 79 ] She replied in cross-examination that she often doesn’t open envelopes that she receives because she is not able to understand what they are.

In other words, she is not sufficiently literate to read and understand the documents relevant to this case. [ 80 ] When questioned about exhibit P-6, she simply did not recognize it. [ 81 ] With respect to P-7, however, the modification document to take the property off the market, she admits her signature and states that she signed the document after it was explained to her by her friend who is a real estate agent (obviously “Helen”). [ 82 ] Mrs Shen expressed the essence of her testimony by a rhetorical question “when did he show me the offer?” [ 83 ] Her point, in the Court’s perception, is that she did not receive an explanation of the contents of the documents.

They were given to her in a sealed envelope. They were not explained to her. In everything she did in the entire matter, she acted either with advice from her friend Helen or from her brother-in-law and, to some extent from a translator who was on the phone with her at the time she signed the broker’s contract. She did not receive information and advice from her broker. [ 84 ] She wanted to sell her property but she was not comfortable with number of people visiting her home where she takes care of her children.

Her understanding of the property being taken off the market was that there would be fewer requests for visits [ 85 ] This is contradicted by the text of P-6, which clearly says that she no longer wishes to sell, but, in all probability she did not understand this document whether it was prepared for her by “Helen” or by someone else. [ 86 ] It would have been in “Helen’s” interest, as a broker, to get the property off the market until the end of the Plaintiff’s mandate, so that she could then list the property herself. Does this explain her reticence in admitting authorship of the document?

[ 87 ] Mr Hébert’s testimony in counterproof concerning P-7, the modification putting the property off the market (hors marché), clarified that the modification was, in fact, consensual. [ 88 ] He explained that when a client, for family reasons for example, decides not to proceed with the sale, Remax, in its discretion, may decide to accommodate the client and take the property off the MLS system so that the public and other brokers no longer have access to the listing.

The mandate remains in effect, however, until the end of its term. [ 89 ] The form used, a “modification”, is signed by the broker, as a change to the contract.

It is not a resiliation of the contract. [ 90 ] Even if could be seen as a termination of the contract, which it is not, it was, in Mr Hébert’s expression, voluntary on his part. “ I want to send the modification to put end to the contract.” fP-8) (underlining added for emphasis) [ 91 ] Also in counterproof, Mr Hébert elaborated on the reasons why he presented the offers in envelopes asking for a receipt. [ 92 ] He explains that, for some time, he and his co-worker, another Remax agent, were not successful in reaching Madam Shen by telephone. This other agent did not testify.

He states that he called her having the two offers to purchase in hand asking if he could present them to her in person.

When she refused, he decided to buy a book of delivery slips and delivered the documents to her in person in the envelopes getting her to sign a receipt. [ 93 ] He states that he explained to her brother-in-law, who was called to the scene, that these were offers to purchase and it was necessary to respond to them fairly quickly. [ 94 ] Mr Ning Ding’s recollection of the encounter is that the day the agent came to his sister-in-law’s house to deliver the envelopes he asked him “what’s that?” and the agent said “your sister wants to take the property off the market, these are some materials about the house.” ANALYSIS AND CONCLUSIONS [ 95 ] This is essentially a case about a breakdown of communications and of trust. [ 96 ] In that regard, the Rules of professional ethics of the Association des courtiers et agents immobiliers du Québec [1] , adopted under the Real Estate Brokerage Act [2] are instructive. [ 97 ] Under

SECTION I, GENERAL DUTIES AND OBLIGATIONS TOWARD THE PUBLIC, are found these fundamental provisions: 5. A member shall avoid any situation which could place him in a conflict of interest and, where such is the case, he shall denounce it to the parties concerned. 6. A member shall refrain from practising his profession under conditions or in circumstances which could impair the quality of his services. 10. A member shall practise his profession in such manner as to avoid any controversy. 18.

In pursuing the activities of a real estate broker or a real estate agent, a member shall bear in mind his aptitudes, the limits of his knowledge and of the means at his disposal. He shall not agree to engage in a transaction referred to in

section 1 of the Act that is outside his field of expertise without seeking help, in particular from another member who has the required expertise. [ 98 ] In

SECTION II, DUTIES AND OBLIGATIONS TOWARDS CLIENTS AND PARTIES TO A TRANSACTION REFERRED TO IN

SECTION 1 OF THE ACT are found the following provisions: 23. A member shall provide the necessary explanations to enable a client to understand and evaluate the services he renders or agrees to render. 24. A member shall protect and promote the interests of his client while providing fair treatment to all parties to a transaction referred to in

section 1 of the Act. 29. To ensure the protection of his client and all parties to a transaction referred to in

section 1 of the Act, a member shall see to it that their rights and obligations are put in writing and reflect their intentions accurately. 30. A member shall inform his client and all parties to a transaction referred to in

section 1 of the Act in a reasonable manner of the rights and obligations contained in the documents that he has them sign. [ 99 ] Mr Hébert’s own actions in the file make it clear that he considered the language barrier important enough that he involved a translator for the formation of the exclusive brokerage contract. [ 100 ] While it is impossible to know what conversation took place between the translator and Mrs Shen because the translator did not testify, the Court had the impression in hearing the testimony of Mrs Shen that she simply signed the documents because she wanted to sell her house. [ 101 ] The Court is convinced that she would not have been able to read and understand the provisions found under the heading “Obligations of the Seller” particularly those relating to visits: 9.3.

The seller gives the broker the exclusive right:

(1) to show the immovable at any reasonable time, with any appointment being arranged directly with the occupant of the premises. The broker may allow other brokers to exercise that right in whole or in part; [ 102 ] She also would have been oblivious to the rights of the broker to compensation pursuant to

article 7.2 of the document (P-2). 7.2. Nothing stipulated in

section 7.1 shall be interpreted as restricting the broker’s right to obtain, where applicable, payment of any sums of money that may be due to him as compensation or damages under the ordinary rules of ordinary law, particularly, but without limiting the generality of the foregoing, where a sale does not take place because the seller voluntarily blocks it or otherwise voluntarily prevents the free performance of this contract. [ 103 ] At the critical point where the broker had been successful in obtaining two offers to purchase, one of which he believed would result in a sale, he says that he and a fellow agent had been meeting with resistance from his client in terms of communications and visits. [ 104 ] The other agent’s testimony might have been useful, but he was not called as a witness. [ 105 ] Mrs Shen is a stay-at-home mother who is, for all intents and purposes, inexperienced in such matters as real estate transactions, her only professional experience in Canada having been to work in the kitchen of a family restaurant. [ 106 ] I was necessary for Mrs Shen to have a translator in order to be able to sign the exclusive brokerage contract. [ 107 ] This is clear, not only from Mr Hébert’s conduct, but also from her poor, almost inexistent English as shown at trial and Mr Hébert’s limited English as seen in the documents.

If she was acting in a way that showed that she did not understand that she had a duty to collaborate and to communicate with her broker, then the broker ought to have informed her that this was the case and, if necessary, use a translator to get that message across orally or in writing. [ 108 ] He took a different attitude, deciding that when he was in a position to obtain a commission, his client became an adversary. [ 109 ] At that point, it did not matter to him that his client was unable to understand the matters at hand, that there was a need to respond within 24 hours or 48 hours to serious offers to purchase, that the failure to reply to them could trigger an obligation to pay a commission even though the house had not been sold and that there was a duty to act in good faith in dealing with these purchasers. [ 110 ] From that point, the broker considered his own interests and that of his purchaser who had made the higher offer but not those of the vendor.

His goal was to obtain evidence that he had delivered the offers, which were remitted in sealed envelopes against a receipt. [ 111 ] In a context where his client could not read and understand the documents and he knew this, he was not protecting and promoting the interests of his client, he was acting in his own interest to constitute proof of the delivery of the documents. [ 112 ] In a normal situation, the broker would meet with the client, explain orally what the documents contained, show them to its client and have his client read them, answer any questions and give advice to the client as to the next steps to take in the transaction. [ 113 ] Mr Hébert was prevented from doing this because his client was not cooperative nor could she understand what it was she was being asked to cooperate in.

Her lack of cooperation was due to the fact that she was being dealt with in a language she did not understand about a subject matter of which she was ignorant. [ 114 ] From that moment, communications broke down.

Having heard the Defendant and her brother-in-law testifying in English and seeing the level of Mr Hébert’s English as demonstrated in his written documents [3] , the Court has absolutely no confidence that either party understood the subtleties of what the other was saying on May 16th. [ 115 ] Mrs Shen and her brother-in-law understood that she was being asked to sign to acknowledge receipt of some envelopes.

Mr Hébert understood that he explained to Mrs Shen’s brother-in-law that these were offers to purchase that had to be responded to quickly but the Court remains unconvinced that this message actually got across. [ 116 ] Mr Hébert did not testify in English, which, of course, is his right, but this led the Court to surmise that his level of ability in English was hot particularly strong. [ 117 ] The offers to purchase were made in French, so it was up to Mr Hébert as agent to make sure his client was given sufficient explanations to understand what they meant.

It seems unlikely to the Court that he would have been able to do so in speaking to Mrs Shen unless, again, he availed himself of the services of a French to Mandarin translator. [ 118 ] In the context of this breakdown of communications, Mrs Shen’s brother-in-law reacted to the letter of demand by counselling her to sign the first offer to purchase which, taken on its face, looked like a postdated document. Mr Ding testified that in Chinese customs, it is possible to post-date a contract much like, in western culture, a check can be post-dated.

To him, and therefore to her, this was a valid, binding document once accepted. The Court accepts Mr Ding’s sincerity, even if it does not share his understanding of the effect of the incorrectly dated document. [ 119 ] When confronted with his own error in not having noticed the clerical error in the document the first time he saw it, Mr Hébert’s reaction is curious. He had the purchaser sign a document on a modification form as if the offer to purchase was being modified.

In fact, the document was prepared for the protection of the purchasers (and their agent) who had the responsibility, if any, for having produced the apparently post-dated document. [ 120 ] They required this protection because they had decided to rent a property and were no longer in a position to purchase. [ 121 ] The document also helped Mr Hébert, who would now have the way clear to have the property purchased by his own client which would have resulted in a higher commission.

[ 122 ] In a normal situation, this unfortunate situation might have been solved by the property being sold to Mr Hébert’s customer (or, even better, to a higher bidder in the market).

If her conditions were realised, which is possible, but not certain, because the sale was conditional upon a professional third-party inspection, the vendor would have received the price she initially wanted and Mr Hébert and Remax would have received its commission. [ 123 ] But by this time, the situation was totally out of control with Mr Ding believing that there was no mistake in the document, that it was still binding and that he could get his sister into trouble if she did not proceed with that deal until she truly had a confirmation that the buyer “drops”. [ 124 ] This didn’t make any sense to Mr Hébert, to whom it was obvious that the documents contained a clerical error in the date.

To the Plaintiff, the Defendant’s position was posturing, but the Court accepts the sincerity of Mr Ding’s testimony, if not the accuracy of his

interpretation of the document. [ 125 ] When Mr Hébert makes an attempt to explain the clerical nature of the error appearing in the offer to purchase of June, but he himself makes a clerical error and gets the date wrong [4] in his email. [ 126 ] Mr Hébert’s posture in the file on June 27 put him squarely in a conflict of interest. [5] Essentially he uses the pressure of the letter of demand i.e. the possibility of legal proceedings to compel his client, the buyer, to sell property to his other client, the purchaser. [ 127 ] In

summary, the Court feels that this is a case that must be distinguished from the usual jurisprudence [6] where the broker, although he performs all of his obligations under the contract, providing the vendor with good and loyal services, is prevented from earning his commission because the vendor refuses to permit him to carry out his mandate. [ 128 ] In this sense, Royal Lepage Des Moulins inc. c. Baril [7] is also distinguishable.

In that case, the Court of Appeal made a distinction between a first offer, conditional on obtaining financing and on minor repairs, and a second offer, entirely unconditional and strictly in conformity with all of the seller’s requirements.

The vendors were condemned to pay the commission on the basis of the second offer. [ 129 ] The Bélair case is also different in that the offer was made conditional on a visit that was merely a «condition usuelle sans signification» whereas the offers in the case at hand included the special condition of a professional third-party visit that could result in the offer being null and void as well as a condition regarding financing. [ 130 ] The decision of this Court in Immeubles Di Sabato inc. c.

Guerrera [8] also follows this pattern, in charactering the “visit” clause, which was to the same effect as the clause used in the first and second offers, as a purely potestative condition. [ 131 ] In the case at bar, the second offer contained several conditions that depended upon events that were not certain. [ 132 ] The Plaintiff refers to the Guerrera case for its finding on the issue of irrevocability as an exception to the right of resiliation of

article 2125 C.C.Q. [ 133 ] In the court’s view, the finding in that case on the issue of irrevocability does not apply here. In Guerrera , the vendor took the property off the market unilaterally, essentially treating the broker’s engagement as being terminated, thereby making the realisation of the condition impossible. [ 134 ] In the present case, the modification form is bilateral, expressed as a modification to the contract, and the broker initiates the documentation.

It is consensual. [ 135 ] In that respect it is worthy of note that the letter of demand refers implicitly to the letter P-6, but makes no mention of the modification form, P-7 and the correspondence showing the Plaintiff’s consent to it, P-8. [ 136 ] This is a case where the mandate could not be carried out because of a language barrier that required the intervention of a translator at critical stages. [ 137 ] To paraphrase the defendant’s rhetorical question, when did he (Hébert) tell her about the offers? [ 138 ] It is also a case of blatant negligence on the part of the agent in submitting a document that was incorrectly dated, a mistake that could have been easily corrected if Mr Hébert had carefully read the document before he submitted it. [ 139 ] Instead, this error fuelled a controversy between the agent and his client that could have easily been resolved were not for the fact that the broker tried to use the pressure of his lawyer’s demand letter to compel the client to extend the mandate and to favour an offer from his other customer, the second promising purchaser. [ 140 ] These shortcomings of the broker, in terms of the applicable professional standards, are fatal to the Plaintiff’s case because they show a fundamental failure to execute the broker’s obligation. [ 141 ] That obligation was not limited to the delivery of a potentially viable offer: it required effective compliance with duties of information and counsel [9] , avoidance of controversy [10] and of conflict of interest. [11] [ 142 ] It required, for example, that before submitting for signature a form to take the property off the market, the client be advised that the broker will treat this as a contractual default leading to a lawsuit.

She was only told this, through a letter of demand, after she had signed the modification form submitted to her as something that the broker agreed with. [ 143 ] In short, it required that the broker communicate competently and effectively with the client as to the business at hard, namely offers, and also with respect to her role and responsibilities in the process, and the consequences of various courses of action, such as counter-offers.

[ 144 ] The Court, therefore, finds that the Plaintiff has failed to establish a cause of action pursuant to

article 7.2 of the exclusive brokerage contract or the general principles of civil law this

article refers to. For these reasons, the Court: Dismisses the Plaintiff’s action; The whole, with costs. M e Géraldine Ramsay-Lemelin, pour la demanderesse Mme Rui Shen, pour elle-même