2014 QCCQ 9155, 2014 QCCQ 9155

Smith c. Remax Quebec 2014 QCCQ 9155 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-014523-114 DATE: September 17, 2014 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ HAYLEY SMITH and SHANE BONNEMAYERS Plaintiffs v. ReMAX QUEBEC AND AVIVA CANADA INC.

Defendants ______________________________________________________________________ JUDGMENT ON A MOTION FOR CORRECTION OF JUDGMENT ______________________________________________________________________ [ 1 ] On October 30, 2013, Mr. Justice Yvan Mayrand rendered a judgment, in which he granted Hayley Smith and Shane Bonnemayers' action against ReMax Quebec and Aviva Canada Inc. for an amount of $ 485.89. Mrs. Smith and Mr.

Bonnemayers were claiming $ 7000 in damages from ReMax Quebec and Aviva Canada; they were arguing that ReMax had not given them the necessary support under the Tranquilli-T warranty for legal procedures they filed after they discovered a hidden defect in a house they had just bought. [ 2 ] Their action against the seller, Mrs. Fullerton, was dismissed by a judgment of July 18, 2013, rendered by Mr. Justice Claude Montpetit. [ 3 ] In his decision, Mr.

Justice Mayrand concluded that ReMax and Aviva did not have to support plaintiffs but had to indemnify them for judicial costs and expertises, no matter the result of their lawsuit. [ 4 ] He adds that according to the proof, plaintiffs had not consulted any lawyer, and had filed an expertise from Bartek Restorations that cost them $ 170.89. They also incurred $ 163 to open their file in the Small Claims Division; their action against Mrs. Fullerton was dismissed with costs of $ 152. [ 5 ] Mr. Mayrand decided that those were the only damages proven and covered by the Tranquilli-T warranty. [ 6 ] Mrs. Smith and Mr.

Bonnemayers are represented by Mrs. Smith's father, Mr. Trevor Smith, who argues that other legal fees were incurred, namely: $ 229.95 Paid to the expert to appear at the hearing before Mr. Justice Montpetit; $ 19.80 Additional expenses, representing the costs to send the letter of demand; $ 1000.00 Paid to Mr. Trevor Smith by Mrs. Smith and Mr. Bonnemayers to compensate him for more than 45 hours time and effort in the action against Mrs. Fullerton;

[ 7 ] Mr. Smith pretends that, had he known that Mr. Justice Mayrand was contemplating the reimbursement of legal fees, he would have filed the proof of the $ 1000 payment, as well as the proof for the amount paid to the expert further to Mr. Justice Montpetit's decision. [ 8 ] It is

Section 475 of the Code of Civil Procedure that defines the rule regarding the correction of a judgment. It reads as follows: 475. A judgment in which there is an error in writing or calculation or any other clerical error may be corrected by the judge or clerk who rendered it. A judgment which, by obvious inadvertence, has granted more than was demanded or has omitted to adjudicate upon part of the demand may also be so corrected.

Such correction may be made of the judge's or clerk's own motion so long as the execution has not been commenced; it may be made on motion of one of the parties at any time, unless the judgment has been appealed. If the judge or clerk who rendered the judgment is no longer in office or is absent or unable to act, the motion must be made to the court. The time limits for appeal from and for execution of a corrected judgment only run from the date of the correction, if it affects the conclusions. [ 9 ] As regards the claim for $229 paid to expert Bartnicki, the Court notes that in Mr.

Claude Montpetit's decision of July 18, 2013, the appropriate conclusion reads as follows: "CONDAMNE les demandeurs à supporter les frais de taxation des témoins ainsi que les frais de l'expert Bartnicki;" [ 10 ] Only by reading this conclusion, Mr. Justice Mayrand could not know how much was paid to expert Bartnicki. It had to be established by Mr. Smith. The Court has listened to the audition in front of Mr. Justice Mayrand. He asked Mr. Smith twice how much he paid for the expert. The answer was $ 190, and Mr. Smith gave the bill to the Judge.

There was no mention of the other amount of $ 229 that was paid to Mr. Bartnicki. Mr. Justice Mayrand did not have to ask any other question to make sure that nothing was forgotten by Mr. Smith. [ 11 ] As concerns the amount of $ 1000 paid to Mr. Smith for his time and efforts in this file, this Court cannot change Mr.

Mayrand's decision, but could only correct it if he had forgotten to decide upon part of the Demand, by obvious inadvertance. [ 12 ] The terms of the Tranquilli-T warranty by ReMax regarding legal fees indicate that it protects the client by giving him a monetary contribution to help him find a solution to litigations arising from the transaction. Specifically, as regards Small Claims Court,

Section 4 of such Tranquilli-T warranty specifies: "4. PETITES CRÉANCES Dans le cadre d'un litige dont la valeur est inférieure au seuil d'intervention et qui est inférieure au montant maximal déterminé au Livre VIII du Code de procédure civile du Québec intitulé « Du recouvrement des petites créances » et qui doit être exercé conformément aux dispositions dudit Livre VIII, aucune prise en charge des honoraires ne sera assumée par RE/MAX à l'exception des frais d'experts et sous réserve des limites consenties." [ 13 ] Since Mr. Justice Mayrand has not decided upon the question to know if the $ 1000 payment would be included in the Tranquilli-T warranty, and especially in

Section 4, this Court cannot do so in his place. [ 14 ] The Court refers to a judgment rendered in Construction Kiewit [1] , in which the Judge recognizes that he had forgotten to decide upon some questions, that he did not discuss or analyse in his judgment. He decided that it was a case for the Court of Appeal to decide, and that he could not correct it himself. [ 15 ] Correction of a judgment under

Section 475 C.c.p. is strictly defined. This Court cannot decide upon a claim that was not proven before Mr. Justice Mayrand. It cannot either discuss if the Judge should have asked further questions to Plaintiffs regarding other legal fees that may have been incurred. Plaintiffs cannot have a second chance to present their proof through

Section 475 C.c.p. FOR ALL THESE MOTIVES, THE COURT: DISMISSES Plaintiffs' claim;

THE WHOLE without cost. __________________________________ CÉLINE GERVAIS, J.Q.C.