OVERVIEW

[1]                Kiyoko Matsuba is a 68 old woman, citizen of Japan and a permanent resident in Canada. She is suing Neil Floyd and the notary Mtre Irwin Litvack, in two joined files, claiming damages as a result of their respective conduct.

[2]                Essentially, Matsuba[1] alleges that Floyd used stratagems to win her trust and deprive her of the inheritance bequeathed to her by the late Ben Myers. The evidence shows that Matsuba met Myers in Autumn 1997 after she arrived in Canada and they moved in together not long after, living in a relationship of companionship. When Myers passed away in January 2018, he and Matsuba had been living together for 20 years.

[3]                In his last Will dated March 2013, Myers made Matsuba his Universal Legatee and liquidator,[2] leaving her assets totalling more than two million Canadian dollars.

[4]                Shortly after Myers’s death in January 2018, Floyd approached Matsuba and offered his assistance with the Estate settlement. At the end of February 2018, Matsuba signed a Power of Attorney (POA) in favour of Floyd in this regard. According to Matsuba, Floyd slowly gained her confidence and convinced her to eventually transfer the inherited money into his bank accounts, as a way “to protect” the funds from potential litigation by Myers’s daughters over the Will.

[5]                By mid-September 2018, all the Estate money had been transferred into Floyd’s bank accounts, including the proceeds of the sale of a building previously owned by Myers and sold in April 2018 for about $1.2M. Litvack was the acting notary for the sale of this property.

[6]                Matsuba claims that Floyd defrauded her of the Estate assets. She also alleges that Litvack should have refrained from transferring the proceeds of the sale into Floyd’s account and that he failed to advise her properly in this regard.

[7]                For his part, Floyd argues that Matsuba signed a letter in the Summer of 2018 by which she voluntarily gifted him all remaining Estate funds, in consideration of the help and support provided to her since Myers’s death (the Gift Letter). As for Litvack, he denies having committed any professional fault and he states that he only followed the instructions given to him.

[8]                For the following reasons, the Court concludes that Matsuba is entitled to claim damages from Floyd, caused by the latter’s deception and exploitation.

[9]                More particularly, the Court is of the view that the POA is invalid because it resulted from Floyd’s exploitation of Matsuba’s vulnerability, whose consent was also vitiated because she believed its purpose was to protect Estate funds, while it was instead used by Floyd for his own interests. The Gift Letter is null too, because it fails to comply with applicable legal requirements for gifts. Accordingly, in view of preponderant evidence, the Court holds that Matsuba is entitled to remedies within the range available by law.

[10]           As for Litvack, the Court finds that he did not act reasonably in remitting the proceeds of the sale to Floyd in the circumstances. However, given the evidence adduced and principles of causation, it is appropriate to hold Floyd liable for 100% of the damages resulting therefrom, and Litvack for 0% of same.

CONTEXT AND CRITICAL SUMMARY OF EVIDENCE

[11]           Before analyzing each of Matsuba’s claims against Floyd and Litvack, it is useful to summarize the evidence relevant to both cases and to offer some comments on the credibility of the witnesses.

[12]           Matsuba arrived in Canada in 1997 and became a permanent resident around 2005. She had obtained a master’s degree in nutrition from Japan. She met Myers in 1997, when he volunteered in a language class where she was taking English lessons. She moved into Myers’s house in January 1998 and they lived together for 20 years, until he passed away in January 2018. Matsuba described Myers as her “companion”. At the time of his death, Myers was 89 years old and Matsuba was 62.

[13]           From 1998, Matsuba studied four years at Université de Montréal, towards obtaining a second master’s degree in nutrition. Initially her intention was to complete her degree and then return to Japan. Over time, there was an evolution of her relationship with Myers, who experienced health issues. Matsuba agreed to stay, helping Myers in various matters, each of them enjoying the other’s company.

[14]           At trial, Matsuba seeks to be very precise in her answers but admits voluntarily when she does not recall.[3] Her native tongue is Japanese and speaking English is not easy for her, yet with some time, she is able to express her ideas clearly.

[15]           The Court observed that Matsuba tends to give many details in her answers, sometimes after pausing, including in her cross-examination,[4] without doing so in an elusive manner. Her attitude is the same during her examination in chief, when her counsel needs to ask her to focus on essential elements of the case. The Court is of the view that this is an illustration of the witness’s personality, and that there is nothing disingenuous about it. In general, the Court considers Matsuba’s testimony as reliable, precise and credible.

[16]           Floyd is a professional drummer, now living in St-Lazare. It seems he once had a successful career in the musical industry, including in the United States. Floyd describes himself as an old-time friend of Myers, both sharing a love of jazz music.

[17]           In light of Floyd’s evidence and testimony at the hearing, the Court feels compelled to state that he shares a loose relationship with the truth. His version lacks consistency. He is often using the terms “we” when describing events involving Matsuba, enabling him to be less specific about his own actions. During his testimony, he has a tendency to argue his case. As will be detailed below, several contradictions also affect Floyd’s credibility.

[18]           As for Litvack, he readily admits that he does not remember much about the specific transaction involving Matsuba that took place in April 2018, at which Floyd was also present. He did not know either of them, prior to the one-time meeting at his office. During his testimony, Litvack relied mostly on his long-term practice, as he has been working as a notary for 47 years at the time of trial.

[19]           When Myers passed away on January 22, 2018, his funeral service was organized according to Jewish tradition.

[20]           On the day of Myers’s funeral on January 25, 2018, Matsuba explains that she met Floyd for the second time in her life, having encountered him only once prior, briefly, several years before, when she was at a restaurant with Myers. Floyd acknowledges that meeting around 2001 but adds that he would also have seen Matsuba “a couple of times”, when visiting Myers at his residence. Although Floyd claims he was a good friend of Myers, his testimony about their encounters leads the Court to believe that they were not that frequent.[5]

[21]           The parties have slightly diverging views about who approached who at Myers’s funeral and thereafter, but eventually Floyd offered to help Matsuba with the Estate administration, while slowly and carefully asserting his control over her.

[22]           As background, it is useful to note that Myers had three daughters. According to Matsuba, her relationship with them started to be difficult in 2016, because of a disagreement about the care required for Myers. The daughters wanted him to move into a retirement home, which he refused. As Myers’s health declined, Matsuba became his principal caregiver, having acquired experience in this regard in Japan, in addition to her knowledge in nutrition.

[23]           More particularly, Matsuba explained that in December 2017, when Myers was hospitalized under geriatric care, one of his daughters, Rochelle, filed a complaint with the hospital blaming Matsuba for not providing adequate care to her father. In the process, Matsuba felt that her opinion was disregarded by the treating team, perhaps as a foreigner and given her particular relationship with Myers. In January 2018, when Matsuba called Rochelle to consult her about whether she should bring Myers to the hospital, she was again brushed off about her handling of the situation.

[24]           When Myers passed away on January 22, 2018, Matsuba testified that she was physically and mentally exhausted.

[25]           Once Matsuba found out that Myers had bequeathed to her all his fortune in his last Will, she became concerned that his daughters would cause difficulties for her, because of their conflictual relationship. After sharing these thoughts with Floyd, he invited Matsuba to spend some time at his home, expressing the desire to help her, and telling her he had had a difficult experience when his mother passed away.

[26]           During their discussions, Floyd would impress upon Matsuba that the daughters could contest the Will and drag her into litigation. The money would be frozen in the interim, so he said, leaving her with little to pay the bills. According to Matsuba, Floyd made her feel that she could not manage the situation on her own, as she did not speak good English. Floyd stated that it was best that things be handled by a “white Canadian Jewish male”. He also pointed out that she needed support as she had no relatives here and would even be at risk of losing her permanent residency status. The Court is of the view that Matsuba’s version in this regard is credible and, at trial, Floyd did not specifically deny her assertions.

[27]           Matsuba spent all the month of February 2018 and many additional days in March 2018 at Floyd’s residence in St-Lazare.[6]

[28]           Early in February 2018, when Matsuba was staying at Floyd’s home, it was confirmed that the Will appointing Matsuba his Universal Legatee and liquidator was in fact Myers’s last Will.[7]

[29]           Meanwhile, Matsuba described what she perceived as romantic advances from Floyd. On February 14, 2018, he offered her a Valentine’s Day card.[8] He cooked meals for her. On March 2, 2018, when Matsuba was planning to return to her apartment in Montreal, Floyd convinced her to stay a little longer and offered her a rose. Later on, in March, he also gave her a kiss and said “I like you”.

[30]           Floyd, for his part, denies having entertained anything other than a friendship with Matsuba.

[31]           Whether Floyd and Matsuba agreed to be in a relationship is an ancillary question to the issues in dispute. The fact is that Floyd’s gestures towards Matsuba could reasonably have led her to believe that there was a special connection between them, beyond mere friendship.[9] To say the least, it appears that cultivating an ambiguity in this regard was a way for Floyd to gain Matsuba’s confidence and trust, at a time when she was vulnerable, after losing her 20-year companion and having a limited social network in Canada.

[32]           Floyd suggested that Matsuba grant him a POA to liquidate Myers’s Estate. He affirmed that it was necessary for him to help her, as Matsuba would not be able to handle the task herself, referring to the arguments summarized above.

[33]           Playing on Matsuba’s weaknesses and having gained her trust, Floyd explained to her that with a POA he would be able to manage everything related to the Estate, transfer Estate money into his personal accounts “to protect it” in the eventuality of litigation, and slowly return it to her later.

[34]           On February 21, 2018, Floyd and Matsuba met with notary Mtre Michèle Beauséjour in St-Lazare. Beauséjour prepared the POA that was signed by Matsuba in Floyd’s favour, enabling him to manage virtually everything related to the Estate.[10] A second copy of this POA was signed on February 26, 2018.[11] It is noteworthy that, a couple of weeks before, Floyd and Matsuba had met with another notary, Mtre Jean-Pierre Boyer, who refused to prepare a POA in a context that will be detailed below.

[35]           On February 27, 2018, Floyd and Matsuba went to the TD Bank in Vaudreuil-Dorion to open an Estate bank account.[12] The following month, on March 23, 2018, in circumstances that are not entirely clear, another POA printed on a TD Bank form[13] (TD-POA) was granted by Matsuba to Floyd, authorizing him to perform any business or dealings regarding the TD Bank accounts and monies found therein.

[36]           The evidence shows that the Estate account was opened on February 27, 2018 and was closed on May 2, 2018.[14] Less than $10,000 transited through this account.

[37]           On March 29, 2018, as she feared, Matsuba received an email from one of Myers’s daughters, Rochelle, expressing some doubts about her father’s last Will and raising the spectre of litigation.[15]

[38]           Between the end of March and mid-April 2018, Matsuba spent a lot of time at Floyd’s residence. It appears Floyd helped her with some issues related to the apartment building that Matsuba had inherited from Myers, located on Chomedey Street in Montreal, including the collection of rent and the eviction of a problematic tenant. Meanwhile, Floyd also sent movers to Matsuba’s apartment to bring some of Myers’s furniture to his place, that in his view Matsuba had happily gifted to him.

[39]           On April 30, 2018, the building on Chomedey Street was sold for $1,250,000 to the Fedida Family Trust,[16] after being formally transferred from the Myers’s Estate to Matsuba.[17] The adjustment sheet of the sale shows that the balance due to the seller is of $1,250,444.25.[18]

[40]           As indicated above, Litvack was the acting notary for the sale of this property. During the meeting, Matsuba, Floyd and Mr. Fedida were present. As will be detailed below, although it is not entirely clear who requested this, Litvack was instructed to deposit the proceeds of the sale into Floyd’s account, and Matsuba initialled this demand on the adjustment sheet. Litvack did not know the relationship between Matsuba and Floyd but he assumed they were friends. The proceeds of the sale were then transferred into Floyd’s account on May 2, 2018.[19]

[41]           In late April 2018, Floyd opened new US and Canadian accounts at the TD Bank under his name.[20] Between May and September 2018, various stocks and shares in Myers’s name were sold and the proceeds were transferred into Floyd’s accounts, for a total of over $800,000.

[42]           According to Matsuba, this was part of Floyd’s strategy that it was best for all Estate-related funds to be put into his bank accounts, because if Myers’s daughters were suing her, she should only keep a moderate amount in her own account.

[43]           Between May and July 2018, Matsuba again spent some time at Floyd’s residence in St-Lazare. According to Matsuba, Floyd’s temper was unpredictable, with him sometimes acting kindly and then suddenly being a bad mood, which would make her feel unsafe. Floyd blamed these mood swings on his migraines.

[44]           At the end of May 2018, Matsuba contemplated going to Japan for some time. However, Floyd made an appointment to choose Myers’s gravestone and asked her to accompany him, so Matsuba decided to stay. Over the Summer, when Floyd was away on vacation, Matsuba would sometimes spend time at his place and take care of his pets. Floyd claims that, during that period, he would give some cash to Matsuba for her personal expenses.

[45]           Sometime in August 2018, Floyd and Matsuba discussed the Gift Letter, which was signed by the latter around August 10, 2018.[21]

[46]           The Gift Letter reads as follows:

To Whom it May Concern

I, Kiyoko Matsuba, residing at 4530 Ch. De La Cote-Des-Neiges #2111, Montreal, Quebec, H3V 1G1 and being of sound mind do hereby affirm to having the right to do with any and all proceeds from the sale of any immoveable and transactions from all Financial Institutions as I please and see fit.

For the above mentioned, I have duly transferred an undisclosed amount from my personal banking and/or proceeds from these sales to my dear friend Neil Floyd which I consider as a “gift”.

I do this voluntarily and without the expectation of reimbursement in lieu of all the help and support he has given and shown to me since the death of my partner on January 22nd, 2018.

Neil has also been acting under a sworn P.O.A., and has been diligent in organizing and completing the tasks that I would not have been able to do without his help.

[47]           Matsuba and Floyd have contrasting views about the context in which this letter was written. As it will be further explained in this judgment, the Court concludes that the Gift Letter was Floyd’s idea and that he drafted it, in an attempt to appropriate the Estate funds, that Matsuba did not truly intend to gift him. Floyd suggested to Matsuba that the Gift Letter could serve as a shield if Myers’s daughters found out about the money transfers to him, and that he would return the money later. Matsuba was reluctant to provide Floyd with the Gift Letter and asked for a counter-letter to reflect its true purpose, but Floyd refused. In these circumstances, on September 11, 2018, Matsuba sent a copy of the Gift Letter to Floyd by email,[22] rather than the original.

[48]           By mid-September 2018, after all Estate funds had been transferred into Floyd’s accounts, Matsuba affirms that his attitude towards her changed completely. While she was in Japan, Floyd sent emails to her in which he expressed the need to put some distance between them and he became insistent on obtaining the original of the Gift Letter,[23] which Matsuba finally sent by regular mail in October 2018.

[49]           As Matsuba testified at trial, she then realized that Floyd had not been honest with her. However, she was still ambivalent about what to do, hoping that he would at least complete the Estate tax returns as he had promised to do before the end of the year.

[50]           In December 2018, Floyd and Matsuba saw each other for the last time at her home, for a dinner, which was uneventful.

[51]           Then in January 2019, Matsuba emailed Floyd a counter-letter,[24] trying to convey the agreement that she believed they had, i.e. that the Gift Letter was meant “to protect” her in case of litigation by Myers’s family, and asking him to sign it. Matsuba also offered to Floyd clearing past day-to-day expenses between them. Floyd replied that Matsuba’s position contradicted the Gift Letter and that she could go to jail for her proposal.

[52]           Shortly thereafter, Floyd told Matsuba that he had lost all the Estate money. In February 2019, he sent her an intimate photograph of her by email, trying to intimidate her.[25] Matsuba felt deeply betrayed, as she had trusted Floyd. Towards the end of February 2019, Matsuba wrote to notary Beauséjour to cancel the POA.[26] She testified that she waited until then, hoping for the Estate tax returns to be completed, in order to avoid problems with tax authorities. As a matter of fact, the evidence shows that in June 2023, the amount due to the Quebec government for Estate taxes was almost $210,000.[27]

[53]           In March 2019, Matsuba filed a complaint with the police against Floyd and was referred to the Centre d’aide aux victimes d’actes criminels.[28]

[54]           After consulting with an attorney, Matsuba introduced her legal claim against Floyd in April 2020, along with a request for a Mareva injunction and seizure before judgment. Orders in this regard were granted and renewed until the trial on the merits and a final judgment to be rendered in this matter.

[55]           Matsuba’s claim for professional negligence against Litvack was filed in April 2021 and the two cases were joined in June 2022. Litvack notified a forced intervention against Floyd, asking him to be held liable for all damages, if any.

ISSUES IN DISPUTE

[56]           The issues raised by Matsuba’s action in damages against Floyd are summarized as follows:

56.1.            Is Matsuba entitled to have the Power of Attorney (POA) granted to Floyd declared invalid?

56.2.            Is the Gift Letter a valid contract of gift or should it be annulled?

56.3.            What is the impact of Floyd’s use of the POA and the Gift Letter, regarding various transactions involving Estate assets?

56.4.            What are the remedies to which Matsuba is entitled?

56.5.            Should the seizure before judgment be confirmed and the Mareva injunction be renewed until the execution of a final judgment?

[57]           In addition, the issues related to Matsuba’s claim against Litvack are:

57.1.            Did Litvack commit a fault in transferring the proceeds of the sale of the Chomedey Building to Floyd’s personal account, rather than remitting them to Matsuba?

57.2.            Did Litvack otherwise fail to comply with his professional obligations to act prudently and to provide advice to Matsuba?

57.3.            If Litvack committed a fault, is it the direct and immediate cause of Matsuba’s damages, whether material or moral, and, if so, what is the value thereof?

57.4.            Did Matsuba contribute to her own damages? Did she mitigate them?

57.5.            Is there in solidum liability between Floyd and Litvack and, if so, what should be the apportionment of damages between them?

RULING ON OBJECTIONS

[58]           Before addressing the main issues, the Court must rule on three (3) objections, taken under reserve, to some evidence produced during the trial.

[59]           The first objection pertains to Matsuba’s testimony about her general financial capacity, at the time of Myers’s death. Matsuba stated that after 2005 she had no income and had less than $10,000 in her bank account when Myers passed away. Floyd objected to that evidence invoking the best evidence rule set out in Article 2860 C.C.Q., arguing that there was no direct proof of Matsuba’s assets.

[60]           This objection is dismissed. The Court is of the view that Matsuba’s testimony is admissible as it relates to an element that is secondary to the litigation. Traditionally, the best evidence rule was described as an exclusionary rule, expressing a preference for documentary rather than hearsay evidence.[29] However, this is less true today, when the evidence does not concern a particular juridical act, as illustrated by Article 2862 C.C.Q. Except for specific provisions of the C.C.Q., there is no automatic exclusion of testimony regarding an element that may have been proven by a document, although the best evidence will have greater probative value than indirect evidence.[30]

[61]           In the case at hand, the purpose of Matsuba’s testimony is not to prove a specific contract or transaction, but to show her limited financial capacity. Hence, the Court finds that at the time of Myers’s death, apart from inherited money, there is no indication that Matsuba had other significant financial resources, regardless of the precise amount of money she may have had in her bank account. This evidence is thus generally admissible.

[62]           A second objection was made by Floyd regarding some Japanese notations on the calendar provided by Matsuba,[31] that the latter translated during her testimony. This objection is maintained. Generally, evidence in a language other than French or English must be accompanied by a translation, so that the Court can assess it directly.[32] There is no translation of Matsuba’s Japanese annotations, and even though these comments may be of minor importance given the overall evidence, the Court cannot consider this element.

[63]           Finally, the third objection relates to the specific amounts of cash that Floyd may have given to Matsuba. Referring to Article 2862 C.C.Q., Matsuba contests that Floyd’s testimony can establish a juridical act for a value exceeding $1,500, arguing that there was no commencement of proof (except for one transaction of $5,000 USD in July 2018[33]). For his part, Floyd pointed out two banking receipts[34] as sufficient evidence, in his view, that other cash sums had been given to Matsuba.

[64]           Referring to bank statements during his examination in chief,[35] Floyd identified some amounts that would have been given to Matsuba, although there is no indication of the recipient. Having difficulty finding all relevant information at first, Floyd completed this exercise after his cross-examination, in redirect, pointing to additional transactions.[36] The three sums withdrawn in May and July are of $5,000 each time. As for the amounts that would have been remitted to Matsuba in September 2018, Floyd’s testimony is difficult to follow, as he confuses Canadian and American dollars, stating at trial that there was one withdrawal of $50,000 and a second one of $100,000, while he referred to two sums of $100,000 in his affidavits of May 2020.[37]

[65]           The Court dismisses the objection regarding three withdrawals of $5,000 each, between May and July 2018, for which it is plausible that such money was remitted to Matsuba by Floyd. However, the Court holds that it was not validly proven that large sums of money ($50,000 or $100,000) were provided by Floyd to Matsuba in September 2018.[38] Not only is there no prima facie proof for that proposition, but the evidence adduced by Floyd is both inconsistent and unreliable.

ANALYSIS – CLAIM AGAINST FLOYD

[66]           In her action against Floyd, Matsuba essentially argues that the POA and the Gift Letter should be declared invalid, as her consent was vitiated by fraud and by fear, in addition to resulting from exploitation prohibited by Section 48 of the Quebec Charter of Human Rights and Freedoms.[39] Moreover, she claims that the Gift Letter is null as it fails to comply with legal requirements for contracts of gift.

[67]           Consequently, Matsuba asserts that she is entitled to obtain damages from Floyd, including the Estate funds of which she has been unjustly deprived.

[68]           Floyd contests and argues that Matsuba is resentful, despite the help he provided to her to administer the Estate, and that she is seeking to disavow the gift that she had promised him.

1. Is Matsuba entitled to have the Power of Attorney (POA) granted to Floyd declared invalid?

-          Relevant Evidence

[69]           Firstly, it must be pointed out that the POA prepared by notary Beauséjour and granted to Floyd by Matsuba has a very broad scope. It states that Floyd is appointed by Matsuba “to be my true and lawful attorney and represent me as liquidator of Ben Myers’s Estate”, and shall be able to: open the Estate account, sign/execute and approve any bank transaction, settlements, bills and waivers; take any decision regarding the deceased investments, cash them or reinvest them; deal with all government instances for tax purposes; claim any mail sent to the estate; hire professionals as notary or accounts; and make civil and matrimonial declarations.[40]

[70]           The POA was signed by Matsuba on February 21, 2018, about one month after Myers’s passing. It is relevant to review the context surrounding same to understand Matsuba’s state of mind and Floyd’s involvement.

[71]           In the last months leading to Myers’s death, Matsuba testified that she was exhausted, because of Myers’s health situation, the care she was providing to him and the tensions with his daughters. She explained at trial that she was hoping that Myers would survive beyond Winter and the cold, so that he could have his funeral in the Spring, as was his wish.

[72]           Sadly, Myers passed away on January 22, 2018. The funeral took place on January 25 and this is when Matsuba and Floyd had a brief discussion.

[73]           In the next day or so, Floyd phoned Matsuba. Matsuba testified that he told her that he knew Myers’s family, “what kind of people they are”, pointing that the daughters would likely go after her regarding the Estate. Floyd mentioned his own experience after his mother’s passing, which he described as awful. He suggested helping Matsuba, knowing that she was alone. Floyd mentioned he was coming to Montreal and he offered to visit her, which he did on January 29, 2018.

[74]           According to Floyd, the initial phone conversation after the funerals was much more succinct and it was Matsuba who invited him over for tea. This meeting was uneventful but the day after, Matsuba called him back to say that Myers had made a Will leaving her “everything” if she survived him 30 days, and expressing her concern about what the daughters could do.

[75]           Floyd invited Matsuba to his home in St-Lazare and she accepted. Matsuba testified that it was difficult for her to stay in the home and neighbourhood where she had been living with Myers, as it would bring flashbacks of their years together. Floyd had mentioned his pets, including his birds. In Matsuba’s life, seeing birds had always been associated with good luck, so she accepted the invitation. She testified that it was “very unusual” for her to stay at someone’s else’s home, as she would normally not even do it with friends.

[76]           From January 31 until March 4, 2018, Matsuba stayed with Floyd in St-Lazare. In that period, after Myers’s passing, Matsuba described that she felt “powerless” and “burned out” for “quite a while”.

[77]           For his part, Floyd was being nice to her, emphasizing his personal skills. He told her that he had a PhD in forensics, had a high IQ and used to work as a former NYPD officer. He mentioned his experience with many Court cases that he had all won, stating he could be a lawyer himself. Floyd explained that if Myers’s daughters contested the Will, Matsuba would be dragged into litigation. He made her feel that she could not handle the situation on her own, since her English was not good and she had no relatives. She would also be at risk of losing her Canadian residency. It was therefore better that things be handled by a “white Canadian Jewish male”, he said.

[78]           According to Floyd, during Matsuba’s initial stay at his place, she was cheery, cooking breakfast while he would prepare dinner. They would share memories about Myers. She would sometimes get sad, but it was “not long before she got better” and she would smile and do a little dance. By March, Matsuba was singing and happy.

[79]           At the same time, Floyd recognizes that Matsuba was worried that Myers’s daughters would sue her. She asked him if he could help her. He asked how and after some research, “they” learned about a POA and “they” looked for a notary.

[80]           Early in February 2018, it was confirmed that the Will executed by Myers in March 2013, appointing Matsuba as his Universal Legatee and liquidator, was the deceased’s last Will.[41] Matsuba explained that although she was aware that Myers had done a Will, she did not know the details of same. When she found it, she did not fully understand at the time the meaning of “Universal Legatee”. However, she recalls feeling “big pressure” when she learned that she was the sole liquidator of the Estate and she was stressed out about it.

[81]           Hence the idea that Matsuba grant to Floyd a POA to liquidate Myers’s Estate. Matsuba is adamant that this was Floyd’s suggestion, the POA being described as a necessary tool for him to help her with the settlement of the Estate.

[82]           According to Matsuba, the plan designed by Floyd was to transfer Myers’s assets to his name, “slowly, not to show any suspicious activity”. In the eventuality of litigation with Myers’s daughters, the money would be “protected” yet still accessible to her, and it would eventually be returned gradually to Matsuba by Floyd when the threat had dissipated. Floyd does not truly contest this point.

[83]           On February 6, 2018, Matsuba and Floyd met with notary Mtre Boyer in St-Lazare, who had been found by Floyd, with a view to getting a POA.

[84]           However, no POA was signed on that date. Notary Boyer testified at trial and explained that he refused the mandate, being of the view that Matsuba was not in a state of mind to sign a POA, as she did not seem to understand its implications.

[85]           According to Matsuba, during the meeting with Boyer, she was sitting next to Floyd who did the talking with the notary about the POA. Her understanding was that they needed to wait to hear back from Boyer, but eventually Floyd told her that since it was taking too long, he had found another notary. According to Floyd, the meeting with Boyer was informal and it was conveyed that “we wanted to do a POA”. The notary questioned Matsuba and she confirmed that she agreed. In Floyd’s view, “they” waited for the notary to get back to them for next steps, but time passed and “they” finally chose to retain another one.

[86]           The testimony of Mtre Boyer sheds a different light on this meeting. He confirmed that it was Floyd who called to make the appointment. It was also Floyd who led the discussion and said that Matsuba wanted to give him a POA in order to manage her assets. According to Boyer, Matsuba came across as discreet and she said very little; he perceived her as “vulnerable”, so he declined the mandate.[42]

[87]           Boyer described that Floyd was insistent on obtaining a POA, but Matsuba seemed to be overwhelmed and the notary doubted her true wishes. Boyer may have stated that they could return later, in different circumstances. He specifically recalled this meeting because he does not often refuse clients.

[88]           A couple of weeks later, Matsuba and Floyd met with another notary, Mtre Beauséjour. The POA in dispute in this matter was signed before her on February 21, with another copy being provided on February 26, 2018.[43]

[89]           The evidence regarding the meeting with Beauséjour and the signing of the POA is anything but linear.

[90]           According to Matsuba, Floyd described to the notary the ugly experience he had in his family regarding an estate matter and the need for a POA. Matsuba claims that she became very emotional when Beauséjour asked her about Myers’s situation and that she started to cry. To her recollection, Matsuba never had a private discussion with Beauséjour alone about the scope of the POA. She recognizes that the notary explained what she was signing but she does not recall much because she was emotional.

[91]           Floyd testified that Matsuba mentioned “what she wanted to do” and he said he would be helping her through the daily tasks of the Estate administration. He left the room at Beauséjour’s request, so that Matsuba and the notary could discuss together.

[92]           At trial, Beauséjour affirmed that she worked as a notary in St-Lazare for about 20 years. On February 21, 2018, Floyd and Matsuba came to meet her, without an appointment, requesting a POA. “They” insisted a lot: Matsuba declared that her spouse was deceased and she wanted to give a general POA to Floyd so that he could assist her with the Estate. Floyd was presented as a family friend.

[93]           Beauséjour asked to see Matsuba alone and the latter requested a POA, as she “did not feel capable” of handling the liquidation of the Estate. Beauséjour told Matsuba that a general POA was not a good idea, as granting unfettered powers was “too dangerous”, but she agreed to prepare a POA regarding the Estate settlement. Beauséjour confirmed that Matsuba was emotional and “very worried” about Myers’s Estate, its tax implications as well as related family issues, fearing she could not inherit as she was not married to the deceased who also had children. Beauséjour prepared the document right away and Matsuba signed it.

[94]           It is noteworthy that Beauséjour refused to notarize the POA, but only acted as a Commissioner of Oaths in this regard. A second encounter between Beauséjour and Matsuba took place on February 26, 2018, initially scheduled to do Floyd’s Will,[44] at which time the notary ended up providing a second copy of the POA.

[95]           Immediately after obtaining the POA, on February 27, 2018, Floyd and Matsuba went to the TD Bank to open an Estate bank account.[45] Thereafter, in March 2018, the TD-POA[46] was granted by Matsuba to Floyd, authorizing him to perform all transactions regarding the TD Bank accounts and monies found therein. In late April 2018, Floyd opened US and Canadian accounts at the TD Bank under his name,[47] in which virtually all Estate funds would be deposited.

[96]           The evidence regarding the TD Bank involvement raises more questions than it provides answers. Floyd had initially listed two witnesses for trial from the TD Bank, but only Sabrina Garofalo testified.

[97]           Garofalo was a Branch Manager at TD Bank in Vaudreuil at the relevant period. She explained that she met both Floyd and Matsuba in February 2018 in her office, regarding an Estate settlement. They seemed to be friendly and Floyd was talking a lot. As Matsuba was the only liquidator of the Estate, Garofalo had a one-on-one conversation with her, as part of her due diligence. Garofalo did not recall anything particular about Matsuba’s behaviour.

[98]           As a matter of fact, the evidence shows that the Estate account was closed on May 2, 2018.[48] Less than $10,000 transited through this account.

[99]           Prior to her testimony, Garofalo had not reviewed relevant banking documents in this case, but when directed to US and Canadian accounts in Floyd’s name,[49] she confirmed that these were not Myers’s Estate account but Floyd’s personal bank accounts. Rather, an estate account would be opened under the name “Estate”, sometimes also with the liquidator’s name. Garofalo did not have knowledge about why Myers’s Estate account was closed in May 2018,[50] but she stated that, typically, such accounts are closed when the estate is settled.

[100]       At the end of March 2018, Matsuba received an email from Myers’s daughter, Rochelle, raising the possibility of litigation. Matsuba testified that, on April 24, 2018, she also received a registered letter which content was the same as Rochelle’s email.

[101]       The relevant excerpt of Rochelle’s correspondence reads as follows:

“[T]here are issues with respect to my father’s Last Will that simply do not add up. As such, before we go down a road of acrimony and legal battles, should that be necessitated, I am hoping that you and I can have a candid conversation about what took place”.[51]

[102]       Matsuba discussed this with Floyd who confirmed that Myers’s daughters were threatening to sue her, which was a source of great distress.

[103]       In the meantime, Matsuba testified that, once the POA was signed, Floyd who used to be nice to her, gradually revealed his “very strong attitude”, asserting his control over her. He could suddenly lose his temper, if she questioned his actions. On his side, Floyd attempted to trivialize this aspect, stating “generally, I’m not abusive” but conceding his behaviour can change when he suffers from migraines.

[104]       A careful review of the emails exchanged between Floyd and Matsuba over time is instructive to understand the dynamics. In his correspondence, Floyd often displays a passive-aggressive tone, with emails showing signs of impatience towards Matsuba,[52] eventually denigrating her[53] or being condescending,[54] the whole culminating in September 2018 with threats[55] and finally blackmailing Matsuba with an intimate picture in February 2019[56] when she requested answers.

[105]       Despite the change in tone, while Matsuba was initially spending time at Floyd’s residence, he helped with business related to the rental building on Chomedey Street and for Myers’s gravestone. Some of Myers’s furniture was also moved into Floyd’s home.

[106]       In addition, Floyd found potential buyers for the Chomedey Building, through connections in the Jewish community. Floyd initially met with Misters Kadoch and Mayer, who had bought the building adjacent to Myers’s property on Chomedey Street, and they eventually referred him to Mr. Fedida who bought this property. According to Matsuba, Floyd told her that the building was not in good condition and was worth about $800,000, so he suggested adding his personal baseball card collection, estimated at $400,000, for a total transaction of $1.2M.[57] He told her that she could then reimburse him $400,000 from the proceeds of the sale.

[107]       On April 30, 2018, the building on Chomedey Street was sold to the Fedida Family Fund for $1,250,000 and the proceeds were deposited in Floyd’s bank account.

[108]       Between May and September 2018, various securities in Myers’s name were sold and the money was transferred into Floyd’s accounts for a total of about $800,000. The Court will expand on this topic later in this judgment.

[109]       For the time being, it is worth noting that Matsuba was involved in some aspects of the trading of Myers’s investments, acknowledging at trial that she did sell some shares herself, after which the proceeds were deposited in Floyd’s accounts, as part of the stratagem to “protect” Estate funds. However, two transactions were executed by Floyd without Matsuba’s approval. In July 2018, Floyd cashed a cheque for about $275,000 US in relation to Kaufmann Funds, which Myers had suggested that Matsuba keep for her retirement. In September 2018, Floyd sold Myers’s last remaining shares in Altria Group Inc., against Matsuba’s wishes, for a sum of over $115,000 USD.

[110]       The evidence also shows that, after the sale of the Chomedey Building, $1M was transferred by Floyd into a personal investment account in his name with TD Bank (24RWL6) in June 2018.[58]

[111]       When things turned sour between Matsuba and Floyd in 2019, he told her he had lost all Estate money.

[112]       During his initial contacts with Matsuba, Floyd depicted himself as financially at ease, not needing any money. However, the documentary evidence shows otherwise. He did disclose revenues of about $1,000 between 2016 and 2018.[59] He declared bankruptcy in 2019.[60] Floyd had also filed for bankruptcy in 2009, at which time he had stated to the officer conducting his examination that he never made money as a musician.[61] At that time, he stated that he had not worked since 2001 and was supported by his relatives. He admitted having lost $100,000 in a casino in the Bahamas in 2007.

-         Legal Principles

[113]       As a matter of Contract Law, consent must be free and enlightened and it can be vitiated by error, fear or lesion.[62] An error can exist when it relates to the nature of the contract, its object or an essential element that determined consent.[63] However, an inexcusable error does not vitiate consent, unless it is induced by fraud.[64]

[114]       Fraud involves two elements: 1) a reprehensible conduct from one contracting party; and 2) a resulting error which induced the victim to enter into the contract.[65] Reprehensible behaviour may result from manipulation, lies or reticence.

[115]       The law has long recognized the maxim fraus omnia corrumpit, i.e. the fundamental precept of public order that no one should profit from his or her bad faith or wrongdoing. In such case, even an inexcusable error may be forgiven, if the other party fails to fulfil his obligation of good faith.[66] The victim must prove a determinant error, induced by the contracting party, with an intention to deceive.

[116]       Fear can also vitiate consent in some circumstances. This is so when one fears serious injury to his or her person or property, due to violence or threats.[67] Fear induced by the abusive exercise of a right or power or by the threat of such exercise also vitiates consent.[68]

[117]       It is worth recalling that lesion between adults does not vitiate consent under the C.C.Q.,[69] except in accordance with special provisions for people in situation of vulnerability.

[118]       Section 48 of the Quebec Charter provides such an exception, stating that “Every aged person and every handicapped person has a right to protection against any form of exploitation”. It is a special regime designed to temper some injustices associated with the limitations of contractual law.

[119]       The notion of “aged person” found in Section 48 of the Quebec Charter is not defined. There is no objective age threshold and the Court must assess the situation globally to determine if the aged person displays vulnerability.[70] Beyond chronological age, other factors are relevant to identify the vulnerable person protected by this provision, such as his or her state of health and social condition.[71] 

[120]       In order to claim the protection afforded by Section 48 of the Quebec Charter, it is not sufficient to show vulnerability: one must also demonstrate exploitation.[72] According to the test recognized by the Court of Appeal,[73] the notion of exploitation requires proving three elements: advantage being taken, by someone in a position of power, to the detriment of more vulnerable interests.

[121]       When these conditions are met, Section 48 of the Quebec Charter can serve as the legal basis to stop any form of exploitation and to compensate the victim for the harm suffered.[74]

[122]       Generally speaking, anyone who accepts the mandate to represent another person is bound to act with prudence and diligence, honestly and faithfully in the best interests of the beneficiary, and must refrain from placing oneself in a conflict of interest[75]. It is trite law that contracting parties are required to conduct themselves in good faith at every stage of a contract.[76]

[123]       In Succession Law, the liquidator is charged with simple administration of the deceased’s estate.[77] Pursuant to Article 1337 C.C.Q., a liquidator may be represented by a third party “for specific acts”, but cannot “delegate generally the conduct of the administration or the exercise of a discretionary power”.

[124]       Stated otherwise, a liquidator cannot delegate discretionary decisions that are fundamental to the core of the estate administration and must continue to play an important role.[78] A liquidator can however ask for assistance in his or her duties, regarding administrative tasks or to obtain advice from professionals in order to make informed decisions.[79]

[125]       A contract that is null is deemed never to have existed and each party is then bound to return what he or she has received.[80]

-         Application to the Facts

• The POA is invalid, because it resulted from Floyd’s exploitation of Matsuba’s vulnerability, whose consent was also vitiated by error
  • Section 48 of the Quebec Charter

[126]       First and foremost, after careful review of the evidence, the Court concludes that the POA is invalid as it results from the exploitation of Matsuba, within the meaning of Section 48 of the Quebec Charter.

[127]       The preponderant evidence demonstrates that Matsuba was deceived by Floyd into believing that her inheritance would be safer in his personal bank accounts because it would be hidden from Myers’s daughters, should they contest the Will. Under false pretenses, and contrary to Matsuba’s interests, Floyd used the POA to exclude her from the discretionary decisions about the Estate administration and he gradually asserted his control over the sums belonging to the Estate.

[128]       Matsuba was 62 years old when Myers passed away. Given her overall situation, she qualifies as an “aged person” within the meaning of Section 48 of the Quebec Charter, which has no more precise connotation than referring to a “person of a more advanced age”, [81] who displays vulnerability.

[129]       Adopted in 2017, the Act to combat maltreatment of seniors and other persons of full age in vulnerable situations,[82] provides a definition of a “person in a vulnerable situation”. It echoes the situation of a person whose ability to request or obtain assistance is temporarily or permanently limited because of various factors, such as a restraint, limitation, illness, disease, injury or handicap, which may be physical, cognitive or psychological.[83]

[130]       The following elements might suggest a situation of vulnerability: an advanced age; dependence on others for daily activities or handling business; female gender; cognitive impairment; social isolation or weak social network; physical health problems; difficulty or inability to express oneself; lack of awareness of the rights and resources available; the mourning of a long-term partner, etc.[84]

[131]       In the present case, the evidence supports that Matsuba was in a position of vulnerability in the months following Myers’s passing. She was relatively socially isolated, as her few friends in Montreal were really Myers’s elderly friends. In addition, she was in an altered cognitive state, after losing her 20-year companion. She had been Myers’s caregiver over the previous months and was exhausted at the time of his death, both physically and mentally.

[132]       Because of her difficult history with Myers’s daughters, Matsuba was concerned that they would contest the Will and “come after her”, as Floyd told her while reaffirming the idea that she could not defend herself alone.

[133]       The fact that Matsuba holds two master’s degrees in nutrition is insufficient to negate the finding that she was in a state of vulnerability. This education does not mean that Matsuba was knowledgeable about estate administration, nor legal terms, even after living in Canada for several years.

[134]       Rather, the evidence shows that Matsuba was previously relying on Myers to handle most of the administrative and financial issues. Although Matsuba had helped Myers at times, notably for the collection of rent when he was away on vacation, one could conclude that during their relationship, she focused on house keeping and providing care to Myers. The latter’s death led to a period of instability for Matsuba, who felt overwhelmed by her predicament and the need to liquidate Myers’s Estate. The evidence also suggests that Matsuba had limited financial means.[85]

[135]       Floyd’s assertion that, by March 2018, Matsuba had “moved on” from mourning, is simply not plausible. The Court could still feel, six years after Myers’s passing, how significant this person was for Matsuba, not surprisingly as they had shared many years of their life together.

[136]       When the POA was signed at the end of February 2018 before notary Beauséjour, one month after Myers’s death, Matsuba was still in a vulnerable state of mind. A couple of weeks before, notary Boyer had refused to prepare a POA, as he felt that she could not grasp its implications. Matsuba was still emotional when she met with Beauséjour, as the latter recognized,[86] while Floyd had instilled some urgency to obtain a POA.

[137]       However there was no real urgency to get a POA, except the one suggested by Floyd which fuelled Matsuba’s fear that Myers’s daughters would sue her and compromise her access to the inheritance.

[138]       On the one hand, Matsuba described herself, after Myers’s death, as “so exhausted”, “helpless” and “burned out”; she could not think properly, as she was under “so much pressure” as regards the Estate settlement. On the other hand, Floyd reassured her, presented himself as Myers’s friend, focusing on his abilities while emphasizing Matsuba’s weaknesses, to lure her into granting him a POA that was not used, as the evidence shows, to protect her interests. 

[139]       While Floyd portrayed himself as being very casual about the value of Myers’s Estate, the evidence shows that he was alert to the possibility of benefitting from some of its assets, although he may not have initially suspected their scope.

[140]       Meanwhile, Floyd was aware of Matsuba’s vulnerability. As an example, in May 2018 Floyd prepared a complaint letter to the Quebec Bar, on behalf of Matsuba, to contest a $5,000 invoice for a case with the Régie du Logement, stating that “the amount in question is as good as theft”, alleging that a lawyer “took advantage of my weakness at that point”,[87] as Matsuba had just lost her partner of 20 years. Yet Matsuba testified that she did not mind paying the lawyer’s fees. Also, when explaining how he helped Matsuba with setting up her internet account, Floyd spontaneously stated: “Nobody was listening to her. She did not know how to explain herself.”

[141]       These are just a couple of examples that lend credence to Matsuba’s version that Floyd was denigrating her capacities, while being aware that he could exploit the situation for his own benefit.

[142]       Although Floyd denies having experience in Estate administration, he recognized in cross-examination having history as a POA for his mother, for whom he managed finances when she was alive. He knew that the POA prepared by Beauséjour and the TD-POA would give him almost unlimited access to managing the Estate’s money.

[143]       In view of the preponderant evidence, the Court has no hesitation in holding that the obtaining of the POA, and its use by Floyd over time, constitutes exploitation of Matsuba within the meaning of Section 48 of the Quebec Charter. Specifically, the Court concludes that there was financial exploitation, associated with the abusive and improper exercise of authority conferred upon Floyd by the POA, and his related manipulations.[88]

[144]       Pursuant to Section 48 of the Charter, the vulnerability factors must be analyzed in the context of the specific relationship with the person in power. Here are some signs of an abusive relationship that could demonstrate the exploitation of an aged person: depreciating or insulting the victim; showing an aggressive behaviour; being suspicious of third parties; isolating the aged person; threatening him or her; answering or acting systematically on his/her behalf, etc.[89]

[145]       While Floyd was initially comforting Matsuba, evidence confirms that he gradually exercised coercive control[90] over her behaviour.

[146]       Indeed, taking advantage of Matsuba’s vulnerability, Floyd managed to manipulate her into making some transactions regarding the Estate assets, by gaining her trust and making her doubt her own abilities to handle the situation, eventually using the POA to defraud her.

[147]       Matsuba also gave various examples of Floyd’s temper and aggressivity towards her, him even showing her a firearm and making once ambiguous yet troubling comments about the fact that he could kill her.

[148]       Applying the applicable legal test pursuant to Section 48 of the Quebec Charter,[91] it is undeniable that Floyd took advantage of Matsuba by ending up in possession of virtually all Estate funds, while Matsuba has yet to pay the Estate taxes to this day. Floyd was able to coerce Matsuba into this scheme given his position of power, bringing her into his home and offering to help to manage the accounts, while denigrating Matsuba’s capacity to do so on her own, and building on her fear that Myers’s daughters would sue her. Finally, the detriment to vulnerable interests is obvious, as Matsuba is left with none of the assets that had been bequeathed to her by Myers.

[149]       It is true that Floyd helped Matsuba in some matters, such as the collection of rent and the eviction of a difficult tenant in the Chomedey Building. He also assisted her with Myers’s gravestone, he moved furniture and set up internet and telephone accounts for Matsuba. However, as will be further explained below, the amount allegedly gifted to Floyd is in obvious disproportion with the services provided regarding the Estate settlement and shows a clear imbalance for Matsuba.

[150]       The Court will return later to the specific transactions that diverted Matsuba of assets valued at over two million Canadian dollars, which also reinforces the finding of fraud and exploitation.

[151]       For all these reasons, the Court concludes that Floyd exploited Matsuba, contrary to the protection granted by Section 48 of the Quebec Charter. This conclusion is based, given the relationship between the parties, on the number and nature of transactions made by Floyd; the sums which Matsuba was deprived of; the period during which the events took place at a time of vulnerability for the latter; and the stratagems used by Floyd including deception and misrepresentations.[92]

• Consent Vitiated by Error

[152]       In addition to arguments pertaining to Section 48 of the Quebec Charter, the Court finds that the POA is also invalid as Matsuba’s consent was vitiated by error as regards an essential element, as she believed its purpose was to protect Estate funds while it was used by Floyd for his own interests.

[153]       Although the risk of litigation from Myers’s daughters over the Will was real, Floyd’s exaggerated this possibility by emphasizing Matsuba’s inability to defend herself and the consequences associated with a lawsuit. Floyd created this impression by highlighting Matsuba’s limited skills in English, the risk of her assets being frozen and even a potential impact on her residency status. However, as liquidator, Matsuba had access to sufficient funds to access resources, such as legal advice to contest an eventual claim, that never materialized. Floyd’s manipulation prevented her from accessing those resources.

[154]       Instead, Floyd’s deception led Matsuba to sign a POA in his favour, which was not necessary “to protect” the Estate assets and rather enabled Floyd to assert his control and to eventually defraud Matsuba.

[155]       On this point, one cannot seriously contend that the POA was given to Floyd as a result of Matsuba’s inexcusable error.

[156]       Floyd did not insist on this argument and the Court will later expand on this issue that was developed in Litvack’s case. At this stage, it is sufficient to say that given Floyd’s fraudulent behaviour, he cannot invoke an inexcusable error by Matsuba to shield himself from the consequences of his own acts: fraus omnia corrumpit. In addition, it is hard to blame Matsuba, in a period of vulnerability, for granting a POA when notary Beauséjour accepted to prepare it and when the representatives of TD Bank did not take issue, over the following months, about the administration of Estate-related funds through Floyd’s personal bank accounts.

[157]       It must be said that Floyd displays a unique ability to convince people. However, when the evidence is reviewed carefully, it reveals that several of his statements are based on inaccurate information, lies or misrepresentations.

[158]       Many examples could be given, but one of the most striking relates to Floyd presenting himself as a “Doctor”. Floyd’s LinkedIn page indicates that he obtained a PhD in forensics from the “School of Knowledge”.[93] During his discovery and at trial, Floyd affirmed that he had received an honorary degree from McGill University in 2013, in forensic science, for his lifetime achievement. Confronted during his cross-examination with the fact that McGill’s list of recipients did not include his name,[94] he explained that the degree was granted during a private ceremony after he made a donation. He could not provide a copy of the diploma. Floyd was apparently told by the banks that he could use the title of “Doctor”: it sounded good and he liked it, so he “went with it”.

[159]       Other elements through which Floyd depicts his own importance are related to his contacts in the musical industry (he lists the names of celebrities he worked with over the years), as well as his alleged work for the police.

[160]       At trial, Floyd affirmed that, in the early 1980s, after frequenting a firearm’s club in New York where he was living at the time, he was presented to Queen’s prevention division of the NYPD as a deputy inspector. He proudly exhibited a photo of a badge that he has also shown to Matsuba.[95]

[161]       The exact nature of Floyd’s connection with the NYPD, if any, is outside the scope of this matter. However, what is troubling is the malleability with which Floyd approaches the truth, as evidenced by the testimony of Babin, a former police officer who now works as an investigator for Aviva insurance company. Babin interviewed Floyd in August 2019,[96] further to the latter’s claim to his insurer about an alleged theft at the time he moved into a new residence in October 2018.

[162]       At trial, Babin’s testimony cast doubts about the reliability of Floyd’s statements to him that he used to work as a former police officer, in New York and Canada, and even as a prison guard. To this, Floyd answered that his discussion with Babin was an “informal” one, that he was not “under oath” and may have “mixed up” some of the facts. Although Floyd stated that he was nervous when he spoke with Babin, he clearly did not come across at trial as someone who is easily impressionable. Hence the Court can only conclude that, when Floyd spoke with Matsuba (or anyone else), he could have said anything regardless of the truth, because he was not “under oath”.

[163]       In these circumstances, even though Floyd argues that he did not use the POA deceptively, his position is not credible.

[164]       Rather, the evidence enables the Court to conclude that Floyd exerted his influence to erroneously lead Matsuba to believe that the POA was a necessary tool “to protect” the Estate assets, thereby vitiating her consent.

• Should the POA be valid, Floyd acted in fraud of Matsuba’s interests and therefore cannot derive any benefit from it

[165]       Even if one would consider the POA to be valid, which the Court finds is not the case, Floyd breached it by placing himself in a conflict of interest in the way he used it, diverting money into accounts under his name, contrary to his duty of good faith as an administrator. The evidence indeed shows that over time, Floyd gradually increased his control over Matsuba’s assets, playing on her vulnerability and cultivating an ambiguity regarding their connection to make her feel comfortable, testing her credulity through limited transactions first and eventually taking decisions against Matsuba’s wishes.

[166]       Firstly, it must be pointed out that Floyd actually did not take any of the usual steps regarding an Estate settlement: he did not prepare an inventory, he did not render account, nor did he file tax returns.

[167]       It is true that there was a tacit agreement between the parties that Floyd would manage the Estate funds for Matsuba’s benefit, as part of a stratagem designed by Floyd to protect Estate assets.[97] The assumption was, however, that the money would be returned to Matsuba later. Yet Myers’s Estate account with TD Bank was closed in May 2018 and all Estate money was sent to personal accounts in Floyd’s name opened in April 2018.[98]

[168]       Not only is there direct evidence that Floyd sometimes acted without Matsuba’s consent (e.g. the cashing of Kaufmann Funds and the selling of Altria Group shares, about which the Court will expand below), but there are a series of indicia that support a presumption, as a powerful inference,[99] that the POA was a way for Floyd to effectively gain control of the Estate money for his own benefits, using deceitful stratagems.

[169]       Indeed, after Floyd manoeuvred to have some of Myers’s items moved to his house, and led Matsuba to sell shares with proceeds being sent into his bank accounts, he found buyers for the Chomedey Building. This is when Floyd suggested to Matsuba that he would add his baseball card collection to boost the value of the sale to $1.2M, in the expectation that Matsuba would then pay him back $400,000 to “compensate” him for his contribution. This is an eloquent illustration of how Floyd could manipulate Matsuba. As we know, Floyd finally did not have to ask for this payment, as all proceeds of the sale ended up into his personal bank account.

[170]       When Floyd realized that Matsuba was giving in, he continued this course of action, selling all of Myers’s securities and transferring the proceeds into his bank accounts, between May and September 2018. At this point, he insisted on getting the original of the Gift Letter and eventually told Matsuba in 2019 that he had lost all Estate money – which was false, as at least $1M from the sale of the Chomedey Building had been saved into a personal investment fund –, and he even attempted to blackmail her by sending her an intimate picture.

[171]       All this evidence leads to the conclusion that Floyd proposed and used the POA in order to gain access to Matsuba’s money, with no intention of returning it, and that he was even prepared to lie to keep it for himself.

[172]       Moreover, one must stress that the POA signed by Matsuba at the end of February 2018 grants very extensive powers to Floyd over the administration of Myers’s Estate. In the Court’s view, some aspects of the POA are an invalid delegation of the liquidator’s duties under Article 1337 C.C.Q.

[173]       It was indeed problematic to allow Floyd to “sign, execute and approve, in my name and on my behalf, any bank transaction, settlements, bills and […] waivers; to take any decision regarding the deceased’s investments, cash them in or to reinvest them in any product that he deems proper”,[100] without specifying that those decisions could not be made without consulting and being approved by Matsuba. Such delegation, entailing discretionary decisions about the Estate assets, undermines the “intuitu personae” nature of the mandate granted by the deceased to the liquidator.[101] 

[174]       It is surprising that notary Beauséjour agreed to prepare such a POA, especially as she repeated during her testimony that she was not in agreement with same, and she refused to notarize the deed.

[175]       Accordingly, although the evidence shows that Matsuba was involved in a few aspects of the trading of shares, some transactions made by Floyd under the POA without Matsuba’s consent are thus void ab initio, notably the cashing of the Kaufmann Funds and the selling of the Altria Group shares. The same rationale applies to the transfer of $1M from the proceeds of the sale of the Chomedey Building into an investment account for Floyd’s personal benefit,[102] which was made in conflict with Matsuba’s interests as if she had no right or authority over it. Such transactions are arguably null as resulting from an invalid delegation of powers.

[176]       Here again, it is difficult to contend that Matsuba is liable for her own misfortune, because, except for notary Boyer, it appears that none of the professionals consulted, including at TD Bank, questioned Floyd’s conduct or attempted to warn Matsuba about the handling of Myers’s Estate.

[177]       As mentioned, the evidence related to TD Bank raises several questions that were left unanswered at trial. It remains nebulous on what grounds the TD-POA was granted to Floyd in March 2018, as Garofalo confirmed that a POA related to estate matters is not effective for other bank accounts. What advice was given to Matsuba at that time in this regard? No one knows. Floyd believes that an internal POA was suggested by James Reitelman, a TD Bank Financial Services Representative, who did not testify at trial. As a matter of fact, the TD-POA gave Floyd unfettered access to all bank accounts and money going through them.

[178]       It is also disconcerting that TD Bank would let accounts other than the Myers’s Estate account (i.e. Floyd’s personal bank accounts) be used to hold Estate funds.[103] Garofalo did not corroborate Floyd’s assertion that she suggested that his personal account be used “temporarily”, while awaiting the opening of the Estate account. This seems not only irregular but also implausible, as the Myers’s Estate account was opened on February 27, 2018.[104] Moreover, nobody could explain why the Estate account was closed in May 2018, when the Estate had not yet been liquidated.

[179]       The TD Bank representatives were possibly comforted by the POA prepared by notary Beauséjour and Floyd’s skillful representations. Yet it appears that no one alerted Matsuba to irregularities about the administration of Estate funds, although agents of financial institutions are in a privileged position to detect unusual activities in their customers’ accounts.[105] 

[180]       Even when Matsuba realized, at the end of September 2018, that Floyd had been “lying” to her, one cannot find an inexcusable conduct on her part for not taking measures to cancel the POA before February 2019.

[181]       As Matsuba explained at trial, she realized eventually that, “as in a relationship of domestic violence”, it was difficult for her to completely remove herself from the situation all at once. Because of the overall predicament in which Matsuba had been entangled, one could understand that it took her some time to process the truth and gather strength to take action. In any event, by the end of September 2018, acts or transactions that Matsuba seeks to annul were already consummated.

• Consent Not Vitiated by Fear

[182]       Lastly, the Court does not retain Matsuba’s last argument regarding the validity of the POA, being of the view that her consent to same was not vitiated by fear.

[183]       While Floyd clearly manipulated Matsuba, the evidence does not support the existence of a sufficiently serious fear generated by him to vitiate consent, considered both from an objective and subjective perspective.[106]

[184]       From the outset, it must be pointed out that the fear of litigation from Myers’s family is not directly attributable to Floyd, although he took advantage of Matsuba’s vulnerability regarding that issue. Even if this fear endured and was likely reinforced when Matsuba received the correspondence from Rochelle in March and April 2018, the preponderant evidence is that Floyd was generally kind and supportive of Matsuba at the time when the POA was signed in February 2018.

[185]       At trial, Matsuba gave various examples of Floyd’s attitude and temper, which grew more demeaning or controlling over time. For instance, she mentioned that he would treat her as being ungrateful, sometimes showing aggressivity towards her. Matsuba had seen Floyd being rude with his dog and she became concerned that he could be with her too. Floyd owned a gun and bullets, which he showed to her, telling her once with a soft calm voice that he could kill her. Matsuba tried not to take this comment too seriously, but she told herself that she should be careful. Matsuba did not specify when these events or statements occurred, but it was likely after the POA was signed.

[186]       Moreover, the number of days that Matsuba spent at Floyd’s home in St-Laraze, between February and April 2018 more particularly, is incompatible with a fear of serious injury to Matsuba’s person or property. During her relationship with Floyd, Matsuba was not captive and she kept going back to her place for days at a time.

[187]       In other words, the evidence falls short of demonstrating that the POA or transactions made pursuant to it were vitiated by fear. Rather, Matsuba’s intention was to give Floyd access to the Estate funds, but with a view to protecting them from litigation. She was not coerced into accepting this by fear, against her will, but she was deceived as to an essential element of the contract, which was that it was not truly concluded to further her best interests but rather for Floyd’s personal benefit.

[188]       That said, the general climate of fear and control exerted by Floyd reflects his influence on Matsuba’s mindset and explains how he managed to keep her under his control for a few months.

2. Is the Gift Letter a valid contract of gift or should it be annulled?

-          Relevant Evidence

[189]       The Gift Letter[107] signed by Matsuba in mid-August 2018 essentially provides that she has “transferred an undisclosed amount from my personal banking and/or proceeds from these sales to my dear friend Neil Floyd which I consider as a gift”. It is also specified that this is done “without the expectation of reimbursement in lieu of all the help and support [Floyd] has given and shown to me”, since Myers’s death.

[190]       As mentioned earlier, Floyd and Matsuba have diverging views about who wrote that letter and what its purpose was.

[191]       According to Matsuba, the Gift Letter was drafted by Floyd who suggested that it could serve as a shield if Myers’s daughters found out about the money transfers to him, providing an apparent explanation for it, in the understanding that he would return the Estate funds to Matsuba later.

[192]       Matsuba testified that she was reluctant to sign the Gift Letter without obtaining a counter-letter, disclosing the real objective of the strategy. Floyd reassured Matsuba and told her that she could write a counter-letter herself if she wanted to, which she did not do right away, lacking confidence in her skills at the time. However, Matsuba initially retained the original copy of the Gift Letter and she only sent a copy to Floyd by email on September 11, 2018.[108]

[193]       For his part, Floyd asserts that the Gift Letter was Matsuba’s idea and that she wrote it herself. He explained that around August 2018, Matsuba told him that she would “make him very happy” and send him a “special gift”. During his cross-examination, Floyd admitted that he helped Matsuba “on the grammar” for the letter,[109] claiming it was out of context, although he knew money would be involved. Confronted with his prior statements, that he “could not accept the donation without a document”[110] and had told Matsuba he needed to obtain the original of the Gift Letter,[111] Floyd nonetheless claims that he did not ask for it first and he minimized its importance to him.

[194]       These convoluted explanations are unconvincing and Floyd’s demeanour at trial, for example looking down during this part of his cross-examination, betrays that he was not straightforward.

[195]       In the Court’s opinion, Matsuba’s version of events regarding the Gift Letter is more plausible than Floyd’s, whose participation in this regard is likely more important than what he admits. Floyd’s behaviour afterwards also leads to the conclusion that he was not as disinterested as he claims to be.

[196]       Floyd argues that Matsuba freely made a “special gift” to thank him for his help, but later had remorse and became scorned when he “rejected her” after obtaining the Gift Letter, leading Matsuba to make false accusations to disavow her gift. However, the chain of emails between the parties gives a different impression on how important it was for Floyd to obtain the original of the Gift Letter, after he had received a copy of same by email in mid-September 2018, thus showing he was acting out of self-interest.

[197]       In particular, on September 22, 2018, while Matsuba was away in Japan and shortly after she sent to Floyd the Gift Letter by email, Floyd dispelled any ambiguity about their relationship. He wrote to Matsuba: “I now realize that I am most happy alone and plan to stay that way.”[112]

[198]       Yet Floyd insisted on obtaining the original of the Gift Letter. On September 27, 2018, after going to Matsuba’s apartment to get it and not finding it, Floyd wrote: “Really now! I’m not in the habit of playing foolish games and have no intention of seaxching” (sic), asking where the Gift Letter was and adding: “It is not a suggestion. You were aware that it was needed. I will expect an answer when I return home later on.”[113] A few hours later, Floyd wrote again: “I guess from your lack of reply that you are not having a good reason for lying to me. You know I hate being deceived and I am wondering more and more each day as to why you would do that!”[114]

[199]       Floyd alleges that it had been previously agreed that Matsuba would leave the original of the Gift Letter at her house, given the large sums of money he had withdrawn for her, prior to her journey to Japan. However, the Court has already ruled that it has not been proven that such money was given to Matsuba.[115] Floyd’s testimony in this regard is plainly not credible.

[200]       Following the pressure applied by Floyd, through emails and telephone calls, Matsuba finally sent the original of the Gift Letter to him by regular mail on October 12, 2018.[116] A couple of days later, she wrote to Floyd indicating that she would like “to keep our relationship peacefully” (sic). However, Floyd again displayed aggressivity in his response to Matsuba, which is surprising for someone who claims to have just received a very significant gift: “Kindly stop repeating yourself. I heard you several times and quite frankly, it’s boring. […] Please stop repeating yourself or I will simply ignore your emails. Go to bed before you say something else that might piss me off!”[117]

[201]       This evidence not only contradicts Floyd’s alleged sincerity but rather shows the twisted strategies he could use to exploit Matsuba, the Gift Letter being just one illustration of that.

[202]       In this regard, the testimony of Floyd’s daughter, Alexandra, affirming that Matsuba would have mentioned that Floyd would get “a lot of money” thanks to her, has no probative value. Indeed, the impartiality of this witness is highly questionable given her proximity with Floyd, and she could not recall when Matsuba would have said this nor provide any additional comments to explain the alleged statement.

[203]       On the contrary, Matsuba’s testimony is reliable and the delay that it took her to send the Gift Letter to Floyd by email on September 11, 2018 after it was signed in mid-August, as well as the delay to send the original by regular mail on October 12, 2018, demonstrate Matsuba’s reluctance and is incompatible with a true intention to gift Estate money from the sale of Myers’s shares or property to Floyd. This corroborates Matsuba’s discomfort with Floyd’s strategy, although she gave in to his desires, once again, while being under his coercive control and pressure.

[204]       This generally sets out the factual background against which the legal arguments raised by the parties about the validity of the Gift Letter must now be analyzed.

-          Legal Principles

[205]       Pursuant to Article 1824 C.C.Q., in order to be valid, the gift of a movable or immovable property must be made by notarial act en minute and shall be published.[118] The only exception to this rule is the “manual gift”, i.e. when the gift of movable property is accompanied by delivery and immediate possession of such property, or all hindrances are removed so that the donee can take possession of the property.[119] If the gratuitous contract does not meet these conditions, it is absolutely null.

[206]       The manual gift requires an intention to make a gift and implies definitive and irrevocable divestiture to the donee[120]. This transfer is an essential element of the manual gift, so that the donor is aware of the irremediable nature of his divestment.[121]

-          Application to the Facts

[207]       Firstly, as a matter of fact, the Court concludes that, as was the case with the POA, the Gift Letter was Floyd’s suggestion.[122] Matsuba’s consistent testimony in this regard is convincing and is also supported by the overall evidence. Indeed, the Court is of the view that it is likely that Floyd himself wrote the Gift Letter, as Matsuba affirmed, since one cannot help to notice the superior level of English used in this document when compared with contemporaneous emails from Matsuba.[123] Incidentally, the counter-letter written later on by Matsuba in January 2019[124] also uses English that is plain and simple, in contrast with the Gift Letter.

[208]       As mentioned before, Floyd’s demeanour when cross-examined at trial regarding the Gift Letter, as well as during his redirect examination on same, is full of contradictions about this issue, the timing of his discussions with Matsuba and the reception of the document, including his participation in its contents. Hence Floyd’s version is, at best, unreliable.

[209]       Rather, there is ample evidence showing that, as soon as all the Estate money had been transferred under Floyd’s control, he became very insistent to obtain the original of the Gift Letter, as a tool for him to allege a gift by Matsuba.

[210]       For the following reasons, the Court concludes that Matsuba is entitled to have the Gift Letter cancelled.

[211]       It is not disputed that, pursuant to the requirements of the C.C.Q., as the Gift Letter is not by notarial act en minute, the only exception that could be applicable here is that of “manual gift”. At best, the Gift Letter is thus evidence produced by Floyd to attempt proving the validity of a manual gift.

[212]       However, the Court is of the view that the Gift Letter is null as it was obtained by deceitful tactics of Floyd that vitiated Matsuba’s consent on its true object, and because it fails to comply with legal requirements for manual gifts.

[213]       As it appears from the evidence summarized above, Matsuba was led to believe by Floyd that the Gift Letter was another strategy to protect her in case of litigation by Myers’s daughters. As such, Matsuba’s consent to the Gift Letter was vitiated. Matsuba is credible when she explains that she wanted a counter-letter to disclose the true purpose of the Gift Letter. The evidence does not support that she had the intention to donate to Floyd virtually the entire fortune she had inherited from Myers, even though she may have agreed to gift him some specific items.

[214]       The Court dismisses Floyd’s argument that the counter-letter sent by Matsuba in January 2019 is an “invention” of hers, after the fact, to escape the consequences of her gift.

[215]       On the contrary, it is plausible, as discussed previously, that Matsuba did not feel she had the strength nor the skill to prepare the counter-letter immediately in August 2018, during a period when she was vulnerable and under the coercive control of Floyd. As Matsuba stated at the hearing, before January 2019 she was in a different emotional state, as Floyd was playing “with her mind", and she thought it was better “to stay quiet” as all the Estate money was under his control and he had promised to prepare estate tax returns by the end of the year. In these circumstances, it understandably took Matsuba some time to free herself from Floyd’s influence and to confront him.

[216]       Moreover, Matsuba’s reluctance to provide Floyd with the original of the Gift Letter signals her discomfort about its contents. It is also clear from the email exchanges between Floyd and Matsuba in the Fall 2018 that it is only after repeated pressure from Floyd that she sent the original of the Gift Letter.

[217]       It is true that the evidence does not establish that Matsuba provided the original of the Gift Letter under duress, in October 2018. However, the Court concludes that the Gift Letter was erroneously consented to by Matsuba as a perceived way to “protect” the Estate funds, pursuant to the misrepresentations of Floyd, who was exploiting her vulnerable position.[125] Nothing in the evidence reasonably supports the idea that Matsuba had the intention to willingly gift Floyd more than two million Canadian dollars. Without a doubt, this would reflect an obvious imbalance given the limited “help and support” that was provided by Floyd,[126] who did not accomplish any of the usual steps to settle the Estate.

[218]       Even if the Court had considered the Gift Letter as a valid expression of will by Matsuba, Floyd’s argument that it was a valid contract of gift must fail as a result of additional insurmountable legal difficulties.

[219]       As indicated above, in order to be valid, manual gifts must comply with strict requirements under Quebec law.

[220]       However, the Gift Letter is legally unqualifiable and it does not correspond to a recognizable juridical operation.[127] By referring in the past tense to a gift for an “undisclosed amount”, coming from banking accounts and/or proceeds of sales which are undefined, the Gift Letter raises questions about its object. This vagueness could, in and of itself, lead to the conclusion that there was no contract between the parties, as its essential elements have not been determined.[128]

[221]       Floyd replied that the undisclosed amount was “determinable” between the parties, as they could know how much was involved. He argued that it was the money left in the TD Bank accounts, after Floyd had withdrawn and provided Matsuba with some cash money between May and September 2018.

[222]       As discussed, except for three transactions of about $5,000 each, the evidence does not show that large sums of money were remitted to Matsuba,[129] so virtually all Estate funds estimated at more than two million Canadian dollars would have been given to Floyd by the Gift Letter, had it been valid. However, given the confusion about Estate assets transferred into Floyd’s personal bank accounts and their value, the evidence does not support that Matsuba knew the precise amount at the time of signing the Gift Letter. Significantly, Floyd did not attempt to specify it either.

[223]       One could ask: when was the “undisclosed amount” of the Gift Letter to be determined? In mid-August 2018, when Matsuba signed the document (prior to the Altria Group shares were traded in September 2018)? Or on September 11, 2018, when Floyd received a copy of the Gift Letter by email? Or only in mid-October 2018, when Floyd obtained the original of the Gift Letter?

[224]       This lack of specificity regarding the object of the Gift Letter is fatal. Indeed, it is intrinsic to the notion of gift that there can be no ambiguity as to what is being given, on pain of nullity.

[225]       In addition, even if one would accept the argument that the Gift Letter is specific enough to correspond to a juridical operation that could qualify as a valid “manual gift” pursuant to Article 1824 C.C.Q., it would still need to be accompanied by delivery and immediate possession of the property donated.

[226]       In this regard, one must distinguish the Estate money from Myers’s personal belongings, which the Court will address in the following section.

[227]       Insofar as Estate funds are concerned, Floyd essentially claims that all the Estate money found into his accounts was owned by Matsuba, until the moment she signed the Gift Letter which had the effect of instantaneously crystallizing the gift of sums that were already in Floyd’s possession. For the following reasons, the Court concludes that the Gift Letter is not a valid “manual gift” and that there is no evidence of an intention to donate that was expressed contemporaneously with it by Matsuba.

[228]       The case law recognizes that bank transfers can be an appropriate method of delivery for making a gift of money.[130] It can also be made through a proxy, even for its own benefit, but the willingness to donate must be concomitant with the delivery and possession of the gift.[131] Obviously, this might be easily determined when dealing with a single, well-defined, transaction.[132]

[229]       In the case at hand, there is no convincing evidence that Matsuba’s intention was to gift the Estate funds transferred to Floyd. On the contrary, as concluded earlier, the alleged goal of the Gift Letter was a twisted strategy proposed by Floyd to offer an explanation as to why those funds had been transferred to him, in case of litigation and enquiry by Myers’s daughters. Moreover, given the timeline of several transfers into Floyd’s banking accounts, and considering that various forms of the Gift Letter were exchanged between August and October 2018, one cannot conclusively find that an intention of irrevocable divestiture, if any, was expressed concomitantly by Matsuba.

[230]       The party invoking a “manual gift” has the onus of establishing its existence and validity.[133] The Court is of the view that Floyd failed to do so. The Gift Letter is invalid as having no clear object, failing to indicate a specific amount, without referring to a defined source of funds, and bearing no date for the alleged gift.

[231]       To sum-up, the Gift Letter has no legal value and Matsuba is justified in requesting its annulment.

[232]       Floyd’s argument that Matsuba seeks to repudiate her gift out of revenge against him is without merit. This assertion is conjecture and has no reasonable basis into the evidence. In fact, it would be illogical that, after Floyd had informed Matsuba in September 2018 that he did not want to be with her, she then consented to being stripped of all the Estate funds by sending him the original of the Gift Letter the next month.

[233]       Even assuming a scenario where Matsuba had been disappointed because she had hoped for a romantic or companionship relationship with Floyd, the Gift Letter would still be invalid pursuant to Article 1824 C.C.Q.

[234]       Overall, the preponderant evidence leads to the inescapable conclusion that the Gift Letter was part of the stratagem to defraud Matsuba. Yet, during his testimony, Floyd affirmed vehemently that Matsuba’s claim is a “concocted story based on lies” and that he was hoping to convince the Court that her statements are essentially reversed, as he considers himself to be the true victim of a scheme orchestrated by Matsuba. As Floyd noted in one of his emails, he is of the view that Matsuba is a “manipulative” person, that she does not have “a good reason for lying”, while he is the one “being deceived”.[134]

[235]       In fact, Floyd’s answers tend to establish the opposite of what he wants the Court to believe. Considering the evidence as a whole and the contradictions in Floyd’s testimony, his assertions, framed as denials of an unethical conduct, are to be construed as admissions of his own behaviour towards Matsuba.[135]

[236]       As the author Dostoyevsky put it: “A man who lies to himself, and believes his own lies, becomes unable to recognize truth, either in himself or in anyone else.”[136] The evidence shows that this is the case for Floyd.

3. What is the impact of Floyd’s use of the POA and the Gift Letter, regarding various transactions involving Estate assets?

[237]       Briefly stated, the Court concluded that both the POA and the Gift Letter were used by Floyd as stratagems to defraud Matsuba.

[238]       As explained above, the Court held that the POA granted to Floyd is invalid, mainly because it results from the exploitation of Matsuba within the meaning of Section 48 of the Quebec Charter. Considering the unfair imbalance that its use caused to Matsuba, it justifies the annulment and restitution to Matsuba by way of reimbursement of resulting transactions, as well as an award for related damages.[137]

[239]       The same consequence is also warranted by the conclusion that consent to the POA was vitiated by Floyd’s misrepresentations as to its true purpose. Indeed, any contract which does not meet the necessary conditions for its formation may be annulled.[138] A contract that is null is deemed never to have existed and each party is then bound to return what he or she has received pursuant to that transaction.[139] If consent is vitiated by fraud, as it was here, a party can apply for annulment and also claim damages.[140]

[240]       The nullity of the Gift Letter also results in the restitution of the benefits received and opens the door to an action in damages.[141]

[241]       In this section, the Court will therefore review the specifics of various transactions regarding particular assets included in Myers’s Estate, to determine what remedy, if any, is available to Matsuba.

-         Analysis

[242]       The main Canadian and American assets included in Myers’ Estate, as well as their respective value, were the following:

[243]       Sale of the Chomedey Building. The evidence shows that the proceeds of this sale were deposited in Floyd’s banking account in May 2018,[153] from which he transferred $1M into a personal investment account at TD Bank (24RWL6) in June 2018.[154]

[244]       As indicated above, Floyd initially told Matsuba that he would add his baseball cards collection estimated at $400,000 to boost the value of the transaction to $1.2M, after which she could pay him back the value of his contribution. Matsuba testified that she did not fully understand but did not object at the time, following Floyd’s lead as the POA. The evidence shows that Floyd supervised all aspects of the eventual sale, including meetings with Misters Kadoch and Mayer, and then Mr. Fedida, when they exchanged gifts and prayers in the Jewish tradition.[155] In the end, all proceeds of the sale were sent by Litvack into Floyd’s account.

[245]       By orchestrating these transactions, Floyd exploited Matsuba, for which she is entitled to recover related funds.

[246]       In this regard, it is noteworthy that, in his affidavit of May 11, 2020, in the context of his request to quash the seizure, Floyd claimed that there had never been any transfer of Estate funds to his personal accounts until after the Gift Letter.[156] However, Floyd then acknowledged that the transfer of $1M had taken place before.[157] At trial, during his cross-examination, Floyd attempted to convince the Court that he believed that Matsuba had access to this account. However, the TD Bank confirmed that there was no trace in their record that Matsuba had any right or authority over the $1M in investments.[158]

[247]       Car Subaru Crosstreck. Myers owned a car of the brand Subaru Crosstreck, that Matsuba did not want to keep. The preponderant evidence demonstrates that it was bought by Floyd and then offered to his daughter.

[248]       Back in 2018, Floyd was looking to buy a car for his daughter, Alexandra. Matsuba mentioned the Subaru Crosstreck and it was agreed that Floyd would buy it: he gave her $1,500 right away and mentioned that he would “give some more” later. Floyd informed Matsuba that she could get a better deal for the car, but she did not care and was happy that Floyd could offer the car to his daughter for her birthday.

[249]       As a matter of fact, Floyd did not pay extra money to Matsuba for the car, the latter having renounced to it, stating that she wanted Alexandra to drive a safe car.[159] Moreover, the parties agree that Floyd and Matsuba went to the SAAQ together to change the ownership of the car from Myers to Floyd.

[250]       This evidence establishes on a balance of probabilities that Matsuba’s consent to selling the Subaru Crosstrek to Floyd, perhaps at a discounted price, was not vitiated. The object of the transaction was clear and Matsuba was involved into it at different steps. There is insufficient evidence for the Court to conclude that this transaction should be annulled.

[251]       Patek Philippe Watch. According to Matsuba, this watch was in a safe at Myers’s apartment: Floyd said it was worthless and simply took it.[160]

[252]       Floyd denies that Myers had a Patek Philippe watch, indicating at trial that he believes he had one Omega watch instead. However, in his affidavit of May 11, 2020 to quash the seizure before judgment, Floyd stated that the Patek Philippe watch was in possession of Matsuba, who wanted to remit it to Myers’s grandson.[161] Later on, in his examination of June 2020, Floyd then claimed that Myers probably had a “fake” Patek Philippe watch, imported from China.[162]

[253]       Floyd’s changing version lacks credibility and the Court accepts Matsuba’s testimony.  Floyd should not benefit from his fraud, because it is impossible for Matsuba to make a proper valuation of this item, as the watch has disappeared. In such circumstances, the Court arbitrates the value of the Patek Philippe watch at $10,000, although its worth is arguably higher.

[254]       Myers’s Investments Funds. The evidence confirms that Matsuba participated to the trading of many shares or stocks owned by Myers, further to Floyd’s advice. Floyd also managed to complete two transactions without Matsuba’s consent. Almost all money resulting from these transactions ended up into Floyd’s banking accounts.[163]

[255]       Matsuba explained that Floyd told her that it was better to sell Myers’s investments, in case of litigation with his daughters. Floyd would put the money into bank accounts in his name, designed to receive Estate funds, promising that it would not be mixed with his personal accounts. However, the evidence shows that both parties were confused as to which accounts were used for what purpose.[164] Following Floyd’s representations, Matsuba traded some of the shares herself,[165] and the proceeds of this were afterwards transferred to Floyd’s bank account, either by Floyd under the TD-POA or by Matsuba, in line with the strategy designed by Floyd.[166]

[256]       The proceeds resulting from the sale of these investments, whether in Canadian or American dollars, belonged to Matsuba and were appropriated by Floyd under false pretenses and coercive control. The Gift Letter having been declared invalid, Floyd cannot claim any ownership over those funds and must remit them to Matsuba.

[257]       At this point, the Court must comment on the Kaufmann Funds and the Altria Group shares, as the evidence reveals that the way in which Floyd came into possession of their proceeds is nothing short of theft.

[258]       With respect to the Kaufmann Funds, valued at about $275,000 US, Matsuba testified that Myers had suggested she keeps them for her retirement. However, having learned that she could not own the shares as she was not American (Myers had dual citizenship), Matsuba resigned herself to selling them. In July 2018, she received an envelope with a cheque inside it[167] and she told Floyd that she did not want to cash it. However, Floyd took it when she had her back turned, without her approval, and then deposited it into in a US account in his name.[168] When Matsuba found out, Floyd became angry and changed the subject.

[259]       By stealing the cheque related to Kaufmann Funds and by depositing it into his account, Floyd unlawfully acquired control over it. The way Floyd became in possession of these funds justifies cancelling this transaction.

[260]       Even more shockingly, in September 2018, Floyd cashed in the Altria Group shares – Myers’s last remaining stocks – against Matsuba’s wishes.

[261]       Matsuba testified that she did not want to sell Altria Group shares, estimated at $116,000 US, because she described them as one of Myers’s “success story”. In August 2018, Floyd asked her to cash in these shares. Prior to leaving on vacation in the South, Floyd left a card instructing Matsuba as follows: “Please cash out Altria as per situation and have it transferred to Dr. Neil Floyd - account #4768-7119952. If they won’t do it over the phone, we will get it done upon my return. See you soon sweetie.”[169] Matsuba ignored that request. On August 30, 2018, Floyd sent a follow-up email to Matsuba, asking her: “Have you listened to what I asked about Altria?”[170] Matsuba refused to cash in these shares, to respect Myers’s legacy.

[262]       When Floyd returned from vacation, he told Matsuba that he had sold the Altria Group shares. Matsuba was in shock. According to Floyd, when he realized that Altria shares were related to a tobacco company, he became “very down” because of his personal beliefs about tobacco, so he asked Matsuba to sell these shares “out of respect for him”. Floyd’s testimony on this point is unreliable[171] and, in any way, is no excuse to disregard Matsuba’s wishes regarding these shares.

[263]       It is true that there is no direct evidence that Floyd cashed in the Altria Group shares himself, but Matsuba – who acknowledged having performed other trades – is credible when she testified that she did not do it herself.

[264]       Given the overall evidence, the Court infers, through serious, precise and concordant presumptions,[172] that Floyd managed to sell the Altria Group shares via an online platform. After all, with two POAs, knowing the passwords of Matsuba’s internet account,[173] and having personal information about Myers, Floyd could likely find a way to sell those shares, perhaps by resetting the credentials of the online account and/or using the POAs to assert his authority.[174]

[265]       These two examples show that Matsuba’s attempts to oppose Floyd’s plan were in vain. By maneuvering to control and to acquire Estate funds, Floyd would achieve his goal no matter what, slowly constituting the patrimony that he would then claim to be a gift.

[266]       In summary, the Court concludes that all proceeds resulting either from the sale of the Chomedey Building or from Myers’s investment funds and shares listed in the table above, must be returned to Matsuba, plus $10,000 for the Patek Philippe watch.

[267]       Finally, it is noteworthy that, in addition to claiming reimbursement of money that she has been deprived of as a result of Floyd’s conduct, Matsuba is also requesting the return of some of Myers’s personal belongings: a piano, an exercise machine, a special chair, his coin collection and a buffet table. Matsuba also asks for the return of her mother’s crystal necklace, and riding boots and accessories.

[268]       On this topic, the Court is of the view that the evidence is inconclusive regarding Matsuba’s riding boots and the existence of Myers’s coin collection, Floyd denying possessing them. The evidence also shows that some items are in possession of third parties and therefore the Court cannot make an order against Floyd for their return.[175]

[269]       However, Floyd acknowledges that the exercise machine, Myers’s special chair and the buffet table are still at his home. Given the evidence, and applying principles governing “manual gifts” pursuant to Article 1824 C.C.Q., summarized earlier,[176] the Court concludes that these items were likely gifted by Matsuba. By accepting their transfer into Floyd’s home, Matsuba divested herself of this property, clearly identifiable, without any evidence of coercion. This is contrasted with the Estate funds, which were deceitfully transferred into Floyd’s account on the understanding that he would later return them to Matsuba, and the fraud associated therewith.

[270]       Despite the general conclusion that Floyd exploited Matsuba, the evidence does not demonstrate anything nefarious in the gift of these specific items.

4. What are the remedies to which Matsuba is entitled?

[271]       In her action against Floyd, Matsuba is claiming compensation for the value of the Estate assets she had been unjustly deprived of, as well as $150,000 in moral damages and $200,000 in punitive damages.

[272]       Considering the analysis in the previous section, the Court has identified the value of the various assets in Canadian and American dollars, for which Floyd is liable to repay Matsuba. To be enforceable, an award of damages must be stated in Canadian currency,[177] taking into account that restitution by equivalence must be assessed at the time when the debtor received what he is liable to restore.[178]

[273]       The following table summarizes the material damages owed to Matsuba by Floyd, given his appropriation of Estate funds and assets:

[274]       Because Matsuba’s recourses against Floyd and Litvack have been joined, and since damages related to the sale of the Chomedey Building are claimed in both files, it is appropriate to treat the sum of $1,250,444.25 distinctively in the conclusions of this judgment. As a result, in view of the above, the material damages attributed solely to Floyd correspond to a total amount of $838,069.42.

[275]       In this regard, Floyd submits a series of arguments in an attempt to limit any amount due by him to Matsuba, or to offset it with other expenses between them. The only point accepted by the Court is in relation to the three withdrawals of $5,000 each (including one in American dollars), which were likely remitted to Matsuba by Floyd between May and July 2018.[188] Because such money belonged to Estate funds, it must be deducted from the amount to be repaid by Floyd. After converting these sums in Canadian dollars, the Court estimates the amount already given to Matsuba at a total of $16,627.50.[189]

[276]       Accordingly, taking into account the material damages owed by Floyd to Matsuba, and operating compensation with the amount already received by her, Floyd will be ordered to pay $821,441.92 to Matsuba.

[277]       However, the Court dismisses Floyd’s suggestion that the list of expenses sent by Matsuba in January 2019[190] is an implicit admission that she knew that all the rest had been gifted to him through the Gift Letter. Indeed, at that time, Matsuba still believed that the Estate money was held in the TD Bank accounts and she had sent the counter-letter in an attempt to set the record straight.

[278]       The Court also rejects Floyd’s subsidiary argument that, by her testimony, Matsuba recognized that the value of the Chomedey Building was of $800,000 rather than $1.2M, as the total sale proceeds took into consideration $400,000 for the value of Floyd’s baseball card collection. This suggestion is preposterous, as Floyd denied owning a baseball card collection that he offered to factor into the transaction price, so he cannot base a claim in compensation on such statements.

[279]       To conclude on material damages, the Court adds that it cannot hold that Floyd has borrowed sums of $6,500 and $2,000 US from Matsuba.[191] Although this is possible, applying Article 2862 C.C.Q., the Court must find that the evidence is insufficient to confirm such loans.

[280]       For the same reasons for which the Court dismissed the allegation of an inexcusable error by Matsuba,[192] the evidence does not support that she contributed to her own damages or did not mitigate her losses. As explained, even the professionals consulted by Matsuba, including notary Beauséjour or TD Bank representatives, did not question Floyd’s conduct or attempted to warn Matsuba regarding the irregularities in the Estate administration. Rather, the preponderant evidence is that Matsuba was entangled by Floyd in his carefully designed tactics, believing that he was acting in her best interests. There would have been no reason for her to try to mitigate her damages before early 2019. She is thus entitled to legal remedies available.

[281]       Finally, regarding Matsuba’s claims for $150,000 in moral damages and $200,000 in punitive damages, both are partially granted.

[282]       It is undeniable that Matsuba has suffered from Floyd’s behaviour, who used various stratagems to defraud her of the inheritance bequeathed by Myers, her companion of 20 years. Matsuba’s quality of life has been affected by this ordeal, including mental anguish and social humiliation. She also remains unable to trust people around her, fearing that they could take advantage of her. Although money is always an imperfect solace for personal difficulties, the Court is of the view that a sum of $75,000 as moral damages would adequately compensate Matsuba in the circumstances.

[283]       Punitive damages are exceptional and intended to denounce and prevent conduct that the justice system considers particularly reprehensible.[193] It is well established that such an award requires proof of an unlawful and intentional interference with Charter rights.[194]

[284]       In this case, Matsuba alleges a breach of Section 48 of the Quebec Charter, prohibiting the exploitation of aged persons, but also a breach of the right to her dignity and honour (Section 4), and to the free disposition of her property (Section 6).

[285]       For reasons set out above, the evidence primarily supports the existence of an infringement of Section 48 of the Quebec Charter. The coercive control of Floyd also interfered with Matsuba’s dignity.[195] The Court is of the view that the preponderant evidence also points to an “intentional interference” of those Charter rights by Floyd, i.e. a state of mind that denotes a desire to cause the consequences or to act with full knowledge of those.[196] Indeed, by deceiving and exploiting Matsuba as Floyd did, he should have known the adverse repercussions on her. The serious and repeated fraud upon Matsuba, and the lack of remorse for same, warrants punitive damages.

[286]       Considering that the events took place over a period of one year and given the evidence available regarding Floyd’s patrimonial situation, an amount of $50,000 in punitive damages appears fair and proportionate.[197]

5. Should the seizure before judgment be confirmed and the Mareva injunction be renewed until the execution of a final judgment?

[287]       As the evidence shows, by mid-September 2018, all the Estate funds bequeathed by Myers to Matsuba had been transferred into Floyd’s bank accounts, including the proceeds of the sale of the Chomedey Building. In October 2018, after receiving the original of the Gift Letter, Floyd moved to another home, for which he paid $200,000 in advance as a form of rental and where he still lived at the time of trial. In January 2019, Floyd told Matsuba that he had lost all the Estate money and tried to send her away.

[288]       After consulting with attorneys, Matsuba introduced legal proceedings against Floyd in April 2020, along with a request for a Mareva injunction and seizure before judgment, which have been granted and renewed until a final judgment.[198]

[289]       In a decision rendered on May 18, 2021, Justice Gregory Moore concluded that the Mareva injunction and seizure before judgment were both justified, prima facie, in view of Floyd’s troubling actions and contradictory version of events, leading to believe that it was reasonable to fear that the funds claimed by Matsuba would no longer be available, should she succeed at trial.

[290]       The evidence adduced at trial reinforced the conclusions made by Justice Moore in May 2021. Indeed, the preponderant evidence confirms that Floyd defrauded Matsuba of money that belonged to her, by ruses and deception. When she asked for explanations in January 2019, Floyd told her that all the Estate money had been lost, which was false since some of the funds had been moved into investment bank accounts,[199] now seized further to Court orders.

[291]       In October 2018, once all the Estate funds were under his control and after obtaining the original of the Gift Letter, Floyd moved into another residence in St-Lazare, valued at close to $1M.[200] Evidence shows that Floyd paid $200,000 from the Estate funds to the owner of the house, allegedly as an advance for upkeeps to live there for a period of five years.[201] However, there is no lease agreement. Floyd does not pay rent nor municipal taxes, arguing that he could live there as long as he is paying the upkeep on the house. By doing so, Floyd is avoiding acquiring property and is acting to hinder the execution of an eventual judgment.

[292]       The record contains the bailiff’s inventory report regarding Floyd’s belongings as of May 2020, along with some pictures of his property.[202]

[293]       In view of the evidence and reasons of the present judgment, which support the fear that Matsuba’s claim against Floyd might be jeopardized, it is justified to declare valid and binding the Mareva injunction as well as the seizure before judgment issued against him, until complete execution of the judgment rendered by this Court.

[294]       Specific conclusions will be issued to that end in the operative part of the judgment, notably regarding Floyd’s private investment accounts, because that is where some of the disputed funds are located.

ANALYSIS – CLAIM AGAINST LITVACK

[295]       In a nutshell, Matsuba alleges that the notary Litvack should have refrained from transferring the proceeds of the sale of the Chomedey Building into Floyd’s account and that he failed to advise her properly in this regard. She therefore claims that Litvack should be liable in solidum with Floyd to repay the amount of $1.2M that she never received, and that he owes her moral damages in this regard.

[296]       Litvack denies any wrongdoing, arguing he only followed the instructions provided, and he invokes a lack of causation with damages claimed.

[297]       As in any lawsuit involving professional liability, the plaintiff must demonstrate a fault. Whether the case is grounded in contractual or civil liability, the Court must analyze the conduct against one of a prudent and diligent notary placed in similar circumstances, as the professional is generally held to an obligation of means.[203]

[298]       When a notary receives an authentic deed, his obligations are not only towards the client, but his duty to advise extends to all parties to the notarial deed.[204] Depending on the circumstances, the notary has a duty to inform the parties of the normally foreseeable legal consequences of the deeds received. He also has the obligation to warn the parties of the risks attached to a transaction, especially if that transaction is atypical.[205] The intensity of the obligation is proportional to the level of risk involved.

[299]       That said, one must refrain from reviewing the professional’s conduct with the perfect vision afforded by hindsight[206] and should analyze each situation in a prospective manner, with information available at relevant times.

[300]       After a careful review of Litvack’s professional conduct, the Court concludes that he committed a fault but that he is not the causa causans of the damages. 

1. Did Litvack commit a fault in transferring the proceeds of the sale of the Chomedey Building to Floyd’s personal account, rather than remitting them to Matsuba?

-          Relevant Evidence

[301]       Neither Matsuba nor Litvack have a good recollection of the meeting that took place on April 30, 2018, at which time the Chomedey Building was sold. Floyd, however, contends to have some memories of same.

[302]       According to Matsuba, she arrived at Litvack’s office with Floyd, from St-Lazare. Prior to entering the notary’s office, there was an incident where she did something that apparently irritated Floyd, and he reacted by pointing his cane at her, making her feel like he was treating her as an animal. Personally, Matsuba felt “nostalgic” as it was the day when Myers’s building would be sold.

[303]       Matsuba does not remember much, as the whole situation was overwhelming for her. However, she recalls that Litvack did not explain the deed of sale to her.[207] He told her where to sign, and she did it. There was also an adjustment sheet to sign,[208] on which she put her initials. It is not entirely clear from Matsuba’s testimony how much of the instructions about where to transfer the money came from her or Floyd, but it seems that they both provided some information to Litvack in this regard. Matsuba affirmed that she did not think that money was going into Floyd’s personal account, but believed the TD Bank account was that of the Estate managed by Floyd.

[304]       On his side, Floyd stated that Litvack went over the deeds with Matsuba. She gave him a TD Bank document in Floyd’s name and requested to have the proceeds of sale sent to that account. Floyd would have asked Matsuba: “Are you sure?”, specifying at trial that these were the only words he said during that meeting. Matsuba answered: “I know what I am doing.” Litvack would have mentioned “This is quite unusual”, so he confirmed with Matsuba that she wanted the money to be deposited into the account number that was in Floyd’s name; she said yes and then initialled the adjustment sheet.

[305]       Here again, the Court must stress that Floyd’s version is hardly reliable. While at trial Floyd depicted his interventions at Litvack’s office as very limited, in his affidavit of May 2020, he added more, such as: “I reminded [Matsuba] that it was no longer the Estate account and she simply went forward.”[209]

[306]       In addition, asking Matsuba “Are you sure?” also sounds dubious, because at the time all Estate-related money was sent to Floyd’s bank accounts, as part of his strategy “to protect” it from eventual litigation from Myers’s daughters.

[307]       Furthermore, later in his testimony, Floyd recalled that he brought up the issue of payment for the oil tank of the Chomedey Building, which had been recently refilled before the sale. Floyd wanted that expense to be compensated, as “we would not throw it away”. It was agreed with Mr. Fedida that this would be paid afterwards and a note in this regard was added to the adjustment sheet: “The parties agree to adjust fuel between themselves.”[210]

[308]       As already pointed out, Litvack admits that he does not remember much about the specific transaction involving Matsuba that took place in April 2018, where Floyd was also present. Consequently, a large part of his testimony referred to his general practice.

[309]       Litvack became a notary in 1977 and had been practising for 47 years at the time of trial. Over his career, he instrumented about 32 000 deeds. He is the managing partner of a notarial office that includes several professionals. His practice is largely oriented towards real estate transactions.

[310]       In the case at hand, Litvack explained that three documents were discussed during the meeting, by which the Fedida family purchased the Chomedey Building that Matsuba had inherited: a Declaration of transmission[211] from the Estate to Matsuba, a Deed of Sale[212] between the Fedida Family Fund and Matsuba, as well as an adjustment sheet[213] regarding the apportionment of related charges. It is on this latter document that we can find a handwritten note by Litvack, initialled by Matsuba, that the proceeds of the sale be deposited into Floyd’s account at TD Bank.

[311]       Litvack testified that his philosophy is to explain and take time to make sure clients understand a deed before they sign it. Without necessarily reading every single word, he would go through paragraph by paragraph to explain the information and make sure it is correct and the parties understand it.

[312]       In this case, Litvack indicated that he was mandated by Mr. Fedida, a good client he had assisted in several transactions. However, Litvack had never met Matsuba or Floyd before April 30, 2018.

[313]       Litvack did not have knowledge of the relationship between Matsuba and Floyd and assumed they were friends. He believes that he never saw the POA.

[314]       On that day, after completing the Declaration of transmission with Matsuba, Litvack discussed the adjustment sheet. He stated that, usually, this step does not take long: it is a document prepared in advance where charges are listed and apportioned between the vendor and the purchaser. Although Litvack does not have specific recollection of this, he surmises from his handwritten note, initialled by Matsuba, that she asked that the proceeds of the sale be deposited in Floyd’s account. In this regard, Litvack specifies that he surely explained to Matsuba that, by doing so, she would “lose control over the money”, and that she “must have agreed” as she initialled the document. As a result, $1.2M was transferred into Floyd’s account at TD Bank on May 2, 2018.[214]

[315]       In his deposition out of Court in June 2022, Litvack had affirmed that he did not recall whether it was Matsuba or Floyd who instructed him to transfer proceeds of the sale into Floyd’s account.[215]

[316]       Litvack could also not recall who spoke about the expenses for the oil tank, referred to just below the note, on the adjustment sheet, to send funds to Floyd’s account at TD Bank. Litvack’s testimony is thus inconclusive as to who gave the instructions on those issues.

[317]       However, Litvack believes that he would have told Matsuba that the Chambre des notaires normally requires him to pay the person entitled to the money, unless she specifically instructed him otherwise.[216]

[318]       He recognizes that the regulations governing notarial trust accounts were changed in 2017, in force as of January 2018. Accordingly, the Chambre des notaires issued new guidelines and Litvack was aware of the rules, discussed below. In his view, although notaries are supposed to disburse the money to the vendor, there are exceptions. At trial, Litvack stated that, in his opinion, the guidelines issued by his professional order are “more than a recommendation, but not an absolute law.”

[319]       Arguing that he likely gave Matsuba the explanations that he would provide to anyone in his 47 years of practice, Litvack believes that Matsuba understood the repercussions of sending the money to Floyd’s account. He added that if he had not done so himself, Matsuba could have transferred it to Floyd afterwards, Litvack hence being of the view that he therefore only “accommodated her”.

-          Legal Principles

[320]       The appreciation of Litvack’s professional conduct in this matter is related to certain regulations and guidelines issued by the Chambre des notaires.

[321]       More particularly, Article 24 of the Règlement sur la comptabilité en fidéicommis des notaires,[217] entered into force in January 2018, governs the payment of sums by a notary to his or her client, or to third parties. It essentially provides that a notary disburses sums from his or her trust account to the client or, with the latter’s written authorization, in limited circumstances: a) to another person involved in the execution of the service contract, b) to pay his fees or disbursements, or c) to transfer sums to another notary’s trust account.

24. Le notaire débourse les sommes de son compte en fidéicommis pour les remettre au client ou, sur autorisation écrite de ce dernier, pour:

1°  les remettre à une autre personne liée à l’exécution du contrat de service;

2°  payer ses honoraires et ses débours;

 3°  les transférer dans le compte en fidéicommis d’un autre notaire.

Dans le cas des biens, le notaire doit les remettre au client ou, sur autorisation écrite de ce dernier, à une personne liée à l’exécution du contrat de service.

[322]       None of these three exceptions apply here. However the wording of Article 24 is not entirely clear as to whether it implies that the notary “can”, or “must”, disburse sums only in those limited situations, when receiving specific written instructions from a client.

[323]       That said, the Lignes directrices de la Chambre des notaires adopted in January 2018[218] specify that, pursuant to Article 24 of the Règlement, the notary cannot disburse money or property to persons not connected with the execution of a service contract, even if the client instructs the notary to do so. These guidelines are presented by the Chambre des notaires as mandatory rather than optional.[219]

[324]       Relevant excerpts of these guidelines read as follows:

« Le notaire ne peut remettre les sommes ou les biens à des personnes qui ne sont pas reliées à l’exécution du contrat de service, et ce, même si le client donne des instructions en ce sens au notaire.

i)                    Le notaire ne peut remettre à une personne non propriétaire du bien mobilier ou immobilier aliéné, le produit net de cette aliénation, en tout ou en partie, sauf si un tribunal en ordonne autrement. »

[Emphasis added.]

[325]       It has long been recognized that the respect or not of legislative or regulatory standards is not, in and of itself, determinative of civil fault. However, those standards can be relevant in assessing whether or not the duty of prudence and diligence has been fulfilled.

[326]       The Supreme Court of Canada summarized this principle as follows in the case of St. Lawrence Cement v. Barrette[220]:

[34]   In Quebec civil law, the violation of a legislative standard does not in itself constitute civil fault (Morin v. Blais, [1977] 1 S.C.R. 570; Compagnie d’assurance Continental du Canada v. 136500 Canada inc., [1998] R.R.A. 707 (C.A.), at p. 712; Jobin, at p. 226).  For that, an offence provided for in legislation must also constitute a violation of the standard of conduct of a reasonable person under the general rules of civil liability set out in art. 1457 C.C.Q. (Union commerciale Compagnie d’assurance v. Giguère, [1996] R.R.A. 286 (C.A.), at p. 293).  The standard of civil fault corresponds to an obligation of means.  Consequently, what must be determined is whether there was negligence or carelessness having regard to the specific circumstances of each disputed act or each instance of disputed conduct.  This rule applies to the assessment of the nature and consequences of a violation of a legislative standard. […]

[36]   In Quebec, art. 1457 C.C.Q. imposes a general duty to abide by the rules of conduct that lie upon a person having regard to the law, usage or circumstances.  As a result, the content of a legislative standard may influence the assessment of the duty of prudence and diligence that applies in a given context.  In a civil liability action, it will be up to the judge to determine the applicable standard of conduct - the content of which may be reflected in the relevant legislative standards - having regard to the law, usage and circumstances.