2012 QCCQ 11326, 2012 QCCQ 11326

Deckelbaum c. Winterstern 2012 QCCQ 11326 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-122056-106 DATE: November 12, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ ROBERT DECKELBAUM Plaintiff v.

JOSEPH WINTERSTERN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Robert Deckelbaum, an affiliated real estate agent authorized to act on behalf of Joseph Winterstern, a chartered real estate broker, claims from him $5,674.33 as partly unpaid commission ($5,226.50), reimbursement of insurance policy ($239.80) and fiscal penalty ($208.03). [ 2 ] Mr Winterstern denies owing any amount to Mr Deckelbaum and pleads that 15% of the commission to be received by Mr Deckelbaum is payable as a "brokerage fee".

Also, all the applicable taxes were duly remitted to the government. Questions in dispute [ 3 ]

a) Was a "brokerage fee" payable by Mr Deckelbaum to Mr Winterstern agreed upon ?

b) Are the applicable taxes duly paid by Mr Winterstern on the sole transaction executed by the intermediary of Mr Deckelbaum ? The facts and the analysis [ 4 ] From May 2009, Mr Deckelbaum, as an affiliated real estate agent, is authorized to act on behalf of Mr Winterstern, a chartered real estate broker. [ 5 ] During a meeting where they established the terms and conditions of their contractual relationship, Mr Deckelbaum testifies that 100 % of any commission received after a transaction finalized through his intermediary would be remitted to him.

On his part, Mr Winterstern testifies that the commission owed to Mr Deckelbaum was to be on a "case by case basis". [ 6 ] A third party was a witness to the said meeting, namely Mr Amram Ezerzer.

He does not recall that a "brokerage fee" was discussed between Mr Deckelbaum and Mr Winterstern, but remembers that they discussed the remittance of 100 % of any commission owed to Mr Deckelbaum after a finalized transaction. [ 7 ] From the evidence adduced, the Court concludes that Mr Deckelbaum establish, by preponderant evidence, that he was to receive 100 % of any commission from a transaction finalized through his intermediary. [ 8 ] In consequence, the brokerage fee of 15 % charged by Mr Winterstern to Mr Deckelbaum is contrary to the agreement intervened between the parties. [ 9 ] As for the payment of the applicable taxes, the evidence reveals that Mr Winterstern did receive payment from Mr Deckelbaum's client of the entire commission to be paid, plus the taxes, in the amount of $21,164.06. [ 10 ] Mr Deckelbaum issued an invoice to Mr Winterstern in the same amount and besides not having received payment of 100 % of the commission owed, he was not paid for the applicable taxes.

[ 11 ] The transaction's scenario involving Mr Deckelbaum is simple. A transaction was finalized through his intermediary. His broker, Mr Winterstern, issued an invoice of $18,750 plus the applicable taxes, totalling $21,164.06, and was paid. Mr Deckelbaum issued an invoice in the same amount and he was charged a brokerage fee of 15 % and did not receive payment of the taxes.

Because of the issuance of his invoice, Mr Deckelbaum had to pay the applicable taxes, plus a penalty of $208.03. [ 12 ] In the normal course of the transaction in dispute, Mr Deckelbaum should have received the whole amount invoiced to Mr Winterstern, $21,164.06. [ 13 ] In fact and in law, Mr Winterstern cannot charge any brokerage fee to Mr Deckelbaum and must pay the applicable taxes duly invoiced to him. Also, because of the failure from Mr Winterstern to pay in due time the applicable taxes to Mr Deckelbaum, a penalty had to be paid by the latter in the amount of $208.03.

Mr Winterstern must reimburse it to Mr Deckelbaum. [ 14 ] As for the claim of $239.80 regarding the insurance policy, Mr Deckelbaum discovered that Mr Winterstern received a reimbursement of the said amount after the termination of their relationship. This sum of money belongs to Mr Deckelbaum because he had to assume payment of the entire professional insurance policy. [ 15 ] Given all of the above, the Court concludes that Mr Deckelbaum's application is well-founded both in fact and in law and all the grounds of contestation of Mr Winterstern are ill-founded.

THEREFORE, the Court: GRANTS Robert Deckelbaum's claim; CONDEMNS Joseph Winterstern to pay to Robert Deckelbaum $5,674.33 with interest at the annual rate of 5 % and the additional indemnity provided for under

Article 1619 of the Civil Code of Québec , as from February 2, 2010; CONDEMNS Joseph Winterstern to pay to Robert Deckelbaum $157 as judicial costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: October 29, 2012