Court of Appeal of Quebec

4370732 Canada inc. c. Re/Max Royal (Jordan) inc.

July 04, 2018


Vauclair, Roy, Gagné

Appeal from a judgment of the Superior Court allowing an application claiming an amount of money ($107,844). Allowed. 

In 2013, the president of the appellant, which operates a building and office space rental company, told Parsons, a real estate broker for the respondent agency, that he would have offices for rent. He asked him to refer some potential lessees to him. In early 2014, Salette, the president of the respondent, was looking for a new office for her agency. She asked Parsons to begin looking for one. Parsons, aware that the appellant had offices available, put the two parties in touch. In May 2014, the appellant and the respondent signed a lease. Relying on a clause of the lease, the respondent sought payment of remuneration for Parsons’ real estate brokerage services, but the appellant refused. The trial judge condemned it to pay $107,844 to the respondent.

Section 23 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising (CQLR, c. C-73.2, r. 1) prevents a licence holder from claiming remuneration when the holder becomes a lessee. This version of the regulation came into force on October 21, 2013. The respondent submits that it is the former version, which was in force when the appellant spoke with Parsons about the offices for rent and did not prohibit a claim for remuneration in the event of becoming a lessee, that must apply. However, no brokerage contract was entered into at the time. It was not until after the amendment came into force that the respondent asked Parsons to find offices for rent, and the lease was signed in May 2014. Section 23 of the Regulation as in force at the time of the signing of the lease therefore applies. Moreover, the judge erred in finding that the respondent was claiming a commission not for itself but for Parsons, and that s. 23 did not apply. It was, in fact, the respondent who was claiming commission. Furthermore, the remuneration payable for brokerage services is owed to the agency, not the broker. Parsons did not act on his own behalf, and he could not have done so. Section 11 of the Real Estate Brokerage Act (CQLR, c. C-73.2) prohibits brokers acting on behalf of an agency from acting on behalf of another agency for another person or from working on the broker’s own account at the same time. Moreover, a clause of the lease expressly stipulates that Parsons was acting for the respondent. Section 23 of the Regulation is a provision of public order that takes precedence over the clause of the lease providing for remuneration for brokerage services. There is no basis for concluding that the appellant was aware of the ground of nullity in this clause or that it waived its right to raise it.

*Summary by SOQUIJ
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