2017 QCCQ 1471, 2017 QCCQ 1471

Youvirt inc. c. Iversen 2017 QCCQ 1471 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149894-158 DATE: February 13, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ YOUVIRT INC. Plaintiff/cross-defendant v.

NICK IVERSEN Defendant/cross-plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS plaintiff has the burden of proof (arts. 2803 and 2805 Civil Code of Quebec ); [ 3 ] WHEREAS a contract for services intervened between the parties, on July 27, 2015 (exhibit P-1); [ 4 ] WHEREAS defendant’s mandate is described, inter alia , as follows in the contract: “ OVERVIEW: We will take the chosen Wordpress template and customize if for your brand, we will take created content in English and French and design the pages.

We will customize the listing page to integrate the virtual tours. We will also setup and customize the client login and payment checkout. The site will be responsive for all screen sizes and you will have access to the word press backend to manage your clients and their listing easily.” [ 5 ] WHEREAS the price was fixed in the contract at $4,500.00; [ 6 ] WHEREA S the contract was entered into specifically in view of defendant’s personal qualities; [ 7 ] WHEREAS defendant nevertheless contracted the work to a third party; [ 8 ] WHEREAS this was contrary to the parties’ agreement and contrary to

article 2101 of the Civil Code of Quebec ; [ 9 ] WHEREAS , furthermore, according to the preponderance of evidence (credible testimony of Chakira Ditchburn and Mandougou Boicel, as well as exhibits P-1 to P-7), defendant did not act in the best interests of plaintiff, with prudence and diligence or in accordance with usual practice and the rules of art nor in conformity with the contract; [ 10 ] WHEREAS , indeed, defendant did not remit the product described in the contract, for which plaintiff paid $4,050.00; [ 11 ] WHEREAS , despite plaintiff’s complaints and requests, defendant refused to complete its mandate and remit a finished product to plaintiff;

[ 12 ] WHEREAS , in addition to the foregoing, art. 2109 C.C.Q . states: “ 2109 . Where the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen. Similarly, the contractor or the provider of services may not claim an increase of the price for the opposite reason.

Unless otherwise agreed by the parties, the price fixed by the contract remains unchanged notwithstanding any modification of the original terms and conditions of performance.” [ 13 ] WHEREAS , accordingly, defendant had no right to demand an increase in price, as it did, from plaintiff; [ 14 ] WHEREAS art. 1375 C.C.Q. stipulates as follows: “ 1375 .

The parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished.” [ 15 ] WHEREAS defendant did not conduct itself in good faith, neither at the time the contract was entered into, nor at the time the mandate was performed; [ 16 ] WHEREAS plaintiff is entitled to the reimbursement of $4,050.00; [ 17 ] WHEREAS , however, it is not entitled to an award for its lawyer’s fees; [1] [ 18 ] WHEREAS , finally, plaintiff did not prove its alleged loss of income; [ 19 ] WHEREAS , with regards to defendant’s cross-demand, it is without merit, for the foregoing reasons; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim in part; SENTENCES defendant to pay plaintiff the sum of $4,050.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , as of October 2, 2015, and legal costs in the amount of $222.00; DISMISSES defendant’s cross-demand. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: January 30, 2017