2012 QCCQ 2879, 2012 QCCQ 2879

Tolmatch c. Goswami 2012 QCCQ 2879 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-119333-096 DATE: April 10, 2012 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Donna L. TOLMATCH Plaintiff v.

Sanjay GOSWAMI and 9119-6154 QUÉBEC INC. ( SKG Design) Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, an architect, claims from Defendants, the sum of $6,687.50 in reimbursement of three certificates totalling $1,500.00 in value ($450.00, $550.00 and $500.00) that she purchased in November 2007 from the Holiday Gift Certificate Auction organized by the Montreal Gazette plus an amount of $5,187.50 in damages. [ 2 ] Plaintiff alleges that she purchased the three certificates during the auction that took place but does not recall exactly how much she paid for each of them. [ 3 ] The certificates purchased by Plaintiff were to be honoured by Defendant, 9119-6154 Québec Inc. (SKG Design), a company specialized in building renovation. [ 4 ] Plaintiff alleges that Defendants have, without valid reason, refused to honour the three certificates in regard to the renovation of the bathroom of a residential building owned by her. [ 5 ] As a result of the refusal by Defendants to accept the said certificates as payment, no work was in fact performed by said Defendants. [ 6 ] Plaintiff also demands that Defendants be condemned to pay an amount of $4,687.50 for lost work time (27 hours at $125.00 per hour) and an additional amount of $800.00 for delays in selling her house, stress and inconvenience. [ 7 ] Defendants contest Plaintiff's action.

More particularly, Defendant Goswami contests the action on the basis that he is not personally liable for any damages that Plaintiff might have sustained, if any, as he is only the president of the Defendant SKG Design, issuer of the certificates. He further alleges that he has committed no personal fault that would entitle Plaintiff to seek damages from him personally. [ 8 ] The evidence has established that:

a) the certificates have been issued by Defendant SKG Design and;

b) that Defendant Goswami has committed no fault that would justify that his personal liability be maintained by the Court. [ 9 ] Consequently, as concerns Defendant Goswami, Plaintiff's action is dismissed, without costs. [ 10 ] As concerns the action involving Defendant SKG Design, the evidence has revealed that the renovations that Plaintiff wished to be performed consisted in the restoration of the bathroom of her home. [ 11 ] In this regard, in paragraph 2 of the demand filed by Plaintiff in Court, she alleges the following:

« I intended to use the certificate towards built-in furniture since, as an architect my understanding of a complete renovation is all work required to restore to a previous or better condition. The only problem with the bathroom is the vanity housing the sink.

This furnishing was de-laminating. » [ 12 ] After having contacted Defendant SKG Design in regard to the intended renovation of the bathroom, Sacha Goswami, a representative of Defendant SKG Design met with Plaintiff and after measurement and discussion, an agreement regarding the work to be performed was concluded and priced at $1,662.15 plus taxes. [ 13 ] Once the price of the renovations was determined, Mme Goswami advised Plaintiff that she would have to verify with her father, Defendant Goswami, if the certificates were applicable to the type of renovation which Plaintiff wished to be performed. [ 14 ] In this regard, the certificates purchased by Plaintiff state the following: « SKG design is committed to helping you realize the kitchen or bathroom of your dreams.

Highly acclaimed design team, turn key renovations! skgdesign.ca. This gift certificate is applicable towards a full kitchen or bathroom renovation. Expires April 30, 2008… » [ 15 ] The evidence adduced at trial has revealed that the certificates purchased by Plaintiff were the first to be ever purchased by her. [ 16 ] The Internet online advertisement of Defendant (exhibit D-1) regarding the applicable scope of the work covered by certificates also states the following: « SKG design is committed to helping you realize the kitchen or bathroom of your dreams.

Highly acclaimed design team, turn key renovations! skgdesign.ca. This gift certificate is applicable towards a full kitchen or bathroom renovation. Expires April 30, 2008.

RBQ#8349-0821-10. » [ 17 ] The evidence adduced at trial has revealed that although Plaintiff is an architect, without previous verification with Defendant SKG Design, she presumed that a ''partial renovation'' of the bathroom was equivalent to a ''full renovation'' inasmuch as the bathroom was "to be restored to a previous or a better condition" as a result of the said partial renovations. [ 18 ] Notwithstanding the use of the words "full kitchen or bathroom renovation'' printed on the certificates, before making her bids to purchase them, Plaintiff did not contact Defendant SKG Design to verify what was meant by the use of the words "full kitchen or bathroom renovation". [ 19 ] This being said, when Defendant SKG Design was informed of the limited scope of the renovations requested by Plaintiff, Defendant Goswami informed her that the certificates could not be redeemed as the proposed renovations were not those contemplated by the said certificates namely "a full kitchen or bathroom renovation". [ 20 ] Plaintiff is in the opinion that the certificates were not sufficiently clear as to their scope and that, as a result of this, Defendant SKG Design should be condemned to reimbursed to her what she paid for them as well as the damages she alleges to have sustained. [ 21 ]

Article 1432 of the Civil Code of Quebec states the following: « In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer. » [ 22 ] In the present case, the Court is in the opinion that the terms used in the certificates issued by Defendant SKG Design are clear.

There is no need to interpret them as there is no doubt. [ 23 ] The certificates clearly state that they are "applicable towards a full kitchen of bathroom renovation". [ 24 ] The word "full" is defined as follows in The new shorter Oxford English Dictionary – Thumb Index Edition : « Containing all (of a substance) that its limits will allow; having no space empty, replete. » [ 25 ] In the present case, the certificates purchased by Plaintiff were not applicable to the partial renovation of the bathroom that she wanted Defendant SKG Design to perform. [ 26 ] Consequently, Defendant SKG Design was justified to refuse to do the work if Plaintiff, as she did, insisted on paying the work with the said certificates. [ 27 ] This being said, the Court concludes that Plaintiff's action is ill founded in fact and in law and must be dismissed as concerns Defendant SKG Design. [ 28 ] Finally, the evidence adduced at trial has further revealed that Defendant SKG Design never received or collected from the Montreal Gazette, the amounts paid by Plaintiff for the purchase of the certificates.

FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff's action as concerns Defendant Sanjay Goswami, without costs. DISMISSES Plaintiff's action as concerns Defendant 9119-6154 Québec Inc. (SKG Design), with costs in the amount of $191.00.

__________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: April 2, 2012.