2019 QCCQ 5868, 2019 QCCQ 5868

Joly c. Immobiliers Ramier inc. 2019 QCCQ 5868 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-702964-174 500-32-703058-174 DATE: July 11, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GREGORY JOLY Plaintiff v.

LES IMMOBILIERS RAMIER INC. and ROYA ESFAHANI Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Gregory Joly, a real-estate broker, sues the agency with which he worked, Les Immobiliers Ramier inc. (“ Ramier ”), in two files, each respecting a specific transaction where, as broker, he claims to be entitled to retribution. [ 2 ] In case number 500-32-703058-174 (“ file n°058 ”) he claims $3,997.91, the commission earned on the transaction with deduction made for the amount he conceded to the agency under his agreement. [ 3 ] He also claims punitive damages in the amount of $5,000.00 for an unlawful and intentional interference with a right recognized by the Charter of human rights and freedoms [1] namely the right recognized under

article 6 , the “right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law”. [ 4 ] This commission relates to the sale of an immovable in Repentigny, which took place on September 12, 2017. [ 5 ] In file number 500-32-702964-174 (“ file n°964 ”) he claims a commission of $15,521.62 in relation to the sale of a property in Pierrefonds, which took place on August 25, 2017. [ 6 ] He reduces the claim to 15,000.00 to benefit from the procedure of the Small Claims Division. [ 7 ] In each file, Ramier brings a Cross Application, in file n°058, in the amount of $4,616.80 and in file n°964, in the amount of $15,000.00. [ 8 ] The Cross Applications relate to claims for checks returned due to insufficient funds, a claim for administration fees and a claim for abusive proceedings. [ 9 ] In file n°964 the Cross Application includes a claim of $10,000.00 for compensation for trouble and inconvenience and waste of time caused by the Plaintiff’s action. [ 10 ] In both files, the Plaintiff is sued, not only by the agency Ramier, but also by Roya Esfahani, its the shareholder and director. [ 11 ] It is not contested that Mr.

Joly, as broker, carried out the two sales and that the amounts he claims for retribution are accurate. [ 12 ] In fact, these amount were paid to Ramier, out of the funds held in trust by the notary retained from the purchase price, pursuant to the invoice that Ramier sent to the notary in each case. [ 13 ] Ramier based its billing on the information given by Mr. Joly in connection with each transaction. In her testimony, Ms. Esfahani asserted that Ramier has retained the amount of these two commissions in its trust account, Ramier believes that Mr.

Joly has not provided the proper documentation to justify receiving the commissions, notably signed originals of the brokerage contracts and of the bilateral offers to purchase, as well other ancillary documents such as the listing, the certificate of location, etc. [ 14 ] Ramier takes the position that it must conserve this money in trust and return it to the true owner because the commission is not due, given this lack of documentation.

[ 15 ] Mr. Joly testified to the effect that he gave all the required documentation to Ramier, that Ramier invoiced the seller through the notary for the applicable commissions and it is holding the money simply because of the fact that he left the agency over a dispute. This dispute had to do with his allegation that Ramier was unlawfully retaining and charging money, ostensibly to remit to the CSST, when such amounts were not due. Issues [ 16 ] For the Court to resolve this case, it is necessary to decide the following issues: 1.

Are the commissions not payable by the agency to the broker because of a lack of documentation in violation of regulatory requirements imposed on brokers and agencies? 2. Are the claims of the Defendants Les Immobiliers Ramier inc. and Roya Esfahani well founded in respect of:

a) a check returned due to insufficient funds;

b) administrative fees;

c) compensation for trouble, inconvenience and waste of time;

d) moral prejudice. Analysis 1. The claim for commissions [ 17 ] Ramier’s assertion that it cannot remit retribution owned to the broker, because of a lack of documentation, has not been proved on the balance of probabilities. [ 18 ] At the hearing, Mr.

Joly provided signed duplicates, both of the brokerage agreements and of the bilateral promises to purchase. [ 19 ] The Court accepts the sincerity of his testimony when he asserts that he provided these documents and other documents required by Ramier in these two files, as he has done in all of the previous files he handled for Ramier. [ 20 ] Ramier considered the documentation complete, issued the invoicing that led to the payment of the commissions from the notaries’ trust funds and, in both transactions, the sellers are, obviously, satisfied with the results. [ 21 ] The Court does not accept Ms.

Esfahani’s testimony that she did not receive the proper documentation. An agency such as this one, which is governed by strict requirements in a regulatory context, has substantial experience and is associated with a number brokers.

It would have not issued invoices for the payment of the commissions if it did not have on hand the essential documents. [ 22 ] In the context where it acted as though it did have on hand the required documents, it is very difficult for Ramier to prove the negative fact that it did not receive these documents. [ 23 ] In the adversarial process, the Court will not carry out an audit of Ramier’s file, and it must simply base its decision on what is probable, in light of the applicable burden of proof. [ 24 ] In the course of business, if Ramier issued the invoice and was paid through the notary’s auspecies, it is to be presumed that the notary had on hand both the brokerage agreement and the bilateral promise to purchase, the duplicates of which were produced in the Court file. [ 25 ] To suggest otherwise would be extremely irregular and unusual.

The Court will not presume this to be the case. [ 26 ] Ms. Esfahani testimony, as was stated previously, is not credible. [ 27 ] The commissions as claimed are therefore due. 2. The claim for punitive damages [ 28 ] The Plaintiff’s claim for punitive damages of $5,000.00 has not been established.

Punitive damages under the articles of the Charter of human rights and freedoms depends upon an unlawful and intentional interference in the fundamental rights of the Plaintiff. [ 29 ] In this case, the nonpayment of the amounts owned is not an intentional interference with the Plaintiff’s fundamental freedom as such; it is the legitimate exercise by the Defendant of its right to take a legal position and to stick to that position through litigation up until judgement. [ 30 ] Although the Court has not accepted as legally valid the position taken by Ramier, the failure of Ramier to pay, a default that is now sanctioned by the Court’s judgement, does not constitute grounds for punitive damages under the Charter of human rights and freedoms ,

article 49 . Ramier took the position in a manner that was not improper. The Cross Demand

a) a check returned due to insufficient founds [ 31 ] The first issue on the Cross Demand is unpaid check of $114.98, check #152, made by Mr. Gregory on August 1, 2017. [ 32 ] The nonpayment of this check is claimed in both files. It is the check for the “ frais de bureau ” which both parties admit was owned by Mr. Joly to Ramier, each month that he was working at the agency as a broker. [ 33 ] When he first became a broker with Ramier on July 16, 2013, Mr. Joly signed a sales person contract on Ramier’s form.

This was a one year contract renewable automatically for additional one year periods unless either party gives to the other a written notice of its intent not to renew, at least 30 days prior to the expiring period. [ 34 ] Mr. Joly withdrew from this agreement and went to work for another agency in November 2014. He returned in May 2015 but no written agreement was signed at that time. As a contract of indefinite duration, the new arrangement could be terminated by either party upon reasonable notice. [ 35 ] The two transactions for which Mr.

Joly claims retribution were carried out around the time he left to go to another agency. A letter of the certification department of the OACIQ, dated August 28, 2017 informs Ramier that Mr. Joly is registered on behalf of the agency until August 24, 2017. [ 36 ] Based on this certification from the OACIQ, Mr. Joly owned his monthly fee up until the month of August and the payment was therefore due. Mr. Joly therefore would have no defence to the action on the unpaid check, the condemnation to this amount will be made in the conclusions of file n°964.

b) the administrative fees [ 37 ] The claims made by Mr. Joly in both files recognize and deduct the administrative fee of $400.00 plus applicable taxes; the Cross Application would therefore constitute double recovery, and will fail on this point.

c) compensation for trouble, inconvenience and waste of time [ 38 ] This claim is made in file n°964 only. Ms. Esfahani explained to the Court that when he left the agency, Mr.

Joly caused disruption and made allegations of fraud against her and against the agency and that this caused much trouble and inconvenience, and that he also interfered with the agency’s relationship with other brokers. [ 39 ] The Defendants do not make a claim per se for defamation of character, and such a claim would not be within the jurisdiction of the Small Claim Division. [ 40 ] In terms of disruption pertaining to relations with other brokers, no specified proof was offered on this point, simply the assertion by Ms.

Esfahani that she and the organisation, suffered prejudice. [ 41 ] Apparently there was a dispute about money that the agency was deducting from retributions and paying to the CSST. It is not disputed in this case that Ramier returned these amounts to its brokers and that the matter is a question of litigation between the OACIQ and the CNESST. [ 42 ] The Cross-Plaintiffs have not fulfilled the burden of proving that any wrongful act on the part of Mr. Joly caused them pecuniary or non-pecuniary prejudice.

d) the claim for moral prejudice [ 43 ] This claim tends to overlap with the claim for $10,000.00 made in file n°964. [ 44 ] Ms. Esfahani seems distressed about the fact that she is retaining money in a trust account pending her anticipation that some proceedings may be brought by the OACIQ or a party intrusted in the transaction, pertaining to the lack of documentation supporting the billing Ramier made for the broker’s commissions. [ 45 ] While it may be that Ms. Esfahani has this anxiety, there is no support for the allegation that it results from a wrongful act on the part of Mr.

Joly. [ 46 ] He may have left in the later part of August 2017, making certain allegations against the agency in respect of the CSST premium issue, but, as pointed out previously, allegations of defamation of character are not within the competence of this Court. [ 47 ] The claim for moral damages, which the Court takes to be a non-pecuniary damage related to contractual fault, has not been established. FOR THESE REASONS, THE COURT: 500-32-702964-174 CONDEMS the Defendant, Les Immobiliers Ramier inc., to pay the Plaintiff the sum of $15.000,00 together with interest at the legal

rate together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the proceedings; ALLOWS IN PART the Cross Application made by the Defendant Les Immobiliers Ramier inc.; CONDEMS the Plaintiff, Gregory Joly, to pay the Defendant, Les Immobiliers Ramier inc., the amount of $121,98 together with interest at the legal rate together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the initial proceedings by the Plaintiff; OPERATES judicial compensation between the amounts owned, between the parties; DISMISSES the Claim by the Plaintiff against the Defendant Roya Esfahani. DISMISSES the Cross Application made by the Defendant Roya Esfahani; 500-32-703058-174 CONDEMS the Defendant Les Immobiliers Ramier inc. to pay the Plaintiff $3,987.91 together with interest at the legal rate together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the proceedings; DISMISSES the Plaintiff’s Claim against the Defendant Roya Esfahani; DISMISSES the Cross Application of both Defendants against the Plaintiff; WITH LEGAL COSTS in favour of the Plaintiff Gregory Joly in both files. __________________________ David L. Cameron, J.C.Q. Date of hearing: May 8, 2019