2016 QCCQ 2899, 2016 QCCQ 2899

Zlatic c. Burrogano 2016 QCCQ 2899 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142713-140 DATE: March 29, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ ZORAN ZLATIC Plaintiff v.

BRUNO BURROGANO -and- LEROUX CÔTÉ BURROGANO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Zoran Zlatic sues notary Bruno Burrogano and his notarial firm Leroux Côté Burrogano for professional liability on the basis of alleged faults committed by Mr. Burrogano. Question in issue Did Notary Burrogano commit a fault giving rise to his professional liability? Context [ 2 ] In the summer of 2012, Mr.

Zlatic, acting on behalf of his mother Kontesa Knezevic by way of power of attorney, put her residential property up for sale [1] . A promise to purchase was signed with promising buyers. At the time, Ms. Knezevic resided in Serbia and was therefore a non-resident of Canada. [ 3 ] After signing the promise to purchase, the promising buyers attempted to withdraw from the transaction.

[ 4 ] Mr. Zlatic then hired an attorney, Harvey Lazare, to ensure that his rights, under the promise to purchase, were respected. Me Lazare wrote to the promising buyers and put them in default to proceed to the sale [2] . [ 5 ] At the same time, Me Lazare telephoned Notary Burrogano and asked him to prepare on behalf of his client Mr. Zlatic a deed of sale based on the accepted promise to purchase. Me Lazare wrote to the promising buyers summoning them to a closing meeting of the sale transaction at the offices of Notary Burrogano.

If the promising buyers refused to sign, Me Lazare stated that his client’s intention was to force the promising buyers to purchase the property by way of an “action en passation de titre” (action in conveyance of title). The relevant extract of Me Lazare’s letter reads as follows [3] : “Therefore, our client cannot accept the cancellation of the transaction which you requested in your letter.

Please be advised that the signing is scheduled for October 10, 2012, before notary Bruno Burrogano, and our client will be present at notary Burrogano’s office located at 507 Place d’Armes, Suite 1300, Montréal, QC H2Y 2W8, on October 10, 2012, at 2h30 p.m. in order to complete the transaction.

If you do not present yourselves at notary Burrogano’s office at that time together with a certified cheque or bank draft in the amount of $575,000.00, our instructions are to institute all appropriate proceedings against you in order to require you to complete the transaction as per the terms and conditions of the accepted Offer to purchase and the accepted Counter-offers.” [ 6 ] A copy of that letter was sent to Mr. Zlatic. A copy was also forwarded to Notary Burrogano [4] . [ 7 ] On October 10, 2012, Mr.

Zlatic attended the meeting and signed, on behalf of his mother, the deed of sale prepared by Notary Burrogano [5] . The promising buyers did not attend the meeting. [ 8 ] Unfortunately, three days later, namely on October 13, 2012, Mr. Zlatic’s mother, Ms. Knezevic, passed away at the age of 84. [ 9 ] The passing of Ms. Knezevic required the execution of a declaration of transmission transferring the title of the property from Ms. Knezevic to Mr. Zlatic [6] .

This document was prepared by a different notarial firm. [ 10 ] As a result of the legal letters, draft deed of sale, and threats of a recourse against them, the promising buyers eventually relented and agreed to proceed with the deed of sale. The date to sign the deed of sale pursuant to the promise to purchase was postponed several times and the closing meeting to sign the deed of sale was scheduled for November 15, 2012 [7] . [ 11 ] In the meantime, there were other developments.

The Condo Association where the property was located voted to adopt a special assessment to repair the caulking on the facade of the building. Each owner was assessed to pay the amount of $6,304. On November 15, 2012, the manager of the condo building confirmed to Notary Burrogano this assessment and that the first payment was due on November 15, 2012 [8] . [ 12 ] At the closing, Notary Burrogano suggested to the parties that they divide responsibility for the assessment at one half each. The buyers agreed. Mr. Zlatic’s real estate agent agreed with the suggestion. Mr.

Zlatic also agreed. [ 13 ] The amount was split 50% each in the Adjustment Sheet [9] and the purchase proceeds of Mr. Zlatic were reduced by $3,152. [ 14 ] Mr. Zlatic now states that he was “forced” to agree and the alternative was that the sale would not proceed. He wants Notary Burrogano to pay him that amount. [ 15 ] Another issue regarding the closing had also arisen. As the rights to purchase of the buyers derived from the original promise to

purchase on behalf of Ms. Kezevic, who was a non-resident, Notary Burrogano felt that, in accordance with prudent notarial practice, he was obliged to hold back from the purchase price the potential amount of taxes to be paid by Mr. Zlatic. Notary Burrogano stated in his testimony that he wanted to act objectively in the matter since a decision of the tax authorities that the sale was subject to non-resident withholding taxes would have also created an obligation of the part of the buyers to pay those taxes.

After the government tax authorities confirmed in writing that, in their opinion, non-resident taxes were not applicable, Notary Burrogano released the hold back in favour of Mr. Zlatic. [ 16 ] In his re-amended statement of loses, Mr. Zlatic claims the following amounts [10] from Notary Burrogano. These heads of damages are taken verbatim from his claim: “(

A) Future improvements of the building in the next year payable in 4 instalments CAN $3,152.00 (

B) Preparation of deed of sale/request of Mr. Harvey Lazare (no authorization) CAN $574.00 (

C) Management of the trust funds ($300.00 + tax) CAN $344.93 (

D) Fees for ordering certified copies of declaration of Co-ownership CAN $86.23 (

E) Fees for obtaining certified copies of declaration of Co-ownership and its amendments (5x30) CAN $150.00 (

F) Honoraries CAN $236.23 (

G) Cost of certified letters CAN $44.00 (

H) Cost of the Court fees CAN $169.00 (

I) Mishandling sale which leads to short paid return of federal & provincial government taxes approximately CAN $7,000.00 Grand total of: CAN $11,756.39 Lowered to: CAN $7,000.00” Analysis and Decision [ 17 ] Based upon the proof heard, Mr. Zlatic has failed to establish any professional fault on behalf of Notary Burrogano. [ 18 ] With regard to the claim under (A), the Court had an opportunity to note the strong and forceful personality of Mr. Zlatic. The Court considers that he freely entered into the agreement to split the costs of the repair/renewal work of caulking. [ 19 ] With regard to (B), Mr.

Zlatic states that he never authorized Notary Burrogano to prepare the deed of sale. He makes this assertion despite the clear terms of his attorney’s letter acting upon Mr. Zlatic’s instructions, despite the fact that Mr. Zlatic actually signed the draft deed of sale [11] that was prepared for the potential action in conveyance of title and that such efforts were ultimately successful in convincing the promising buyers to proceed to the purchase. There appears to no credible or legal basis for the claim of Mr.

Zlatic for this item. [ 20 ] With regard to (C), there is no proof that Notary Burrogano acted incorrectly in effecting the holdback regarding the potential issue of non-residence of Ms. Knezevic. In fact, the preponderance of the proof indicates that Notary Burrogano followed standard notarial practice and acted as a neutral and prudent professional. [ 21 ] With regard to (

D) and (E), Mr. Zlatic claims refund of the amounts shown on the basis that he could have obtained the documents without charge from the Condo Association, had he been given the opportunity to do so. Notary Burrogano testified that it is proper notarial practice to obtain certified copies from the registry office and that these charges are simply his disbursements to do so. There was no proof to the contrary. There is therefore no reason to order that they be repaid. [ 22 ] For (F), this was a miscalculation by Mr. Zlatic as it represents simply the total of the charges under (

D) and (E). Mr. Zlatic withdrew the claim for this heading at the hearing. [ 23 ] With regard to (

G) and (H), since Mr. Zlatic has failed to establish his claim, no amount is warranted.

[ 24 ] With regard to (I), Mr. Zlatic provided no credible or independent proof that he suffered any prejudice from the fact that part of the sale price was withheld to pay for potential non-resident taxes on behalf of his mother’s estate. Furthermore, Mr. Zlatic has not established that Notary Burrogano committed any fault in that regard. As stated, the entire amount withheld was later released in favour of Mr. Zlatic. Therefore, no amount will be awarded in that regard. [ 25 ] As Mr.

Zlatic has failed to establish any professional fault on the part of Notary Burrogano or any other basis of law under which he should be awarded any amount, his claim will be dismissed, with costs. FOR THESE REASONS, THE COURT: DISMISSES Mr. Zoran Zlatic’s judicial demand; WITH JUDICIAL COSTS limited to the Court stamp fee of Defendant’s contestation, being $206 owed by Zoran Zlatic to Defendants Bruno Burrogano and Leroux Côté Burrogano. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: March 14, 2016