2014 QCCQ 6571, 2014 QCCQ 6571

Imagine Realties Inc. c. Tosto 2014 QCCQ 6571 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-203643-138 DATE: June 17, 2014 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ IMAGINE REALTIES INC. Plaintiff v.

ANGELA TOSTO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ PARTIES AND PROCEEDINGS [ 1 ] Imagine Realties Inc., a real estate agency, sues the defendant Angela Tosto for $ 17,504.94 as remuneration under an exclusive brokerage contract for the sale of a residential property she owned at 2562 Sandemere, St-Lazare on May 23, 2013. [ 2 ] The remuneration is claimed pursuant to clause 7.1 (3) of the OACIQ mandatory form for a sale that took place within 180 days of the expiry date of the exclusive brokerage contract (P-1) to a person who was interested in the immovable during the term of the said contract. [ 3 ] The Defendant does not take issue with the allegation that the sale took place, within the stipulated 180 days, to a person who had been interested in purchasing the property during the term of the Plaintiff’s agreement but she maintains that the remuneration is not owed because, during the 180 day period, she concluded, in good faith, with another agency, a contract stipulated to be exclusive for the sale of the immovable. [ 4 ] The Plaintiff does not challenge the assertion that an exclusive brokerage contract was concluded by the Defendant within the relevant period.

Rather, it takes issue with the allegation that the contract was concluded in good faith. [ 5 ] The cross-demand is voiced in terms of the reservation of a claim for damages for extra-judicial fees, "given this abusive and completely unfounded claim". Issues [ 6 ] The Court must determine whether the exception contained in clause 7.1 (3) of the exclusive brokerage contract applies.

That clause reads as follows: REMUNERATION (PLUS TAXES) 7.1 The SELLER shall pay to the AGENCY or the BROKER, in the cases provided in 1°, 2°, 3° and 4° of this section, remuneration of: Five percent (5%) of the sale price or of the price stipulated in 4.1, in the case provided in 4 or for any transaction involving the SELLER’S share capital; […] 3. where a sale takes place within 180 days following the expiry date of this contract with a person who was interested in the IMMOVABLE during the term of this contract, unless, during this period, the SELLER concluded in good faith with another agency or another broker a contract stipulated to be exclusive for the sale of the immovable; or

[…] [Underlining added for emphasis] [ 7 ] The issue breaks down into two questions: 1) Which party has the burden of proof on the question of good faith? 2) On the evidence, has the burden of proof been met? FACTS The brokerage contract [ 8 ] In early July 2012, Mrs Tosto and her husband Vito Cuzano, required the services of a real estate broker for the sale of their residential revenue property in St-Lazare. They called upon a broker who had provided services to them in the past.

She was no longer practicing but referred them to Mr Kyle McManus of Imagine Realties Inc. [ 9 ] On July 7, 2012 the Tosto-Cuzano couple met with Mr McManus who showed them a market study he had prepared (D-1). The document showed details of the immovable as compared with five other properties in St-Lazare. Comparing municipal evaluations, and averaging the multiplication factor of the suggested market values of the properties, the study indicates a market value of $ 474,045. [ 10 ] The meeting resulted in the signing of an exclusive Brokerage Contract (P-1). Mrs Tosto signed, as registered owner of the property.

Mr Cuzano intervened as the seller’s spouse. [ 11 ] The asking price mentioned in the contract is $ 559,000. The basis of remuneration is 5%, with a 2.5% payment to the collaborating broker. A mandatory amendment form was also signed (P-2), reducing the remuneration to 3.5% in the event that the sale is made by a purchaser who submits the offer to purchase through the agency. [ 12 ] The expiration date is October 31, 2012. [ 13 ] By early August, there was no activity on the listing.

On August 25, 2012 the parties agreed to an amendment to the exclusive brokerage contract reducing the asking price to $ 544,000 and increasing the remuneration rate to 6.5% and changing the split to 2.5% for the seller’s broker and 4% to the buyer’s broker (D-2). [ 14 ] On October 6, 2012 the parties agreed to a further amendment, extending the expiry date to February 28, 2013 (P-3). [ 15 ] By the middle of January 2013, there was still no significant interest in the property.

The parties agreed to a further amendment to the exclusive brokerage contract on January 16, 2013 reducing the asking price to $ 489,000 and re-establishing the rates of remuneration to 5% with 2.5% to the collaborating broker, as originally stipulated. [ 16 ] At this newly-revised price, two prospective purchasers came forward. The offers [ 17 ] The first, a couple, Natasha Mileto and Mark Iversen, presented, through the Plaintiff, an offer of $ 415,000 on January 27 (P- 4). [ 18 ] The offer, perceived by the sellers as simply too low, was refused.

This would not have come as a surprise to the prospective purchasers who had deliberately made a low offer, so as not to be bound, given that Mr Iversen was away and had not had an opportunity to visit the property. [ 19 ] On February 2, 2013 they made a better offer at $ 430,000 (P-5) to which the sellers countered at $ 474,000 (P-6). [ 20 ] The Mileto-Iversen couple countered on February 4, 2013 at $ 437,500, this time writing into the offer “This offer is firm and final” (P-7). [ 21 ] Mr McManus sided with the purchasers writing to them in an email (P-17) on February 6, 2013: […] I want to reiterate that I highly regret that your counter was refused.

It is most definitely a consensus of opinion that your offer was very good. After the Seller indicated that they were leaning towards refusing the offer, I wrote to them stating specifically that I highly doubt that they will get a better offer for their property without SUBSTANTIAL renovations and upgrades. They plan very limited upgrades and effectively are selling the home “as is” with unrealistic price expectations. As a result, as mentioned last night, I will drop the listing at the end of the month. […] [ 22 ] This terminated the negotiations, for the time being, at least.

Another prospective purchaser [ 23 ] The sequence of events that next occurs is crucial for the determination of the case. [ 24 ] The Mileto-Iversen couple sign off, thanking Mr McManus for his efforts and expressing the idea that “we did all what we could”, by which was meant, apparently, that they had offered as high a price as they could. [ 25 ] In the meantime on February 11, 2013, another prospective purchaser, Jane Paderidis presents an offer through a collaborating broker at $ 420,000.

A series of counter proposals ensues, seller: $ 475,000; purchaser: $434,000; seller $ 454,000 (“final”); purchaser: $ 450,000. [ 26 ] In the midst of this process, Mr Cuzano writes to Mr McManus on February 14, 2013, suggesting that he “touch base with your first couple and prepare them the opportunity if they can afford it. To jump in the moment the counter expires”. [ 27 ] The deal is struck at Ms Pateridis’ proposed price of $ 450,000.

This is acceptable to the seller, because the brokers have negotiated a reduction of their commissions from 5% to 4.1802%, to give a net amount having the same value to the seller as her final offer of $ 454,000. [ 28 ] But, the deal is conditional upon an inspection. The purchaser comes back, after the visit of the property by the inspector with a proposal to reduce the price by $ 10,000 in light of a certain number of points raised. [ 29 ] One of the elements alleged by the inspector is water infiltration.

Mr McManus makes an issue with Mr Cuzano about the original seller’s declaration where there is no mention of any past water infiltration. He recommends drafting a new seller’s declaration. [ 30 ] Mr Cuzano takes the position that the items raised by the purchaser are not serious, and requests a meeting. He does eventually speak to the purchaser.

He attempts to deal with the technical issues on their merits, to prove that there is no real problem of infiltration, but his testimony makes it clear that he perceives the purchaser as someone who wants to buy the property at a low price, do some renovations and flip it for a quick profit. [ 31 ] On February 25, 2013, Jane Pateridis gives notice on the prescribed form that she is making the promise to purchase null and void. [ 32 ] Mr Cuzano, quite unhappy about the situation, communicates with Mr McManus to terminate the relationship.

Mr McManus replies that it would be simpler, pending the receipt of the final document from Jane Paterdis, to simply let the contract expire according to its term, on February 28, 2013. Renewed interest [ 33 ] Around this point in time, there is renewed communication between Natasha Mileto and Kyle McManus. The Mileto-Iversen couple is still interested in the property and have been informed that the other deal has fallen through.

Mr McManus does not communicate with Mr Cuzano or Mrs Tosto about this continued interest. [ 34 ] This lack of communication notwithstanding, contact quickly resumes directly between the prospective buyer and seller, at Mrs Mileto’s initiative. [ 35 ] A meeting is held between the two couples at the St-Lazare property. The Mileto-Iversens are willing to buy at the same price as before: $ 435,000. The sellers inform them that, though the exclusive brokerage contract has expired, the broker is still in the picture, and the question of his commission has to be settled.

Mr Cuzano is unwilling to communicate with him, however, and it is agreed that Natasha Mileto will make contact and try to settle the issue of the commission. Mr Cuzano takes the position that he and his wife, as sellers, simply want $ 435,000 net from the sale, and that the purchasers should arrange the amount of the commission with Imagine Realties Inc. [ 36 ] Natasha Mileto makes several attempts, beginning around March 10, 2013 (P-26) to negotiate with Mr McManus.

According to his testimony, she is offering to increase the sale price to $ 437,500 with his commission, tax in, being equal to $ 2,500, and the net price to the vendors of $ 435,000. After several persistent communications, she eventually gives up more ground at $ 440,000, for a commission of $ 5,000, tax in, but this is not acceptable to the broker. [ 37 ] There is a communication as well between Mr McManus and the vendors to try to remind them that, as matters were left in the previous situation, the net sale price, after commission was $ 428,000, not $ 435,000, but to no avail.

The matter is turned over to Mr McManus’ superior, the director of Imagine Realties Inc., Salvatore Sansalone, but he takes a firm position as well that the reduced commission of 3.5 % is owed by the vendors in the event of a sale. [ 38 ] The parties’ respective positions remain firm and no resolution results. The buyers and sellers break off negotiations.

It is mid March 2013. [ 39 ] Mark Iversen testifies that he and his wife continued to look for a suitable property, disappointed, because this was the property that they had hoped to buy. [ 40 ] Mr Cuzano testifies that he also treated the negotiations as being at and end. A new broker and the closing of the deal

[ 41 ] Enter the new broker, Dino Faustini. [ 42 ] Mr Cuzano testified in chief that he was referred to Mr Faustini by a mutual friend whom he trusted to make a recommendation. The friend recommended Dino Faustini. The exclusive brokerage contract was signed March 29, 2013, to expire October 31, at a selling price of $ 499,000. The remuneration is 4%, with 2% to the collaborating broker. [ 43 ] Mr Cuzano testified that he mentioned in general terms the history of the two offers, but without mentioning any names.

Mr Faustini’s testimony coincides on this point. [ 44 ] The listing is published on Centris. [ 45 ] Mr Iversen testifies that his wife, who is checking Centris on a daily basis, sees the new listing. A visit is arranged. The Mileto-Iversens mention during the visit that they already know the property. Mr Faustini testified that he was unaware until showing them the property that they were one of the parties who had made a previous offer. [ 46 ] The discussions begin with an offer that involves the problem of cutting down some old pine trees.

This is treated by Mr Cuzano as not being serious, because of the difficulty of getting permits to cut trees in St-Lazare. He was not interested in seeing such an offer. [ 47 ] Mr Faustini remembers drawing up an offer, but not presenting it. [ 48 ] Mr Iversen testifies about this a little differently: the price was $ 440,000, but his wife intended to spend approximately $ 5,000 to cut down the trees. This resulted in them changing their minds and offering $ 435,000 instead.

He thinks the first offer was signed, but destroyed. [ 49 ] The offer is signed, presented, accepted, and the accepted copy delivered on April 13 in a short space of time between 17:43 hours and 19:30 hours. A new seller’s declaration is also signed in the same interval, at 17:45 hours. [ 50 ] A new exclusive brokerage contract (P-23) is signed at 16:10 hours. The remuneration is a reduced flat fee of $ 5,000 plus taxes, with $ 2,500 to the collaborating broker. The asking price is $ 435,000.

The term expires April 27, 2013. [ 51 ] Most of the time is spent by Mr Faustini driving between the sellers’ and buyers’ residences. [ 52 ] The two standard conditions, financing and inspection, are fulfilled and the contract notarised and published, on May 29, 2014. The claim for the commission [ 53 ] Imagine Realties Inc. later became aware of the sale though a Centris notification. [ 54 ] It was only in cross examination Mr Cuzano admitted that he already knew Mr Faustini, a friend of the family, though he hadn’t seen him for seven to ten years.

In chief, his testimony gave the impression that he did not know him. [ 55 ] In fact, he was one of the Defendant’s closest childhood friends, and Mr Cuzano knew him since around the time he first started seeing his future wife, say, 25-30 years ago. [ 56 ] Mr Faustini testified that he reduced his commission to a flat fee of $ 5,000 in light of the fact that he did next to no work. He did not advertise the property, except on Centris.

The sale was done before he could order a sign. [ 57 ] He also mentioned that he had no particular knowledge of St-Lazare, being from Laval. [ 58 ] He is at present not very active as a broker, concentrating his efforts as a builder.

At the time, he was spending much of his time studying for the exams to obtain his licence as a contractor from the Régie du Bâtiment du Québec (RBQ) . [ 59 ] His answers were a little vague about his knowledge of the previous offers: he can’t recall being told about the price, and doesn’t recall if he asked either the vendors or the purchasers. [ 60 ] He concedes that on April 13, 2013 all the documents were previously prepared according to the deal that had been reached between the buyer and the seller.

This would explain why the signing was done so expeditiously, with the price already set both in the mandate and the promise to sell, and the commission reduced. [ 61 ] Mrs Tosto did not testify. ANALYSIS [ 62 ] The Court returns now to the questions raised earlier. Burden of proof [ 63 ] The Plaintiff has the onus of demonstrating that his claim is well founded according to preponderance of evidence. The applicable provisions of the C.C.Q. read as follows: 2803 . A person seeking to assert a right shall prove the facts on which his claim is based.

A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804 . Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. 2805 .

Good faith is always presumed, unless the law expressly requires that it be proved. [ 64 ] The contract provision on which the action is based provides a general rule and an exception to that rule. [ 65 ] In the present context, it is not contested that a sale took place within 180 days following the expiry date of the brokerage contract with a person who was interested in the immovable during the term of the contract. Thus the rule is established. But, the exception to the rule will apply if two elements are present.

Firstly, the seller did conclude an exclusive agreement with another broker within the relevant period. The only remaining issue is whether this exclusive brokerage contract was entered into in good faith . [ 66 ] Which of the parties has the burden of proof on this issue?

While it would be logical to conclude that the client would have the onus of proving all the required elements for application of an exception available to her under the contract once the broker has proved the application of the rule, it is also logical that she should benefit from the general presumption of good faith. [ 67 ] In Re-Max T.M.S. inc. Lemelin [1] , the Court of Quebec held that the client had the burden of proving good faith, in order to establish the exception to the rule.

It is interesting to note that the contract form used in that case specifically mentioned the requirement of good faith, as does the form used in the present case. [ 68 ] The legislative provision on which the contract form is based does not expressly mention the requirement of good faith at the time of the formation of the brokerage contract. 27. An agreement requiring a client, for a specified period after a contract expires, to remunerate a broker or an agency even if the purchase, sale, lease or exchange of an immovable occurs after the contract expires, is without effect.

However, the first paragraph does not apply if the agreement provides for the remuneration of the broker when (1) the contract is stipulated as exclusive; (2) the sale, lease or exchange involves a person who was interested in the immovable while the contract was in force or, in the case of a contract with a view to purchasing or leasing an immovable, the client purchased or leased an immovable in which the client became interested through the broker while the contract was in force; and (3) the transaction occurs not more than 180 days after the contract expiry date and, during that period, the client did not enter into a contract stipulated as exclusive with another broker or another agency for the purchase, sale, lease or exchange of the immovable. 2008, c. 9, s. 27 ; 2013, c. 18, s. 22 . [2] [ 69 ] in Lessard c.

Lemonnier [3] the Honourable Gabriel de Pokomándy J.C.Q. took the approach that the broker claiming the commission has the burden of proof on all the conditions required to establish his right, including the absence of good faith on the part of his former client. In doing so Justice de Pokomándy was of the view that the principle explained in an earlier case [4] no longer applied to the new legislative framework applicable in his case.

The relevant paragraphs of the decision are reproduced below: 33 Selon le défendeur, il suffirait donc de prouver avoir conclu un contrat exclusif avec un autre courtier pour la vente du même immeuble pour se soustraire à ses obligations quant au premier courtier. 34 Ce raisonnement est correct quant à la question du fardeau de preuve.

En effet, les changements de dispositions par rapport à ce qui existait auparavant ont considérablement allégé le fardeau de preuve du client, en ce qu'il n'a plus à prouver que le deuxième courtier a été pour quelque chose dans la concrétisation de l'opération, ni qu'il était de bonne foi lorsqu'il a effectué ce changement , exigences que la jurisprudence, selon les dispositions antérieures, lui imposait 3 . 35 La modification de ces dispositions légales ne peut toutefois être interprétée comme ayant enlevé l'exigence de bonne foi que le Code civil du Québec considère, plus que jamais, comme un élément essentiel sous-jacent à toute relation contractuelle. 36 Ce qu'il faut donc comprendre de l'

article 38 de la

Loi sur le courtage immobilier et des nouvelles dispositions contractuelles qui en sont inspirées, c'est que le fardeau est désormais déplacé sur les épaules du courtier qui réclame sa rétribution après l'expiration du contrat, pour faire la preuve que les conditions nécessaires afin d'y avoir droit auraient été réunies, n'eut été l'absence de bonne foi de son client, voire même du tiers courtier . [Underlining added for emphasis] [ 70 ] It is interesting to note that while the requirement of good faith is not expressly part of the legislation and it would appear from a reading of this decision that the good faith requirement was not written into the contract form used at that time.

Our colleague de Pokomandy is nevertheless of the view that the general presumption of good faith will apply once the client has proved the conclusion of a new brokerage agreement to establish the exception, prima facie , and then the onus will remain with the broker to establish the absence of good faith. [ 71 ] As one author points out: Ce droit de conclure un deuxième contrat de courtage avec un autre courtier, après l'expiration du pr emier, n'est pas absolu, mais sujet à

l'application des règles relatives à la bonne foi prévues aux articles 6 , 7 et 1375 C.c.Q. [5] [ 72 ] It would appear thus that the requirement of good faith will be part of the equation, whether the contract form states it explicitly or not. That the form currently used incorporates this element is perhaps a recognition of this general requirement of the C.C.Q., and perhaps also an aid to those who must sign an adhesion contract, making it clear to them that the intent is to prevent the use of the subsequent contract artificially as a means of avoiding the obligation to remunerate the first broker.

But the consumer of the broker's services is also afforded a rebuttable presumption of good faith. [ 73 ] This approach was applied in Re/Max Actif Inc. c.

Denis [6] , where the Honourable Chantale Sirois expresses, implicitly, the principle of the burden of proof being on the broker: Re/Max a-t-elle prouvé la mauvaise foi des vendeurs , c'est-à-dire que le deuxième contrat de courtage constitue un stratagème visant essentiellement à lui faire perdre sa légitime rétribution? […] 35 La solution du présent litige nécessite donc l'examen des faits pour appréciation du comportement des parties eu égard aux règles de la bonne foi. [Underlining added for emphasis] [ 74 ] The usual methodology of the decisions is to analyse the facts to see if the new brokerage agreement was part of a stratagem to avoid the commission. [7] Implicit in this methodology is the notion that where a stratagem has been proved bad faith will be established. [ 75 ] Direct proof of bad faith will, in most cases, be impossible because neither the broker nor the vendor is likely to admit in testimony that the contract was entered into with a view to frustrate the retribution of the first broker, nor would the expression of such an intention likely be documented in correspondence or observed by a third-party witness who could provide testimonial proof of an extra-judicial admission. [ 76 ] In most cases the courts will proceed by presumptions of fact [8] , adhering to the principles set out in the Civil Code of Québec as follows: 2849.

Presumptions which are not established by law are left to the discretion of the court which shall take only serious, precise and concordant presumptions into consideration. [ 77 ] In the present case, a number of elements of fact lead to an inference that the contract with Mr Faustini was entered into as a means of avoiding the contractual obligation to remunerate the Plaintiff. [ 78 ] Firstly there is the selection of Mr Faustini, an old family friend, especially given his lack of knowledge of real estate in the specific area of town [9] and the fact that he was not particularly active in the business.

He made little effort in the matter, there being no market study, and no plan to advertise. [ 79 ] Secondly, it is fair to question the temporal proximity of the sale to the end of the previous brokerage agreement, less than one month, and the similarity in price, essentially the net amount that had been sought by the vendor in the previous aborted transaction. [ 80 ] There is also the simplicity of drawing up agreements based on the earlier sale documents and the lack of any real negotiation. [ 81 ] Significantly, as well, there is the reduction of the commission to a nominal $5,000, roughly one per cent of the sale. [ 82 ] This unexplained generosity is reminiscent of the jurisprudence.

In Re/Max 2000 inc. c. Dussault [10] , the broker's renunciation to the commission initially agreed upon by the parties was interpreted by the Court as an element demonstrating bad faith. In another case [11] , the payment of a lower commission was considered the "raison déterminante du mandat". [ 83 ] It is difficult to understand why Mr Faustini would settle for a retribution of $ 5,000, as opposed to $ 19,960 (representing a 4% remuneration of the selling price of $ 499,000), as first agreed by the parties in the exclusive brokerage contract signed on March 29, 2013.

He explains that a $ 5,000 compensation was satisfying for him, as the sale of the property was a “no-brainer”, easy money that would compensate him for his travel costs from Laval to St-Lazare. [ 84 ] This is not credible. If a broker in a bona fide contractual relationship makes a sale without much effort, he is nonetheless entitled to his commission, and has no reason to reduce it, just as he has no right to an increased commission when he has worked long and hard to find a buyer.

A gratuitous reduction of the commission suggests that the contract was not supposed to require him to do much, that it was a sort of accommodation. [ 85 ] This point is raised in Immeubles du Bas-Richelieu inc. c. Trudeau [12] : 69 De la même manière, Lévesque n'a pas fourni d'explication crédible, quant à son acceptation immédiate d'une diminution de sa rétribution: il accepte 6 000,00$, alors que le pourcentage convenu de 6% lui aurait rapporté plus de 18 000,00$. [ 86 ] The negotiations preceding the new mandate are also indicative of the probable motivations of the vendor.

The issue of the commission was determinant in the offer made by the Mileto-Iversen couple in March 2013, Ms Mileto having had to negotiate with the Plaintiff about the amount of the commission and the net price to the vendor, and having offered to increase the selling price to $ 440,000 to include the commission. The reason that the sale fell through was the refusal on the part of the Plaintiff to significantly reduce its commission. One way for the vendor to deal with that problem would be to do essentially the same deal, this time

circumventing the broker. [ 87 ] The facts in Courtiers Inter-Québec inc. c. Gilbert [13] , confirmed by the Court of Appeal of Québec [14] , are similar to the ones of the case at hand. The first broker had refused to reduce the amount of the retribution agreed by the parties. The sellers dealt with another broker, who sold the house to a purchaser who was interested in the purchase of the house during the term of the brokerage contract with the Plaintiff.

In that case the Court came to the conclusion that the new broker did nothing significant to assist the sellers, who sought his intervention for the sole purpose of avoiding the payment of a higher commission. [ 88 ] These facts are serious and precise and lead naturally to an inference of bad faith. Are they concordant ? To determine this the Court must not fail to consider the testimony provided in the defence that would, if accepted as credible, point in the direction of what is normally the case, good faith.

Then the facts, taken as a whole would not constitute a presumption. [ 89 ] Implicit in the testimony of Mr Faustini and the Defendant's husband, Mr Cuzano, is the idea that there was no meaningful discussion about the earlier situation with the purchasers. [ 90 ] According to their version of the narrative, Mr Faustini did not ask and was not given the names of these very motivated purchasers and the details of the offers. [ 91 ] In cross-examination, Dino Faustini contradicted his testimony in chief by not being able to recall whether he was first made aware that the clients he was dealing with had made an offer when he first spoke to them on the phone or when he visited the house with them. [ 92 ] He stated in his testimony that he did not recall having asked the vendors the amount for which they had put their house for sale in the previous listing.

This is a rather surprising assertion, as a real-estate broker who enters into a brokerage agreement for the sale of property will normally perform a market study to assess an asking price, and it would be very pertinent to know what amounts had been previously offered by serious prospective buyers. Knowing the market is fundamental. [ 93 ] There is also the hesitation Mr Cuzano at first showed in his testimony in chief to reveal the longstanding family friendship.

This only came out later in his testimony. [ 94 ] In short, the testimony of the defence witnesses on this aspect, which would have supported the defence, is not plausible, not credible, and therefore not probative nor effective to counter the current of the evidence. [ 95 ] The Court is left with the inference, which is a presumption of fact, that the contract between the Defendant and Mr Faustini was not entered into in good faith, that it was a subterfuge or a stratagem, to defeat the Plaintiff's entitlement to retribution in the event that the sale with the previously-interested party materialised.

The Plaintiff’s burden of proof is met. [ 96 ] Therefore the action succeeds. BY THESE REASONS, THE COURT: GRANTS the Plaintiff's action; CONDEMNS the Defendant to pay the Plaintiff the amount of $ 17,504.94, with interest at the legal rate and the additional indemnity provided by

article 1619 C.C.Q. calculated from May 30, 2012; WITH COSTS. __________________________________ DAVID L. CAMERON, J.C.Q. Me Charles Gelber Overland Gelber Attorneys for the Plaintiff Me Carmine Pontillo Pontillo Pecho Attorneys for the Defendant Dates of hearing: December 18 and 19, 2013 [14] [ 2001] J.Q. no 2337 .