2011 QCCQ 4240, 2011 QCCQ 4240

Goon c. Pattichis 2011 QCCQ 4240 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-121719-100 DATE: April 13, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ SIN TONG GOON -and- XIAO LIN GENG […] , Montréal (Québec) […] Plaintiffs/Cross-Defendants v.

CHRISTOPHER PATTICHIS […] , Candiac (Québec) […] -and- DARLEENE PARKER […] , St-Hubert (Québec) […] -and- SUSANA ESPINOSA […] , Brossard (Québec) […] -and- 9145-1377 QUÉBEC INC. doing business under the name Garderie éducative Étoile du Jour 9, boul.

Montcalm #480, Candiac (Québec) J5R 3L4 Defendants/Cross-Plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Sin Tong Goon and Xiao Lin Geng are claiming $427 from Defendant 9145-1377 Quebec inc. doing business under the name of Garderie Éducative Étoile du Jour (the “Garderie”) and from Defendants Christopher Pattichis, Darleene Parker and Susana Espinosa, who work at the daycare. [ 2 ] Defendants deny the claim.

They presented a cross demand, requesting $50 for the alleged contract cancellation and $250

for each Defendant for their loss of time, trouble and inconvenience. The evidence: [ 3 ] Plaintiffs contracted with the Garderie on October 7, 2009, to place their son in this private daycare for two days a week, at $43 per day. After two weeks, Plaintiffs asked to change the attendance to four (4) days per week. The acting manager accepted the change. A new contract was not signed. Nevertheless, Plaintiffs' son began attending the daycare four (4) days per week and Plaintiffs paid for the extra two (2) days a week of attendance. [ 4 ] A couple of weeks later, Plaintiffs wished to return to their original schedule. Plaintiffs claim Ms. Parker, the manager, said the

schedule change was not a problem. Ms. Parker does not dispute this fact but added that a new contract had to be signed. [ 5 ] Mr. Goon denies he was ever asked to sign a new contract. His wife said she told the manager she had not signed a contract when the original change was made and failed to understand why she was being asked to sign another agreement; after this, there were no further discussions on this issue. [ 6 ] No other contract was concluded. Plaintiffs brought their son to the daycare two days per week. However, the Garderie charged them for four (4) days per week. Plaintiffs complained to Ms.

Parker. She attempted to rectify the situation by speaking to “head office” but was not successful. [ 7 ] The Garderie submits that when a change is requested, the existing contract must be cancelled, a fee paid and a new contract signed. Once Plaintiffs had changed to four (4) days per week, they could not revert to their original schedule, without following the procedure, in their contract. Analysis: [ 8 ] Plaintiffs signed an agreement providing for their son to attend daycare two (2) days per week.

The contract stipulates that no change can be made unless the contract is terminated and a new one is signed. [ 9 ] However, in the present case, when Plaintiffs requested an increase in their son’s attendance, a new contract was never signed. The Garderie nevertheless allowed Plaintiff's son to attend four (4) days per week and charged Plaintiffs accordingly. [ 10 ] By acting in this manner, the parties renounced to the requirement of concluding a written contract. Plaintiffs’ request for extra days of attendance for their son was accepted by the Garderie with Plaintiffs paying the additional fees requested.

In sum, the parties concluded a verbal contract: Plaintiffs' son would attend the daycare four days per week at $43 per day. [ 11 ] Plaintiffs then wished to revert to two (2) days per week. Their son only attended the daycare two days per week but the Garderie charged Plaintiffs for four (4) days per week. Plaintiffs seek a reimbursement for the days their son was not present. [ 12 ] The Garderie maintains that Plaintiffs had to sign a new contract when they wished to revert to two days per week.

However, the question is not whether a written contract was required, since a contract can be written or verbal; rather the question is: what was the parties' agreement? [ 13 ] The conditions governing the attendance of Plaintiffs' son had been verbally changed to a

schedule of four days per week. Plaintiffs claim the contractual arrangements were subsequently modified. Plaintiffs have the burden of proof to establish that a different contract was concluded. [ 14 ] The evidence fails to establish the Garderie agreed to the change to two days per week. It wanted Plaintiff to sign a new contract. Plaintiffs have not satisfied the Court that the existing contract was modified by mutual agreement. Since the existing contract

remained in effect, Plaintiffs were required to continue paying for attendance for four days per week. Therefore, the Court cannot grant the reimbursement Plaintiffs are seeking. [ 15 ] There is no basis for the claim against Christopher Pattichis, Darleene Parker and Susana Espinosa. The contract was concluded with the Garderie and not with anyone working at the Garderie. The cross demand: [ 16 ] The Garderie is claiming $50 for Plaintiffs' cancellation of their contract and changing it to four days per week. The Garderie is basing its claim on the terms of the written contract.

However, since the parties concluded a verbal contract to govern the applicable conditions and renounced to the application of the provisions of their written contract, there is no justification for granting the Garderie the sum of $50. [ 17 ] Each of the Defendants is also claiming for the trouble and inconvenience of preparing his/her defense as well as lost time for attending court. However, parties are not compensated for their attendance in court.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s action against Christopher Pattichis, Darleene Parker, Susana Espinosa and 9145-1377 Québec inc. doing business under the name Garderie éducative Étoile du jour; DISMISSES Defendants’ cross demand; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: March 9, 2011