2017 QCCQ 12282, 2017 QCCQ 12282

Gaudreault c. Georgaklis 2017 QCCQ 12282 COUR OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division N°: 500-32-148014-154 DATE: July 11, 2017 ______________________________________________________________________ BY THE HONORABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ ÉRIC GAUDREAULT Plaintiff v. HELENE GEORGAKLIS -and- KIDS WRITE NETWORK -and- 9161-4222 QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $15,000 for marketing, branding and graphic design services rendered at the request of Defendants. [ 2 ] Defendants contest the claim. They argue that Plaintiff agreed to provide his services on a gratuitous basis in the context of a non-profit project and that they never agreed to pay the amounts claimed.

They also allege that Plaintiff agreed to settle the dispute in consideration of a payment of $1,000, which they formally offer to pay. FACTUAL CONTEXT [ 3 ] In January 2014, Plaintiff was approached by Defendant Helen Georgaklis, who asked whether he could provide marketing, branding and graphic design services for a project known as the Kids Write Network program (the “ Project ”), a non-profit initiative involving a particular writing process to be used in schools, hospitals or at home to improve literacy and promote well-being in children.

She told him that his input was needed to help draw investors and secure funding for the Project to “bring it to market”. [ 4 ] At the time, Ms. Georgaklis was President and shareholder of Defendant 9161-4222 Québec Inc. (“ Québec inc. ”), a corporation registered as a publicity agency doing business under the names “Kids Write Network” and “The 99 Series”. [1] In May 2014, she also constituted the other Defendant, a non-profit legal person doing business under the name “Kids Write Network”. [2] Québec Inc. stopped doing business under that name from then on. [3] [ 5 ] Plaintiff accepted to provide his services.

No written agreement was put in place at the time and the terms under which his services were to be provided is the main issue in dispute. [ 6 ] During the course of 2014, Plaintiff provided various services for the Project. In collaboration with Ms. Georgaklis, he developed its branding, designed a logo and various images and worked on communications documents and its website. He also designed covers for books published by Québec inc. as part of the Project. [ 7 ] In May 2014, Plaintiff asked that a written agreement be put in place. Ms.

Georgaklis sent him an unsigned document entitled Offer to Éric Gaudreault – Marketing Director – Division Sales Marketing setting out the terms of an eventual retainer as Marketing Director of the Project. [4] This satisfied Plaintiff, who continued to provide his services without receiving compensation. [ 8 ] In late 2014 or early January 2015, Plaintiff was advised that following the involvement of a new benefactor and investor, the Project was being transformed into a research project in collaboration with McGill University.

As a result, marketing services were no longer needed. [ 9 ] Given this turn of events, Plaintiff demanded compensation for the services rendered since January 2014. Ms. Georgaklis told him she would look into the possibility of compensation and asked for an invoice. [5] [ 10 ] On January 15, 2015, Plaintiff issued an invoice of $17,150, [6] which Defendants refused to pay. He formally demanded payment of $15,000 on April 27, 2015 [7] and filed his complaint on July 10, 2015. ANALYSIS

a) What is the nature of the agreement between the parties? [ 11 ] Plaintiff claims to have entered into a verbal contract of services with Defendants in January 2014, which obliged Defendants to

pay for all the services that he rendered for the Project. Although he accepted to postpone payment until funding was secured, he expected to be paid for all of his services once that happened. He believes that the May 2014 document entitled Offer to Éric Gaudreault – Marketing Director – Division Sales Marketing [8] confirms this verbal agreement. [ 12 ] Ms. Georgaklis categorically denies this.

She claims that Plaintiff accepted to provide his services on a gratuitous basis to help out with a non-profit project and that her only undertaking (not personally, but on behalf of corporate Defendants) was to retain Plaintiff as Marketing Director if and when sufficient funding was secured so that the Project became an operating charity. She claims that this is reflected in the May 2014 document. [ 13 ] Plaintiff bears the burden of proving, on a balance of probabilities, [9] the existence of the contract upon which his claim is based.

Where there is no written contract and the parties rely on conflicting oral evidence to establish the terms of their agreement, 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. [10] [ 14 ] After careful consideration, the Court finds, on a balance of probabilities, that Plaintiff accepted to provide his services gratuitously - at least at the outset - with the expectation of being retained as Marketing Director once funding for the Project was in place.

The Court comes to this conclusion for the following reasons. [ 15 ] Firstly, there was no discussion in January 2014 regarding the cost of Plaintiff’s services, whether it be a set price for particular services or even an hourly rate. This Court finds it unlikely that Ms. Georgaklis would have agreed to compensate Plaintiff (even if the compensation was to be deferred until funding was secured) without inquiring and agreeing on the price of his services. [ 16 ] Secondly, the May 2014 document does not support Plaintiff’s position.

It is clearly not a contract of services, but rather sets out in general terms the conditions of an eventual retainer as Marketing Director, with compensation going forward. There is no indication that the services rendered prior to his retainer were to be paid. [ 17 ] Thirdly, in response to a question from the Court during the second day of hearing, Plaintiff admitted that if he had been retained as Marketing Director for the Project, he would not have expected to be paid for the services rendered prior to his retainer.

b) Is Plaintiff entitled to compensation following the change brought to the Project? [ 18 ] Given the Court’s conclusion as to the nature of the agreement, Plaintiff is not entitled to claim the value of the services rendered since January 2014, [11] as Defendants did not undertake to pay for said services. [ 19 ] This does not mean, however, that Plaintiff is not entitled to any compensation. [ 20 ] The Court believes that the decision to convert the Project into a research project violated the agreement in place and constitutes a fault for which Plaintiff is entitled to compensation.

Indeed, this decision deprived Plaintiff of the possibility of being retained as Marketing Director and receiving compensation in that capacity if and when the expected funding was secured. [ 21 ] Determining the proper compensation in such circumstances is not easy, as Plaintiff was deprived of a possibility of a retainer, which was expected but not assured. [12] [ 22 ] After careful consideration of the circumstances, including the fact that that Defendants recognize that Plaintiff’s work brought value to the Project, the Court considers that a compensation in the amount of $7,500 is fair and appropriate. [ 23 ] The Court finds that the three Defendants are solidarily liable for payment of this amount.

Indeed, Ms. Georgaklis acted for Defendant Kids Write Network before it was constituted and is therefore bound by its obligations towards Plaintiff. [13] The two corporate defendants were involved as part of the Project and both were to retain Plaintiff as Director of Marketing if funding was secured. [14]

c) Did Plaintiff agree to settle the dispute? [ 24 ] Ms. Georgaklis referred the Court to an exchange of correspondence with Plaintiff in early 2015 which she claims establishes that Plaintiff accepted to settle any dispute in consideration of a payment of $1,000. [15] [ 25 ] The Court finds, after review of these documents and consideration of the oral evidence on the issue, that Plaintiff did not agree to settle the whole dispute for $1,000.

Plaintiff’s acceptance of the $1,000 offer related only to the graphic design for the cover of one of the books published by Quebec inc., [16] which Plaintiff refused to hand over to Defendants at the time, and not to the full services rendered. [ 26 ] Defendants formally offered to pay this amount of $1,000. It will form part of the amount of $7,500 payable to Plaintiff. FOR THESE REASONS, THE COURT: GRANTS the claim in part.

CONDEMNS Defendants Helen Georgaklis, Kids Write Network ( Réseau d’écriture pour enfants – La Voix d’Iman, doing business under the name Kids Write Network) and 9161-4222 Québec Inc., solidarily, to pay to Éric Gaudreault an amount of $7,500, together with interest at the legal rate and the additional indemnity provided in

Article 1619 of the Civil code of Québec from May 8, 2015. THE WHOLE WITH LEGAL COST of $200 representing the stamp on the application.

________________________________ DOMINIQUE GIBBENS, J.C.Q. Dates of hearing: October 18, 2016 and March 17, 2017