2018 QCCQ 7210, 2018 QCCQ 7210

9321-5440 Québec inc. (Bofinger) c. Marandi 2018 QCCQ 7210 COURT OF QUÉBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-152864-163 DATE: October 9, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ 9321-5440 QUÉBEC INC. (BOFINGER) Plaintiff v.

PEYMANE MARANDI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 9321-5440 Québec inc. ( Bofinger ) is seeking the reimbursement of fees amounting to $2,050.00 paid to Mr. Peymane Marandi alleging that his internet network installation services were not satisfactory and did not meet their requirements. Furthermore, Bofinger claims $12,000.00 for business losses, as well as for the psychological and emotional stress suffered by its president and shareholder, Ms. Fredeliza Benaza. [ 2 ] Mr.

Marandi argues that the work he carried out was properly done, thus preventing Bofinger from obtaining any reimbursement or compensation. [ 3 ] In his cross-claim, Mr. Marandi claims $ 2,200 for the loss of time he allegedly suffered in defending himself in this case. QUESTIONS IN ISSUE [ 4 ]

a) Has Bofinger demonstrated, by preponderance of evidence, that the services provided by Mr. Marandi were inadequate and poorly executed, thus giving rise to the reimbursement of the $2,050.00 fees it paid to him?

b) Is Bofinger entitled to the damages it claims for business losses, as well as for the psychological and emotional stress allegedly suffered by its president and shareholder, Ms. Benaza?

c) Has Mr. Marandi proven the facts supporting his counter-claim for damages? CONTEXT [ 5 ] At all times relevant, Bofinger operated a restaurant in premises located in a building, where Mr. Marandi rented a dwelling ( Building ). [ 6 ] In June 2015, a verbal contract for services ( Contract ) was entered between Bofinger and Mr. Marandi. [ 7 ] More precisely, it was agreed that Bofinger would pay Mr. Marandi to set up an internet network that would be accessible to both the restaurant and the tenants in the Building [1] . As for the equipment required to set up the system, Mr.

Marandi would be reimbursed of all his expenses upon presentation of invoices. [ 8 ] Mr. Marandi started his work at the end of August 2015. [ 9 ] After the system was set up, Mr. Amir Jalali, the owner of the Building and manager of the restaurant, recalls that many problems occurred with the internet network. [ 10 ] He explained that the phone lines would go silent or would cut during calls. As for the music, it would stop or often be interrupted. Furthermore, the restaurant's clients would be unable to connect to the Wi-Fi network causing Mr. Jalali to often have to call Mr.

Marandi to come and troubleshoot the system. Ms. Benaza testified that they were also unable to change the password of the Wi-Fi network in the restaurant [2] . [ 11 ] Mr. Jalali explained that on each occasion, in order to troubleshoot the system, Mr. Marandi would have to bring his laptop and go to the basement where the equipment was located. This would take him between 30 minutes to an hour. However, this would always only temporarily fix the problem since it would reoccur a day or more latter. [ 12 ] According to Mr. Jalali, this was because Mr. Marandi did not know what he was doing.

He often had to seek advice and coaching from other people, which resulted in an internet network that did not function properly for approximately a year.

[ 13 ] In June 2016, following Mr. Marandi’s departure from the Building and with the network problems persisting, Mr. Jalali sought professional assistance from Mr. Bruno Lajeunesse. [ 14 ] Mr. Lajeunesse first advised Mr. Jalali to transfer the phone and internet services to one service provider. Once this would be achieved, he would come and reconfigure the network settings. [ 15 ] Following this conversation, Mr. Jalali decided to transfer all the services to Videotron. After the visit of the Videotron’s technician, Mr. Lajeunesse reconfigured the two routers of the system.

The same was done with the configuration of the order and payment system, namely to allow the printer located in the kitchen to use the IP address from the main system. He removed the internet access in some of the apartments. Also, the television access settings were reset through the link already put in place by Videotron. Bofinger paid $382 USD for Mr. Lajeunesse’s professional services [3] . [ 16 ] Mr. Jalali confirmed that the network has since been working well.

ANALYSIS [ 17 ] Before analyzing the evidence, the Court underlines that in civil matters, any person wishing to assert a right must prove the facts on which their claim is based [4] . [ 18 ] Consequently, any person who claims that some professional services were poorly executed is bound to prove the facts on which their allegations are based. [ 19 ] The burden of proof rests on the Plaintiff who must present compelling evidence.

To convince the Court, the Plaintiff must demonstrate that the existence of a fact is more probable than its non-existence [5] . [ 20 ] The evidence will be weighed on a balance of probabilities [6] . However, where the evidence is contradictory or not sufficiently convincing and the Court is unable to determine where the truth lies, the party with whom the burden of proof lies will lose.

a) Has Bofinger demonstrated, by preponderance of evidence, that the services provided by Mr. Marandi were inadequate and poorly executed, thus giving rise to the reimbursement of the $2,050.00 fees it paid to him? [ 21 ] Bofinger alleges that Mr. Marandi’s work was improper, incompetent, ineffective and of no value. Therefore, Bofinger is seeking the reimbursement of the fees paid to Mr. Marandi. [ 22 ] In support of Bofinger’s contentions, Mr. Jalali and Ms. Benaza testified. Mr. Lajeunesse also testified as to the services he rendered after the departure of Mr. Marandi. The Court must point out that Mr.

Lajeunesse was not qualified as an expert in this matter. Therefore, he did not testify as to the quality of the professional services rendered by Mr. Marandi and his testimony was strictly to explain what was done to reconfigure the systems. [ 23 ] Although Mr. Marandi agrees that there were some problems encountered with the network, he denies that they were caused by his work. [ 24 ] According to him, one of the main reasons why Bofinger experienced some problems with the network is that Mr. Jalali kept refusing to buy the appropriate equipment.

Also, by insisting to use the cheapest network connection available despite the risks associated with such a decision, Bofinger prevented him from setting up the network properly. [ 25 ] For example, Mr. Marandi explained that he ended up installing VoIP Telephony ( VoIP ), an internet-based phone service, following complaints from Mr. Jalali of Bofinger’s previous connection with the company Teksavvy. However, despite Mr. Marandi’s recommendations and in order to reduce the costs, Mr. Jalali chose to set up the VoIP in the basement only, and continue using the old telephone system throughout the Building.

At one point, Mr. Marandi suggested to Mr. Jalali to change service providers, but the latter did not take any action. [ 26 ] Mr. Marandi also contends that, regardless of his objections, both Mr. Jalali and Ms. Benaza insisted on continuing to use the old cordless telephones that had been left by the previous owner of the restaurant. Not only those phones were inadequate for the system he had to install, but they were kept in the kitchen resulting in oil fat residues blocking the speakers. Furthermore, Mr.

Marandi is of the opinion that Bofinger’s employees were improperly using the telephones. [ 27 ] As for the music in the restaurant, Mr. Marandi alleges that Mr. Jalali bought a second hand amplifier from a nearby pawnshop and he suspects that it was not working properly. [ 28 ] It is clear that the evidence presented is completely contradictory. Indeed, for each of the issues raised, the position of Bofinger’s representatives and that of Mr. Marandi are drastically opposed. To give just one example, Mr. Jalali claims that he agreed to install VoIP at the recommendation of Mr.

Marandi, while the latter contends that it was Mr. Jalali who insisted on using VoIP because of its affordability. Each of them testify as to the different issues and justify their respective positions on the basis of facts that the other contests. Consequently, the Court is unable to determine where the truth lies. [ 29 ] Also, the evidence presented by both sides is not supported by any expert’s report on the quality of Mr.

Marandi’s work and the cause of the problems experienced by Bofinger, and is limited to the testimony of the parties themselves. [ 30 ] Furthermore, Bofinger's requests and expectations seem to have changed between the mandate entrusted to Mr. Marandi and the one for which Mr. Lajeunesse's services were retained. [ 31 ] Bofinger had the burden of proof. In this context, it is not enough to describe what Mr. Lajeunesse has done following Mr. Marandi’s departure to discharge Bofinger’s burden of proving that the services provided by Mr. Marandi were not inadequate and

poorly executed. It is also necessary to establish, by preponderance of evidence, the nexus between the changes made by Mr. Lajeunesse and the services provided by Mr. Marandi. In the absence of any proof in this regard, Bofinger’s claim must be dismissed.

b) Is Bofinger entitled to the damages it claims for business losses, as well as for the psychological and emotional stress allegedly suffered by its president and shareholder, Ms. Benaza? [ 32 ] The Court could end the analysis of this case here since it concluded that Bofinger failed to prove, with compelling evidence, that Mr. Marandi did not properly fulfill the Contract. [ 33 ] But there is more. [ 34 ] Indeed, the Court wishes to point out that although Bofinger had the burden of proving the damages it claimed, it has not filed any evidence supporting its $12,000.00 claim for financial losses.

Indeed, it is not sufficient to allege that the network problems caused Bofinger to lose business as the customers were unable to call and place orders, but the same must be proven with compelling evidence. In the absence of any evidence in this regard, Bofinger’s claim must be dismissed. [ 35 ] Furthermore, Bofinger claims damages for the psychological and emotional stress allegedly suffered by its president and shareholder. Bofinger, as a legal entity distinct from its members, is not entitled to claim damages allegedly caused to Ms. Benaza, who is considered a third party in this matter.

c) Has Mr. Marandi proven the facts supporting his counter-claim for damages? [ 36 ] Mr. Marandi claims $2,200.00 alleging that he had to take number of days off his work in order to defend himself in this matter. [ 37 ] The Court finds that the evidence presented by Mr. Marandi does not allow for the award of damages he claims. Indeed, Courts have repeatedly pointed out that damages or fees incurred for defending oneself are granted only in rare exceptions and only when several specific conditions are met, including abuse of process and reprehensible judicial conduct [7] .

However, the evidence on file does not support any such conclusion. For these reasons, Mr. Marandi’s counter-claim is dismissed. FOR THESE REASONS, THE COURT: DISMISSES the demand of 9321-5440 Québec inc. against Mr. Peymane Marandi; WITHOUT legal costs; DISMISSES the counter-claim of Mr. Peymane Marandi against 9321-5440 Québec inc.; WITHOUT legal costs. __________________________________ MARIE-JULIE CROTEAU, J.C.Q. Dates of trial: December 5, 2017 and June 11, 2018