2016 QCCQ 13267, 2016 QCCQ 13267

Gursoy c. Bauer 2016 QCCQ 13267 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147216-156 DATE: November 14, 2016 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ MESUT GURSOY Plaintiff v. INGRID BAUER and 9295-3132 QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In April, 2015, plaintiff visited defendants’ hairdressing salon, which was for sale. [ 2 ] At the initial stages of the parties' negotiations, defendant Ingrid Bauer pressured plaintiff to give her a $15,000.00 cheque, with a view to allegedly show the landlord that plaintiff was seriously considering buying the business.

It was urgent, said Bauer to plaintiff, as the landlord was planning to transform the premises into a restaurant. [ 3 ] Bauer undertook not to cash the cheque, as plaintiff would be applying for a loan, if and when he decided to buy the business.

Again, the purpose was to show the landlord that serious negotiations were taking place and to delay the takeover and conversion of the premises into a restaurant. [ 4 ] Plaintiff, who had recently immigrated to Canada and had a limited understanding of the language and a somewhat naïve approach to the prospective deal, was shocked to discover, 2 days later, that the funds had been withdrawn from his bank account, as Bauer had cashed his cheque. [ 5 ] What is more, Bauer had used plaintiff's money to pay the landlord 4 months of arrears in rent, totalling approximately $18,500.00. [ 6 ] When plaintiff protested both to the landlord and Bauer, he was basically told that he was responsible for these arrears based on a lease which he had never even seen! [ 7 ] Not surprisingly, plaintiff lost confidence in Bauer, became wary of the situation and decided to withdraw from the negotiations. [ 8 ] Plaintiff asked Bauer to return the money to him, and sent defendants a demand letter, on May 8, 2015 (exhibit P-3) to this effect; but defendants refused to do so.

[ 9 ] Today, defendants claim that the deal was concluded before Bauer helped herself to plaintiff’s bank account. [ 10 ] However, even if this were true, defendants had no right to use plaintiff's money to pay defendants’ debts. [ 11 ]

Article 1712 of the Civil Code of Quebec states: " Failure by the promisor, whether seller or buyer, to execute title entitles the beneficiary of the promise to obtain a judgment in lieu thereof." [ 12 ] Defendants never put plaintiff in demand to proceed with the purchase. Quite the contrary, defendants continued to operate the salon until they closed it in mid-August.

There never was a sale, only inconclusive negotiations; and what defendants did was take the law into their own hands and use plaintiff’s money as liquidated damages, that which they were not entitled to do. [ 13 ] Moreover, the absence of a meeting of the minds on important issues, such as inventory and lease, confirms that no contract was ever formed. [ 14 ] Accordingly, plaintiff is entitled to the reimbursement of the monies which defendants took without right.

WHEREFORE THE COURT HEREBY: GRANTS plaintiff's motion; SENTENCES defendants, jointly and severally, to pay plaintiff the sum of $15,000.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , as of May 8, 2015 and legal costs in the amount of $200.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: October 4, 2016