2023 QCCQ 1439, 2023 QCCQ 1439

Giberowitch c. Ginsberg (Hildy Ginsberg-Silverman) 2023 QCCQ 1439 COURT OF QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-161841-202 DATE: March 13, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ SYDNEY GIBEROWITCH Plaintiff v.

HILDA LEAH GINSBERG (also known as Hildy Ginsberg-Silverman) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On March 16, 2019, Sydney Giberowitch (Giberowitch) promised to purchase a condominium at [...] in the borough of Cote- Saint-Luc, Montreal, from Hilda Leah Ginsberg (Ginsberg). [ 2 ] Before signing the notarial act, Giberowitch learned from other residents of the building that a special assessment was about to be imposed by the syndicate of co-owners to pay for major repairs. [ 3 ] Although well aware of this, Ginsberg never informed her buyer. [ 4 ] Giberowitch threatened to withdraw his promise to purchase if Ginsberg did not undertake to pay the special assessment. [ 5 ] The parties then agreed on an amendment to the promise to purchase which stipulates as follows: [1] The buyer and seller agree that the notary shall hold back $15 000 in trust to pay any assessment levied within one (1) year from the date hereof.

The funds shall be used to pay the assessment. If any assessment in the year totals less than $15 000, the excess funds shall be returned to the seller if the assessment is more than 15 000$. The seller shall pay same on to an amount of $25 000.00.

The object of the present clauses and assessment are for the repair of the bricks around the penthouse and pavement caving only. [ 6 ] Giberowitch explained that he agreed to the conditions and limitations of this undertaking because Ginsberg told him that the total cost of the work would not exceed $15,000. [ 7 ] In fact, the special assessment for the unit purchased by Giberowitch was $32,565.32. [ 8 ] On March 6, 2020, Giberowitch sent Ginsberg a formal notice to pay $10,000, the amount in excess of the $15,000 already paid in trust to the officiating notary. [ 9 ] Ginsberg offered to pay $3,861.80, the outstanding balance on the portion of the assessment to repair the bricks around the penthouse and the pavement caving.

She refused to pay more. [ 10 ] Giberowitch now claims $15,000 before the Smalls Claims Division. He argues that he was misled by Ginsberg and adds that the basis of the agreement was that she would pay the special assessment in full. He said that he would never have agreed to limit the amount in the agreement to $25,000 and even less to two specific items had he known that the assessment would be $32,565.32. [ 11 ] The issue in this case is to determine what the parties agreed to regarding the special assessment and whether Giberowitch’s consent was vitiated due to Ginsberg’s misrepresentations.

ANALYSIS [ 12 ] The evidence reveals that Ginsberg attended an annual general meeting on June 26, 2019, where the owners were informed that there was going to be a major special assessment for certain work. [ 13 ] Ginsberg did not inform Giberowitch. [ 14 ] When Giberowich learned from other sources that all co-owners were going to have to pay a special assessment, he demanded that it be paid by Ginsberg.

[ 15 ] On July 2, 2019, the day the sale closed, the parties signed amendment P-6 in which Ginsberg entered into certain undertakings. She therefore paid $15,000 in trust to the officiating notary and undertook to pay an additional $10,000. However, she limited her undertaking to two items: the repairs to the penthouse bricks and to the pavement caving. [ 16 ] Ginsberg testified that she told Giberowitch that the amount of the special assessment should not exceed $15,000.

She said that she got this information from David Ostroff, the syndicate’s president. [ 17 ] Giberowitch vigorously contests that statement and submits that Ostroff never mentioned any amount to Ginsberg before it was determined by the board of directors after July 2, 2019. [ 18 ] The evidence by both parties on David Ostroff’s remarks is subject to the hearsay rule and the Court decided to contact Mr. Ostroff and have him testify by telephone. [ 19 ] Mr.

Ostroff categorically stated that he never confirmed an amount to Ginsberg because he himself did not know the amount on July 2, 2019. [ 20 ] Ginsberg therefore misled Giberowitch. This representation contributed to his agreeing to limit Ginsberg’s undertaking to the two repair items mentioned above. [ 21 ] Two Civil Code of Québec articles warrant particular attention: 1401. Error on the part of one party induced by fraud committed by the other party or with his knowledge vitiates consent whenever, but for that error, the party would not have contracted, or would have contracted on different terms.

Fraud may result from silence or concealment. ... 1407. A person whose consent is vitiated has the right to apply for annulment of the contract; in the case of error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claim damages or, where he prefers that the contract be maintained, apply for a reduction of his obligation equivalent to the damages he would be justified in claiming. [ 22 ] It is important to note, however, that Giberowitch’s consent is vitiated only in respect of the addition of the limitation in the undertaking regarding the two specific items.

The evidence does not support the conclusion that absent such a representation, Giberowitch would have required more than an undertaking for $25,000. Indeed, even after he learned the amount of the assessment for his unit, Giberowitch only demanded an additional $10,000 in the formal notice, thereby accepting the monetary limit of Ginsberg’s undertaking. FOR THESE REASONS, THE COURT: GRANTS the application in part; CONDEMNS Hilda Leah Ginsberg (also known as Hildy Ginsberg-Silverman) to pay Sydney Giberowitch $10,000 with interest at the legal rate plus the additional indemnity set out in

article 1619 of the Civil Code of Québec as of the date of the summons. With legal costs of $209. __________________________________ GILLES LAREAU, J.C.Q. Date of hearing: January 17, 2023