2011 QCCQ 2328, 2011 QCCQ 2328

Hazan c. Chabaline 2011 QCCQ 2328 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-22-163703-096 DATE: March 10, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ KARINE HAZAN and GESTION ANABIGA INC. Plaintiffs v.

MIKHAIL CHABALINE and JEAN-RENÉ TASCHEREAU Defendants ______________________________________________________________________ JUDGMENT (Transcription of the judgment rendered at hearing) ______________________________________________________________________ [ 1 ] Karine Hazan and Gestion Anabiga inc. (hereafter " Anabiga ") claim from Mikhail Chabaline and Me Jean-René Taschereau an amount of $7,250.74 in relation with a transaction intervened before Notary Taschereau on May 14, 2009. [ 2 ] Two deeds of sale, which are important for this case, were signed at that date between Ms Hazan and Mr Chabaline and between Anabiga and Mr Chabaline. [ 3 ] At page 2 of those deeds of sale, there is a paragraph named "Declarations of the Vendor" which contains the following stipulation: "The Vendor makes the following declarations and warrants that: […] 2.

All property taxes that are due have been duly paid without subrogation until December 31st, 2009 as regards municipal taxes, and until June 30th, 2009 as regards school taxes." [ 4 ] On May 14, 2009, it is undisputable that there was an outstanding amount of $7,250.74 representing municipal taxes due to the City of Montreal, as it appears from Exhibit P-2 called "Vente pour taxes, dernier avertissement".

In this document, it is written that in case of default of paying this amount before August 14, 2009, the property will be sold for taxes. [ 5 ] As it appears from Exhibit P-4, on August 19, 2009, Ms Hazan and Anabiga pay to the City of Montreal said amount of $7,250.74. Plaintiffs' claim towards Mr Chabaline is clear-cut.

There is a contractual link and because Mr Chabaline did not pay the arrears of taxes to the City of Montreal, which are undisputable, and the amount is not contested, their claim towards Mr Chabaline must be granted. [ 6 ] The Court must determine if Notary Jean-René Taschereau will be held responsible, in part or in total, for that amount. The Court must not establish the responsibility of Notary Taschereau towards Mr Chabaline. There is no action in warranty in the present file and no claim between Mr Chabaline and Notary Taschereau.

The only thing that must be decided by the Court is whether the Plaintiffs, namely Ms Hazan and Anabiga, can establish a fault, a damage and a direct link between that fault and that alleged damage concerning Notary Jean-René Taschereau. [ 7 ] In the Court's opinion, it is highly theoretical to determine whether or not Notary Taschereau is in fault towards Ms Hazan and Anabiga.

It is theoretical because whether or not their link with Notary Taschereau is contractual or extra contractual, there is three things that must be established if Plaintiffs want to succeed: 1) a fault; 2) a damage - the amount of $7,250.74 is not contested; and 3) a link between the fault and the damage.

[ 8 ] One of the principal characteristics of that link is that it must be direct. In our law, if there is an indirect link between an alleged fault and a damage, the Court must conclude that Plaintiff did not succeed to establish the merit of its case. In this file, the Court is of the opinion that there is no direct link between the alleged fault that might have been committed by Notary Taschereau towards Ms Hazan and Anabiga and the damage of $7,250.74.

The direct link towards a fault and a damage comes from the inexecution of a contractual obligation by Mr Chabaline. [ 9 ] The Court agrees with the argument of Me Gauthier representing Notary Taschereau that if Mr Chabaline would have admitted at a very early stage, and accepted that there were undisputable arrears of taxes to be paid for the year 2008 when he was the sole owner of the property in question, this action would not have been taken and this case would have been settled.

When the Court asks Mr Chabaline the question, he does admit honestly that this amount of $7,250.74 is undisputable, it must be paid and it is for arrears of municipal taxes that should have been paid to the City of Montreal. He is the sole responsible for the payment of those taxes. [ 10 ] Mr Chabaline cannot ask Notary Taschereau to participate to his own negligence by paying those taxes. All his arguments constitute what we call in law "une fin de non-recevoir", which can be translated with the theory of the estoppel.

He cannot ask Notary Taschereau to participate to any payment of what should have been paid in 2008 or what should have been divulged to the purchasers when the deeds of sale were signed, namely in May of 2009. [ 11 ] Finally, the Court underlines a clause contained in the adjustments sheet signed by the parties on May 14, 2009: "The parties will notify themselves all public services (electricity, telephone, water) and shall proceed to any other adjustments between them , if necessary, as of this date." [ 12 ] Consequently, Plaintiffs' recourse must be directed only towards Mr Chabaline.

THEREFORE, the Court: GRANTS Karine Hazan and Gestion Anabiga inc.'s claim against Mikhail Chabaline; CONDEMNS Mikhail Chabaline to pay to Karine Hazan and Gestion Anabiga inc. the amount of $7,250.74 with interest at the legal rate and the additional indemnity provided for under

Article 1619 of the Civil Code of Québec , as from August 18, 2009; THE WHOLE , with costs; DISMISSES Karine Hazan and Gestion Anabiga inc.'s claim against Jean-René Taschereau, each party paying its own costs. __________________________________ Henri Richard, J.C.Q. M e Shari Munk, (BCF, s.e.n.c.r.l.) for Plaintiffs Mikhail Chabaline, Defendant M e Laurence Gauthier, (ROBINSON SHEPPARD SHAPIRO) for Defendant Jean-René Taschereau Date of hearing: March 10, 2011