2018 QCCQ 304, 2018 QCCQ 304

6541828 Canada inc. (Vantage Mortgage & Realty Group) c. Patel 2018 QCCQ 304 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-150057-158 DATE: January 12, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ 6541828 CANADA INC., d.b.a. VANTAGE MORTGAGE & REALTY GROUP Plaintiff/Respondent v.

JAYSHREE PATEL -and- HARSHAD PATEL Defendants/Applicants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On December 5, 2016 the Court rendered a judgement granting 6541828 Canada Inc.’s, d.b.a.

Vantage Mortgage & Realty Group (hereinafter “ Vantage ”) claim and ordered the Defendants to pay Vantage $5,692.50 plus interest and the additional indemnity (hereinafter the “ December 2016 Judgement ”). [1] [ 2 ] On January 23, 2017, Defendants filed an Application in Revocation asking the Court to set aside the December 2016 Judgement. They argue that this judgement was rendered on the basis of a false exhibit submitted by Vantage. [ 3 ] Vantage denies this claim and argues that the Questions in Dispute

a) Have the Defendants proved that facts which justify the revocation of the December 2016 Judgement?

b) If so, has Vantage established that it is entitled to its commission for securing a mortgage loan for the Defendants? Context [ 4 ] Vantage is an enterprise which searches for and secures mortgage loans for its clients in return for a commission in the form of a percentage of the loan obtained. [ 5 ] Howard Puritt is its representative for the purposes of its dealings with the Defendants. [ 6 ] The Defendants own a residential property.

In early 2015, they solicit Vantage as they wish to refinance their property. [ 7 ] On March 31, 2015, Vantage and the Defendants sign an “Exclusive Mortgage Brokerage Service Contract” (hereinafter “March 2015 Mortgage Brokerage Contract”) [2] which provides in part that they agree to pay Vantage remuneration of 1.5% of the quantum of the financing obtained by Vantage (clause 2 c).

The Contract further stipulates that Vantage’s mandate is exclusive and irrevocable for a term of 120 days (clause 1). [ 8 ] Vantage alleges that it secured a mortgage commitment of $320,000 from Equitable Bank in a letter dated March 24, 2015, which the Defendants received and initialled [3] , and therefore, it is entitled to its commission of $5,692.50 as per the terms of the March 2015 Mortgage Brokerage Contract. [ 9 ] On October 13, 2015, Vantage sent the Defendants a demand letter claiming payment of its commission. [4] The Defendants did not pay the commission. [ 10 ] November 30, 2015, Vantage filed its Claim with the Court of Québec, Small Claims Division.

It filed the March 2015 Mortgage Brokerage Contract (P-2) and the Equitable Bank Commitment letter (P-3) in support of its Claim. [ 11 ] On March 4, 2016, the Defendants filed their Contestation to Vantage’s Claim. They acknowledge that they mandated Vantage (Mr. Puritt) to find financing, but they allege that they do not owe any commission because they wanted financing from a

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bank and not a private lender (they claim Equitable Bank is a private lender and not a bank). [ 12 ] The trial in this matter took place on November 15, 2016, before Justice Daniel Bourgeois. [ 13 ] On December 5, 2016 Justice Bourgeois issued the December 2016 Judgement granting Vantage’s application and ordering the Defendants to pay Vantage $5,692.50 plus interest and the additional indemnity.

In his reasons for judgement, he writes: [15] En l’instance, la demanderesse a déposé en preuve le mandat exclusif (P-2) lequel stipulait une commission de 1,5 %, et a également déposé l’offre conditionnelle d’Equitable Bank (P-3). Tous ces documents ont été signés par les défendeurs. [16] Puritt a témoigné que si Equitable Bank tardait à faire l’avance de fonds, c’était parce que les défendeurs ne respectaient pas les conditions énoncées, entre autres, à l’annexe B de l’offre P-3.

Patel n’a avancé aucun argument pour contredire cette affirmation. [17] Certes, il est évident que l’offre de financement de la Banque Scotia était plus favorable aux défendeurs, en ce qui concerne le taux d’intérêt, et ce, même si le capital avancé était moindre. [18]

Malgré ce qui précède, et même si Patel affirme qu’elle ne voulait pas obtenir du financement d’un prêteur de catégorie « B » (au sens de la

Loi canadienne sur les banques), les défendeurs ont tout de même consenti, en signant et paraphant chacune des pages de l’offre de financement P-3, cette offre d’Equitable Bank. [19] Dans les circonstances, le Tribunal arrive à la conclusion que la demanderesse a prouvé les faits qui soutiennent ses prétentions. [ 14 ] On January 23, 2017, Defendants filed an Application in Revocation asking the Court to set aside the December 2016 Judgement. Analysis and Decision

a) Have the Defendants proved that facts which justify the revocation of the December 2016 Judgement? The Law [ 15 ] The Defendants’ Application in Revocation is governed by articles 345 and 347 of the Code of Civil Procedure , R.S.Q., ch. 25.01 (C.C.P.) which read as follows: 345. A judgment may, on a party’s application, be revoked by the court that rendered it if letting the judgment stand would tend to bring the administration of justice into disrepute .

The judgment may be revoked, for instance, if fraud was committed by another party, if the judgment was based on false exhibits or if the production of decisive exhibits was prevented by superior force or by the act or omission of another party.

As well, a judgment may be revoked if (1) the judgment adjudicated beyond the conclusions set out in the application or did not rule on one of them; (2) no valid defence was produced in support of the rights of a minor or of a person of full age under tutorship or curatorship or for whom a protection mandate has been homologated; (3) a ruling was made on the basis of invalid consent or following an unauthorized tender that was subsequently disavowed; or (4) evidence was subsequently discovered that would probably have led to a different judgment if the party concerned or its lawyer had become aware of that evidence in sufficient time, although they acted with due diligence . 347.

An application for revocation must be served on all parties to the proceeding within 30 days after the day on which the cause preventing the party from filing a defence ceased to exist, or after the day on which the party became aware of the judgment, evidence or fact that constitutes grounds for the revocation. In the case of a minor, the 30-day period only begins to run as of notification of the judgment after the person reaches full age. The application for revocation must be presented before the court within 30 days after service, as if it were an application in the course of a proceeding.

It cannot be presented if more than six months have elapsed since the judgment. These are strict time limits. [ 16 ] The Court hearing an application for revocation must consider two competing principles: the irrevocability of judgments and the right of a party to a full and complete defence. [ 17 ] Furthermore, the proper administration of justice requires that the grounds mentioned in

article 345 C.C.P., as a basis for the revocation of a judgment, be interpreted strictly. [5] Judgments should not be set aside lightly. [6] [ 18 ] Finally, the party seeking to revoke the judgement has the burden of proving the facts which he/she advances as grounds for the revocation. Application of the Law to the Facts of the Present Case [ 19 ] The Defendant argue in their Application for Revocation that the December 2016 Judgement should be revoked because it was

obtained on the basis of false evidence. [ 20 ] Specifically, they argue that the March 2015 Mortgage Brokerage Contract (P-2) which is the basis of Vantage’s claim and upon which Justice Bourgeois made his ruling is not genuine and was made up by Vantage.

Rather, they posit that the true contract between the parties is an Exclusive Mortgage Brokerage Service Contract which they signed on February 18, 2015 (hereinafter the “February 2015 Mortgage Brokerage Contract”). [7] [ 21 ] The February 2015 Mortgage Brokerage Contract (D-4) differs markedly from the March 2015 Mortgage Brokerage Contract (P-2) in a number of ways, but most importantly, in that its term is 30 days whereas the term of the latter is 120 days. [ 22 ] The Defendants argue that if the Court applies the terms of the February 2015 Mortgage Brokerage Contract, then Vantage’s claim should be dismissed because the Equitable Bank Commitment letter (P-3) was presented to them beyond the term of Vantage’s mandate.

Therefore there is no basis for any remuneration. [ 23 ] Mr. Puritt categorically denies that the March 2015 Mortgage Brokerage Contract (P-2) is a false exhibit. Rather, he claims that the February 2015 Mortgage Brokerage Contract (D-4) is false and was forged by the Defendants. [ 24 ] The Defendants’ Application in Revocation turns on a question of credibility and burden of proof.

For the reasons that follow, the Court concludes that the Defendants have not proven on the balance of probabilities that the March 2015 Mortgage Brokerage Contract (P-2) is a false document. [ 25 ] In his December 2016 Judgement, Justice Bourgeois writes : [3] Il n’est pas contesté que les défendeurs signent le 31 mars 2015 un mandat exclusif de courtage avec Vantage (P-2). [ 26 ] If the March 2015 Mortgage Brokerage Contract (P-2) was a false document as the Defendants claim today, why didn’t they raise this argument before Justice Bourgeois? [ 27 ] The conclusions and finding of facts of Justice Bourgeois in the December 2016 Judgement benefit from a simple presumption of truth, which can, of course, be rebutted by the Defendants. [8] [ 28 ] However, the Defendants have not rebutted this presumption. [ 29 ] When they attended the trial before Justice Bourgeois on November 15, 2016, the Defendants claim that they had in their possession the February 2015 Mortgage Brokerage Contract (D-4).

They add that during the trial, they simply did not realize that the exhibit filed by Vantage to support its claim – the March 2015 Mortgage Brokerage Contract (P-2) - was a different document than the February 2015 Mortgage Brokerage Contract (D-4). [ 30 ] This argument is not plausible. Either the Defendants were negligent in their preparation for the trial, or they are not forthright. Moreover, nowhere in their Contestation do they raise the argument that they raise in their Application in Revocation. [ 31 ] Mr.

Puritt categorically denies that the February 2015 Mortgage Brokerage Contract (D-4) is a valid document. He insists it is forged. He adds that the document is not signed by him or any representative of Vantage, as it would be if it were a true contract. [9] [ 32 ] Mr. Puritt’s testimony is frank and forthright.

There is no reason whatsoever to doubt his credibility. [ 33 ] The Defendants’ claim that the February 2015 Mortgage Brokerage Contract (D-4) is the true contract between the parties is not consistent with the fact that they acknowledged receiving and initialling each page of the Equitable Bank Commitment Letter. [10] [ 34 ] If the February 2015 Mortgage Brokerage Contract (D-4) is really a true contract, than Vantage’s mandate would have expired March 19, 2015 and there would be no reason to initial the Equitable Bank Commitment letter as they did, since the letter was presented after the expiry of Vantage’s mandate. [ 35 ] Moreover, the evidence reveals that on or about June 30, the Defendants remitted to Mr.

Puritt a cheque dated June 30, 2015 in the amount of $4,000 in payment of Vantage’s remuneration. [11] Ultimately, Vantage was never able to cash this cheque as it was returned NSF. [ 36 ] The remittance of this cheque is inconsistent with the Defendants’ theory that the March 2015 Mortgage Brokerage Contract (P- 2) was a false document. Again, why remit a cheque in partial payment of Vantage’s remuneration if, as the Defendants claim, Vantage’s mandate is already expired. To the contrary, the remittance of this cheque lends credence to Vantage’s position and undermines the Defendants’ credibility. [ 37 ] Mrs.

Patel explains that after she signed the February 2015 Mortgage Brokerage Contract (D-4), she sent it on February 17, 2015 by email to Mr. Puritt. [12] The Court asked Mrs. Patel to submit to the Court a copy of the attachments to her email to corroborate this testimony. [ 38 ] The trial was adjourned and when the parties reconvened before the Court, Mrs. Patel filed the attachments to her February 17, 2015 email. [13] It turns out that the February 2015 Mortgage Brokerage Contract (D-4) was not attached to the February 17 email as she initially claimed. Rather an altogether different document is attached.

This further undermines the Defendants’ credibility. [ 39 ] Finally, the 30 day term of the February 2015 Mortgage Brokerage Contract (D-4) is inconsistent with the Defendants’ financial situation at the time they sought to refinance their property. [ 40 ] They admit that they had a poor credit rating when they mandated Vantage to search for a mortgage, notably because Revenue Quebec and another financial institution had obtained a judgement against them.

[ 41 ] Mr. Puritt explains that given the Defendants’ poor financial position, a 30 day mandate is illogical since it takes much more time to find financing for a person who has a poor credit rating.

Hence, the 120 term in the March 2015 Brokerage Contract (P-2). [ 42 ] Simply put, there are too many inconsistencies between the Defendants’ claim and the overall evidence to lend credence to their theory that the February 2015 Mortgage Brokerage Contract (D-4) is the true contract and the March 2015 Brokerage Contract (P-2) is a false exhibit. [ 43 ] To the contrary, the weight of the evidence rather supports the Vantage’s point of view, i.e. the March 2015 Mortgage Brokerage Contract (P-2) is the true contract that governs the parties. [ 44 ] Considering that the Defendants have not discharged their burden of proving that the March 2015 Mortgage Brokerage Contract (P-2) is a false exhibit, their Application in Revocation of the December 2016 Judgement will be dismissed and this judgement will be maintained. [ 45 ] In light of the Court’s decision on the Defendants’ Application in Revocation, there is no reason to rule on the second question in dispute.

FOR THESE REASONS, THE COURT: [ 46 ] DISMISSES the Defendants’ Application in Revocation; [ 47 ] WITH LEGAL COSTS. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: May 15 & September 5, 2017