2017 QCCQ 14912, 2017 QCCQ 14912

Investissements immobiliers Condotrust inc. c. Commandité FPI Nobel inc. 2017 QCCQ 14912 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151808-161 DATE: December 21, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ LES INVESTISSEMENTS IMMOBILIERS CONDOTRUST INC. Plaintiff v. COMMANDITÉ FPI NOBEL INC. -and- 4097891 CANADA INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Les investissements immobiliers Condotrust inc. (d.b.a. Setam Real Estate) claims from Commandité FPI Nobel Inc. (Nobel REIT) and 4097891 Canada Inc. (d.b.a. Interstate Construction) $6,402.66 for unpaid commission on the renewal of a commercial lease.

It argues that as a broker, it is entitled to commission to be paid by the landlord upon the renewal of the lease of premises in a building owned by Nobel REIT. [ 2 ] Interstate Construction denies all liability. It alleges it sold the building and was not the landlord when the lease was renewed by the tenant. [ 3 ] Likewise, Nobel REIT denies all liability. It argues that it is not and never was a party to a contract with Setam Real Estate and therefore no commission is owed. QUESTION IN DISPUTE

a) Has Setam Real Estate proved that either Nobel REIT or Interstate Construction is contractually bound to it and agreed to pay a commission on the renewal of a lease?

ANALYSIS AND DECISION [ 4 ] Setam Real Estate is a real estate broker. [ 5 ] Until December 2014, Interstate Construction was the owner of a commercial building located at 945 Reverchon, in the borough of Saint-Laurent (“Property”). [ 6 ] In September 2009, Litron Distributors Ltd. (Litron) and Interstate Construction entered into a lease agreement whereby Litron agreed to rent premises at the Property then owned by Interstate Construction. [1] The term of the lease was 41 months, expiring March 31, 2013. [ 7 ] Setam Real Estate acted as the broker for this transaction.

Interstate Construction agreed to pay a commission Setam Real Estate for its services as a broker. [2] [ 8 ] In November 2012, Litron and Interstate Construction agreed to renew the Lease for a term of 4 years, expiring in March 2017. Again, Interstate Construction paid a commission to Setam Real Estate for the rental years 2012 to 2014 inclusive. [3] [ 9 ] In December 2014, Interstate Construction sold the Property to Nobel REIT. [4]

[ 10 ] In April 2015, Setam Real Estate contacted Interstate Construction to obtain payment of its commission. The latter refused to pay and explained to Setam Real Estate that it had no obligation to pay as it was no longer the owner (and landlord) since the Property had been sold to Nobel REIT. [ 11 ] Setam Real Estate then sought payment of its commission from Nobel REIT.

By letter dated March 10, 2016, it sent Nobel REIT a demand letter claiming payment of its commission. [5] By letter dated March 15, 2016, Nobel REIT denied having any obligation to pay a commission. [6] [ 12 ] On or about March 23, 2016, Setam Reals Estate sent Nobel REIT an invoice for $6402.66, which represents its commission payable on the Lease for the rental years 2015, 2016 and 2017. [7] [ 13 ] Setam Real Estate acknowledges at trial that since Interstate Construction sold the Property in December 2014, it no longer has any obligation to pay to Setam Real Estate the commission it is claiming in the present lawsuit. [ 14 ] Setam Real Estate claims that Nobel REIT, as purchaser of the Property, has an obligation to pay the commission claimed since it benefited from the work it carried out in 2009 when it acted as broker and secured the Lease with Litron.

That said, Setam Real Estate acknowledges that it played no role in the extension of the Lease in November 2012. [ 15 ] Setam Real Estate’s claim is contractual in nature. To succeed in its claim, Setam Real Estate has the burden of proving that, on a balance of probabilities, Nobel REIT contractually agreed to pay it a commission on the Rental payments made by Litron in 2015, 2016 and 2017. [8] [ 16 ] Nobel REIT affirms that it never agreed to pay a commission to Setam Real Estate. It adds that it never spoke to or communicated with Setam Real Estate.

The latter does not deny this. [ 17 ] Setam Real Estate adduced no contract evidencing an undertaking by Nobel REIT to pay it a commission.

It argues that this obligation to pay arises from the Lease [9] between Litron and Interstate Construction which Nobel REIT assumed when it purchased the Property. [ 18 ] The Lease contains no provision that confers on Setam Real Estate the right to claim a commission from Nobel REIT nor does it create an obligation of the landlord to pay a commission to a real estate broker. [ 19 ] Likewise, even though Interstate Construction assigned the Lease to Nobel REIT through the Deed of Sale [10] , this agreement does not contain any provision that obliges Nobel REIT to pay a commission to Setam Real Estate. [ 20 ] Finally, there is no proof whatsoever that any brokerage agreement that may have existed between Setam Real Estate and Interstate was assigned to or assumed by Nobel REIT when it purchased the Property. [ 21 ] Accordingly, the Court concludes that Setam Real Estate has failed to discharge its burden of proof and its Application will be dismissed.

FOR THESE REASONS, THE COURT: [ 22 ] DISMISSES Les investissements immobiliers Condotrust inc.’s (d.b.a. Setam Real Estate) Application; [ 23 ] WITH LEGAL COSTS of $250 payable each to Commandité FPI Nobel Inc. and 4097891 Canada Inc. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: August 23, 2017.