2021 QCCQ 4672, 2021 QCCQ 4672

Revah c. Nejad 2021 QCCQ 4672 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-158568-180 DATE: April 15, 2021 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Aharon Revah -and- Ruth Cohen Plaintiff v.

Mojtaba Kamali Nejad -and- Amir Haerimerhrizi Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs Aharon Revah and Ruth Cohen sold their immovable property at [...] in the borough of Cote-des-Neiges/Notre- Dame-de-Grace to the Defendants Mojtaba Kamali Nejad and Amir Haerimerhirizi in a transaction that was completed in May 2017. [ 2 ] The case was heard jointly with another case between the same parties where the purchasers are Plaintiffs (case #500-32- 704205-188).

At the Hearing, the parties agreed that Ruth Cohen be added as a Plaintiff in the present matter and as a Defendant in the other case in order to permit a complete resolution of the issues in the entire conflict [ 3 ] The Hearing was held jointly in the two files, but the Court renders two distinct judgements because the issues and conclusions in the two files are quite distinct. [ 4 ] In the present matter, the Plaintiffs allege that they are entitled to a reimbursement of 4,000 $ as a result of a price reduction clause in the contract. [ 5 ] At the pre-purchase inspection a problem was discovered related to an electrical entry that required relocation within the basement part of the building.

The price was reduced by way of a modification (Exhibit P-1) lowering the price from 735,000 $ to 717,000 $ to take into account the corrective works that would be required. The clause reads as follows: “M5. Autres modifications Suite à l’inspection pré-achat effectuée par Bobby Bourkas de la firme Inspections Bourkas inc. en date du 19 avril 2017, les parties conviennent que le prix d’achat est réduit à 717,000 $ afin de tenir compte des travaux devant être entrepris relativement aux entrées électriques et de relocalisées.

Les acheteurs reconnaît que la garantie légale de qualité ne s’appliquera pas quant à ce qui fait l’objet de la présente réduction de prix.” [sic] [ 6 ] This price reduction of 13,000 $ was apparently agreed upon after the parties obtained advice from a master electrician as to the estimated costs of the works. [ 7 ] The Plaintiffs allege that the relocation of the electrical entry in fact required less expenditure and they claim the difference based on an allegation that the result was accomplished for 7,000 $. [ 8 ] On this part of the claim, the Defendants simply state that the price reduction was the full and final settlement of the issue in connection with the sale and that actual cost is not relevant. [ 9 ] Mr.

Kamali Nejad testified that he carried out some of the work himself, hiring a master electrician for the part of the work that required that particular specialty. Mr.

Kamali Nejad is himself an engineer and is capable of carrying out some types of construction work. [ 10 ] The Court agrees with the Defendants’ position: when a defect is discovered in a pre-sale inspection and a price reduction is negotiated without any other adjustment clause, the matter is final and there is no opening for the parties to make a claim either for an increase to the amount conceded by the seller or a reimbursement of a part of the reduction if the actual cost is different.

[ 11 ] For that reason, at the hearing, the Court did not insist upon a full ventilation of all the material and labor costs incurred by the Defendants. The matter was closed when they renegotiated the sale price. [ 12 ] In the second part of the claim the Plaintiffs assert that there was refrigerator on the premises not included in the sale contract which they were unable to remove from the premises because of the Defendants’ refusal.

The assertion is made that the fridge, which was fairly new and had a value of approximately 2,000 $, was left in the apartment where the vendors had previously lived when it was leased to new occupants shortly before the sale. Mr.

Revah explains, showing a picture, that there was an older fridge kept in the garage and that he intended to take that fridge, which was of lesser value, and place it in the apartment for the tenants removing the newer fridge to bring with him to his new residence. [ 13 ] The Defendants deny any agreement for the substitution of the fridge and furthermore allege that the older fridge that was in the garage was left there. They believe it might have been sold to the wife of Mr. Haerimerhrizi, who is the sister of Mr. Kamali Nejad. Mr.

Haerimerhrizi and his wife occupied the basement floor of the property after the sale. The Court also accepts the testimony of the two Defendants to the effect that, even after the transfer of the property, they allowed Mrs. Cohen to carry out sales of various items that were still in the building, even assisting with the visits of potential purchasers. If the plaintiffs had wished to remove this fridge, it would have been feasible, but not the one in the leased premises. [ 14 ] The claim that was initiated by Mr.

Revah for the fridge was only made sometime after the sale at a time when litigation had developed between the parties in the other file mentioned above. [ 15 ] In the Court’s view, the documents concerning the sale established that the refrigerator that was in the leased apartment was sold as an inclusion in the sale. [ 16 ] The inclusion clause of the bilateral promise to sell as well as the inclusion paragraph simply states “selon les baux”. In other words, movable property in the premises provided to the lessees were transferred in the sale to the new lessors.

There is no contest between the parties that the lease, in the case of the premises formerly occupied by the vendors, included the obligation to provide the fridge that was in the premises. [ 17 ] Mr. Revah asserts that he had an agreement with the tenant to allow him to substitute the older fridge for the newer one but that allegation was not substantiated. [ 18 ] If the matter had been of importance to the vendors at the time of the sale, they would have included a clause in the contract documents permitting them to effect the substitution.

This would have been complicated because it would have involved the consent of a third party, the tenant, and it is rather unlikely that the tenant would have agreed to such an intrusion and a reduction in the quality of the equipment he already had. [ 19 ] The Plaintiffs would have the burden of proof on this matter and there is simply no evidence to substantiate their allegation about the complex arrangement asserted though Mr.

Revah’s testimony. [ 20 ] As well, the fact that the Plaintiffs did not actually carry out the switch of fridges before the transfer of property detracts from the credibility of their claim, as does the tardiness in raising the issue and not bringing it forward as soon as the problem allegedly arose. [ 21 ] This matter asserted in the Plaintiffs application must therefore fail. BY THESE REASONS, THE COURT: DISMISSES the application; WITHOUT legal costs. __________________________ David L. Cameron, J.C.Q. Date of hearing: February 23, 2021