2013 QCCQ 9571, 2013 QCCQ 9571

Thibodeau c. Emmerich 2013 QCCQ 9571 JG2338 COURT OF QUEBEC Civil Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS No: 760-22-008216-130 DATE: The 21 th day of June, 2013 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ ANNIE THIBODEAU, BERNARD MURDOCH, and RICHARD BEAUMIER Plaintiffs vs.

ANICK EMMERICH Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Annie Thibodeau, Bernard Murdoch, and Richard Beaumier claim damages from Anick Emmerich further to her refusal to buy a property, after her promise to purchase was accepted by Plaintiffs. The Vendors claim an amount of $ 19 782.99; in the same proceedings, the broker claims his commission for an amount of $ 19 650. [ 2 ] Despite the fact that the Motion to institute proceedings was duly served to Mrs.

Emmerich, in a sealed envelope on January 25, 2013, no appearance was filed, and Defendant was not present on March 19, 2013, when the Motion was presented. [ 3 ] The Motion was amended on February 7, 2013 to claim another amount of $ 10 000 for trouble and inconvenience. Such Motion was also served to Defendant, in a sealed envelope on February 8, 2013. [ 4 ] Each Plaintiff filed a detailed affidavit, as well as 29 exhibits.

THE FACTS : Claim of Annie Thibodeau and Bernard Murdoch : [ 5 ] Annie Thibodeau and Bernard Murdoch are the owners of a property located on chemin de la Sucrerie in Rigaud since January 14, 2004. [1] Mrs. Thibodeau and Mr. Murdoch decided to sell the property and signed an Exclusive Brokerage Contract with Plaintiff Richard Beaumier, on December 21, 2010. [2] [ 6 ] On January 10, 2011, Anick Emmerich offered to purchase the property for a price of $ 322 000. [3] The next day, Mrs. Thibodeau and Mr. Murdoch made a Counter-Offer at $ 327 500, which was accepted by Mrs. Emmerich on January 13, 2011. [4] [ 7 ] Mrs.

Emmerich's Mortgage Loan was approved by the T.D. Canada Trust Bank on January 21, 2011. [5] The parties were supposed to sign the Deed of Sale on June 1, 2011. [ 8 ] One week before that date, on May 25, 2011, Mrs. Emmerich sent a letter to confirm that she was no longer in a position to take possession of the property. In her letter to Mr. Murdoch, she expresses that she learned on May 13, 2011, that a mistake was made when she initially obtained the approval by the City to open a nursing home. She informed verbally Mr.

Murdoch of the situation on May 23, 2011. [6] Nowhere in the Offer to Purchase or its Addenda is it mentioned that Mrs. Emmerich had the intention to open a nursing home on the property, or that the Offer was conditional to the delivery by the City of Rigaud of a permit.

[ 9 ] Mr. Murdoch and Mrs. Thibodeau served Mrs. Emmerich with a Letter of Demand on May 30, 2011, requesting that she be present at the Notary's office on June 1 st with the funds to proceed with the signature of the Deed of Sale, which did not happen. [7] [ 10 ] In fact, Mrs. Emmerich purchased another property located on Chestnut Crescent in St-Lazare for a price of $ 365 000 two weeks later, on June 15, 2011. [ 11 ] On March 23, 2012, 9224-7485 Québec Inc., a company whose President and unique shareholder is Mrs.

Emmerich, bought a property located on St-Pierre Street in Rigaud for a sale price of $ 488 500. [8] [ 12 ] The default by Mrs. Emmerich to complete the Deed of Sale allows Mrs. Thibodeau and Mr. Murdoch to claim damages. They claim an amount of $ 34 581.11 covering the period of June 1, 2011 to March 6, 2012, date on which the property was sold. [ 13 ] Mr. Murdoch and Mrs.

Thibodeau allege that they have minimized their damages, and reduce their claim by the sum of $ 14 798.11, as they received certain amounts of money from their insurer, Tranquili-T, as well as proceeds from the rent of the property between December 16, 2011 and February 15, 2012. Their claim is then reduced to the amount of $ 19 782.99. [ 14 ] Mrs. Thibodeau and Mr. Murdoch first claim the amount of $ 14 500 representing the difference between the sale price that was agreed with Mrs. Emmerich and the sale price of March 6, 2012. This claim is well founded. [ 15 ] Mrs. Thibodeau and Mr.

Murdoch also claim the following amounts: - Municipal and School Taxes [9] $ 2 952.83 - Interest paid on their current mortgage loan [10] $ 5 685.83 - Various expenses to maintain the property before the second sale $ 7 490.66 [ 16 ] Those claims are also well founded and they totalize the sum of $ 30 629.32, of which shall be deducted the amount received from Tranquili-T and their tenant ($ 14 798.11), which amounts to $ 15 831.21 . [ 17 ] Mrs. Thibodeau and Mr.

Murdoch also claim $ 2 370.58 for interest paid on a second loan they had to contract; the jurisprudence has repeatedly found that such claim constitute indirect damages that cannot be awarded. [11] [ 18 ] They also claim $ 2 081.20 for 50 round trips to Rigaud at $ 0.44 per kilometer. There is no legal basis for this claim, which also constitutes indirect damages. [ 19 ] Mrs. Thibodeau and Mr. Murdoch also claim an amount of $ 10 000 for trouble and inconvenience, jointly. Considering the very short delay that was given to Mrs. Thibodeau and Mr. Murdoch when they were informed that Mrs.

Emmerich did not intend anymore to buy the house, considering that she bought a new house only two weeks later, and considering also that Mrs. Thibodeau and Mr. Murdoch had to wait another eight months to finalize the sale of their property to another purchaser, the Court, in its discretion, grants an amount of $ 6 000 . [ 20 ] As concerns the claim for extra judicial fees paid by Mrs. Thibodeau and Mr. Murdoch to their Attorneys ($ 4 632.81), the Court of Appeal has established in Viel that only the abuse of the right to sue gives rise to damages.

As a party abusing his right to sue cause the other party to pay extra judicial fees without any reason, there is a real lien de causalité between the fault and the damage. In this case, the abuse happened at the same time than the contractual fault, and fees paid to an attorney in such circumstances cannot be considered as direct damages. [12] The Court of Appeal has repeated this in Lévesque , where it said that only the abuse of the right to sue can lead to a condemnation to reimburse extra judicial fees. [13] [ 21 ] The conduct of Mrs.

Emmerich represents clearly an "abus sur le fond"; as the proceedings are concerned, Mrs. Emmerich has not contested this demand, which proceeded by default. [ 22 ] The claim for extra judicial fees cannot be granted. Claim of Richard Beaumier : [ 23 ] Richard Beaumier is the real estate broker which had the exclusive mandate to sell Mr. Murdoch and Mrs. Thidodeau's property. His contract says that a 6 % commission has to be paid if the property is sold. [ 24 ] The contractual default by the purchaser to sign the Deed of Sale does not automatically constitute an extra contractual fault toward the Broker.

According to the judgment of the Court of Appeal in Ibrahim , one has to determine if the Defendant acted as a reasonable person toward third parties to decide if there is a fault. [14] [ 25 ] Considering the e-mail transmitted to Mr. Beaumier by Najat Zahid, broker for Mrs. Emmerich, it appears that she was fully aware of the consequences of not signing the Deed of Sale, as she was counseled by her lawyer. [ 26 ] The Court considers that Mrs. Emmerich did not act as a reasonable person, and then committed a fault toward Mr.

Beaumier, which would allow him to claim damages. [ 27 ] The Ibrahim judgment also addresses a question that is important in this case, as Mr. Beaumier was also the broker who sold the house for the second time on March 2012. The Court of Appeal speaks as follows : "[58] Lorsque l'immeuble faisant l'objet d'une offre d'achat qui ne mène pas à la conclusion d'un contrat par la faute du promettant- acheteur est par la suite vendu par le même courtier inscripteur, le tribunal ne peut omettre de considérer la commission ainsi reçue. En

effet, si l'immeuble visé par le litige avait été vendu à la suite de la première offre, il n'aurait certainement pas pu l'être une deuxième fois. Comment prétendre alors que le courtier a droit à deux commissions, sans autre analyse? [59] Quand un tribunal évalue les dommages subis, il lui faut considérer tous les faits pertinents pour en arriver à établir une juste compensation. Dans ce but, il doit tenir compte non seulement de la commission reçue lors de la revente de l'immeuble, mais également de toutes les circonstances pertinentes.

Il est donc possible que la commission reçue ne soit pas prise en compte dans le calcul des dommages accordés ou qu'elle le soit en partie, mais il peut également arriver qu'elle le soit entièrement." [ 28 ] Those findings by the Court of Appeal leave a large discretion to the Court in awarding or not the entire amount of the first commission. [ 29 ] In his affidavit, Mr. Beaumier alleges that he had to perform extra efforts during eight months to resale the property, placing advertisement, and organizing many open houses. Mr.

Beaumier recognizes though that the work performed following Defendant's unjustified cancellation of the property is compensated by the commission obtained from the resale of the property. He also alleges that this situation does not consider the work performed for the first transaction that occurred on the property. [ 30 ] The Brokerage Contract was signed by Mrs. Thibodeau and Mr. Murdoch on December 21, 2010, and the Offer to Purchase was signed by Mrs. Emmerich on January 10, 2011, only three weeks after the Brokerage Contract was signed.

This Offer to Purchase was followed by a Counter Offer, which was finally accepted on January 13, 2011. Another document of Modification and Notice of Realization of Condition was signed on January 24, and 25 by both parties. [ 31 ] This short delay in obtaining result is certainly a fact that the Court can consider in deciding whether it will grant Mr. Beaumier the full amount of the first commission. [ 32 ] Mr. Beaumier received $ 18 780 for the second commission, and would have received $ 19 650 if the sale to Mrs. Emmerich had taken place.

He is certainly entitled to the amount of $ 870 , representing the difference between the two commissions. [ 33 ] Mr. Beaumier's claim is not founded on a contractual basis, under which it would be easier to establish that damages are equal to the amount of the missed commission. Here, on an extra-contractual basis, Mr. Beaumier's claim is for damages, not for his commission. [ 34 ] An amount of $ 2 500 will compensate Mr. Beaumier for the damages suffered further to Mrs. Emmerich's default. [ 35 ] As this amount is not a commission, no taxes will be added. [ 36 ] Mr.

Beaumier also claims $ 5 000 for troubles and inconveniences. This claim is not founded, as the trouble Mr. Beaumier suffered for the second sale was compensated by the commission he received after the sale of March 2012. [ 37 ] As for the extra judicial fees claimed by Mr. Beaumier, the same reasoning applies for the claim of Mr. Murdoch and Mrs. Thibodeau, which was not granted.

FOR ALL THESE MOTIVES, THE COURT: GRANTS in part the Motion to Institute Proceedings; CONDEMNS the Defendant, Anick Emmerich, to pay to Plaintiffs, Annie Thibodeau and Bernard Murdoch, solidarily, the amount of $ 21 831.21, with interest at the legal rate plus the additional indemnity provided for by

Section 1619 of the Quebec Civil Code , from November 27, 2012, date of reception of the Letter of Demand; ORDERS the Defendant, Anick Emmerich, to pay to Plaintiff, Richard Beaumier, the amount of $ 3 370, with interest at the legal rate plus the additional indemnity provided for by

Section 1619 of the Quebec Civil Code, from November 16, 2012, date of reception of the Letter of Demand; THE WHOLE with costs. __________________________________ CÉLINE GERVAIS, J.Q.C.