2016 QCCQ 1898, 2016 QCCQ 1898

Pietrykowski c. Dickson 2016 QCCQ 1898 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-143049-148 DATE: February 23, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Patrick PietrykowskI Plaintiff v. Robin Dickson -and- 9065-8345 Québec inc.

Defendants _____________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $7,000 from Mr. Robin Dickson and 9065-8345 Québec inc., doing business at all relevant times under the name of Groupe Sutton-Expert (« Sutton »), who he holds responsible for a judgment pursuant to which he had to pay $10,000, together with interest and costs. [ 2 ] Defendants deny any liability towards Plaintiff.

They claim that the judgment establishes Plaintiff’s sole liability for any amounts payable pursuant thereto. [ 3 ] Plaintiff’s claim was originally scheduled for hearing on September 15, 2015, when it was dismissed by Justice Eliana Marengo because Plaintiff was absent, despite having been duly convened and called. [ 4 ] Plaintiff seeks the revocation of this judgment. At the hearing, the Court took the motion for revocation of judgment under advisement and heard the evidence under reserve of its decision thereon.

REVOCATION OF JUDGMENT [ 5 ] A party against whom a judgment by default is rendered can seek its revocation if he or she was unable to attend the hearing owing to surprise, fraud or another sufficient cause. [1] [ 6 ] Plaintiff has established that he was unable to attend the hearing on September 15, 2015 because his handicapped wife had to be hospitalized shortly before and that he was completely overwhelmed with the situation. [ 7 ] Although the stability of judgments is a fundamental principle and revocation must remain an exception, the Court accepts Plaintiff’s explanations and finds that sufficient cause has been established to explain Plaintiff’s absence at the hearing. [ 8 ] The Court will therefore revoke the judgment rendered on September 15, 2015 and will now turn to the merits of Plaintiff’s case.

FACTUAL CONTEXT [ 9 ] At all relevant times, Plaintiff was a real estate broker affiliated to Sutton, a real estate agency operating in Vaudreuil, Québec. [ 10 ] In November 2007, Plaintiff was approached by a Québec-city broker, Nicole Paquet, who wished to refer to him a group of clients looking for a property in his area. Two of these clients, Pierre Gendron and Isabelle Lefebvre (the « Gendrons »), also wished to sell their property in Beauharnois. A referral agreement was put in place providing that a portion of Plaintiff’s commission would be paid to Mrs.

Paquet should a transaction occur with these clients. [ 11 ] Plaintiff’s work eventually led to the purchase of a property and to the sale of the Gendrons’ property.

A dispute arose between the Gendrons and Plaintiff, however, regarding the commission payable following this transaction. [ 12 ] In a judgment rendered July 26, 2012 (the « Judgment »), Justice Claude Montpetit of this Court ruled that Plaintiff had accepted to reduce the 6 % commission agreed to with the Gendrons to a fixed amount of $10,000 and sanctioned Plaintiff’s refusal to honour this agreement by ordering Plaintiff and Sutton solidarily to reimburse to the Gendrons the $7,167.57 received in excess or the reduced commission. [ 13 ] The Court also granted the Gendrons $3,000 in damages for the trouble and inconvenience caused by Plaintiff’s conduct, specifying that Plaintiff was to support 100% of these damages:

“[49] Cette somme devra être supportée par le défendeur Patrick Pietrykowski seulement car la co-défenderesse, Groupe Sutton Expert, par sa représentante Linda Mandanici, a démontré qu’elle avait tenté de faire entendre raison à monsieur Pietrykowski et le convaincre en vain de respecter l’entente qu’il avait admis avoir conclue à 10 000,00 $.” [2] [ 14 ] Following the Judgment, Sutton paid the full amount due to the Gendrons thereunder ($10,174), but subsequently reimbursed itself from amounts otherwise due to Plaintiff. [ 15 ] On July 27, 2013, Plaintiff advised Mr.

Dickson that he was holding him “responsible for half of the judgment” and demanded payment of $5,000. [3] [ 16 ] On May 22, 2014, he filed an application against both Mr. Dickson and Sutton. ANALYSIS

a) Potential liability of Defendants as solidary codebtors under the Judgment [ 17 ] Plaintiff argues, firstly, that Defendants should be held liable towards him because they are solidary co-debtors pursuant thereto. This argument must fail for the following reasons. [ 18 ] Mr. Dickson was not a named party in the proceedings that led to the Judgment and he is not a solidary co-debtor thereunder.

Consequently, his personal liability can in no way be engaged on this basis. [ 19 ] As for Sutton, although it is a solidary co-debtor of the obligation to reimburse $7,167.57 to the Gendrons pursuant to the Judgment, the evidence shows that Plaintiff alone is liable for this debt vis-à-vis Sutton. [ 20 ] Indeed, the Sutton Group Salespersons Contract in place between Sutton and Plaintiff at the relevant time [4] establishes that Plaintiff is solely liable towards Sutton for any debt arising out of his conduct: « 7.

Litigation, dispute and arbitration In the event any transaction in which the Salesperson is involved results in dispute, arbitration, litigation, or legal expense, the Salesperson shall inform the Broker in writing immediately and shall cooperate fully with a Broker. Upon notification from the Broker, the Salesperson shall forthwith and diligently handle all complaints and disputes as a result of his/her actions.

The Salesperson shall be responsible for all damages, costs, expenses or liabilities incurred by the Salesperson or the Broker as a result of any actions (error or omission, warranties, negligence, misrepresentation, failure to comply with any provisions of this Contract) of the Salesperson, and shall indemnify and hold the Broker harmless from it .

It is the policy to avoid litigation or disputes whenever possible and the Broker reserves the right to determine whether or not any litigation or dispute shall be prosecuted, defended or settled, or whether or not legal expenses shall be incurred. » [Emphasis added] [ 21 ] Moreover, the law provides that where a solitary debt is due to the fault of one co-debtor alone, that co-debtor is liable for the whole debt to the other co-debtor(s). [5] Here, the debt at issue arises out of a Judgment in which the Court concluded that Plaintiff alone was at fault and not Sutton. [6] Consequently, Plaintiff is liable for the whole debt.

b) Liability of Defendants for their own actions [ 22 ] Plaintiff also argues that Defendants should be held responsible for the Judgment because Mr. Dickson failed to testify at trial, allowed Linda Mandanici, a former representative of Sutton, to testify against him and, more generally, did not support him in the midst of the proceedings. [ 23 ] None of these allegations establish a fault that could give rise to Defendant’s liability. [ 24 ] Rather, Plaintiff’s complaints concern the manner in which the defence to the proceedings was managed by the attorneys of record and not Defendants’ conduct.

The evidence shows that Mr. Dickson was not asked to testify at trial and nothing indicates any wrongdoing on his part. [ 25 ] In conclusion, Plaintiff has failed to establish any grounds of liability against either Mr. Dickson or Sutton. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH COSTS of $206 representing the judicial stamp on the Contestation. __________________________________ DOMINIQUE GIBBENS, J.C.Q.

Date of hearing: January 25, 2016