Presti Presse c. Charcuterie Reuben 2019 QCCQ 1492 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-157044-175 DATE: March 20, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ PRESTI PRESSE Plaintiff v.

CHARCUTERIE REUBEN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] By an action on account, Plaintiff claims $4,267.68 from Defendant for the inclusion of advertisement in Le Guide Prestige Montréal (the “ Guide ”), a tourist-oriented magazine distributed in Montreal hotels. The claim concerns the Summer 2016 and the Fall 2016/Winter 2017 editions of the Guide. [ 2 ] Defendant refuses to pay the amount claimed.

It argues that although it purchased advertisement in the Guide in previous years, it did not do so for the editions at issue. In addition, it argues that these editions of the Guide were not distributed to Montreal hotels and, consequently, that Defendant should not have to pay, as it received no benefit from the advertisement. questionS in issue [ 3 ] To resolve this matter, the Court must answer the following questions:

a) Did Defendant purchase advertisement for the editions of the Guide at issue?

b) If so, did Plaintiff breach its obligations by failing to distribute said editions of the Guide in Montreal hotels? FACTUAL CONTEXT [ 4 ] Plaintiff is the publisher of magazines specifically intended for distribution in hotel rooms.

This includes the Guide, a magazine containing tourist information, maps and advertising by various businesses. [1] [ 5 ] Until May 2016, Plaintiff operated in partnership with the Association des hôtels du Grand Montréal (the “ AHGM ”) and had exclusive distribution rights in member hotels for such publications. [ 6 ] Defendant, who operates a delicatessen restaurant doing business under the name of Reuben’s, advertised in the Guide since 2000. [2] Until 2009, written contracts were prepared and signed, with checked boxes indicating in which editions the advertisement was to appear. [3] [ 7 ] No written contracts were prepared after 2009.

The parties would confirm the repeated advertising through an exchange of emails between Mr. Steve Robins, for Plaintiff, and Mr. Richard Greenberg and/or Ms. Antonia Tzemopoulos, for Defendant. [4] [ 8 ] Sometime in 2016, the partnership between Plaintiff and the AHGM came to an end, at least in part because the AHGM decided to start publishing its own hotel magazine under the name Montréal depuis 1642 . [5] On the facts, it appears that the AHGM lobbied its member hotels during the course of 2016 to transfer their advertising from the Guide to Montréal depuis 1642 . [ 9 ] In January 2016, Mr.

Robins contacted Mr. Greenberg to inquire whether Defendant would again secure advertisement in the Guide under the usual terms. [6] He requested a meeting to discuss the issue, suggesting to “ hold ” space in the Guide pending this meeting. [7] [ 10 ] In response, Mr. Greenberg told him to “ reserve half a page ” and that he would contact him when he had a chance regarding the meeting. [8] At trial, Mr. Greenberg explained that he needed to consult Ms. Tzemopoulos before deciding whether to renew the advertisement in the Guide, given the termination of Plaintiff’s partnership with the AHGM. [ 11 ] Mr.

Greenberg and Ms. Tzemopoulos later met with Mr. Robins to discuss the situation with the AHGM. Mr. Robins tried to convince them to continue to support the Guide, but they told him that they would get back to him with their decision. Much later, in December 2016, Mr. Greenberg advised Mr. Robins by email that they would not continue their advertisement in the Guide. [9]

[ 12 ] Nonetheless, the evidence shows that the previously used Reuben’s advertisement was included in the Summer 2016 and Fall 2016/Winter 2017 editions of the Guide published [10] , and that these were distributed in many Montreal hotels. [11] [ 13 ] In July 2016, Plaintiff invoiced Defendant $1,600.38 for the Summer 2016 edition of the Guide and, in January 2017, it invoiced a further $2,667.30 for the Fall 2016/Winter 2017 edition. [12] These amounts reflected the terms of the previous agreement. [ 14 ] In July 2017, Defendant received a letter of demand (which referred erroneously to Plaintiff’s holding company, 3425941 Canada Inc.) claiming payment of $4,267.68 within 10 days in respect of the advertisement. [13] [ 15 ] This letter of demand having remained unanswered, Plaintiff filed its claim in the instant case on October 17, 2017.

ANALYSIS

a) Did Defendant purchase advertisement for the editions of the Guide at issue? [ 16 ] In civil matters, the person who seeks to assert a right bears the burden of proving, on a balance of probabilities, the facts upon which its claim is based. [14] [ 17 ] To meet this burden, the evidence offered must be clear and convincing [15] and the alleged facts must not only be possible, but probable. [16] The Court must determine liability on the basis of the most probable facts. [ 18 ] To succeed on its claim, Plaintiff must therefore prove on a balance of probabilities that Defendant agreed to the inclusion of the Reuben’s advertisement in the editions of the Guide at issue. [ 19 ] Plaintiff has not met this burden of proof. [ 20 ] On the evidence presented, the Court cannot conclude that an agreement was reached between the parties.

The evidence shows, rather, that space was temporarily reserved in the Spring edition of the Guide, and that Defendant did not later express its agreement to run said advertisement in either the Spring 2916 or the Fall 2016/Winter 2017 editions. [ 21 ] Indeed, it is clear from Mr. Robins’ email of January 8, 2016 [17] that no agreement had been reached at that time regarding advertisement in the Summer 2016 issue, let alone the Fall 2016/Winter 2017 edition; plainly, space was reserved on a temporary basis pending a meeting to discuss the matter. Mr.

Greenberg’s response on January 9, 2016 is to the same effect. [18] [ 22 ] Moreover, the Court accepts the testimony of Mr. Greenberg and Ms. Tzemopoulos that they did not, at any point in time after their exchange of emails with Mr. Robins in January 2016, indicate that Defendant authorized the inclusion of the Reuben’s advertisement in the Summer 2016 or Fall 2016/Winter 2017 editions of the Guide. [ 23 ] They are adamant that although Mr.

Robins was eager to secure their continued support, they did not agree to any further advertisement before formally advising him by email in December 2016 that Defendant did not intend to further support Plaintiff’s publications. [19] [ 24 ] In the absence of any compelling evidence establishing that Defendant agreed to the inclusion of the Reuben’s advertisement in the editions of the Guide at issue, Plaintiff’s action must be dismissed.

FOR THESE REASONS, THE COURT: DISMISSES the claim; THE WHOLE, WITH LEGAL COSTS in the amount of 150 $, representing the judicial fees on the Contestation. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: March 12, 2019