2020 QCCQ 8935, 2020 QCCQ 8935

Cheung c. Persaud 2020 QCCQ 8935 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-704979-188 DATE: September 1 , 2020 ______________________________________________________________________ PRESIDED BY THE HONORABLE CAtherine Pilon, J.C.Q. ______________________________________________________________________ WAI HING CHEUNG Plaintiff/Cross-Defendant v.

DHANESRI PERSAUD Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT RENDERED ON THE BENCH ______________________________________________________________________ [ 1 ] The Plaintiff/Cross-Defendant (“the Plaintiff”) claims $8,000 from the Defendant/Cross-Plaintiff (“the Defendant”). The Defendant has brought a Cross-Demand of $15,000 against the Plaintiff. Both parties blame each other for the failure of a transaction with respect to a residential property.

Context [ 2 ] After negotiations with the Defendant, the Plaintiff agreed to purchase her property, a duplex, for $495,000. [ 3 ] According to the property listing prepared by the Defendant’s broker, there were three different and separate apartments and addresses for the property.

All were described as rent generating, including a rent of $450 for the basement/bachelor apartment. [ 4 ] Since the Defendant lived in one of the apartments, the parties included as a condition of the sale that she could continue to live there for a monthly rent of $1,000, and that she could terminate her lease on a one month notice. [ 5 ] The Defendant’s position is that this rent also covered the dwelling occupied by her son in the basement, although the property listing indicated a separate rent of $450. [ 6 ] The day before the closing of the sale at the notary, the parties met for one last visit of the property. [ 7 ] The Defendant expressed in the course of this visit that she thought her son’s rent, was part of the agreement for the $1,000 rent, while the Plaintiff thought it was separate and that it should be paid additionally to the $1,000 pursuant to the property listing. [ 8 ] It is also during this meeting that the Plaintiff told the Defendant that she now intended to move into one of the apartments, although she had previously expressed that she would not live in the building but that she was rather purchasing it as an investment. [ 9 ] According to the Plaintiff, she did not mention any specific date when she would move into the Defendant’s apartment.

On the contrary, the Defendant testified that the Plaintiff told her that she would have to move out as soon as possible after the sale. [ 10 ] Given that the Defendant felt there was a change in the conditions of the offer to purchase because she could no longer decide when she wanted to move out of her apartment, she did not attend the closing of the sale at the notary the next day. This led to the present Demand and Cross-Demand by the parties.

Analysis [ 11 ] The Court finds that both parties changed the conditions of the transaction such that both are responsible for the sale not having taken place. [ 12 ] First, The Defendant’s own broker testified that the property listing was not sufficiently clear that the rent indicated for the basement was only a potential, and not an actual monthly amount of 450 $ paid by the Defendant’s son. [ 13 ] The Plaintiff was justified in relying on the information provided by the Defendant’s broker and expecting that a separate rent would be paid for the basement.

By indicating that no rent would be paid for the basement, the Defendant effectively changed the conditions of the accepted offer to purchase.

[ 14 ] In any event, any prejudice the Plaintiff may have suffered for the failed transaction, as well as any other related damages, are offset by her own change of the conditions of her offer to purchase. [ 15 ] The Plaintiff argued when she indicated that she would live in the Defendant’s apartment, she did not set a specific delay for the Defendant to move and as such, she complied with the conditions of the offer to purchase. The Defendant argued otherwise that she was asked to leave as soon as possible, and that this is the reason she thought the conditions of the offer to purchase were changed.

As a result, she did not attend the closing because she felt there was no longer an agreement. [ 16 ] The clause contained in the offer to purchase provided for a lease in favor of the Defendant for an undetermined period. Pursuant to article 1960(2) of Civil Code of Quebec , if the Plaintiff wanted to repossess the apartment to occupy it, she had to give the Defendant a six month notice.

But by implying that she wanted to repossess it as soon as possible after the sale, and the Court prefers the Defendant’s version in this regard, the Plaintiff caused uncertainty to the Defendant which justified her to believe that the Plaintiff had changed the conditions of the offer to purchase. The Defendant was therefore justified to consider that the offer to purchase was no longer valid. [ 17 ] However, the Defendant did not adduce evidence of her damages.

She alleged that she suffered from depression and anxiety caused by the Plaintiff’s claim, but she did not present expert evidence to support this diagnosis, nor the causal link with this case. [ 18 ] The Defendant also claims the legal fees to defend an action brought by her broker to claim his commission, but there are nor extraordinary circumstances which justify the Plaintiff to be liable for the fees. [ 19 ] In light of the above both the Demand and Cross-Demand will be dismissed.

FOR THESE REASONS, THE COURT: DISMISSES the Demand of the Plaintiff/Cross-Defendant; DISMISSES the Cross-Demand of the Defendant/Cross-Plaintiff; THE WHOLE each party paying his own Court costs. __________________________________ CATHERINE PILON, j.c.q. Date of hearing: September 1, 2020