2023 QCCQ 3637, 2023 QCCQ 3637

Marino c. Re/Max Platine inc. 2023 QCCQ 3637 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No: 500-32-717649-224 DATE: June 8, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MÉLANIE DUGRÉ, J.C.Q. ______________________________________________________________________ MARCO MARINO Plaintiff v.

RE/MAX PLATINE INC. and FRANÇOIS BRASSARD Defendants __________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Marco Marino claims $14,946.75 from RE/MAX Platine Inc. ( RE/MAX ) and the real estate agent François Brassard. This amount represents commissions related to the sale of parcels of land that belonged to Mr. Marino. [ 2 ] Mr.

Marino, as part of a group of nine people, had been the owner of two parcels of land bearing lot numbers [1] ( [1] ) and [2] ( [2] ) for over 35 years. [ 3 ] Another parcel of land bearing lot number [3] ( [3] ) is also involved in the present case, but Mr. Marino did not have any ownership rights in [3]. [ 4 ] According to Mr. Marino, Mr. Brassard’s professional conduct through the sale process was below standards. More specifically, he addresses the following reproaches towards Mr.

Brassard: 1) he was unaware that [2] was a green land (agricultural zoning) and not a white land (residential zoning); 2) he was unaware that the three lands, [1], [3] and [2], could not be sold separately; and 3) he was pressured by Mr. Brassard into moving forward with the sale. [ 5 ] Mr. Marino claims the reimbursement of his share of 20% of the commissions paid to RE/MAX and Mr. Brassard for the sale of [1] and [2], which amount to $14,946.75. [1] [ 6 ] RE/MAX and Mr. Brassard deny any liability and contend that they did not commit any fault in the sale process. ISSUES [ 7 ]

a) Did Mr. Brassard commit a fault in failing to inform Mr. Marino, prior to the sale, that the parcels of land could not be sold separately due to the zoning?

b) Did Mr. Brassard pressure Mr. Marino into selling his parcels of land? CONTEXT AND ANALYSIS

a) Did Mr. Brassard commit a fault in failing to inform Mr. Marino, prior to the sale, that the parcels of land could not be sold separately due to the zoning? [ 8 ] In civil matters, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided under

Article 2803 of the Civil Code of Québec ( C.C.Q. ), which states that “A person seeking to assert a right shall prove the facts on which his claim is based.” [ 9 ] The Court decides on the balance of probabilities, [2] which means that the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 10 ] In addition, when the evidence adduced is not sufficiently convincing, or if the evidence is and it is impossible for the judge to identify the truth, the party upon whom the burden of proof lies will lose. [3]

[ 11 ] On January 22, 2019, a contract was signed by Mr. Brassard and the group of owners of [1] and [2], whereby Mr. Brassard would act as real estate agent to facilitate the sale of the parcels of land. [4] [ 12 ] This contract provided that, while the main purpose of the contract was to sell [1], there was also a possibility to sell [2], which was described as a residential land in the contract. [5] [ 13 ] On May 26, 2021, the tenants of [1], the farmers Pierre and Robert Gélineau presented an offer for $1,874,000. [6] The group of owners, including Mr. Marino, accepted this offer. [ 14 ] At that point, Mr.

Marino’s understanding was that only [1] was being sold, and that [2], which was a white parcel of land, was not part of the deal. [ 15 ] On June 8, 2021, Mr. Brassard informed the group of owners that the notary handling the sale had advised him that [1] could not be sold separately from [2], unless a request was filed with the Commission de protection du territoire agricole du Québec ( CPTAQ ), which could take several months to be treated. [7] [ 16 ] On June 10, 2021, Mr.

Marino advised the other owners that he had been in contact with the CPTAQ and the City of St-Jean-sur- Richelieu, and had been informed, much to his surprise, that [2] was a green parcel of land that had no value alone. He mentioned that he felt misled. [8] [ 17 ] On June 16, 2021, Mr. Brassard advised the group that they were legally bound to the prospective buyers. He also reminded them that he had previously informed them, through a conference call, that [2] was a green parcel of land.

He added that a request with the CPTAQ could potentially change the status of [2] from green to white, but that there was no guarantee. Mr. Brassard added that it would be easier to sell [2] along with [1]. [9] [ 18 ] At trial, Mr. Brassard confirmed that he was informed in December 2020 that [2] was a green, and not a white land, and had shared this information with the group. It is unclear why Mr. Marino was unaware of this fact, but he admitted that he was not part of the group’s leaders, and he was not privy to the discussions that took place among the group of owners. [ 19 ] In the following weeks, Mr.

Brassard conducted some research regarding the process with the CPTAQ, and he also reached out to the owners of [3] to enquire whether they would be interested to sell [3] along with [1] and [2]. [ 20 ] On August 3, 2021, Mr. Brassard sent a status report to the group, informing them of the following: - It would likely be impossible to sell [1] alone and the CPTAQ would object to such transaction; - The only current option was to sell [1] along with [2] and [3]; - The tenant, Mr.

Gélineau, had submitted an offer for the three lands and was willing to close the deal in a 30-day delay; - The final and non-negotiable offer was $3,200,000, broken down as follows: - $1,874,000 for [1], which had already been accepted by the group; - $1,200,200 for [3]; - $126,000 for [2]. [ 21 ] On August 19, 2021, Mr. Marino sent a “ Without prejudice ” email to the group, stating that he still felt that the deal was inappropriately handled and was disappointed with the result.

He nonetheless agreed to sign the deal “[o]ut of fear of being pursued in the courts by the 15 partners in this deal.” [10] [ 22 ] The sale of the three parcels of land was finalized and notarized on November 2, 2021. [11] [ 23 ] Mr. Marino also alleges that, had he known from the beginning that [2] was a green land, he would have asked for a higher price. [ 24 ] While it is true that Mr. Brassard learned about the CPTAQ rule forbidding the sale of [1] as a separate lot in the course of the sale process, the Court cannot conclude that the outcome would have been any better for Mr.

Marino, had this information been known before the offer from Mr. Gélineau was accepted. [ 25 ] The fact remains that [2] was green, that its value was limited, and that it could not be sold separately unless the CPTAQ gave its approval. There is no evidence that Mr. Marino would have been better off if [2] had been sold separately, in the event that the CPTAQ would have granted the request. Such scenario is speculative and hypothetical. [ 26 ] The Court notes that Mr. Brassard reached out to experts in zoning and to the owners of [3] to invite them to sell their parcel of land along with [1] and [2].

He also informed the group of owners about their rights and obligations further to the acceptance of the offer by the buyer. [ 27 ] Furthermore, the fact that the owners paid residential taxes on an agricultural parcel of land for years is foreign to RE/MAX and Mr. Brassard’s conduct; this is an issue involving the City. [ 28 ] The Court finds that throughout the process, Mr.

Brassard provided clear written updates and explanations to the group of owners about the status of the parcels of land, and that he tried to find creative solutions when he learned that [2] could not be sold separately. [ 29 ] Given the foregoing, the Court concludes that Mr. Brassard did not commit a fault in the communication of information

throughout the sale process.

a) Did Mr. Brassard pressure Mr. Marino into selling his parcels of land? [ 30 ] Mr. Marino explained that he did not feel the need to sell the lands, but the other members of the group of owners, who were older, became eager to sell with the passing of time. [ 31 ] On June 10, 2021, one of the other owners, Domenic De Angelis, wrote to Mr. Marino to tell him that no one was misled by Mr. Brassard since the group had been paying white land taxes on [2] for years. He cautioned him not to act impulsively. [12] [ 32 ] On June 15, 2021, Mr.

Marino informed the group that, because his understanding when he accepted to sell was that [2] was a white land, he was no longer willing to move forward with the sale process since he had now learned that [2] was green. [13] [ 33 ] Mr. De Angelis replied to Mr. Marino, reminding him that he was not alone in the sale process and that he had signed and agreed to the offer with the rest of the group. He told him that he could not unilaterally decide to pull the plug without the consent of other parties involved without repercussions. [14] [ 34 ] On August 17, 2021, Mr.

Marino informed the group that he was unhappy with the offer, given the error in the zoning of [2], and that he was unwilling to sign the transaction. [15] [ 35 ] On August 18, 2021, another member of the group, Pino Asaro, wrote a “ Without prejudice ” email to Mr. Marino, mentioning that his expectations were unattainable and that he failed to realize the prejudice he was causing by refusing to sign for the sale of the small parcel of land along with the bigger land which, in any event, he had already agreed to sell. [16] [ 36 ] Still on August 18, 2021, Mr. De Angelis told Mr.

Marino that he was acting in bad faith and doing everything in his power to sabotage the sale of the parcels of land. [17] [ 37 ] Joseph Zako, another member of the group, also confirmed to Mr. Marino that he wanted the sale to proceed. [18] Sylvia Frappier sent a similar confirmation. [19] [ 38 ] Mr. Marino’s wife, Phyllis Ranallo, also testified at trial that they had received phone calls and emails from other owners to pressure them into signing the deal. There is no evidence that such communications came from RE/MAX or Mr. Brassard. [ 39 ] Based on the evidence offered, the Court concludes that if Mr.

Marino was pressured into selling the parcels of land, such pressure did not come from RE/MAX and/or Mr. Brassard. [ 40 ] There are several emails from other owners, even “ Without prejudice ” communications, [20] where Mr. Marino was told that his behaviour and reluctance to move forward was causing prejudice to the group. [ 41 ] Thus, the Court does not conclude that pressure into selling the parcels land was exercised by RE/MAX or Mr. Brassard. [ 42 ] The Court therefore concludes that Mr. Marino did not meet his burden of proof to show that Mr.

Brassard and/or RE/MAX misled him in the sale process and that they pressured him into selling the lands. FOR THESE REASONS, THE COURT: DISMISSES Marco Marino’s demand; CONDEMNS Marco Marino to pay to RE/MAX Platine Inc. $325 in legal costs for the contestation. __________________________________ MÉLANIE DUGRÉ, J.C.Q. Hearing date: May 1 st , 2023