Commission du courtier immobilier et preuve de réclamation de biens (deuxième partie)
Par Pierre-Luc Beauchesne, Gowling Lafleur Henderson S.E.N.C.R.L.
Par Pierre-Luc Beauchesne
Gowling Lafleur Henderson S.E.N.C.R.L., s.r.l.
Dans Groupe Sutton-Royal Inc. (Syndic de) (2015 QCCA 1069), la Cour d’appel a confirmé la décision du juge de première instance qui avait rejeté la requête en appel du rejet de preuves de réclamation de courtiers immobiliers. La Cour d’appel conclut ainsi que les commissions de ces courtiers étaient des biens de la débitrice, une agence immobilière, et faisaient partie intégrante de son patrimoine.
La Cour d’appel conclut tout d’abord que les fonds déposés dans le compte de banque de la débitrice n’appartenaient pas aux courtiers et que celle ci n’agissait pas à titre de mandataire lorsqu’elle recevait et déposait les commissions en litige. La Cour souligne que les contrats entre l’agence et les courtiers prévoyaient que les vendeurs payaient les commissions à l’agence et non aux courtiers.
Par la suite, la Cour d’appel a rejeté l’argument à l’effet que les fonds auraient été détenus en fiducie pour les courtiers. Les appelants reprochaient tout d’abord au juge de première instance d’avoir appliqué des notions de droit civil dans un contexte de faillite :
«  As a matter of fairness, they add, creditors in their circumstances should be treated uniformly across Canada in a bankruptcy setting. Citing in particular the British Columbia case of Midland where commissions were considered to be held in trust for brokers by a real estate agency, they argue that the commissions should be excluded from “property held by the bankrupt in trust for any other person” in Quebec as they would be under trust law elsewhere in Canada.
 I disagree. The judge was quite right to apply the rules on the trust in the Civil Code of Québec to determine whether the funds in the Agency’s account were held in trust for the purposes of the BIA. Moreover, there is nothing inherently unfair about Quebec law departing from the rules applicable to trusts in bankruptcy matters elsewhere in Canada in like circumstances.
 Insofar as those cases rely on a conception of the trust not recognized by Quebec law, they are not useful for interpreting “property held in trust” under paragraph 67(1)(a) in this province. While different from that which might obtain elsewhere, this outcome is not unfair to the Brokers as creditors of the Agency here.
 The appellants have wrongly conflated fairness in the application of the BIA across Canada with uniformity of treatment. The Federal Law – Civil Law Harmonization Act explicitly allows for a varying interpretation of rules set forth in federal legislation depending on the province of application. This is indeed what the B.C. Supreme Court did in Midland: it applied the law of trusts based on the law of general application of the province – the common law in British Columbia – as the basis for finding that a trust existed on the facts of that case. The judge in our case did the same thing here, correctly applying Quebec law.
 In the bijural setting in which federal legislation applies, this variation may be seen itself to be a reflection in law of an ideal of fairness inherent in Canadian federalism. In other words, on a proper understanding of the relationship between the provincial law of general application and federal legislation, uniform treatment of a federal statute across the country that does not allow for variance according to the underlying civil law or the common law, as the case may be, might actually be the source of unfairness, not the reverse. Of course, where Parliament is of a mind to impose rules uniformly, irrespective of the province or territory of application, it is free to do so. There is no such direction for the meaning of “trust / fiducie” in paragraph 67(1)(a) of the BIA; in my view, to exclude the distinctive rules on the trust in the Civil Code in service of uniform treatment of trusts across Canada would be unfair to the mass of creditors in this case.
 In sum, therefore, the judge was right to decide that the Brokers could not rely on the trust principles in the common law as a basis for their position that the Agency held the commissions for their benefit for the purposes of paragraph 67(1)(a). He correctly stated that a fiducie par interprétation, in the sense of a judge-made constructive trust known to the common law, is not provided for in the Civil Code of Québec. While article 1262 C.C.Q. does stipulate that, where authorized by law, a trust may be established by judgment, there is no relevant authorization here.
 The judge was correct as well to say that the “implied trust” of the common law is not relevant under the Civil Code insofar as that idea is understood as allowing a judge to establish a trust as a remedy in the absence of a settlor’s intention to do so. The intention of a settlor to transfer property to a patrimony by appropriation is essential to the constitution of a trust pursuant to article 1260 C.C.Q. Where the implied trust is considered to be “implied by law”, as opposed to inferred from the intention of the parties, I would agree that, with the exception of the trusts alluded to in article 1262 C.C.Q., a judge has no relevant power in these circumstances. However, where the term “implied trust” is used to suggest the existence of a trust based on an inference of the parties’ intention to create a trust, Quebec law is – as I shall discuss below – more receptive to the idea. It is of course not merely because terms such as “implied trust” or “purpose trust” have no currency in Quebec that they should be discounted here: the relevance of these categories depends on whether the requirements for the constitution of a valid trust in Quebec are present or absent on the facts of a given case. »
La Cour a par la suite conclu que, en vertu du droit québécois, les fonds n’étaient pas détenus en fiducie pour le bénéfice des courtiers. En effet, la Cour était d’avis que les courtiers n’ont pas démontré que les conditions énoncées aux articles 1260 et suiv. du Code civil du Québec étaient remplies :
 In my view, the evidence of all these essential elements for the establishment of a trust is lacking.
 In our case, the Agency transferred the funds representing the commissions to a segregated bank account in its name over which its officer, Mr. Mammarella, had sole signing authority.
 The Agency continued to have title over the funds deposited in the account, even if that account was separate from its operating account. The funds remained in the Agency’s patrimony and, contrary to the requirement of article 1260, they were not transferred out of that patrimony to an autonomous patrimony by appropriation.
 It is of course true that a trustee can be the nominal holder of a bank account in which, pursuant to article 1278 C.C.Q., he or she exercises the powers associated with the role of administrator of property of others. But while a trustee has full administration of the trust patrimony, funds in circumstances like ours are not in his or her own patrimony. The judge held, in interpreting the contract between the Brokers and the Agency, that the latter never divested itself of title to the commissions. Moreover, for a valid trust to be constituted, the funds cannot continue to belong to the settlor as is the case here. As articles 1260, 1261 and 1265 C.C.Q. make plain, the settlor must have divested himself or herself of the property through the translatory juridical act establishing the trust.
 The evidence here does not establish with the requisite degree of certainty that the Agency, as settlor, transferred the property to a patrimony by appropriation to be administered, not as title-holder of the funds in its own right, but as trustee. Instead, as the judge noted, paragraph 3c) and the rest of the agreement indicate that the Brokers’ accounts are credited an amount which is owed directly to them by the Agency. That personal right is not of the order of a claim that a beneficiary has against a trust patrimony under the Civil Code.
 What is particular about our case is that the same person – the Agency – is purported to be settlor of property and, after the transfer, trustee over the same property. While this is indeed possible in Quebec law, it means, as an evidentiary matter, that the transfer of property from the settlor’s patrimony to the patrimony by appropriation must be particularly clear, otherwise there is a risk that the settlor merely transfer property ‘from one pocket to another’ within his or her own patrimony. This is not the translatory act required by article 1260 C.C.Q.
 A distinction – a critical one – can be drawn between the law of trusts in the common law and the civil law on this point. Both traditions allow a settlor to establish a trust in respect of which he or she will act as trustee. In the common law, however, the settlor who remains trustee after the establishment of the trust retains legal title to the property. While Quebec civil law, as noted, requires the transfer of property from the patrimony of the settlor to a distinct patrimony by appropriation, the common law requires no such transfer. Unlike article 1260 C.C.Q. which requires a translatory act for the establishment of a trust in these circumstances, the settlor in the common law merely declares that a trust exists because he or she continues to hold the legal title, as trustee, without the need of any transfer of the trust property.
 The absence of proof of transfer of property by the Agency out of its patrimony to a patrimony by appropriation is thus fatal to the establishment of a trust under article 1260 C.C.Q. in our case. Because there is no such legal requirement in the common law, it was not a bar to the establishment of a trust in Midland. » [Références omises]
Le texte intégral de la décision de la Cour d’appel est disponible ici.