2014 QCCQ 11385, 2014 QCCQ 11385

Lambert c. Page 2014 QCCQ 11385 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-020262-124 DATE: November 10 th, 2014 ______________________________________________________________________ BY THE HONOURABLE ROSEMARIE MILLAR, J.C.Q. ______________________________________________________________________ Louise Lambert , […] , Gatineau, Québec, […] Plaintiff v.

David Page et al, […], Gatineau, Québec […] Defendant and Stephen Hickey , Guarantor ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Louise Lambert, a notary, claims the amount of 926.78$ for professional services rendered to the Defendant, David Page, from March 24 to May, 27, 2009. [ 2 ] The issue concerns a lot the Defendant wanted to buy from Mr.

Stephen Hickey which title was later found unclear. [ 3 ] The Defendant denies having to pay for Mrs Lambert's fees because no transaction of sale was concluded. [ 4 ] Mr. Page requested a third party to intervene to the case, the seller, Mr. Stephen Hickey, claiming Mr. Hickey is responsible for the fees. [ 5 ] Mr. Hickey was properly noticed of the request by newspaper and did not appear nor contested. [ 6 ] On March 13, 2009, Mr. Page signed a document called " Agreement of purchase and sale " to buy a property situated on 143 Bertha street in Aylmer from Mr. Stephen Hickey. [ 7 ] On March 24, 2009, Mr.

Page gave a mandate to Mrs Lambert to prepare all the required documents and take all the necessary steps for the purchases of the property and the preparation of a deed of sale and signed a Contract for professional services (contract) (Exhibit P-2). [ 8 ] The contract specifies: «The present mandate includes the completion of the following steps: Opening of the file; gathering of information and documents pertaining to the clients and the file; meetings with the clients; title search; verification of the identity and capacity of the parties; drafting of the deed of sale; signature of the deed of sale; declaration of movables in accordance with the Act respecting duties on transfers of immovables; preparation of the notice of address (if applicable); registration of the deed of sale; receipt and management of funds in trust; disbursement of funds; verification of registration in the land register; general correspondence; mailing of copies and other documents to the parties and closing of the file.» [ 9 ] The contract also specifies a remuneration of $947.12 for the execution of the mandate. [ 10 ] Mrs.

Lambert did the title search and discovered different problems with the property.

[ 11 ] In order to correct the title, 2 estates had to be settled and a motion for judicial recognition of a right of ownership had to be presented in Court by the seller's lawyer. [ 12 ] Mrs. Lambert informed Mr. Page of the said problems and was not in a position to guaranty the title. [ 13 ] Even if Mrs.

Lambert was not in a position to prepare a deed of sale, she did the following work as indicated in her invoice (Exhibit P-1): «Title search: $500.00 Service charge by Registry office: $22.00 To attend the Court House for verification of the motion: $75.00 To obtain taxes certificates: $30.00 Meeting with clients; telephone conversations: $150.00 Telephone conversation with Me Wayne Lora; correspondence: $50.00 GST on $775.00 $38.75 QST on $813.75 $61.03 Total $926.78 » I. ANALYSIS [ 14 ] The evidence shows that the work described in Mrs.

Lambert 's invoice (Exhibit P-1) was done, that it was in relation to the preparation of a deed of sale and that the amount claimed is not exaggerated. [ 15 ] The Defendant claims the action is prescribed. [ 16 ] The Court disagrees with that argument; the invoice for the professional services rendered by Mrs. Lambert is dated May 27, 2009 and the action was introduced in Court on May 23, 2012. [ 17 ] The Defendant argues that the mandate was not completed and, in consequence, he does not have to pay for Mrs. Lambert's fees. [ 18 ] The contract for professional services signed by Mrs. Lambert and Mr.

Page does not provide for the situation where the mandate could not be completed because, as example, of an unclear title. [ 19 ] The evidence reveals that when Mrs. Lambert realised her mandate could not be completed, she did not notify Mr. Page that she would charged him for professional services already rendered on an hourly rate. [ 20 ] The Court concludes that Mrs. Lambert had the duty to advise and to inform Mr.

Page of the cost of her fees considering that her mandate could not be completed. [ 21 ] Reduction of fees is a remedy to a breach of the duty to advise and to inform. [ 22 ] The evidence shows also that the professional services provided by Mrs. Lambert were related to the title search in order to prepare a deed of sale for which she was mandated by the Defendant. [ 23 ] According to the contract for professional services, the amount charged for the execution of the mandate is $947.12. [ 24 ] However, without having been able to complete the deed of sale, Mrs Lambert's is asking Mr.

Page to pay an amount of $926.78, being $21 less than what was payable under the contract. [ 25 ] The Court allows the amounts of $22 and $30, being disbursements made by Mrs Lambert. [ 26 ] Taking into consideration the work done by Mrs. Lambert, the Court allows a arbitrary sum of $450. [ 27 ] In consequence, the action against Mr. Page is granted in part for an amount of $502. [ 28 ] Mr. Hickey was called in warranty by Mr. Page. [ 29 ] Mr. Hickey is the seller of a lot according to an agreement of purchase and sale entered with Mr. Page on March 13, 2009.

[ 30 ] Despite that agreement, Mr. Hickey did not have a clear title on the property he wanted to sell to Mr. Page and did not take the appropriate steps to clear the title in order to sell it. [ 31 ] The Court finds that Mr. Hickey should provide compensation to Mr. Page for the fees he has to pay to the notary for the sale of the property that could not be completed because of Mr. Hickey. [ 32 ] In consequence, the Court grants Mr. Page's action against Mr. Hickey. [ 33 ] FOR THESE REASONS, THE COURT : [ 34 ] ON THE PRINCIPAL ACTION : GRANTS THE ACTION ; CONDEMNS David Page to pay Louise Lambert the sum of $502 with the legal interest and the additional indemnity provided for by

article 1619 of the civil Code of Québec from the day of the assignation and the judicial fees of $71.75. [ 35 ] ON THE ACTION IN WARRANTY : GRANTS THE ACTION ; COMDEMNS Stephen Hickey to pay David Page the sum of $502 with the legal interest and the additional indemnity provided for by

article 1619 of the Civil Code of Quebec , from the day of the assignation and the judicial fees of $60.50. __________________________________ ROSEMARIE MILLAR, J.C.Q. Date of hearing: October 8 th , 2014