2015 QCCQ 3699, 2015 QCCQ 3699

Ekamparamoorthy c. Remax du Cartier inc. 2015 QCCQ 3699 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-138218-138 DATE: April 27, 2015 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ GUNARATNAM EKAMPARAMOORTHY -and- DAMAYANTHY EKAMPARAMOORTHY Plaintiffs v. REMAX DU CARTIER INC. -and- RACHID A.

KHAN Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Gunaratnam and Damayanthy Ekamparamoorthy (collectively referred to as the Plaintiffs) claim damages, reduced to $7 000.00, from Rachid A. Khan, a real estate broker, and the agency he is affiliated with, Remax du Cartier Inc. (collectively referred to as Defendants). Plaintiffs allege that they suffered damages caused by an error in the listing of a property that Defendants put on the market for their client.

These damages are the difference between the declared and real costs of municipal and school taxes. FACTS [ 2 ] The facts are not contested. Plaintiffs became interested in purchasing a property listed by Defendants. The listing, dated March 11, 2012, identified a sale price of $519,000.00 and total municipal and school taxes in the amount of $3 169.00 annually. After negotiations between the vendor’s and Plaintiffs’ real estate brokers, a sale price of $479,000.00 was agreed on. [ 3 ] The Deed of sale was signed on June 5, 2012.

At the time of the signature, the vendor and Plaintiffs signed an adjustment sheet indicating that the total annual taxes were in fact in the amount of $4 224.00. Mr Ekamparamoorthy states that he had never before purchased a house and therefore did not fully understand this adjustment sheet. [ 4 ] However, on the following day, Mr Ekamparamoorthy learned that in fact the annual taxes were in the amount of $4 224.00 namely $1055.00 more than he had planned for. He states that had he known he would not have purchased the immovable.

However, it is not contested that he did not request cancelation of the sale nor any reduction of the sale price. [ 5 ] Rather, a few weeks after the sale, he contacted Defendant Rachid A. Khan and clamed damages from him. Mr Ekamparamoorthy also complained to the Organisme d’autoréglementation du courtage immobilier du Québec (« O.A.C.I.Q .»). [ 6 ] On March 14, 2013, the O.A.C.I.Q [1] ., after investigation, concluded: Dear Sir,

We hereby inform you that while our verifications revealed that the behavior of Mr. Khan in this case has not been irreproachable, we do not have grounds to believe that these misconducts would justify that we resort to the disciplinary process. Experience has demonstrated that alternative methods are efficient in correcting this type of behavior. We have therefore underlined these gaps to Mr. Khan and served him with a formal warning.

A copy of this warning will be kept in our files and will be taken into consideration upon reception of other requests for assistance concerning him. [ 7 ] It is also uncontested that Mr Khan did in fact make an error in his initial listing. However, when he learned of his error, a number of weeks prior to the finalisation of the sale of the property, he contacted Plaintiffs’ real estate broker to advise him of it. His colleague told him not worry about it and he would take care of the situation by informing his clients. [ 8 ] This other real estate broker never passed on this important information to his client.

This evidence is uncontradicted since the other broker did not testify at trial, having left the country. [ 9 ] Remax du Cartier Inc. («Remax») concedes that if Mr Khan is held responsible, it too should be held solidarily responsible. However, Mr André Campeau, representative of Remax, argues that Mr Khan should not be held responsible and in any case, the damages have not been proven. ANALYSIS [ 10 ] Plaintiffs had the burden of proving that Mr Khan has committed an extra-contractual fault causing the damages they claim. Their burden of proof is that of preponderance of evidence [2] .

This means that their version must be more convincing than that put forward by Mr Khan [3] . [ 11 ] Mr Khan’s testimony to the effect that he did, in a timely fashion, advise Plaintiffs’ real estate broker of the error in the listing is not contradicted. This broker was Plaintiffs’ mandatory. By informing him, Mr Khan is presumed to have informed the Plaintiffs as well [4] . [ 12 ] Mr Ekamparamoorthy admits that his broker never relayed the information to him. By not doing so, this other broker committed a contractual fault. This fault is in fact the cause of Plaintiffs’ damages.

Therefore, even if Mr Khan committed a fault in preparing his listing, this fault did not cause the damages claimed by Plaintiffs. [ 13 ] These reasons are sufficient to dismiss this application against both Mr Khan and Remax. [ 14 ] When the Court asked Mr Ekamparamoorthy why he was claiming the difference in annual municipal taxes for a period of 10 years, he stated that it was suggested to him by a representative of the O.A.C.I.Q .

This arbitrary amount does not constitute a direct damage in the circumstances. [ 15 ] This is clearly a case where Plaintiffs were led to believe, by a third party, that they had recourse against the Defendants. Under the circumstances, it is not appropriate to condemn Plaintiffs to costs. FOR THESE REASONS, THE COURT: DISMISSES the application, without costs. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: March 23, 2015