Société en commandite Place Mullins et al. v. Services immobiliers Diane Bisson inc., (2015) 473 N.R. 34 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Wagner, Gascon and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 18, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 473 N.R. 34 (SCC);2015 SCC 36;[2015] 2 SCR 699

Soc. en commandite v. Services immobiliers (2015), 473 N.R. 34 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. JN.018

Société en commandite Place Mullins and 139612 Canada inc. (appellants) v. Services immobiliers Diane Bisson inc. (respondent)

(35461; 2015 SCC 36; 2015 CSC 36)

Indexed As: Société en commandite Place Mullins et al. v. Services immobiliers Diane Bisson inc.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Wagner, Gascon and Côté, JJ.

June 25, 2015.

Summary:

A brokerage enterprise claimed from the sellers the commission amount set out in a brokerage contract even though the immovable in question was not sold during the term of that contract. The brokerage argued that (1) an agreement to sell the immovable had been concluded by the sellers and the buyer, within the meaning of clause 6.1(3 o ) of the brokerage contract; (2) in the alternative, the sellers, through their inaction, had prevented the free performance of the brokerage contract within the meaning of clause 6.1(4 o ). The sellers asserted that neither of those situations had in fact occurred.

The Quebec Superior Court, in a decision with neutral citation 2011 QCCS 1930, dismissed the action. The brokerage appealed.

The Quebec Court of Appeal, in a split decision with neutral citation, 2013 QCCA 868, allowed the appeal. The sellers appealed.

The Supreme Court of Canada allowed the appeal. No agreement to sell the immovable was concluded within the meaning of clause 6.1(3 o ) of the brokerage contract. The sellers committed no fault in relation to their obligations under either the promise to purchase or the brokerage contract. They therefore did not voluntarily prevent the free performance of that contract within the meaning of clause 6.1(4 o ).

Brokers - Topic 4027

Compensation - Right to - Sale - What constitutes - [See first Brokers - Topic 4350 ].

Brokers - Topic 4350

Compensation - Real estate brokers - Where sale not completed - A brokerage enterprise claimed from the sellers the commission amount set out in a brokerage contract even though the immovable in question was not sold during the term of that contract - The sellers were not aware of the contamination of the property - The sellers had received a formal notice from the promisor-buyer (Douek), that he intended to buy the immovable, but on condition that the sellers decontaminate the soil at their own expense - The sellers refused to do so - The brokerage argued that an agreement to sell the immovable had been concluded by the sellers and Douek - The Supreme Court of Canada held that no agreement to sell the immovable was concluded within the meaning of clause 6.1(3 o ) of the brokerage contract - "Clause 6.1(3 o ), provides that the broker is entitled to the commission once an [Translation] 'agreement to sell the immovable' is concluded. A sale is therefore not necessary. The wording of the clause is broad enough to encompass a promise to purchase accepted by the promisor-seller, but in my opinion, the obligations that flow from such a promise must also become certain, that is, unconditional. ... Through the notice, Mr. Douek repudiated the promise and submitted a new offer to purchase. The initial promise to purchase never became unconditional and Mr. Douek's new offer was never accepted." - See paragraphs 11 to 17.

Brokers - Topic 4350

Compensation - Real estate brokers - Where sale not completed - A brokerage enterprise claimed from the sellers the commission amount set out in a brokerage contract even though the immovable in question was not sold during the term of that contract - The sellers were not aware of the contamination of the property - The sellers had received a formal notice from the promisor-buyer that he intended to buy the immovable, but on condition that the sellers decontaminate the soil at their own expense - The sellers refused to do so - The brokerage argued that the sellers could not refuse to decontaminate the immovable without violating art. 1503 of the Civil Code of Quebec, and that they had prevented the free performance of the brokerage contract within the meaning of clause 6.1(4 o ) - The brokerage also relied on declarations in the brokerage contract to argue that the sellers had an obligation to provide an immovable that was in accordance with environmental protection laws - The Supreme Court of Canada held that the sellers committed no fault in relation to their obligations under either the promise to purchase or the brokerage contract - See paragraphs 18 to 27.

Cases Noticed:

Leading Investments Ltd. v. Liebig (H.W.) & Co., [1986] 1 S.C.R. 70; 65 N.R. 209; 14 O.A.C. 159, refd to. [para. 1].

Royal Lepage des Moulins inc. v. Baril, 2004 CanLII 29347 (Que. C.A.), refd to. [para. 19].

Mutuelle des fonctionnaires du Québec v. Immeubles G.C. Gagnon inc., 1997 CanLII 10674 (Que. C.A.), refd to. [para. 19].

9118-7781 Québec inc. (Groupe Sutton Millénia) v. Lerer, 2012 QCCA 430, refd to. [para. 19].

Remax Alliance v. Placements Jabena inc., 2007 QCCQ 12756, refd to. [para. 21].

Racicot v. Mercier, [1968] B.R. 975 (C.A.), refd to. [para. 26].

Statutes Noticed:

Civil Code of Quebec, art. 1503 [para. 18]; art. 1396 [para. 26]; art. 1723, art. 1725 [para. 26].

Authors and Works Noticed:

Jobin, Pierre-Gabriel, and Cumyn, Michelle, La vente (3rd Ed. 2007), p. 54 [para. 26].

Lluelles, Didier, and Moore, Benoཾt, Droit des obligations (2nd Ed. 2012), No. 2498 [para. 14].

Richard, Henri, Le courtage immobilier au Québec (3rd Ed. 2010), p. 199 [para. 21].

Counsel:

Vlatka (Carol) Kljajo and Gabriel Di Genova, for the appellants;

Pierre-G. Champagne, for the respondent.

Solicitors of Record:

Mitchell Gattuso, Montreal, Quebec, for the appellants;

de Grandpré Joli-Cœur, Montreal, Quebec, for the respondent.

This appeal was heard and judgment rendered on March 18, 2015, by McLachlin, C.J.C., Abella, Rothstein, Cromwell, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada. The following reasons were delivered by Wagner, J., for the court, on June 25, 2015, in both official languages.