2015 QCCQ 10501, 2015 QCCQ 10501

Raymond, Joyal, Cadieux, Paquette et Associés ltée c. 111966 Canada inc. 2015 QCCQ 10501 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-208782-147 DATE: October 16, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ RAYMOND, JOYAL, CADIEUX, PAQUETTE ET ASSOCIES LTEE Plaintiff v. 111966 CANADA INC.

GREGORY EFRAIMIDIS THEMIS EFRAIMIDIS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The Parties and their Positions [ 1 ] The Plaintiff, Raymond, Joyal , Cadieux, Paquette & Associés Ltée, (Raymond) a firm of chartered appraisers, sue the Defendants, 111966 Canada Inc. (Canada Inc.) and its principals, Gregory Efraimidis and Themis Efraimidis, solidarily for the amount of $ 8,623.12 on account for professional services rendered in connection with the municipal real estate assessment of several properties owned by Canada Inc. [ 2 ] The properties to be assessed, eleven in all, are mentioned in a letter agreement (P-3) dated and signed by the parties on July 5, 2011 under the heading "Constestation de l'évaluation foncière". [ 3 ] Raymond asserts that it completed the work described in this agreement as being an " analyse préliminaire " and " dans le cadre d'une étude préliminaire ayant pour but d'estimer la valeur réelle de ces propriétés pour fins fiscales… ", and claims the amount stipulated, $7,500 plus the applicable sales taxes. [ 4 ] The work related to what is commonly referred to as real estate assessment or, é valuation foncière .

Appraisers concern themselves with the technical means of establishing the value of immovables, and are called upon to provide a variety of services, including that of contesting appraisals made by municipal authorities for taxation purposes. [ 5 ] In the present case, the services related to the assessment role of the City of Montreal for the period 2011-2013-2015 for which the relevant date was July 1 2009. [ 6 ] The Defendants deny owing this amount alleging that the lump sum mentioned in the letter agreement and billed to them is grossly exaggerated and in no way reflects the true services rendered, that the bill issued is not detailed, that the mandate entered into by the parties included the preparation of complete real estate assessment reports for the purpose of contesting the roll and that it included the presence and testimony of an appraiser before the administrative tribunal. [ 7 ] They assert that, because of the Plaintiff's failure to execute the mandate, the Defendants had to present their case alone before the administrative tribunal on several occasions, that they did so without the benefit of any expert appraisal report. [ 8 ] Finally, the Defendants deny that the obligation is solidary among them.

The Issues

The Court must determine: 1. the content of the agreement between the parties i.e. whether it was a preliminary study or whether it included a complete set of reports for each property and the presentation of expert testimony before the TAQ; 2. whether the services foreseen were carried out by the Plaintiffs or not; and, 3. the amount if any owed by the Defendants, either jointly or in solidarity the case may be. [ 9 ] The case depends to a large degree on the admissibility of testimony concerning the agreement.

The Plaintiffs took the position that testimony to establish that the agreement included anything beyond the preliminary study in the terms used in the document, P-3, is inadmissible as a contradiction of a valid written instrument. [ 10 ] The Court heard all testimony relating to the agreement under reserve of this objection.

Testimony could, on final analysis, be considered admissible as being helpful to interpret the agreement or to complete it if it is clearly incomplete, or, it could be considered as prohibited as an attempt to contradict or vary the terms of the writing. [ 11 ] The operative articles of the Civil Code of Quebec read as follows: 2863. The parties to a juridical act set forth in a writing may not contradict or vary the terms of the writing by testimony unless there is a commencement of proof. 2864.

Proof by testimony is admissible to interpret a writing, to complete a clearly incomplete writing or to impugn the validity of the juridical act which the writing sets forth. Factual Analysis The letter agreement [ 12 ] To properly put the testimony into context, it is necessary to read the full text of the letter agreement. It was initially typed up to be addressed to Gregory Efraimidis (the father) but the parties added in by hand the name of Themis Efraimidis (the son).

It reads as follows: Monsieur, Suite à notre rencontre du 15 juin dernier concernant les propriétés ci-haut mentionnées, nous vous confirmons que dans le cadre d’une étude préliminaire ayant pour but d’estimer la valeur réelle de ces propriétés pour fins fiscales pour le rôle triennal 2011-2013-2015 et dont la date effective est le 1er juillet 2009, nos honoraires seront de 7 500 $ plus les taxes usuelles. Sur confirmation de votre part dudit mandat, nous vous transmettrons une liste détaillée des informations requises pour procéder à l’analyse de chacun des 11 dossiers.

Cette analyse préliminaire comprendra également une rencontre avec les évaluateurs de la Ville de Montréal afin de négocier un règlement advenant que notre étude démontre que les valeurs déposées sont supérieures à la valeur réelle. [1] [ 13 ] It is signed on behalf of Raymond by Pierre Sabourin E.A., évaluateur-conseil and accepted by both of the Efraimidis. [ 14 ] The Court's first impression on reading the document is that, for professional fees of $ 7,500 relating to eleven different properties, it would be difficult to imagine that the work would be more than strictly preliminary nor that it could include testifying in as many as eleven different cases before the TAQ as well as filing an expert report for each of these properties.

The work carried out [ 15 ] The nature and extent of the services to be provided, from the point of view of the Plaintiff, is illustrated by what was actually done. The work was delegated by Pierre Sabourin to a person who provided services to the firm, Gilles Théaudière, an evaluator of long experience. [ 16 ] Mr Théaudière described the work he carried out in significant detail. He understood his mandate to be that of determining whether the values proposed by the city it is assessment roll were such that it was worth contesting them, "s'il y avait matière à contestation".

After carrying out a study, he came to the conclusion that, of the eleven properties, there were three that warranted going further into the contestation process.

[ 17 ] His testimony established a good knowledge of the eleven properties, their characteristics, the identity of the owner, as between the father, the son and the corporation. He compiled lists of comparable properties. He visited the eleven properties, to see whether there were any particularities, such as their condition, works required, in the case of the rental properties, the extent of their occupation or vacancy, an evaluation of their potential and current revenues, any bad debts associated with them. This study was relevant to the criteria associated with the economic value of the properties.

Then, he communicated with the city appraisers in six cases to ascertain the economic basis that had served for their assessment. [ 18 ] In the case of four of the buildings, residential rentals, he did not consult with the city evaluators, except to inform the evaluator of certain repairs that were required. [ 19 ] He learned that the assessors had taken a previous value and indexed it, as opposed to carrying out a more detailed study. [ 20 ] Then, he carried out his own assessment according to the revenue method.

The Defendants had provided the statements of revenues and expenses for the commercial properties [ 21 ] He provided the Court details of the time spent, the type of information he compiled, and the results he arrived at. Essentially, for three of the properties, there were significant revenue losses because of vacancies and bad debts. [ 22 ] Where there were proposals to make, he discussed them provisionally with the evaluators. [ 23 ] An initial meeting was held with Themis Efraimidis concerning the residential tenancies.

Based on the assessment proposed, Themis decided not to contest the values. [ 24 ] Later, another meeting was held with Gregory Efraimidis to discuss the other properties. [ 25 ] Mr Sabourin's testimony places these meetings in December 2011. [ 26 ] For certain properties, there was no point in contesting the values proposed, in others the recommendation was to go further. In all cases, the witness had no difficulty in explaining to the Court significant details of each property and his reasoning for making the recommendations. These recommendations were fairly precise and detailed.

He had several interactions with Gregory Efraimidis, in order to compile financial information. [ 27 ] The overall conviction that the Court derived from this testimony was that a diligent and professional job was done by Mr Théaudière, He spent approximately 165 hours of time in all. His services, when computed on a hourly basis are charged at 150$ per hour. If his services had been billed at an hourly rate, it would have generated an invoice of close to $ 25,000.

Fortunately, the work had been undertaken for a lump sum. [ 28 ] His recollection of the meeting with Gregory Efraimidis was that the latter did not agree with the assessments he proposed. Gregory Efraimidis mentioned in several fax messages to Pierre Sabourin that he wanted him alone to work on the file. [ 29 ] The Plaintiff was not involved in initiating applications for review: these were done by the clients themselves, at their own initiative.

The Applications for review (P-8) were done by the Defendants on September 1, 2011. [ 30 ] To be involved at the level of the TAQ, the assessor would have to prepare a detailed report, including a narrative portion and be prepared to testify. A lawyer would be involved in all such cases. Mr Théaudière did not get involved at this level: he was not asked by his employer nor by the clients directly to do so.

In response to a question from the Court, Mr Théaudière explained that he clarified his recommendations to the clients, but did not discuss the cost that would be involved in going further: this would be the role of the person who delegated the work to him, Mr Sabourin. [ 31 ] Mr Théaudière performed well as a witness under cross examination. His testimony was direct, spontaneous and without hesitation. On the essential issue of the value of the services in reference to their description in the letter agreement, the Court has no hesitation in deciding that the work was substantially carried out as promised.

The billing [ 32 ] A bill was issued by the firm dated December 20, 2011. It is addressed to Canada Inc. and to Gregory Efraimidis. When asked on January 27 to split the bill Raymond issued a bill dividing the fees between the various owners of the properties "pour fins de comptabilité". Elements of the Defence [ 33 ] Gregory Efraimidis testified that he knew approximately the value of the properties. He is involved directly in the management of the commercial revenue properties and knew about the revenues, expenses, bad debts, etc.

Although he works as an insurance broker, he has been involved in owning buildings for 34 years. [ 34 ] He usually contests the evaluations himself and settles the files directly with the city evaluations.

He regrets having dealt with the Plaintiff, being disappointed with how he was treated. [ 35 ] There was one property in particular, on Westminster North where he was concerned with the value assessed by the city. [ 36 ] He was introduced to Mr Sabourin whom he met initially to give certain information, once for the signing of the contract (P-3) and on one other occasion. [ 37 ] Apart from these meetings he dealt always with Mr Théaudière. He answered questions during phone calls and also met with him on several occasions.

[ 38 ] One the essential point of the obligational content of the agreement, Gregory Efraimidis states that he had a "gentleman's" agreement that he was not comfortable signing a contract in French, but that he relied upon the gentleman's agreement. [ 39 ] His testimony is that it was never said that there would be no report written, that he required assistance all the way through. [ 40 ] His son co-signed the agreement without reading it, having confidence in his father. [ 41 ] Gregory Efraimidis’s understanding of the gentleman's agreement is that it included all the work globally, whatever would be required.

If he was not getting these global services, he did not need the services of the firm. [ 42 ] In support of his pretension that the services were global, he speaks of one of Mr Sabourin's employees coming to "court" one time but forgetting to come on another occasion. [ 43 ] He asserts that no work was done in respect of his son's residential tenancies. [ 44 ] In response to whether he received an oral report, his answer was that he did not need an oral report, that he could deal with the evaluators himself. [ 45 ] He confirms having done all the work of initiating the contestations, though he speaks of having attended hearings with lawyers, but without evaluators. [ 46 ] Gregory Efraimidis sent correspondence to Mr Sabourin reflecting his position about the professional relationship.

In the first, a letter of January 27, 2012, he states that he attended at a hearing concerning the Westminster property to set a date "as per your instructions".

He asks that the billing be divided 65% to the buildings of his son and 35% to his buildings. [ 47 ] It should be noted that at that point, a bill had already been issued for $ 8,544,38 on December 20, 2011 to Canada Inc. and Mr Gregory Efraimidis. [ 48 ] The Plaintiff acted in accordance with these instructions, issuing the split invoices on Febuary 28, 2011 with a covering letter explaining the division dated February 29 th . [ 49 ] Gregory Efraimidis wrote again by fax on March 21 taking the position that Mr Sabourin had agreed to "take care" of the tax contestation.

He writes: […] You are sending me bills and I am asking Pierre, what am I getting out if it. I want you to handle my contestation and nobody else. I have been called to present myself next week for Milner and Monk and I am out in the cold with no help. I know you have the capacity to protect my rights. Do you have the time and the will to do so?

Please call me. […] [ 50 ] He writes again on March 27, 2012 complaining that he had to present himself "at the Court on March 26 th , without your help or the help of your colleague with whom I am not comfortable anyway." [ 51 ] He complains that he was not represented for the contestation. [ 52 ] He claims to have had no response, except an unpleasant phone call in April, where he was called names by Mr Sabourin. He wrote a fax on April 3, 2012 complaining about the call and about the

interpretation of the agreement proposed by Mr Sabourin. His point is that the agreement should have mentioned that Sabourin would not be representing him all the way. [ 53 ] The situation by this point had deteriorated and the litigation ensued. [ 54 ] Themis Efraimidis admits having seen in the document he signed the price, the reference to the eleven properties but denies noticing that it used the term "preliminary". He admits his French is reasonably good. [ 55 ] He states that after getting Mr Théaudière’s opinion, he decided not to go ahead with the contestations.

Legal Analysis and Conclusions The content of the agreement [ 56 ] The defence as to the obligational content of the agreement is essentially a contradiction of what is written in the letter agreement. [ 57 ] In the context, it appears quite obvious that this was a preliminary study: the amount of the fees shows that it could not be

anything else but that, given that there were eleven properties involved.

The testimony of the Plaintiff's witnesses makes is clear that thenotion of a preliminary analysis would not include a report for each property: it would be futile to write a report if the preliminaryanalysis showed that it was not worth carrying the contestations beyond a simple exchange with the city's evaluators to see if anagreement could be reached. [58] The defence brought by Gregory Efraimidis is really an attempt to contradict the signed agreement by saying it there was agentleman's agreement to carry the files all the way to the end of the potential contestation process, including representation in hearings. [59] This is simply a direct contradiction of the document, which is clear.

This testimony is not admissible because of the rule set outin articles 2863 and 2864 C.C.Q. [60] Independently of the inadmissibility of evidence contradiction the writing, viewed another way, by saying that he did not readthe agreement, that his French was not really strong, that he thought the agreement was something else, Gregory Efraimidis pleadsunreasonable mistake. In the words of the Court of Appeal:[2] La jurisprudence dominante assimile à une erreur inexcusable l'omission de lire un document avant de le signer.3 _________________________ 3 Jos. Rousseau Inc. c.

Bouchard, [1970] C.A. 393 ; Banque Nationale du Canada c. Marcoux, B.E. 99BE-292 ; Compagnied'assurances Jevco c. Centre de liquidation et de saisie de Pont-Rouge inc., J.E. 2000-700 ; Construnel inc. c. G. Giuliani inc., J.E.2005-130 ; Société québécoise d'assainissement des eaux c. B. Frégeau & Fils inc., (QC CA), J.E. 2000-809 ; Reineparisienne (1998) inc. c. 9048-9923 Québec inc., B.E. 2002BE-273 ; Snarski c. Amex Bank of Canada, (QC CQ),[2003] R.R.A. 1471 ; Dion c.

Bédard, (QC CQ), J.E. 2000-494 . [61] Both of the Efraimidis are experienced business people, operating an insurance agency and operating several income properties.If Gregory Efraimidis did not understand what he was signing because of the language, he could have asked for an English text. He waswell aware of the process involved in municipal assessment and would have realised that the preparation of written reports and theirpresentation in an administrative-tribunal setting would be a much more extensive mandate than that which could be funded, for elevenproperties, for $ 7,500.

There would be no point for the parties to make an immediate contractual commitment to carrying the processout to that extent if it was not first known whether the contestations had a reasonable chance of success. [62] Themis admitted knowing French reasonably well. He admitted having received the preliminary advice given to him. He signedthe agreement because he was asked by his father to be involved. He must accept the consequence of that decision. [63] The corporation's defence based on the content of the agreement depends upon the defence of its directing mind, GregoryEfraimidis: therefore it fails.

The services provided [64] The defence also raises the inadequacy of the professional work performed. The testimony of Mr Théaudière was quiteconvincing. The work was done professionally, diligently and with sincerity by an established professional firm having proven abilityand it led to objective and useful advice. It was not pleasing to the clients who wanted to advance their positions in respect of themunicipal assessments, but the clients' disappointment with the outcome of the preliminary study does not, in these circumstances,diminish the value and quality of the service rendered.

Solidarity [65] The three clients signed the agreement together. The evaluation process was for all concerned, though it could be broken downfor billing purposes according to the ownership of the properties, or in some other way, if reasonable. [66] The operations of the properties, except for the residence, were all the affairs of an enterprise, so that the matter is presumed togive rise to solidary obligations, as mentioned in

article 1525 Civil Code of Quebec. The fact that the fee was stipulated globally for theeleven properties is ample indication that the parties intended the obligation to be assumed by the corporate entity and the twoindividuals in solidarity, rather than jointly with a particular share for each of the owners. [67] The Court thanks the attorneys for their able representation. BY THESE REASONS, THE COURT: CONDEMNS the Defendants, solidarily, to pay the Plaintiff the sum of $ 8,623.12 together with interest at the legal rate and theadditional indemnity provided for in

section 1619 of the Civil Code of Québec, calculated from February 29, 2012. WITH COSTS. __________________________________ DAVID L. CAMERON, J.C.Q. Mtre Marc BoudreauCaza Marceau & Soucy Boudreau, avocatsPlaintiff’s Attorney

Mtre Iulia Cimpoiasu Defendants’ Attorney Dates of hearing: April 16 and 17, 2015