2016 QCCQ 44, 2016 QCCQ 44

Remax Alliance inc. c. Chatterjee 2016 QCCQ 44 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-22-216888-142 DATE: January 12, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ REMAX ALLIANCE INC. Plaintiff v.

ANU CHATTERJEE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Pursuant to a brokerage contract [1] entered into on September 12, 2013, Ms. Chatterjee gave Remax Alliance inc. (“Remax”), represented by Mr. Marco Di Liello, the mandate to list her condominium for sale. [ 2 ] On September 22, 2013, Mrs. Chatterjee received an offer [2] for the purchase of her condominium. A counter-offer [3] by Mrs. Chatterjee was accepted by the purchasers on September 23, 2013, for a price of $261,000.00.

This price will later be increased to $262,000.00 [4] . [ 3 ] A few days before the scheduled execution of the notarized deed of sale, the purchasers were informed of problems affecting the brick envelope of the building. Remax asserts that Mrs. Chatterjee was well aware of these problems and failed to disclose them in a timely manner. Remax produces an engineer’s report dated December 2012, which details major defects in the bricks and masonry of the building [5] . This report was provided to the purchasers by Mrs. Chatterjee at the notary’s office. Mrs.

Chatterjee says that she had only obtained this report from the administration of the building the day before. [ 4 ] Mrs. Chatterjee contends that she did inform Mr. Di Liello “of certain problems with the exterior of the building on September 12 th , 2013 and that the said Di Liello did not disclose them” [6] in the listing of her condominium. She adds that the brokerage contract and her declaration as to the state of the property were drafted by Mr. Di Liello on forms in French, a language which she does not understand.

This is why she did not realize that there was no mention in these documents of the problems with the envelope of the building. [ 5 ] Mrs. Chatterjee testifies that prior to giving Remax a mandate, she had listed her condominium via another realtor [7] , and received two offers which did not materialize precisely as a result of the purchasers being informed of the brick problem.

She says that this is why her asking price was discounted from $279,000.00 with this other realtor, to $269,000.00 with Remax. [ 6 ] Remax claims damages in the amount of the commission it would have earned if the sale had closed, that is, $15,061.73, including taxes. ANALYSIS AND DISCUSSION [ 7 ] This case is governed by the rules of contractual liability. The Civil Code of Québec provides: 1458. Every person has a duty to honour his contractual undertakings.

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. [ 8 ]

Section 7.1(4) of the brokerage contract provides that Remax is entitled to a commission of 5% of the sale price where the seller voluntarily prevents the free performance of the contract. [ 9 ] Remax had the burden to demonstrate on a balance of probabilities that Mrs. Chatterjee voluntarily concealed the problems affecting the envelope of the building, and that this is what caused the transaction to abort. In the Court’s opinion, Remax successfully discharged this burden of proof. [ 10 ] It is inconceivable that Mrs.

Chatterjee did not realize that the brick problem was not explicitly disclosed in the listing of her condominium. The Court simply cannot believe that a highly educated and intelligent person such as her accepted to sign contractual documents of this importance without understanding them or, at the very least, enquiring as to their content and meaning. On this, it was established at trial that her adult son, who was present when she signed the contract, understands and speaks French fluently.

[ 11 ] The Court cannot believe Mrs. Chatterjee when she says that she asked that the brokerage contract and her declaration as to the property be drafted on English forms, but that she nonetheless accepted that French forms be used when Mr. Di Liello said they were unavailable in English. Mrs. Chatterjee had filled out such forms before, in English, when she gave a mandate to a previous realtor. She thus knew that an English version existed. [ 12 ] Also, as it was not the first time that she filled one out, Mrs.

Chatterjee was necessarily familiar with the standard seller’s declaration form ( déclaration du vendeur ) of the Organisme d’autoréglementation du courtage immobilier du Québec (OACIQ). Still, she claims that her ignorance of the French language prevented her from understanding that there was no mention of the brick problem in her declaration of September 2013. This is simply not credible. [ 13 ] The sections and paragraphs of these forms are identically numbered and placed in the English and French versions.

Section D13.9 of the standard form asks whether the seller is aware of any factor liable to increase the expenses relating to the property. In response to this question, in her declaration of September 12, 2013, Mrs. Chatterjee checked the box “no”. There is a

section at the end of the form to allow for special mentions not covered by the questionnaire. It is left empty in Mrs. Chatterjee’s declaration. [ 14 ] Whether or not Mrs. Chatterjee only obtained the engineer’s report the day before the scheduled execution of the deed of sale is irrelevant. She was well aware that the brick problem was of the utmost importance, as it had already caused two offers to fall through. This problem had been discussed amongst the co-owners of the building since 2007 or 2008. In this context, Mrs.

Chatterjee should have been particularly attentive to the disclosure of this problem to potential purchasers. [ 15 ] Instead, the evidence demonstrates that she decided not to reveal it until the very last moment. This led the purchasers to lose all confidence in Mrs. Chatterjee and ultimately, not to purchase the condominium. [ 16 ] Mrs. Chatterjee had a positive obligation to collaborate and communicate all important information to Remax [8] .

Failure to do so constitutes a contractual fault which engages her liability. [ 17 ] Therefore, Remax will be awarded 5% of the price agreed to in the accepted counter-offer, as modified, that is, $13,100.00, plus the provincial ($655.00) and federal ($1,306.73) sales taxes [9] . FOR THESE REASONS, THE COURT: GRANTS the action; CONDEMNS Anu Chatterjee to pay $15,061.73 to Remax Alliance inc., with interest at the legal rate, plus the additional indemnity provided by law, to accrue from June 25, 2014; WITH COSTS . __________________________________ VINCENZO PIAZZA, j.c.q.

Me Alain Mongeau ALAIN MONGEAU AVOCATS Attorney for the Plaintiff Me Nino Izzi DOYON IZZI NIVOIX Attorney for the Defendant Hearing date: December 16 th , 2015