2011 QCCQ 1290, 2011 QCCQ 1290

Warner c. 3762637 Canada inc. 2011 QCCQ 1290 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-115015-093 DATE: January 11, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L.

CAMERON, J.C.Q. ______________________________________________________________________ KARLEEN JENNIFER WARNER […] Dorval, Quebec […] Plaintiff vs. 3762637 CANADA INC. 7354 Côte St-Luc Road Montreal, Quebec H4W 1P7 Defendant ______________________________________________________________________ JUDGMENT RENDERED ON THE BENCH ______________________________________________________________________ [ 1 ] The Plaintiff, who operates a cleaning service, sues the Defendant, which operates a bakery, alleging the premature termination on February 8, 2007 of a one-year cleaning contract commencing August 25, 2006. (P-1) [ 2 ] She claims an entitlement to the remaining 28 weeks at the contract price of $256.39 per week plus a 10% penalty for termination of the contract prior to the end of the term. [ 3 ] The Defendant terminated the contract, without notice, with neither notice nor offer of indemnity. [ 4 ]

Article 2125 of the Civil Code of Quebec makes it clear that, in the contract of service, the contract can be unilaterally terminated without any particular reason by the client: 2125.

The client may unilaterally resiliate the contract even though the work or provision of service is already in progress. [ 5 ] This makes contracts of services distinct from contracts of employment where, generally, reasonable notice is required, except in cases of serious fault. [ 6 ] The rule is not absolute; a client can renounce the right of unilateral resiliation at the time the contract is formed, but there must be no ambiguity as to his intentions. [ 7 ] The one-page contract form, on which the Defendant signed, states that it is a "Contract for an indefinite period of time" . [ 8 ] The Plaintiff produced a second page, which is not signed or initialled, including the following: "Contract is for one year from August 25, 2006 to August 25, 2007.

In for any reason the contract is cancelled before the one-year, you will be asked to pay 10% interest." [ 9 ] The Plaintiff denies that this text was part of the document he signed.

[ 10 ] Because the second page is neither signed nor initialled and given the conflict in testimony, the Plaintiff has not established that this text forms part of the agreement. [ 11 ] At the time of the formation of the contract, there was no specific discussion about it. [ 12 ] Even if it were part of the agreement, it is not clear what is meant by "10% interest" and the stipulation of a fixed term does not, of itself, constitute a renunciation of the client's right to resiliate before the end of the term. [ 13 ] Given the clear expression in the Civil Code of Quebec of the client's right to unilaterally resiliate a contract of service and given that there is no clear indication that the Defendant renounced this right, the Court concludes that there can be no claim against the Defendant for any indemnity upon the unilateral termination of the contract of service on February 8, 2007.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's application; CONDEMNS the Plaintiff to pay, to the Defendant, judicial costs in the amount of $189. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 11, 2011