2016 QCCQ 3795, 2016 QCCQ 3795

Moses c. Sutton-Clodem inc. 2016 QCCQ 3795 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145911-154 DATE: May 4 th , 2016 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ JEROME MOSES and ANNIE DICK Plaintiffs vs.

SUTTON-CLODEM INC. and VANESSA OJO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim $15,000 from the Defendants alleging that Vanessa Ojo ( « Agent Ojo »), the real estate agent from co- Defendant Sutton-Clodem inc. ( « Sutton » ) they had hired to find a tenant for one of their dwellings, did not fulfill her duties with skills and diligence. [ 2 ] The Defendants contest the claim.

They allege that Agent Ojo fulfilled her duties with diligence and that they are not responsible if the relationship between Plaintiffs and their tenants deteriorated to the point where the tenants abandoned the dwelling and took the Plaintiffs to the rental board asking for cancellation of their lease. QUESTIONS AT ISSUE [ 3 ] The Court will answer the following questions:

a) Did Agent Ojo fulfill her duties with diligence?

b) In the negative, have Plaintiffs established the amount of indemnity they are entitled to? CONTEXT [ 4 ] Plaintiffs own a duplex in the LaSalle borough.

They occupy the dwelling on the ground floor and rent the top floor one. [ 5 ] During the summer of the year 2011 they hired Agent Ojo from Sutton to advertise the upper dwelling for rent and find “respectable tenants”. [ 6 ] On September 29, 2011, interested in renting Plaintiffs’ apartment a couple completed a rental application for a credit inquiry providing information as to their respective employers and current landlord [1] . [ 7 ] Agent Ojo called the people the prospective tenants [2] indicated as their landlord and employers and obtained confirmation of the information provided. [ 8 ] Defendants’ usual procedure does not provide for the landlord and the prospective tenants to meet to sign the lease.

In addition,

Defendants usually have tenants sign one year term leases. [ 9 ] In the present instance, for the first time in the 39 years Sutton had been in business, Plaintiffs asked to meet with the prospective tenants and, satisfied with the outcome of Agent Ojo’s inquiry and their meeting with the tenants, offered them to sign a 33 months lease ending on June 30, 2014 [3] . [ 10 ] According to the usual practice the agent’s fee is calculated on the basis of a percentage of the first year’s rent the tenants will pay.

Although the Plaintiffs signed a 33 months lease with the new tenants, Agent Ojo’s fee was still calculated on the basis of the rent payable for the first year of the lease. [ 11 ] Plaintiffs alleged that in July of 2012 their tenants were vandalising their apartment. They suspected that the tenants were selling drugs because there was a lot of traffic coming in and out their apartment and lots of joint butts lying on their front lawn.

They also complained about the tenants making a lot of noise. [ 12 ] At one point the relationship between Plaintiffs and their tenants became volatile to the point were on November 24, 2012 the tenants abandoned their apartment, twelve months into their lease. [ 13 ] Plaintiffs claim that the tenants left the apartment in complete disarray so much so that they had to hire people to clean and repair it. [ 14 ] In support of their claim Plaintiffs filed a receipt dated December 28, 2012 for $1,680 that indicates: changer porte balcon reparer porte salon (sic) [4] .

The receipt does not indicate why the balcony door was changed nor in which apartment it was changed. Same thing for the living room door that was fixed. [ 15 ] The second receipt dated December 18, 2012 in the amount of $2,500 indicates: cleaning services for 26 Highland Ave. – removing excess garbage, cleaning the dwelling and repairing the dwelling [5] . [ 16 ] Plaintiffs filed pictures they took of the apartment after the tenants vacated it.

Although the pictures are very small, they show the apartment in a filthy and disorganised state. [ 17 ] Sometime after the tenants vacated the apartment, Plaintiffs decided to check the credentials contained in the defaulting tenants’ rental application. They called the people the tenants had identified as being their respective employers and were told that the male tenant never worked for the company which name he gave and that the female tenant’s reference was actually not her employer but her friend. [ 18 ] Plaintiffs then mandated a bailiff to investigate the tenants.

In support of their claim they filed only one unsigned and undated page of the report they obtained from the bailiff and did not have the rest of the document with them for the Court to consult. This excerpt of the report indicates the name of the female tenant, her new address and the fact that she is on welfare.

This part of the report also mentions that the male tenant is not working and in hiding [6] . [ 19 ] The information in the undated excerpt of the bailiff’s report varies from the Plaintiffs original claim they filed with the court, in which they indicated that the name of the male tenant was different than the one mentioned in the rental application he had filled out. Plaintiffs did not explain that discrepancy in the information. [ 20 ] It is not clear when Plaintiffs’ rented the apartment after the tenants vacated it: February 2013 according to Plaintiff Moses; February 2014 according to Plaintiff Dick.

Plaintiffs did not file the lease of the new tenant. [ 21 ] On October 14, 2013, Plaintiffs signed an Exclusive Brokerage Contract with Sutton, giving it mandate to find a tenant for their apartment [7] . Sutton obtained a Promise to Lease from a potential tenant on January 11, 2014 [8] . [ 22 ] Plaintiffs take the position that the Defendants failed and neglected to thoroughly perform their duties to do a background check and investigate tenants’ credentials to ensure the information is accurate and legitimate .

They claim $15,000 as damages. [ 23 ] Plaintiffs could hardly justify the amount of their claim. [ 24 ] They claim reimbursement of the rent the tenants would have paid had they respected the term of the lease they signed, that is from October 2012, when they stopped paying the rent, until February 2014, when they found a new tenant. They want Sutton to reimburse the fees they paid in 2012 and 2014 to find tenants and the money they paid to have the apartment repaired and cleaned.

Finally, they want to be compensated for the pain and suffering they endured because of the tenants’ behaviour. [ 25 ] In support of their claim for pain and suffering, Plaintiffs filed a letter signed by Plaintiff Dick’s psychologist, dated February 15, 2015 which read in part as follows: (…) I have met with Mrs Annie Dick between 2014-01-28 and 2015-02-19, for 24 sessions following a work accident . Mrs. Dick has further been under considerable stress related to her tenants. (…) This is to note the very high anxiety level experienced by Mrs.

Dick, which has notably led to very poor sleep, loss of appetite, and a decrease in social relations. [9] (Underscore added) [ 26 ] Plaintiff Dick consulted with a psychologist after a working related accident, 13 months after the tenants had vacated their dwelling. This information does not allow the Court to conclude that the stress she is claiming compensation for is at all in relations with

Defendants’ execution of their obligations or lack thereof. [ 27 ] If the Court was to award the amounts detailed by Plaintiffs at trial, there claim would exceed the Court’s jurisdiction limited at $15,000 at the Small claim division. [ 28 ] The amounts detailed by Plaintiff Moses during his testimony are as followed: - Rent $925/month from Oct. 2012 until February 2014 (17 months) $15,725 - Expenses to have the apartment repaired and cleaned $1,680 $2,500 - Fee paid to Sutton in 2014 to find a new tenant $1,034,78 [10] - Fee and expenses paid to Sutton in 2012 $729,99 $1,053 $138,93 - Pain and suffering Undetermined Partial total : $21,826.92 [ 29 ] It was clear to the Court during Plaintiff Moses’ testimony that the total of his list of claims exceeded the amount claimed.

Although he could not confirm what was the original amount they wanted to claim from the Defendants Plaintiff Moses confirmed that the parties were reducing their claim to $15,000. [ 30 ] In regards to the claim for unpaid rent, Plaintiffs declared that they are not claiming payment from the tenants in the pending case at the rental board because the tenants are on welfare. [ 31 ] In support of its contestation, Sutton’s representative, Christophe Folla, owner and administrator of Sutton, explained that he did not understand Plaintiff’s claim. [ 32 ] In the demand letter that he received dated April 2, 2013 Plaintiffs were claiming $5,000 in damages for repair and cleaning of the apartment [11] .

He did not understand how Plaintiffs tripled their claim when they filed it with the Court in February of 2015. [ 33 ] Sutton argued that the receipts the Plaintiffs have filed in support of their claim for reimbursement of the fees for cleaning and repairing the apartment after the tenants vacated it do not have any value. [ 34 ] Sutton mentioned that in 2012 the tenants filed a claim with the Rental Board against the Plaintiffs, information confirmed by Plaintiffs who informed the Court that a decision had not yet been rendered in the case.

They did not have the proceedings with them and so the Court is not aware of the exact claims tenants and landlords are making one against the other. [ 35 ] Agent Ojo, although present and given the opportunity to do so, chose not to testify at the hearing.

ANALYSIS [ 36 ] Anyone who wants to assert a right shall prove the facts that sustain his claim and, safe exception, the clear and convincing evidence that makes the existence of a fact more probable than its nonexistence is sufficient [12] to satisfy the test of balance of probabilities [13] . [ 37 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical.

It is sufficient that it make probable the disputed fact [14] . [ 38 ] In the case of an action for damages resulting from the wrongful execution of a contract, the plaintiff must demonstrate, under the same rules of evidence, the fault of the party being sued, the damage suffered and the casual link between the fault and the damage. [ 39 ] If the evidence is not compelling enough, or if it is contradictory and the judge is unable to determine where the truth lies, the one upon whom falls the burden of persuading the court of the merits of the claim loses [15] , in part of totally.

a) Did Agent Ojo fulfill her duties with diligence? [ 40 ] The real estate broker is subject to certain obligations under the Civil Code of Quebec , the Real Estate Brokerage Act [16] and the Regulation respecting brokerage requirements, professional conduct of brokers and advertising [17] , stemming from the general obligation of skill, diligence and caution. [ 41 ] A real estate broker must act in the best interests of her clients, avoiding conflicts of interest. She must provide to the client all the relevant information that may affect the clients’ decision on the proposed transaction.

She must advise her clients objectively, without exaggeration, concealment or misrepresentation. [ 42 ] The agent has an obligation of means, an obligation to act with competence and diligence. [ 43 ] To execute her mandate, Agent Ojo verified the information the prospective tenants provided her by calling the people they identified as their respective landlord and employers. She recorded on the Rental application the information she obtained from the third parties about the prospective tenants. [ 44 ] Next to the name of the prospective tenants’ landlord she wrote: excellent, sad to see her go .

Agent Ojo had been told that the

prospective female tenant had occupied the dwelling she was moving from for 10 years. [ 45 ] Next to the information about the employer the female tenant claimed that she had been working for the past 11 years, Agent Ojo’s note reads: full time part time excellent worker . [ 46 ] The information about the male tenant’s employer was also verified and the note full time was added to the rental application. [ 47 ] Plaintiffs blame the Defendants for the fact that several months after the tenants abandoned the apartment, they learned that the information the tenants had provided was no longer accurate. [ 48 ] Plaintiffs declared having spoken to the person whom the female tenant had identified as being her employer, who apparently told them that the tenant in question never worked for her. [ 49 ] Since that third party did not testify at the hearing, this affirmation constitutes hearsay and is not admissible as evidence.

In addition, if that person did not tell the truth when Agent Ojo spoke to her she cannot be blamed for it. [ 50 ] The evidence is silent as to whether Agent Ojo asked and obtained a pay stub from either prospective tenant.

If she did not ask and/or obtained one, it did not seem to have bothered the Plaintiffs who did not request to see one. [ 51 ] It must be pointed out that the information the Plaintiffs obtained from the bailiff they mandated to enquire about the tenants, or more accurately the page they filed in support of their claim, does not say that the female tenant was not working on September 29, 2011, but that she was on welfare on the day the bailiff enquired about her. [ 52 ] Plaintiffs have not established according to the balance of probabilities whether the tenants worked or not when they signed the lease.

Whatever the case, they paid their rent until September 2012 inclusively that is for the first full year they occupied Plaintiffs’ apartment until the problems started with Plaintiffs. [ 53 ] The evidence presented was not clear as to when exactly the relationship between Plaintiffs and their tenants deteriorated but it appears to have been when Plaintiffs suspected that illegal activities were taking place in their tenants’ dwelling.

They however never had solid evidence that confirmed their suspicion. [ 54 ] Although Plaintiffs denied that they did anything wrong to make the tenants vacate the apartment, they explained that at one point a violent argument took place between them and their tenants when they refused to reimburse their tenants the expense they incurred urgently to have the toilet of their dwelling unclogged. [ 55 ] It is surprising that while they maintain that the tenants stopped paying their rent since October 2012 Plaintiffs did not seize the Rental board with a request for the cancellation of the lease.

It is also interesting that after the tenants filed a claim against them at the Rental board, Plaintiffs did not request that they be condemned to indemnify them for the unpaid rent and the damages caused to the apartment. [ 56 ] The Court fails to see how the Defendants can be responsible for not having found out that the information they obtained from the three people that they spoke to to verify the prospective tenants credentials were lying, if in fact they lied, which the evidence has not established under the balance of probabilities, as previously mentioned. [ 57 ] Furthermore, one cannot reasonably expect that a real estate broker be the guarantor of prospective tenants’ lifestyle and good manners. [ 58 ] In the present instance, in light of the information they had obtained from the prospective tenants’ references, Agent Ojo did not entertain doubts about the fact that they were respectable people and they would conduct themselves as such, that is, pay the rent and behave in such a way as to not disturb the other occupants of the building. [ 59 ] Plaintiffs themselves did not have any doubts about the prospective tenants after they met them and did not ask for additional verification to be made before they offered them a thirty-three months lease, being satisfied with the verifications made and information obtained. [ 60 ] It is important to point out that discrimination on the basis of social condition is prohibited and that lessors have been condemned to indemnify potential tenants because they refused to rent a dwelling on the basis that the prospective tenants were freelancer, as opposed to holding a standard full time position, or were on welfare, when a credit investigation or a verification with their former landlords or references could have established their solvency or the behavior of the potential tenant [18] . [ 61 ] The Court concludes that the preponderant evidence has not established that Agent Ojo has been negligent in the execution of her mandate. [ 62 ] The Court also finds that the evidence has not established the casual link between the missing or false information obtained during the inquiry on the prospective tenants that took place after November 24, 2012 and the tenants’ behavioural problems the Plaintiffs complained about. [ 63 ] Indeed the fact that someone holds a full time job is not a guaranty of her or his “respectability” or that they do not use illegal drugs.

It also does not guaranty that the tenants will pay their rent, not damage the apartment, maintain it in perfect condition and not disturb the other occupants of the building. [ 64 ] Seeing the response to the first question, the Court will not answer the second one. [ 65 ] WHEREFORE, THE COURT:

[ 66 ] REJECTS the claim; [ 67 ] CONDEMNS the Plaintiffs to reimburse the Defendants the amount of the judicial stamp of $240. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: January 12, 2016 Une

partie peut obtenir la traduction française du présent jugement en adressant une demande écrite à la Directrice du secteur civil du Palais de justice de Montréal. [18] Suzanne GUÉVREMONT, Les règles particulières au bail d'un logement , EYB2015CDD145; Pierre GAGNON, Chronique – Le droit au logement et la discrimination fondée sur la condition sociale , EYB2000REP98.