2019 QCCQ 4929, 2019 QCCQ 4929

Newman c. Radisson Khuy 2019 QCCQ 4929 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-702219-173 DATE: April 18, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ ALEXA NEWMAN AND DAVID HUM Plaintiffs v. YOUTHANA RADISSON KHUY AND ELIE EDERY AND GROUPE SUTTON EXCELLENCE INC. AND RE/MAX 3000 INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs are claiming from the Defendants the sum of $5,000 in damages for not having represented them adequately, regarding the sale of their property. [ 2 ] The Defendants contest the claim. They argue that they acted professionally and are not responsible for the damages claimed by the Plaintiffs.

THE FACTS [ 3 ] In June 2013, The Plaintiffs retained the services of Youthana Radisson Khuy (KHUY) to act as their real estate broker for the sale of their property situated at [...], condo [...], in St-Laurent, Montreal. [ 4 ] On February 4, 2014, the Plaintiffs accepted an Offer to Purchase with a transfer of ownership for April 1 st , 2014. [ 5 ] On March 27, 2014, the Condo Association had a special meeting to discuss mould found in some of the garages of other owners.

At this meeting, it was decided that a building inspection was required to determine the root cause of the mould. [ 6 ] The Plaintiffs contacted KHUY and informed him of that meeting.

KHUY then advised them that as long as they provided the minutes of the meeting to the buyers, prior to the signing of the deed of sale at the notary's office, said buyers were deemed to have accepted the mould issue and could no longer consider it as a latent or hidden defect for which the Plaintiffs could be sued at a later date as vendors. [ 7 ] The minutes of said meeting were emailed to the buyers’ broker, Elie Edery (Edery), who verbally confirmed that the sale would proceed. [ 8 ] The sale occurred on April 1 st 2014 as planned and no mention was made of the mould issue in the Deed of Sale.

The sale was made with legal warranty. [ 9 ] In October 2016, the purchasers filed a claim in Small Claims Division alleging latent defects pertaining to the mould issue.

Plaintiffs have since paid purchasers an amount of $5,000 for the cost of repairs to the condo building. The payment was made after mediation in order to settle the case. [ 10 ] The Plaintiffs argue that the Defendants should have filed an «Amendment to the sale of the property» with the purchasers in order to protect them. By failing to do so, they act negligently.

ANALYSIS [ 11 ] Did the Defendants commit a fault and was that fault the cause of the damages for which Plaintiffs are suing? [ 12 ] This case calls for the application of the rules governing of contractual liability in virtue of the Civil Code of Quebec . 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. 1613 .

In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance. [ 13 ] In order to succeed in their lawsuit, Plaintiffs had do demonstrate that one of the Defendants committed a fault that had immediate and direct consequence equal to the damages they are claiming. [ 14 ] There is no evidence that Edery committed a fault in the manner in which he represented the purchasers in this file.

Therefore, this action against him and Re/Max 3000 Inc. has no legal grounds. [ 15 ] By advising the Plaintiffs that they only needed to send the minutes of the Condo association meeting of March 27, 2014 to inform the buyers of the possible presence of a latent or hidden defect, KHUY advised them inadequately and therefore committed a fault. [ 16 ] However, this fault is not the cause of the damages for which the Plaintiffs are suing. The mould issue is a hidden defect .

Nothing in the evidence adduced in Court suggests that this issue would have been resolved at no cost to the Plaintiffs had the proper forms been completed and sent to the buyers. As a result, the Plaintiffs did not demonstrate that KHUY's fault was the immediate and direct cause of their obligation to indemnify the purchasers. Therefore their action must be dismissed. FOR THESE REASONS, THE COURT: DISMISSES the claim, against all Defendants; The whole without costs. __________________________________ GILLES LAREAU, J.C.Q. Date of hearing: April 4, 2019