Mahmoud c. 9307-6644 Québec inc. 2018 QCCQ 3178 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-700723-176 DATE: May 14, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ faiçal ouled mahmoud Plaintiff v. 9307-6644 québec inc.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, doing business under the name of Comptabilité Méga Services, claims from Defendant an amount of $1,150, representing the unpaid balance of the price agreed for accounting services ($1,000), as well as costs ($150). [ 2 ] Defendant refuses to pay the amount claimed.

It argues that Plaintiff was negligent in rendering the services at issue and that his fees should be reduced so that no further amount is due. questionS in issue [ 3 ] The case raises the following questions:

a) Did Plaintiff commit a fault in the rendering of his services to Defendant?

b) If so, what amount is due to him, if any? FACTUAL CONTEXT [ 4 ] Defendant, the wholly-owned company of Mr. Abbas Mohammadian, operates a small trucking business. [ 5 ] In August 2016, Mr. Mohammadian retained the services of Plaintiff to prepare Defendant’s annual income tax returns for fiscal years 2015 and 2016. Defendant’s quarterly GST/QST returns, which Mr. Mohammadian had been completing and filing himself, were discussed at this time, but Plaintiff was not mandated to file further GST/QST returns. [ 6 ] The parties agreed on a fixed price of $1,500 ($1,724.63 with applicable taxes).

Defendant paid $724.63 as a first instalment and provided Plaintiff with all relevant documents, which included Defendant’s quarterly GST/QST returns of the previous two years. [ 7 ] The evidence is contradictory regarding the subsequent facts. [ 8 ] According to Plaintiff, he realized while working on Defendant’s annual income tax returns that Mr. Mohammadian had erroneously claimed GST/QST refunds for taxes paid by Defendant on insurance. He claims that he advised Mr. Mohammadian of this error and asked whether Mr.

Mohammadian wanted him to correct the situation through the annual income tax returns that he was completing. Mr. Mohammadian told him not to do so, given the small amount at issue and his worry that this may lead to a time- consuming audit process by the tax authorities. [ 9 ] Mr. Mohammadian denies that the issue of an error in the GST/QST tax returns was even raised by Plaintiff at this time. [ 10 ] Plaintiff completed Defendant’s annual income tax returns for 2015 and 2016 in mid-December 2016. He then met with Mr.

Mohammadian and gave him the completed returns, so that he may file them with the tax authorities. Mr. Mohammadian gave Plaintiff a cheque of $1,000 to pay for the balance of agreed price, but when Plaintiff presented this cheque for payment, he was advised that a “stop payment” had been requested. [ 11 ] Plaintiff then contacted Mr. Mohammadian, who advised him that Defendant would not pay the balance of the price, as the amount was too high and he was not satisfied with Plaintiff’s services. More particularly, Mr.

Mohammadian complained that the annual returns were not filed directly by Plaintiff and that Plaintiff had not noted and corrected the error in the quarterly GST/QST returns. [ 12 ] After failed attempts to resolve the matter amicably, Plaintiff filed his claim on March 28, 2017.

ANALYSIS

a) Did Plaintiff commit a fault in the rendering of his services? [ 13 ] Mr. Mohammadian admits that he retained the services of Plaintiff to prepare Defendant’s annual income tax returns for 2015 and 2016 at an agreed price of $1,500.00 ($1,724.63 with applicable taxes) and that Plaintiff completed said returns, albeit not to his satisfaction.

Defendant asks the Court to reduce the agreed price because Plaintiff committed a fault in carrying out his services [1] . [ 14 ] Given the nature of this ground of defense, Defendant bears the burden of proving, on a balance of probabilities, that Plaintiff committed a fault in rendering his services, the whole as provided in articles 2803 and 2804 C.C.Q., which read as follows: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 15 ] In order for Defendant to meet this burden, the evidence offered must be clear and convincing [2] .

The alleged facts must not only be possible, but probable [3] . [ 16 ] Where there is no written contract and the parties rely on conflicting oral evidence, as is the case here, the Court must consider the probative value of the evidence and decide liability on the basis of the most probable facts. [4] [ 17 ] The Court believes that Defendant has not met this burden of proof in that it has not convinced the Court that Plaintiff committed a fault. [ 18 ] Regarding the quarterly GST/QST returns, the Court accepts Mr.

Mahmoud’s clear and convincing testimony to the effect that he discovered the error in the quarterly GST/QST returns prepared by Mr. Mohammadian while working on the annual returns, that he immediately brought this to the attention of Mr. Mohammadian and that he was instructed not to do anything to rectify the situation. [ 19 ] Mr. Mohammadian’s explanations to the Court on this issue were difficult to follow and appear highly improbable.

Notably, the Court cannot understand why Defendant would have given Plaintiff a $1,000 cheque in December 2016 if it was not satisfied with the services rendered, only to request a stop payment later on. [ 20 ] Moreover, Mr. Mohammadian has not convinced the Court that Plaintiff undertook to file the annual income tax returns himself. If that were the case, it is difficult to understand why Mr. Mohammadian took the returns when he met with Mr.

Mahmoud mid December 2016, rather than insist upon Plaintiff do so himself. [ 21 ] On a balance of probabilities, the Court concludes that Defendant raised these issues in the hope of negotiating a better price, which Plaintiff was not obliged to do. [ 22 ] In the absence of a proven fault on the part of Plaintiff, his claim must be granted for the full amount of $1,000. [ 23 ] As for the additional amount of $150 claimed, Plaintiff is entitled to recover his legal costs of $100 for the filing of his claim, but is entitled to no additional amount.

FOR THESE REASONS, THE COURT: GRANTS the action in part; CONDEMNS 9307-6644 Québec inc. to pay to Faycal Ouled Mahmoud an amount of $1,000, together with interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec from the date of filing of the claim, namely March 28, 2017; THE WHOLE, WITH LEGAL COSTS of $100 representing the fees paid on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: February 13, 2018