2018 QCCQ 4995, 2018 QCCQ 4995

9083-6388 Québec inc. (New Beginnings) c. CPS Fruits and Vegetables Inc. 2018 QCCQ 4995 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-22-236726-173 DATE: June 19, 2018 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ 9083-6388 QUÉBEC INC. carrying on business under the registered trade name of NEW BEGINNINGS -and- ARTIN DER ARTINIAN Plaintiffs v.

CPS FRUITS AND VEGETABLES INC. -and- FRANCO MAGGIORE Defendants -and- WALE BALAYN Impleaded Party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Overview [ 1 ] 9083-6388 Quebec Inc., carrying on business under the registered trade name of New Beginnings ( New Beginnings ) and its treasurer Mr. Artin Der Artinian (together Plaintiffs ) are suing CPS Fruits and Vegetables Inc. ( CPS ) and its only shareholder and officer, Mr.

Franco Maggiore (together Defendants ), for $23 624.65 relating principally to amounts advanced by Plaintiffs to Defendants relating to business activities in the fruits and vegetables sector in Montreal, Quebec. [ 2 ] Mr. Der Artinian also states that he personally paid for a computer and a printer that were lent to Mr. Maggiore. Mr. Der Artinian seeks a Court order directing that these two items, which have already been seized as a result of a seizure before judgment issued in the present matter, be immediately handed over to him. [ 3 ] Mr.

Maggiore retorts that there was a verbal agreement between him, New Beginnings, its principal shareholder Mr. Fadi Najjar and Mr. Artin Der Artinian to the effect that Mr. Maggiore was to become a 1/3 partner of New Beginnings and that the real owners of CPS were Mr. Najjar and Mr. Der Artinian. Mr. Maggiore also claims that he was hired by New Beginnings as an employee as a buyer and sales representative to seek out new business opportunities in the area of importing fruits and vegetables, principally through CPS.

[ 4 ] Defendants have taken a Cross-Application against Plaintiffs for an amount of $32,194.04 claiming unpaid salary ($11,134.62) owed by New Beginnings to Mr. Maggiore (this was only withdrawn at the time of closing statements at the trial), unpaid expenses as an employee ($11,059.42) and moral damages ($10,000). Questions in Issue 1) What was the agreement between the parties with respect to CPS? 2) Was Franco Maggiore ever hired as an employee by New Beginnings? 3) Based upon the findings to these questions, are any amounts owed between the parties and, if so, to whom? 4) Who owns the computer and printer?

Context “New Beginnings”, Mr. Fadi Najjar and Mr. Artin Der Artinian [ 5 ] The sole shareholder of New Beginnings is Mr. Najjar. The treasurer and officer of New Beginnings is Mr. Der Artinian. [ 6 ] At the time of the events which lead to the present litigation, Mr. Najjar and Mr. Der Artinian had known Mr. Maggiore for approximately four (4) years. [ 7 ] Mr. Najjar, Mr. Der Artinian and Mr. Maggiore all worked in the fruit and vegetable business in Montreal for many years. [ 8 ] Mr. Najjar started working in the fruit and vegetable business when he was sixteen.

He has worked in this sector for approximately thirty (30) years, mostly in the area of sales, including for companies such as Gaétan Bono, Canada Wide Fruits and Luc Charbonneau Fruits et Légumes inc. [ 9 ] In 2006, Mr. Najjar started his own fruit and vegetable company under the name of “New Beginnings”. At that time, he teamed up with Mr. Der Artinian, who had previous experience in the clothing retail sector. Mr. Der Artinian assumed the administrative and management aspects of the business.

Together, they have built a very successful business which generates presently annual sales of approximately $12 million. [ 10 ] New Beginnings does not import either vegetables or fruits. Instead, it purchases fresh produce from Montreal importers and then resells to local major grocers, such as Metro, IGA and Provigo. Mr. Franco Maggiore [ 11 ] Mr. Maggiore has also worked in the fruit and vegetable business in Montreal since he was sixteen. He worked at his father’s grocery store “Marché Frais” until 2004, at which time it was sold.

[ 12 ] Mr. Maggiore worked in the import end of the fruit and vegetable business at C.H. Robinson from 2007 to 2010 and then at Jardino Fresh Marketing from 2010 to 2012. [ 13 ] From 2012 to 2016, Mr. Maggiore worked at the fruit and vegetable wholesaler Fruits & Légumes Gaétan Bono inc. ( Gaétan Bono ) as a seller on the floor. [ 14 ] In approximately 2012, Mr. Maggiore met Mr. Der Artinian and Mr. Najjar. There was good chemistry between them and, from that time forward, they often socialized together.

Between 2014 and 2016, the three friends had approximately twelve (12) dinners together, along with their respective spouses. Discussions about Future Business Opportunities in the Import Sector of the Fruits and Vegetables Business [ 15 ] During these dinners, Mr. Maggiore confided to Mr. Der Artinian that he was not satisfied with his current employment as floor salesman at Gaétan Bono. Mr. Der Artinian was impressed with the breadth and depth of Mr. Maggiore’s knowledge of the fruit and vegetable business. Mr. Maggiore was not only familiar with the purchase and sale of fruits and vegetables in Montreal.

As a result of his experience at C.H. Robinson and Jardino Fresh Marketing, he also had knowledge of the business of importing fruits and vegetables, including the federal and international regulatory framework and the logistic and customs requirements. [ 16 ] Mr. Maggiore told Mr. Der Artinian that if his current employer would not give him a promotion, he would be interested in starting his own business. He proposed that he could assist New Beginnings in getting into the lucrative import segment of the fruit and vegetable sector.

That would mean that New Beginnings could purchase fresh fruits and vegetables at low prices from exporters and resell them in Montreal (and elsewhere) to New Beginnings’ regular clients at a much higher profit margin than when their produce was purchased locally. [ 17 ] Mr. Der Artinian and Mr. Najjar were interested in doing business with Mr. Maggiore. In June 2016, Mr. Maggiore requested his promotion at Gaétan Bono and was turned down. He then informed Mr. Der Artinian that he was resolved to proceed to set up his own business and to work closely with New Beginnings for their mutual benefit. Mr.

Der Artinian said that New Beginnings was prepared to assist him in getting started. Incorporation of CPS Fruits and Vegetables Inc. [ 18 ] Mr. Der Artinian recommended that Mr. Maggiore set up a new company and for this purpose recommended the corporate attorney of New Beginnings, Maître Rosalia Giarratano. [ 19 ] On June 1, 2016, Mr. Maggiore met with Maître Giarratano. Mr. Maggiore told her that the new company would be in partnership with New Beginnings, Mr. Najjar and Mr. Der Artinian. Mr. Maggiore told her that Mr. Der Artinian and Mr.

Najjar would be shareholders with him and that there would be a shareholders’ agreement regarding the distribution of profits. [ 20 ] Maître Giarratano explained to Mr. Maggiore that she is principally a civil and family law lawyer; she does corporate work only when it is standard and straightforward. The proposed corporate plan appeared complicated to her. In the circumstances, she thought it wise to seek out specialized advice. In the past, for these types of mandates, she had called upon Maître Rami Kaplo, an attorney who specializes in corporate law. She therefore referred Mr. Maggiore to Maître Kaplo.

But it was clear that Maître Giarratano would continue to be involved since Mr. Maggiore and New Beginnings were her clients.

Refusal of New Beginnings, Mr. Der Artinian and Mr. Najjar to Enter a Partnership or Formal Business Agreement with CPS or Mr. Maggiore [ 21 ] As part of Maître Giarratano’s information-gathering process, she contacted Mr. Der Artinian to review and confirm the instructions received from Mr. Maggiore regarding the proposed partnership and the proposed shareholders’ agreement. [ 22 ] Mr. Der Artinian told Maître Giarratano that he had no intention of entering into any partnership with Mr. Maggiore. He also told her that neither Mr. Najjar nor New Beginnings would be involved as partners or shareholders with Mr.

Maggiore or his new company. [ 23 ] At trial, Maître Giarratano testified that she then called back Mr. Maggiore and explained to him Mr. Der Artinian’s instructions and his refusal in that regard. She stated that it was clearly explained to Mr. Maggiore that he would be the only shareholder of the new company. [ 24 ] It is not clear when and if Maître Giarratano followed up and informed Maître Kaplo of this development and change of instructions. In the meantime, Mr.

Maggiore had asked his son Jack Maggiore, an expert in finance matters, to give detailed instructions to Maître Kaplo about the proposed partnership that Mr. Maggiore had in mind as well as the proposed shareholder structure. [ 25 ] At that point, these instructions were solely those of Franco Maggiore. Neither Mr. Der Artinian, Mr. Najjar nor New Beginnings were involved. [ 26 ] On July 6, 2016, CPS was incorporated. As appears from the Quebec Corporate Registry print out, Mr. Maggiore is alone indicated as shareholder and officer [1] . [ 27 ] From that date, Mr.

Maggiore was well aware that he was the sole shareholder and owner of CPS. Shortly thereafter he received the minute book of CPS which specified that he was the sole shareholder. [ 28 ] The evidence shows that there were several e-mail exchanges between Jack Maggiore and Maître Kaplo regarding various possible corporate, commercial and shareholder scenarios for CPS. [ 29 ] However, after analysis and confirmation that the sole shareholder of CPS was Mr. Maggiore, Maître Kaplo concluded that the various corporate structures proposed by Mr.

Maggiore’s son, Jack Maggiore, were not legally possible. [ 30 ] In light of Maître Kaplo’s conclusion, he never drafted any shareholders’ agreement or other profit-sharing agreement in the matter. Throughout the process, he never had any contact with either Mr. Der Artinian or Mr. Najjar. [ 31 ] Maître Kaplo never issued an invoice and he returned the minute book to Mr. Maggiore. [ 32 ] In light of the above, no partnership, shareholders’ or profit-sharing agreement was ever entered into between Mr. Maggiore, Mr. Der Artinian, Mr. Najjar, CPS or New Beginnings. Departure of Mr.

Maggiore from his Previous Employment and Commencement of Operation of CPS

[ 33 ] On August 30, 2016, Mr. Maggiore completed and signed an application for membership for CPS in the Fruit and Vegetable Dispute Resolution Corporation ( DRC ) [2] . The application contained the following request for information: “ 9. Responsibly Connected Representatives of the Business including name and title of individual owner, partners, members, officers, directors or holders of more than 10% of the outstanding stock, and any individuals who function in an executive or managerial capacity. Please attach a separate sheet if necessary.” Mr.

Maggiore responded: Name Position % Owner Franco Maggiore Owner 100% [ 34 ] On September 19, 2016, Mr. Maggiore left his employment at Gaétan Bono and started working full time for his new company CPS. [ 35 ] In his testimony, Mr. Maggiore confirmed that, at the time, he was aware that neither Mr. Der Artinian nor Mr. Najjar had signed any partnership or shareholders’ agreement with him or CPS. [ 36 ] Even though New Beginnings, Mr. Der Artinian and Mr. Najjar had declined to be involved in a partnership or shareholders’ arrangement with Mr.

Maggiore, they still wished to work closely with him and CPS for their mutual benefit. [ 37 ] For that purpose, New Beginnings and Mr. Der Artinian were prepared to financially assist Mr. Maggiore regarding the first steps to be taken in the operation of the new business of CPS, in particular:

a) New Beginnings paid the invoices of Maître Giarratano regarding the legal and government fees for the incorporation of CPS [3] ;

b) Mr. Der Artinian referred Mr. Maggiore to the branch at TD Bank where New Beginnings had its commercial bank account and suggested that he open a bank account there for CPS. That was done;

c) On September 22, 2016, New Beginnings transferred $2,500 to the new bank account operated by CPS [4] . [ 38 ] As Mr. Maggiore, Mr. Najjar and Mr. Der Artinian were friends, they did not put in writing how, when or even if these monies were to be refunded to New Beginnings. [ 39 ] At trial, Mr. Najjar testified that these amounts were loans and that it was intended that CPS refund them gradually by giving New Beginnings preferential pricing and discounts on future sales of the fresh new produce to be imported. Computer and Printer

[ 40 ] Mr. Maggiore needed a computer to run CPS. Mr. Der Artinian agreed to purchase one and then to lend it to Mr. Maggiore for that purpose. [ 41 ] On September 21, 2016, Mr. Der Artinian purchased personally the new computer, namely an Apple MacBook Air laptop [5] ( MacBook Computer ). The cost was $1,702.64. He then loaned it, without charge, to Mr. Maggiore and CPS. [ 42 ] On September 26, 2016, Mr. Der Artinian authorized Mr. Maggiore to purchase a Cannon MX492 printer (“ Cannon Printer ”) at a cost of $116.40. It was agreed that the owner was again Mr. Der Artinian who loaned it, without charge, to Mr.

Maggiore and CPS. On September 27, 2016, Mr. Der Artinian refunded Mr. Maggiore the amount paid for the Cannon Printer and Mr. Maggiore gave him the receipt [6] . Sublease of CPS at Premises Leased by New Beginnings [ 43 ] New Beginnings is a tenant in a commercial building, located in Dorval, Quebec. At the initiative of New Beginnings, it subleased a small area of its office space (as well as coolers for future fresh produce) to CPS. The sublease document is dated July 1, 2016 [7] . It stipulates a monthly rental of $2,287.92.

However, CPS only briefly used the premises from September 19, 2016 to October 7, 2016 and never used the coolers for the reasons set forth below. [ 44 ] New Beginnings did not ask CPS for payment of rent, either before or during occupation of the premises. [ 45 ] According to Mr. Maggiore, there was no sublease agreement. The document in question was only signed in order for CPS to have an address which was a requirement for membership of the DRC. First and Only Import Transaction of CPS Affected by Fraud [ 46 ] In the first week of operation of CPS, Mr.

Maggiore proposed to New Beginnings the purchase of pineapples from Costa Rica. The parties agreed that the price offered was competitive. One half of the purchase price was to be paid in advance, namely $8,713.90. [ 47 ] As CPS did not have the required funds, New Beginnings wired by bank transfer the amount to the contact in Costa Rica provided by Mr. Maggiore [8] . The parties were enthusiastic about the proposed transaction. The following exchange of text messages between Mr. Maggiore and Mr. Najjar reveals their excitement [9] : “ Franco Maggiore: We are going to make money together!!

Fadi Najjar: ya baby” [ 48 ] Unfortunately, the purported seller/exporter in Costa Rica was a fraudster. [ 49 ] After the wire transfer was sent, the seller suddenly stopped responding to calls or e-mails from Mr. Maggiore. After the abrupt silence, Mr. Maggiore immediately realized that he had been defrauded.

[ 50 ] He immediately told Mr. Najjar and Mr. Der Artinian. They were shocked. [ 51 ] That was the first transaction proposed by Mr. Maggiore and CPS. [ 52 ] Mr. Najjar and Mr. Der Artinian had hoped that CPS would open a new and profitable niche for New Beginnings in the sale of imported fresh produce. Now New Beginnings was looking at a significant loss. Mr. Najjar and Mr. Der Artinian were of the view that the fraud showed a lack of judgment, knowledge and competence of Mr. Maggiore in his professed area of expertise. [ 53 ] On October 4, 2016, Mr.

Maggiore left on a business trip to Madrid, Spain, for a trade show of fresh produce exporters. His wife accompanied him. She is also a registered representative of CPS [10] . [ 54 ] On October 7, 2016, Mr. Maggiore returned to Montreal from the trade show. [ 55 ] On October 8, 2016, he met Mr. Der Artinian and Mr. Najjar. They immediately asked him for an update on the pineapple transaction and a refund of the money sent. Mr. Maggiore told them that, despite his many telephone calls and e-mails, there was no response and that the money was, in all likelihood, lost. [ 56 ] Mr.

Der Artinian spoke for himself and Mr. Najjar. Mr. Der Artinian told Mr. Maggiore that they had lost all confidence in him. Mr. Der Artinian told him that they no longer intended to be associated with him or CPS, either commercially or personally. [ 57 ] Mr. Der Artinian also informed Mr. Maggiore that the sublease agreement was terminated and that he and CPS were to leave the building immediately. [ 58 ] On October 9, 2016, Mr. Maggiore returned to the office. He took certain items, including the MacBook Computer and the Cannon Printer belonging to Mr. Der Artinian. [ 59 ] The next day, Mr.

Maggiore was hired by another company in the fruit and vegetable business in Montreal. After a trial period of two weeks, he was gainfully employed again. Demand Letters, Legal Proceedings and Seizure Before Judgment [ 60 ] On October 18, 2016 [11] , Plaintiffs’ attorney sent a Demand Letter to Mr. Maggiore and CPS claiming the following amounts: Legal and incorporation costs of CPS: $3,229.07 Initial transfer of funds: $2,500.00

Loss on unsuccessful pineapple transaction: $8,713.90 Money transfer fee: $30.00 $14,472.97 [ 61 ] On behalf of Mr. Der Artinian, the Demand letter claimed the immediate return of the MacBook Computer and Cannon Printer. [ 62 ] The Demand Letter offered to accept, in lieu of the amount claimed, a “surrender” of CPS “along with all of its rights and privileges, including the right of importation” [12] . [ 63 ] Although CPS denied owing $14,472.00, Mr. Maggiore acknowledged by written reply that the MacBook Computer and the Cannon Printer belonged to Mr.

Der Artinian and that he was prepared to return them to him [13] . [ 64 ] On October 26, 2016, despite arrangements made to pick up these two items, Mr. Maggiore changed his mind and refused to hand them over to Mr. Der Artinian’s attorney [14] . [ 65 ] On November 1, 2016, New Beginnings’ attorney sent a second demand letter claiming $11,439.60 for unpaid rent under the sublease [15] . [ 66 ] At that point, Mr. Maggiore verified with Maître Giarratano whether there was ever any binding partnership or shareholders’ agreement between CPS, himself, New Beginnings, Mr. Najjar or Mr. Der Artinian.

Maître Giarratano told him that there was none. On November 9, 2016 [16] , Mr. Maggiore confirmed to Maître Giarratano their discussion by e-mail. He wrote: “I was especially pleased with our discussion to know that the company is indeed in my name only and that only I own the rights to this company. Moreover you assured me that the partnership was never finalized nor did it ever take into effect because the other party never signed the documents.” [ 67 ] On February 3, 2017, Plaintiffs instituted the present legal proceedings. [ 68 ] On February 7, 2017, Mr.

Der Artinian obtained a seizure before judgement for the MacBook Computer and Cannon Printer on the basis that he was the owner of these items. Neither CPS nor Mr. Maggiore ever contested the validity of the seizure before judgment. The seized items, pending the outcome of the legal proceedings, have been held by an authorized custodian, namely the Impleaded Party Mr. Wale Balayn. [ 69 ] On May 30, 2017, Mr. Maggiore instituted a Cross-Application against Defendants on the basis that he was an employee of New Beginnings from September 20, 2016 until his termination on October 8, 2016.

He claimed the following amounts: Unpaid salary from September 20, to October 7, 2016 $5,567.31 (This claim was abandoned by Defendants at the time of closing statements at the trial.) Lost salary after termination from October 8 to November 1, 2016 $5,567.31 (This claim was abandoned by Defendants at the time of closing statements at the trial.) Moral damages $10,000 Refund of expenses incurred by Mr. Maggiore personally as an employee of New Beginnings or on behalf of CPS: Logo for CPS $2,000.00 (This claim was abandoned by Defendants at the time of testimony of Mr.

Maggiore) Expenses of business trip to Madrid, Spain $6,895.67 Expenses for CPS for DRC membership $1,128.75

Expenses for CPS to register in Blue Book Services $1,035.00 Total: $32,194.04 Analysis and Decision 1) What was the agreement between the parties with respect to CPS? [ 70 ] Mr. Maggiore stated in his testimony that the real owner of CPS is New Beginnings. That position however contradicts the contents of the documents in the corporate minute book of CPS, the public declarations on the Quebec Corporate Registry , which are presumed valid [17] , as well as Mr. Maggiore’s own correspondence. [ 71 ] There were various business proposals made by Mr. Maggiore for a partnership agreement and a shareholders’ agreement.

They were made to Mr. Der Artinian and perhaps even to Mr. Najjar. But the preponderant and indeed overwhelming evidence demonstrates that those proposals were rejected by Mr. Der Artinian, Mr. Najjar and accordingly New Beginnings. That rejection was clearly conveyed by Mr. Der Artinian to Maître Giarratano. And that rejection was clearly told to Mr. Maggiore by Maître Giarratano. [ 72 ] The only evidence offered by Mr. Maggiore regarding an alleged partnership or shareholder agreement between Plaintiffs and Defendants is the above-mentioned text message exchange regarding the proposed pineapple purchase [18] .

The Court does not consider that that exchange is sufficient, on the balance of probabilities, to establish any binding commercial agreement between the parties. [ 73 ] It was clear that Mr. Der Artinian had rejected a partnership with Mr. Maggiore and CPS.

It was clear that New Beginnings would only consider a case by case, ad hoc , informal and non-binding agreement under which New Beginnings would be open to purchasing imported fresh produce of CPS at favourable prices, as a result of which, CPS could repay amounts advanced by New Beginnings. [ 74 ] In the absence of a formal agreement, both parties were assuming a business risk. CPS had no guarantees from New Beginnings for future purchases. New Beginnings assumed the risk that amounts advanced on a speculative basis may not be recoverable. [ 75 ] The e-mail of November 9, 2016 of Mr.

Maggiore to Maître Giarratano confirms that, at all relevant times, Mr. Maggiore was fully aware that there was never a partnership between CPS and New Beginnings, or between their respective shareholders or officers [19] . [ 76 ] Despite the knowledge of that situation, Mr. Maggiore decided nonetheless to leave his job and try his luck as an independent business owner. The adventure was unsuccessful for the reasons explained above, in particular the fraud regarding the proposed purchase and importing of pineapples from Costa Rica.

2) Was Franco Maggiore ever hired as an employee of New Beginnings? [ 77 ] There is no evidence of an employment contract between Mr. Maggiore and New Beginnings. Under

Article 2802 of the Civil Code of Quebec ( C.C.Q. ), Mr. Maggiore had the burden to prove the existence of such a contract. He has not discharged his burden to do so. Mr. Maggiore was instead the sole shareholder of CPS, which was an independent company. 3) Based upon the findings to these questions, are any amounts owed between the parties and, if so, to whom? [ 78 ] The Court will review and dispose of the various claims made by the parties. Principal Application Unpaid Rent from July to October 2016 ($9,151.68) [ 79 ] There was no binding or valid sublease between CPS and New Beginnings.

The sublease document was created merely in order for CPS to obtain its membership under the DRC, which was intended to benefit both CPS and New Beginnings. No amount was ever claimed by New Beginnings for rent over the alleged duration of the sublease from July 1 to October 30, 2016. [ 80 ] In that regard, it is interesting to note that in the first demand letter of New Beginnings, no amount was even claimed for alleged unpaid rent. When the business relationship was declared over between the parties by Mr. Der Artinian, on behalf of New Beginnings, he insisted upon immediate eviction of the premises by CPS.

Upon that request, CPS immediately vacated the premises. [ 81 ] If a real contract of sublease had existed, CPS would have had the right to continue to occupy the premises until the end of the term of the sublease, which was, according to New Beginnings, for two years [20] . [ 82 ]

Article 1426 C.C.Q. reads as follows: 1426. On tient compte, dans l’interprétation du contrat, de sa nature, des circonstances dans lesquelles il a été conclu, de l’interprétation que les parties lui ont déjà donnée ou qu’il peut avoir reçue, ainsi que des usages. 1426. In interpreting a contract, the nature of the contract, the circumstances in which it was formed, the

interpretation which has already been given to it by the parties or which it may have received, and usage, are all taken into account. [ 83 ] The Court can take into account the conduct of the parties in order to evaluate and determine whether a valid contract existed between them [21] . [ 84 ] The conduct of both parties confirms that there was no real sublease. New Beginnings simply offered, on an indefinite and

revocable basis, unused space on its premises to CPS, for the intended commercial benefit of New Beginnings and to assist, on a speculative and potentially gratuitous basis, CPS and Mr. Maggiore. Legal and Government Fees for Incorporation ($3,229.07) and Start Up Amounts Transferred ($2,500) [ 85 ] These amounts were paid by New Beginnings without requesting or obtaining documentation regarding any indebtedness of CPS or Mr. Maggiore.

New Beginnings was seeking a way to increase revenues by increasing sales and profit margins by purchasing directly from exporters instead of from wholesalers in Montreal. [ 86 ] The lack of any documentation confirms that these amounts were given by New Beginning on a gratuitous and speculative basis with the known risk that CPS may not be successful, in which case, these amounts would not be refunded. [ 87 ] It bears noting that Mr.

Maggiore also took risks by leaving his job to operate CPS. [ 88 ] Furthermore, the only informal method of repayment discussed was that CPS would provide favourable preferential pricing and discounts on produce imported by CPS on future purchases by New Beginnings. [ 89 ] When New Beginnings abruptly put an end to business relations with CPS and evicted CPS from its premises, it knew or should have known that these acts would effectively render it impossible for CPS to ever repay the amounts advanced on a speculative basis.

The severance of relations and the eviction eliminated the means by which CPS could possibly repay these amounts. In so doing, New Beginnings renounced to any claim of refund for these amounts. Wire Transfer for Purchase of Pineapples in Costa Rica ($8,713.90) and Transfer Fee ($30) [ 90 ] Unfortunately both CPS and New Beginnings were victims of a fraud. Although Mr. Maggiore did not exercise good judgment when he made the recommendation for the pineapple purchase, there is no evidence that it was a fault on his part or that he was in any way involved in the fraud.

The amount was sent directly from New Beginnings to the fraudulent seller and not even through CPS. As there was no fault of CPS or Mr. Maggiore, there is no liability for either of them. [ 91 ] The attorney of New Beginnings argues that Mr. Maggiore, after discovery of the fraud, offered to split equally the loss three ways – Mr. Maggiore, Mr. Der Artinian and Mr. Najjar – at the end of the year 2016. Mr. Maggiore suggested that such loss be paid from anticipated profits on future import transactions. The attorney of New Beginnings pleads that Mr.

Maggiore should therefore assume at least one third of this loss. [ 92 ] However, that offer of Mr. Maggiore was clearly contingent on New Beginnings continuing to carry on business with CPS until at least the end of 2016. [ 93 ] The decision of New Beginnings on October 7, 2016 to suddenly and permanently sever business relations with CPS and Mr. Maggiore ended that possibility. Accordingly, that offer was rejected by New Beginnings and it is too late now, and after that rejection, for New Beginnings to attempt to avail itself of it.

Cross-Application Moral Damages ($10,000) [ 94 ] No binding agreement between, on one hand, CPS and Mr. Maggiore and, on the other hand, New Beginnings, Mr. Der Artinian and Mr. Najjar ever existed. Furthermore, neither CPS nor Mr. Maggiore has established the commission of any fault or breach of contract on the part of New Beginnings or Mr. Der Artinian. Therefore, there is no legal basis for this claim. In addition, no moral damages were established. Logo Charge ($2,000) [ 95 ] During the trial, Mr. Maggiore dropped the claim for this amount.

Expenses for Business Trip ($6,895.67) [ 96 ] As there is no proof that Mr. Maggiore was an employee of New Beginnings or that there was an agreement with New Beginnings to refund his expenses, this claim is dismissed. These expenses were simply incurred by Mr. Maggiore for his own business, CPS. DRC Membership ($1,128.75) and Blue Book Registration Charges ($1,035.00) [ 97 ] As there is no evidence of a partnership, that Mr. Maggiore was an employee of New Beginnings or that there was an agreement of refund of these amounts, these are simply business expenses incurred by Mr. Maggiore to promote CPS.

The claim for these amounts is therefore dismissed. 4) Who owns the computer and printer? [ 98 ] The evidence is clear that these devices were purchased by and belong to Mr. Der Artinian. He paid personally for each, either directly or through refund of the purchase price. At the trial, Mr. Maggiore did not deny that these items should be returned to Mr. Der Artinian. [ 99 ] The Court will therefore order that the designated custodian of these items, pursuant to the seizure before judgment, namely the Impleaded Party Wale Balayn remit them to Mr. Der Artinian.

FOR THESE REASONS, THE COURT: DISMISSES 9083-6388 Quebec inc. and Artin Der Artinian’s Principal Application, except with respect to the MacBook Computer and Cannon Printer;

DISMISSES CPS Fruits and Vegetables Inc. and Franco Maggiore’s Cross-Application; DECLARES VALID AND BINDING the seizure before judgment of the Apple MacBook Air Laptop Computer and the Cannon MX492 Printer, and ORDERS the custodian thereof, Impleaded Party Mr. Wale Balayn, to TRANSFER POSSESSION of these devices to Mr. Artin Der Artinian, within thirty (30) days of the present judgment; WITHOUT LEGAL COSTS , given the mixed result. __________________________________ Jeffrey Edwards, J.C.Q. Me Hila Sima Huelsen Hila Sima Huelsen, Avoca te Attorneys for Plaintiffs Me Jamie Benizri (May 30, 2018) Mr.

Edgar Eid (Articling Student) (May 30, 31 and June 1, 2018) Legal Logik Inc. Attorneys for Defendants Dates of hearing: May 30 and 31, 2018, June 1, 2018