2015 QCCQ 6302, 2015 QCCQ 6302

JB4545 Hayes c. Larue 2015 QCCQ 6302 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Civil Division No. 550-22-014751-133 DATE: June 19 th , 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE PATSY BOUTHILLETTE J.C.Q. ______________________________________________________________________ COLLEEN HAYES AND WILLARD HAYES Plaintiffs v.

LIONEL LARUE Defendant AND REGISTRAR Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The Court is seized of a motion for execution of deed. The defendant, Mr. Larue, is refusing to follow up on the offer to purchase signed on August 21, 2013 in favour of the plaintiffs, Willard Hayes and Colleen Hayes. [ 2 ] According to the defendant, at the time the offer to purchase was signed, he did not have the capacity to give a valid consent because of his physical and mental condition.

CONTEXT [ 3 ] Mr. Larue is the owner of a cottage located at […], Mansfield-et-Pontefract, Québec. [ 4 ] Mr. and Ms.

Hayes are the owners of the neighbouring cottage. [ 5 ] From the moment they acquired their property, the plaintiffs expressed their desire to acquire the defendant’s cottage, should he decide to part with it. [ 6 ] In the summer of 2013, the plaintiffs were informed that the defendant’s cottage was now for sale. [ 7 ] At a meeting on August 21, 2013, the defendant accepted an offer to purchase for $65 000. [ 8 ] On September 4, 2013, by formal notice, the defendant confirmed his refusal to execute the deed, which justifies this proceeding. [ 9 ] At the beginning of the proceedings, the parties’ attorneys admitted that the officiating notary held $65 000 in trust to complete the transaction, if need be.

QUESTION IN DISPUTE [ 10 ] The question in dispute is as follows: ▪ Did the defendant haD the capacity to sign the August 21, 2013 offer to purchase? ANALYSIS [ 11 ] The defendant must prove that, at the time the offer to purchase was signed, on August 21, 2013, he did not have the capacity to

sign because of his physical and mental condition. [ 12 ] The main legislative provisions that may apply in this case are articles 4 , 154 , 1398 and 1409 of the Civil Code of Québec , which read as follows: 4. Every person is fully able to exercise his civil rights. In certain cases, the law provides for representation or assistance. 154. In no case may the capacity of a person of full age be limited except by express provision of law or by a judgment ordering the institution of protective supervision. 1398.

Consent may be given only by a person who, at the time of manifesting such consent, either expressly or tacitly, is capable of binding himself. 1409. The rules relating to the capacity to contract are established principally in the Book on Persons. [ 13 ] In two frequently cited decisions, the Supreme Court of Canada and the Court of Appeal of Québec established the rules that apply in matters of capacity to contract or capacity to make a will: Thibodeau v.

Thibodeau : [1] [TRANSLATION] The courts have often had an opportunity to examine the matter of incapacity and to rule on the degree of mental disturbance that the parties must exhibit for the acts they execute to be declared null and void. The judgments rendered did not always have to do with the mental capacity required for synallagmatic contracts to be valid. Most commonly, the dispute concerned a testator’s mental capacity. However, I see no reason to establish a difference between the capacity of the contracting party and that of the testator. This is in fact indicated in

section 831 of the Criminal Code , which states that the capacity to make a will is conditional on the capacity to dispose of one’s property. In either case, for a document to be declared null and void, it is not necessary that the signatory be totally insane. The law does not require that he or she be detained in a mental institution, be under a prohibition, o r require the assistance of a judicial adviser.

If the contracting party or the testator does not have the capacity to understand the scope of his or her act, does not have the will to evaluate, resist or consent to it or, because of mental weakness, cannot gauge the value of the acts he or she executes or their possible consequences, if, in a word, he or she does not have the power to control his or her mind, the act is null and void for want of valid consent . [References omitted voluntarily.] Leblond v.

Leblond [2] [TRANSLATION] Not only insanity but also mental weakness are causes of nullity of a contract if the party suffering therefrom was unable to adequately understand the act executed, could not gauge its scope or consequences, or did not have the will to evaluate, resist or consent to it. The burden of proving the mental incapacity rests with the person who raises the nullity of the act; normally, it must be presumed that a party was sound of mind when the party consented to a contract and the simple fact of alleging the party’s incapacity in no way changes the situation.

But if that party’s capacity is seriously challenged by prima facie evidence, the burden of proof then shifts and it is up to the

party contending the validity of the act to prove that the party had the capacity to contract when signing . Instead of imposing on the appellant the burden of proving that, at the time of the sale, he did not have the capacity to give a valid consent, the trial judge should have examined the evidence to see whether the appellant was able to shift on the respondent the burden of proving his capacity at that time, before deciding whether the respondent had discharged that burden. [Emphasis added.] [ 14 ] The test is in two stages: 1.

The party alleging incapacity must, by prima facie evidence, cast serious doubt on the capacity. 2.

If the party invoking the nullity of the act successfully completes the first stage, it will be up to the party contending the validity of the act to prove that the party had the capacity to contract when signing. [ 15 ] The plaintiffs acquired their cottage in 2011. [ 16 ] At the time, the defendant had been the owner of his cottage for several years, that is, since 1988. [ 17 ] As soon as they acquired their cottage, the plaintiffs expressed their desire to acquire the defendant’s cottage, should he decide to sell it, mainly because of the proximity of the two cottages. [ 18 ] Although the defence attempted to prove that the plaintiffs put undue pressure on the defendant, the Court does not accept that position. [ 19 ] On the contrary, it was a third party, Mr.

Corriveau, who informed the plaintiffs that the property was for sale. Mr. Corriveau has also been the owner of a cottage at the same location since 1991. [ 20 ] Mr. Larue contacted Mr. Corriveau to inform him that he was prepared to sell. A meeting was scheduled for August 21, 2013, at the home of the defendant’s daughter in Ottawa. At the time, Mr. Larue was living with his daughter, since he had sold his main residence. [ 21 ] The meeting was attended by Mr. Hayes, Mr. Larue, Ms. Rocheleau (Mr. Larue’s daughter) and Mr. Corriveau. [ 22 ] At the hearing, Mr.

Corriveau explained that he was a long-time friend of the defendant’s. The parties had been seeing each other at the cottage, during the summer, since 1991. They had a good relationship as neighbours, helped each other out, and ate and had drinks together. [ 23 ] Mr. Corriveau’s testimony was sincere, and his few hesitations were due to his nervousness at testifying before the Court. [ 24 ] The defendant’s son-in-law, Bruce Roy, attempted to show that Mr. Corriveau harassed his father-in-law to make him sell his cottage and that this led to the signing of the offer to purchase. According to Mr. Roy, since Mr.

Corriveau is a real estate broker, he had a stake in the sale. [ 25 ] The Court does not see how Mr. Corriveau could have benefited from acting that way. Mr. Larue is a long-time friend of Mr. Corriveau’s, not of the plaintiffs’. [ 26 ] In addition, the evidence shows that Mr. Corriveau did not ask or receive a commission for that transaction. On the contrary, the situation as a whole has caused him nothing but problems, but this is not the object of the dispute. [ 27 ] The Court accepts the factual background presented by Mr. Corriveau. Mr.

Larue informed him that he was prepared to sell his cottage. [ 28 ] The meeting took place at the residence of Mr. Larue’s daughter, who was present, along with her spouse. Ms. Rocheleau took

part in the discussions. [ 29 ] After much discussion, the parties signed the offer to purchase dated August 21, 2013. [ 30 ] Nothing in the evidence shows that the offer was abusive. On the contrary, the conditions seemed rather favourable to Mr. Larue. [ 31 ] Despite the sale, Mr.

Larue could continue using the cottage for at least the following two years. [ 32 ] The evidence also shows that part of the transaction was made in cash, in order to reduce the defendant’s capital gain and increase that of the plaintiffs upon the resale of the cottage. [ 33 ] Hence, nothing in the evidence shows that the conditions of the transaction placed Mr. Larue at a disadvantage. [ 34 ] According to the testimony of Ms. Rocheleau, the offer to purchase was signed while she was in the bathroom. Therefore, she learned that the document had been signed only after the plaintiff and Mr.

Corriveau had left. [ 35 ] The Court does not accept that testimony. Ms. Rocheleau is a legal assistant and must have been well aware of what was going on at her home. If the defence’s contention that Mr. Larue did not understand the situation is accurate, Ms. Rocheleau had every opportunity at the time to end the meeting. On the contrary, the meeting lasted several hours, in her presence. [ 36 ] In addition, the evidence shows that, after the singing of the offer, the parties, including Ms. Rocheleau’s spouse, continued to

discuss. If Mr. Larue’s condition at the time was as the defence contended, why did no one raise that issue? [ 37 ] Moreover, the following day, Mr. Larue’s daughter, Ms. Rocheleau, after noting an error in the offer to purchase with regard to the terms and conditions of payment, contacted Mr. Corriveau. During their discussion, she never raised the issue of her father’s consent. [ 38 ] The evidence also shows that the defendant sold his main residence in June 2013. He signed the transaction documents himself, in the presence of the officiating notary mandated to attest to the capacity of the signatories.

No problems were noted at the time with regard to the defendant’s capacity. [ 39 ] The Court concludes that the only problem with the transaction entered into seems to be the reaction of Mr. Larue’s son-in-law, Mr. Roy. [ 40 ] According to Mr. Roy, the price accepted by Mr. Larue was inadequate, due to the fact that his father-in-law did not have the capacity to make such important decisions. [ 41 ] There is no evidence supporting the position that the sale was not at the market value. Mr. Larue was asking $75 000 for his cottage.

The cottage was sold for $65 000, with the right to use it for two years and a reduction in the taxable capital gain. Nothing in the transaction was unfavourable to Mr. Larue. [ 42 ] The Court must also evaluate the possibility that the defendant’s consent was affected by his medical condition. In defence, Mr. Larue filed his medical record. [ 43 ] The evidence shows that Mr. Larue suffers from Parkinson’s disease. [ 44 ] According to the testimony heard, Mr. Larue still drove his car, had a valid driver’s licence and went to his cottage alone. [ 45 ] At the time of the events, Mr.

Larue had supper at the home of Mr. Corriveau, who did not note anything abnormal with regard to his behaviour. [ 46 ] Mr. Roy also attempted to present his father-in-law’s hearing problem as something that would prevent him from giving his consent. [ 47 ] The Court cannot accept that element. Even if Mr. Larue had difficulty hearing, the evidence shows that he took

part in the discussions, in his daughter’s presence. Not only did he take

part in the discussions but, according to Mr. Hayes and Mr. Corriveau, he understood what was going on. [ 48 ] In fact, after having lived with Ms. Rocheleau for four months, Mr. Larue went back to living alone in an apartment in the Aylmer area. However, at the time of the hearing, he was living in a care facility. [ 49 ] At the hearing, Mr. Larue also testified. The Court cannot establish whether his condition at the time of the hearing was the same as at the time of the transaction. There is no conclusive evidence in that regard. [ 50 ] Mr.

Larue’s testimony on the meeting totally contradicted all the other testimony heard. The Court does not accept the factual background he related. He concluded his testimony by saying “I just decided I would not sell”, which, in and of itself, is not a reason for not following up on the transaction. [ 51 ] Consequently, the preponderant evidence shows that, at the time the offer to purchase was signed, on August 21, 2013, Mr.

Larue had the capacity to do so. [ 52 ] The defendant was unable to adduce prima facie evidence that, at the time the document was signed, he did not have the capacity to give a valid consent.

FOR ALL THESE REASONS, THE COURT: ALLOWS the amended motion for execution of deed; DECLARES the amended offer good and valid; ORDERS the defendant, Lionel Larue, to sign the deed of sale for the property described below, within ten (10) days of the date of service of this judgment; ORDERS the plaintiffs, Colleen Hayes and Willard Hayes, to pay the defendant, Lionel Larue, $65 000 following the signing of the deed of sale; Should the defendant FAIL to sign the deed of sale, DECLARES that this judgment is equivalent to a deed for the following immovable: DESIGNATION OF THE IMMOVABLE An immovable known and designated as lot number […] , in the Pontiac registration division.

Address: […] Mansfield-et-Pontefract (Québec) […] ORDERS the registrar of the Pontiac registration division, upon receipt of an application for registration in accordance with the law and payment of the prescribed fees, to publish this judgment in the books for which he is responsible;

THE WHOLE with costs. __________________________________ PATSY BOUTHILLETTE J.C.Q. Mtre. Richard LeblancLeBlanc DonaldsonCounsel for the plaintiffs Mtre. Roger ParadisRPGL avocats s.e.n.c.r.l.Counsel for the defendant Date of hearing: April 8th, 2015 [1] (SCC), [1961] S.C.R. 285, 288-289.