2015 QCCQ 1144, 2015 QCCQ 1144

Pour c. Legault 2015 QCCQ 1144 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-132526-122 DATE: February 3, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ YOUSEF MOHAMMED POUR […] Kirkland (Québec) […] Plaintiff v.

ELAINE LEGAULT […] Mont Saint-Hilaire, Qc […] And B2B BANK 1981, Avenue McGill Collège, 20 th floor Montréal, Qc H3A 3K3 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Yousef Mohammed Pour, who purchased a residential property on Grilli Street, in Kirkland, in a sale by judicial authority, sues the Defendant Élaine Legault, the person authorised by the Court to proceed to the sale, because of damages caused to one of the garage doors and the front entrance door to the residence between the time when he consented to the sale and the closing at the notary’s office and the taking of possession. [ 2 ] He alleges that the Defendant failed to properly repair the damages, which were caused by vandalism, thereby failing to deliver the property in the state it was in at the time the sale was consented to. [ 3 ] At the hearing, it was determined that Elaine Legault was not acting in a personal capacity, but only as person designated by the Court, and that her instructions in fact came from Compagnie de Fiducie AGF or AGF Trust Company (“AGF”), the hypothecary creditor who was exercising its hypothecary recourse and to whom the building had been surrendered. [ 4 ] The evidence established that at all times, Elaine Legault was acting under instructions from AGF’s property manager, and that she, at no time, took any decision of her own, in respect of the matter. [ 5 ] It becomes obvious therefore that the hypothecary creditor would be the appropriate Defendant, because it was this creditor that assumes the responsibility of managing the property and delivering it, pursuant to the sale authorised by the Court and executed under the authority of the Court by Elaine Legault. [ 6 ] Elaine Legault is an employee of a law firm, that provides this type of service to its clients, and it is also obvious in the present case that the law firm has no liability in respect to decisions made by its principal, the hypothecary creditor.

[ 7 ] The Court was provided with a copy of letters patent showing that B2B Banque and AGF Trust Company were amalgamated and continued as one bank, under the name in English “B2B Bank” and in French “B2B Banque”, on August 2, 2013. [ 8 ] The liabilities therefore of AGF Trust Company are continued in the patrimony of the new entity as amalgamated. [ 9 ] With the parties’ consent, which was ratified by B2B Bank in favour of Elaine Legault, the Court allowed the amendment of the proceedings to substitute B2B Bank as the Defendant in this matter. [ 10 ] Implicitly then, the Court also allowed Elaine Legault to act as the representative of B2B Bank at the hearing and, in particular, to make orally the defence that had been produced in writing in the file on her own behalf as the defence of B2B Bank. [ 11 ] The defence that Ms Legault had made is essentially that she was acting in the Court file in virtue of the judgment on behalf of the debtor who was subject to the foreclosure. [ 12 ] While it is correct to say that the person entrusted with the sale of the property, acts in the “name” of the owner, according to

article 2793 C.C.Q., it is also obvious that the owner has no liability with respect to any fault committed in the course of the judicial sale.

The question in this matter is more properly whether the creditor, who assumed the management of the sale process and who directed de facto , the actions of the Court appointed officer is liable for the decisions that it makes, with respect to the property. [ 13 ] Between the moment when the property was sold to Mr Mohammed Pour and his taking of possession, it was both judicially and physically in the possession of the hypothecary creditor to whom it had been relinquished and that creditor is, therefore, the proper party against whom can be enforced the obligations of sale, rather than the debtor or the person designated by the Court to see to the formalities of sale. [ 14 ] It might have been different if the Court appointed officer acted on her own, without instructions from the creditor, and the Court will express no opinion as to what the legal result of such a situation would have been.

FACTS [ 15 ] Essentially, Mr Mohammed Pour purchased the house in the state which he saw it when he consented to the contract. [ 16 ] At that time, there was no visible damage to either the garage door or the front entrance. [ 17 ] The sale was written as a

schedule to the “Brokerage Contract” (P-11). The document contains the stipulation that the sale is made on an “as is basis on the day of closing”, but it is common ground between the parties that the purchaser was entitled to receive the building in the state it was in when he consented to the sale, that is to say the date that the

schedule was signed, November 20, 2011. [ 18 ] Mister Mohammed Pour is under the impression that he signed a Deed of sale with a notary, but in fact, the contract of sale was entered into under a private writing presented to him by an attorney acting for AGF. [ 19 ] Perhaps a proper juridical analysis would be to say that the sale is complete as of the consent of the parties on November 14, 2011, and that the signing of the Deed of sale and its eventual publication made the contract opposable to third parties. [ 20 ] In any event, it is common ground between the parties that AGF owed the duty, because of its management of the property in the interim, to insure that it was delivered in the state in which it was found by the purchaser when he accepted to buy it. [ 21 ] Just prior to the sale being formalised under the Deed, Mr Mohammed Pour noticed some damage to one of the garage doors, and to the front door of the house.

Vandals had painted large “X” ’s, both on one of the garage doors and on the front entrance and the garage door was dented. The person acting on behalf of the property managers mandated by AFG were instructed to investigate and, eventually, they were given instructions to repair these doors. [ 22 ] There had been other events of vandalism in the past and the doors had been washed and painted on at least one other occasion.

It is also not in dispute between the parties that the particular damages that are in issue in this case occurred between the signing of the promise to purchase and the transfer of possession. [ 23 ] Mohammed Pour communicated with the agent with whom he had dealt, Danielle Beaulne, who sought instructions from Elaine Legault. She was told that the sale would take place without any money being held back, but that AGF would see to the restoration of the property. [ 24 ] Danielle Beaulne wrote to Elaine Legault by email on December 19, 2011.

She mentions that the garage door “is incised in 2 places” but she does not mention any repairs required to the front door beyond the fact that it is damaged. She attaches photos. [ 25 ] The main issue seems to be whether the repairs will be done or the notary will keep money in trust. She advises that the appointment for the deed is 10:00 a.m. that morning.

Élaine Legault replies promptly on December 20, 2011 at 7:46, stating: “We will make estimates and repair no money will be retained”. [ 26 ] On that basis, Mr Mohammed Pour completed the documentation and took possession of the property. [ 27 ] After taking possession, he noticed that the front door had been also damaged. The side of the door that holds the hinges showed signs of having been forced and the wood structure was damaged.

According to the advice he obtained, it was necessary to replace the entire door and door frame assembly. [ 28 ] Danielle Beaulne confirmed on December 20, 2011 at 8:25 to Mr Mohammed Pour: “The bank will do an estimate and have everything repaired but because of the holidays, this will be done in mid-January”. She also informed him that any unjustified delay to the sale would result, for him, in a penalty of $ 25 per day.

[ 29 ] The problem then arose when, on January 20, 2012, a workman came with the new garage door to replace the one that was damaged. The colour of the door did not match the second door and Mr Mohammed Pour refused to have it installed. [ 30 ] Sebastien Nadeau, who took this refusal (P-5), stated that he agreed that the colour did not match.

He obtained instructions from his superiors to leave the garage door in Mr Mohammed Pour’s garage, and to suspend the work. [ 31 ] Mohammed Pour communicated with Danielle Beaulne, complaining about this and also because the workmen had no instructions to replace the front door. [ 32 ] Danielle Beaulne informed Mr Mohammed Pour on January 11, 2012, that the “agreement with the bank was to replace the garage door on the right and to repaint the front door”. She requests Mr Mohammed Pour: “let the workers do what they have to do, they will stick to the agreement”.

On January 12, 2012, Mr Mohammed Pour complaints: “the bank doesn’t want to repair the main door and garage door as professional job just want to paint the door and its not enough, and also its not secure for me, because the door is totally its broken I show the door company”. (pièce P-12) [ 33 ] From there, matters broke down between the parties, the representatives of AGF Bank not acknowledging that the front door was damaged and not agreeing to replace the garage door with one that had a matching paint colour.

The Court heard the testimony from several persons who had visited the property on behalf of AGF, but none was able to categorically state that the damages Mr Mohammed Pour complains of to the front door had not been sustained. What is clear is that AGF acted at all times as if the only damage to the front door was to the paint, which could be corrected without the replacement of the door.

Mister Mohammed Pour, however, insists that when he took possession of the house, there was also damage to the front door, which required its replacement. [ 34 ] Sébastien Nadeau stated to the Court that he did not have any recollection of whether the front door was damaged. He does recall, however, that Mr Mohammed Pour told him that he expected the front door to be changed. [ 35 ] Ronald McDuff visited the property twice. One of these occasions was in December, and the other, he believes, some three weeks before Mr Nadeau’s visit of February 13, 2012. He is, however, unable to establish the date.

Ronald McDuff believes that he did not see any damage to the front doors and his position is that the doors simply needed to be cleaned or painted. [ 36 ] Élaine Legault has no direct knowledge of these circumstances of the case, only the knowledge she gained second hand from persons reporting to her. [ 37 ] She produced her computerised records of the matter, compiled in a program called “CollectLink” (D-10). [ 38 ] Stéphanie Lazzaro confirms to her on December 22 nd : “The dents in the front doors and garage door are not new, they were there when we secured”. [ 39 ] This information seems to be dubious because the Court heard testimony from Alain Beaudry, the evaluator and Ronald McDuff, to the effect that there were no such dents at the time the property was secured. [ 40 ] On December 29, 2011, Ms Legault instructs Stéphanie : “Please obtain quotes only for the repair of the garage door (on the right).

Regards”. [ 41 ] Other notes show that she is operating under the assumption that the dents had already occurred from the time the property was secured. [ 42 ] There is another note on December 28, 2011, where Stéphanie gives her a quote to replace the two front doors, including the frame, $ 4,700. Note: this is a high quality and is not a standard door. It will have to be special ordered 4 to 6 weeks.

Estimate to replace 2 garage doors $ 2,850. [ 43 ] It seems at that time that the plan was to replace the front doors and to replace both garage doors i.e. the one that was damaged and the one that was not. [ 44 ] This would lend support to the idea that it would be difficult to replace only one of the two garage doors, because of the difficulty of matching the paint colours. [ 45 ] It is also reported on January 6 th , by Stéphanie Lazzaro that Mr Mohammed Pour stated to the contractor that: “The agreement at the notary was to change the garage doors and not just painting it”. [ 46 ] AGF seems to vacillate on the issue that the dents were already caused to the garage doors, and eventually, becomes firm in its intention to replace the one garage door that was both damaged by paint and dented but not to replace the other. [ 47 ] Another comment comes from Carol Federman addressed to Daniela.

She states that she told Mr Mohammed Pour: That the door was in the same way when he purchased the pty. The agent Mrs. Beaulne and the PM has confirmed that the front door was damage since we secure the pty. The only door we agree to change was one of the garage door. I told him to call his agent. Regards. [ 48 ] Yousef Mohammed Pour obtained several quotes and eventually settled on an amount of $ 8,732.35 with a firm known as Nasser Rénovation (P-7). The bill states in its description: "Main door is bork from hinge no repair can be done.

Garage door twisted impossible to repair and match colors.” [ 49 ] Similarly, a quote from Home Depot (P-8) contains the description: “Our estimation is that the doors have to be change with the frame, hinges and seal. Everything has been burn, force and damage, no repair can be done !!”.

[ 50 ] The evidence, including Mr Mohammed Pour’s testimony, as corroborated by the observations contained in the business documents of Home Depot and Nasser Rénovation, demonstrates that the front door was in fact damaged and required a replacement. The issue, then, becomes whether it was damaged in this way when he took possession of the property or if this vandalism occurred since. [ 51 ] The only clear evidence comes from Mr Mohammed Pour himself who testifies that when he took the property and used the key to gain access, he found the front door to be damaged in a manner that the estimates reveal.

His photos clearly show this. [ 52 ] The only evidence that would establish that it was damaged since his possession is incomplete and somewhat contradictory. While none of the witnesses who visited the property on behalf of AGF can testify that the door was in fact damaged, their testimony is also not effective to demonstrate that it was not. Mr Nadeau’s recollection is not very good and Mr McDuff cannot establish the date on which he visited the property. Also, there are contradictory statements reported in the business records that Elaine Legault produced.

There seems to be confusion as to whether the front door will be replaced, and whether it was in fact damaged at the time the property was secured, something that Mr McDuff denies. [ 53 ] On the whole, the evidence, as documented by this process, is not conclusive. [ 54 ] The Court is left with Mr Mohammed Pour’s testimony, which was credible.

There is no reason to doubt his sincerity. [ 55 ] AGF, therefore, should have paid for the replacement of the front door. [ 56 ] As for the garage door, AGF would have been content to replace the garage door with a standard colour of white, even though this did not match the existing door. [ 57 ] In the Court’s view, this is not acceptable because it does not represent the state of the building when Mr Mohammed Pour agreed to purchase it. [ 58 ] Mr Mohammed Pour was able to have a garage door made to measure.

Technicians matched the paint colours so that the door, as delivered, matches exactly the colour as the other door. The cost he incurred is comparable to the quotes that AGF had obtained.

On the whole, it appears that AGF was trying to limit its losses as much as possible and, in doing so, erred on the side of its own interests, rather than on the side of the interests of the purchaser. [ 59 ] While no ill intent can be suspected, it is a situation where it would have been better to go the extra mile to avoid this conflict. [ 60 ] The invoice of Nasser Rénovation, the best estimate of three obtained, establishes a cost of $ 8,732.35. [ 61 ] The Plaintiff reduced his claim to $ 7,000, the limit available in the Small Claims Division.

On February 13, 2012, Mr Mohammed Pour put Ms Legault in default (P-1) and awaited a reasonable period before proceeding himself to the repairs on February 26, 2012. The putting in default is therefore adequate. [ 62 ] One of the witnesses called at the request of the Defendant, Mr Alain Beaudry, asked for his costs and expenses as an expert witness. In fact, he was not called as an expert, but as an ordinary witness as to facts.

The Court will allow his costs as an ordinary witness; he is nevertheless free to seek payment as expert witness from the Defendant, depending on the contractual arrangements he has made. BY THESE REASONS, THE COURT: CONDEMNS the Defendant B2B Bank to pay the Plaintiff the amount of $ 7,000 with interest at the legal rate and plus the additional indemnity provided for by

article 1619 of the Civil code of Québec , as of the date of the demand letter, February 13, 2012; CONDEMNS the Defendant B2B Bank to pay the judicial fees of $ 163 to the Plaintiff. CONDEMNS the Defendant B2B Bank to pay the costs of the witness Alain Beaudry, as determined by the Clerk. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 6, 2015