2013 QCCQ 11560, 2013 QCCQ 11560

Boisvert c. 9170-6598 Québec inc. 2013 QCCQ 11560 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-125911-109 DATE: September 19, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ MICHEL BOISVERT , […] , St-Adèle, (Quebec) […] Plaintiff v. 9170-6598 QUEBEC INC. , 1400, Sauvé West, # 253, Montréal (Québec) H4N 1C5 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Michel Boisvert is claiming his real estate brokerage commission (the claim is reduced to $7,000 in order to respect the jurisdiction of the Small claims division). 9170-6598 Quebec inc. (9170) denies owing any commission alleging that the brokerage contract was no longer in force and that Mr.

Boisvert was not the efficient cause of the lease that intervened. Revocation of judgment [ 2 ] The demand was initially dismissed by judge Mark Shamie, j.c.q. on February 25, 2013 since Mr. Boisvert failed to appear at trial. [ 3 ] A motion for revocation was received as Mr. Boivert alleged that he had never received a notice of hearing. This is not contradicted at trial. [ 4 ] The revocation of the judgment of February 25, 2013 is granted.

The merits of the case [ 5 ] Michel Boisvert, a Real Estate Broker, obtained an exclusive mandate to represent 9170 for the rental of space in a commercial building. [ 6 ] The terms of the mandate are clear (Exhibit P-1): This document confirm that we offer to represent you on the based of exclusive and irrevocable Real Estate Broker for the purpose of real estate leasing and negotiating operation of the entire office and commercial space in the building that you and located at 8415, Saint- Denis street, Montréal, Québec.

This contract concerns our assistance in the following process: • Visit with tenant and space configuration including existing and future tenant. • Drafting, negotiation and signature of offer to lease, renewals, expansion and negotiation and witness on your standard lease form. • Follow-up and after sale service on site. [Reproduced as drafted] [Emphasis added] [ 7 ] The fees (Exhibit P-1) are defined as: Our brokerage fees for all leasing spaces, renewals, additional space (expansion), first right of refusal and expansion option exercised shall be payable upon the following rates for the term of the lease and leasable space : 5% of the gross annual rental (total of base rent and additional rent) for the first three (3) years of the lease and 2.5% of the gross annual

rental (total of base rent and additional rent) for all subsequent year of the lease. Additional space leased, renewal option or extension of lease when exercised shall be in accordance with the above commission schedule. Commission described above are payable 50% on offer to lease acceptance and 50% upon occupancy or lease signature, whichever shall be the sooner. [Reproduced as drafted] [Emphasis added] [ 8 ] The fees claimed here are not contested. [ 9 ] The commission is being claimed because Mr. Boisvert alleges that a tenant renewed his lease verbally during the course of his mandate.

The written lease, filed at trial, was signed on November 1, 2009. [ 10 ] The brokerage contract was cancelled on August 26, 2009. [ 11 ] After the cancellation of the contract, Mr. Boisvert demanded that the advertisement he had installed on the building be returned to him. This was never done. He claims the sum of $196.61 for the cost of its replacement. The debate [ 12 ] The only real debate is as to the date of the renewal of this tenant's lease. Mr. Boisvert alleges that the lease was renewed verbally in May 2009, prior to the cancellation of the contract.

He states that the fact that the lease was signed in November 2009 is of no consequence to his commission since the verbal agreement is sufficient. [ 13 ] 9170 alleges that the new lease was negotiated in October 2009 and signed on November 1, 2009; therefore after the expiry of the mandate, no commission is owed. [ 14 ] The Court must decide which version is preponderant. [ 15 ] Mr. Boisvert filed a chronology of the situation. In this document (Exhibit P-3) he writes: 4 mai 2009 ; Appel de vous me mentionnant que le local de M.

Tellier n'est plus à louer et que vous aviez renouvelé directement pour un terme de cinq (5) ans. 11 mai 2009 ; Rencontre avec M. Jacques Tellier, Opticien. Ce dernier me confirme avoir loué sur entente verbale par votre entremise pour un terme de cinq (5) ans de bail au même taux de loyer et que l'entente de bail doit être enregistré sous peu. 31 août 2009 ; Je discute avec M. Tellier par telephone et il me confirme qu'il a loué pour cinq (5) and aux memes conditions qu'auparavant et qu'il est en attente de sa copie du bail publié. [ 16 ] Notwithstanding the specific dates alleged in this chronology, Mr.

Boisvert concedes that he has no contemporary documentation (emails, letters or other) to corroborate these facts. Also, when asked why he waited twelve (12) months before claiming his commission, Mr. Boisvert responded that he was waiting to obtain a copy of the signed lease. However, in fact, he never did obtain any such copy except as an exhibit for this trial. [ 17 ] The president of 9170, Mr. George Sokkar denies the facts alleged by Mr. Boisvert. [ 18 ] The Court notes that the testimony of each of these witnesses is equally convincing.

If there had been no other testimony, the Court would have been hard put to choose between these two versions. [ 19 ] However, the testimony of the tenant involved, Mr. Jacques Tellier, corroborates the facts as alleged by Mr. Sokkar for 9170 that the lease was renewed after the cancellation of the brokerage contract. [ 20 ] Mr. Tellier had a lease in this building beginning in April of 1999. This five (5) year lease was renewed for another five (5) year period and therefore expired on April 30, 2009. Mr. Tellier testifies that he had decided not to renew his lease but had not yet found new premises. Since Mr.

Sokkar agreed with his remaining on the premises on a monthly basis, Mr. Tellier was in no hurry to move. [ 21 ] Mr. Tellier confirms that Mr. Boisvert met him in May of 2009. He is adamant that at that time no discussion concerning his lease took place. In fact, Mr. Tellier questioned Mr. Boisvert about the possibility of his acquiring the entire building rather than remaining in the building. [ 22 ] Also, when questioned as to the negotiations leading up to the lease signed on November 1 st , 2009, Mr.

Tellier, although unable to give specific dates, has a clear recollection that the discussions of this new lease took place in the days or weeks prior to its signature. Mr. Sokkar made him an offer that he immediately accepted. All that was left was the discussion of the lease itself. This process took approximately two (2) weeks. [ 23 ] The preponderant evidence is that Mr. Boisvert did not discuss the renewal of Mr. Tellier's lease during the course of the brokerage contract. He was not the efficient cause of the lease renewal. [ 24 ] It is also preponderant that the new lease for Mr.

Tellier's business was negotiated, agreed to and signed after the cancellation of

the brokerage contract. This being the case, the exclusive nature of the brokerage contract does not give Mr. Boisvert a right to his commission. [ 25 ] For these reasons, no commission is due. [ 26 ] However, 9170 presented no evidence whatsoever to explain why it did not return the advertisement to Mr. Boisvert. Therefore, the claim for $196.61 is granted. FOR THESE REASONS, THE COURT: REVOKES the judgement rendered on February 25, 2013; And on the merits: GRANTS, in part, the application; CONDEMNS 9170-6598 Quebec Inc. to pay the sum of $196.61 to Michel Boisvert with legal interests and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec since September 14, 2010. CONDEMNS 9170-6598 Quebec Inc. to pay the judicial costs in the amount of $159. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: July 31, 2013