2012 QCCQ 9256, 2012 QCCQ 9256

Medias Transcontinental, s.e.n.c./The Chronicle c. Deslate (Glo's Gourmet Cuisine) 2012 QCCQ 9256 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-123378-103 DATE: October 18, 2012 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ MEDIAS TRANSCONTINENTAL S.E.N.C./THE CHRONICLE Plaintiff v. Glorietta DESLATE (f.a.s.n.

Glo's Gourmet Cuisine) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant the sum of $4,540,58 for publicity services rendered at the request and for the benefit of Defendant. [ 2 ] Defendant offers food-catering services to clients wishing to hold receptions. [ 3 ] Defendant contests the action instituted against her alleging that the publicity services in question were to be paid to Plaintiff through the sale by auction of 16 gift certificates each worth $400,00, which were to be subsequently honoured by her. [ 4 ] Furthermore, by way of cross-demand, Defendant claims from Plaintiff the sum of $7,000.00 in damages for loss of gross sales, costs and expenses resulting from the non respect by Plaintiff of the contract concluded between the parties. [ 5 ] The hearing proceeded ex parte as Plaintiff was absent although duly summoned and called for. [ 6 ] Before the Court, Defendant stated that, pursuant to the contract concluded between the parties on January 8, 2009, Plaintiff was to auction 16 gift certificates each worth $400.00 for a total value of $6,400.00. [ 7 ] Although, it was not precisely mentioned in the contract, Defendant testified that the $400.00 gift certificates to be auctioned by Plaintiff were to be sold with the limitation clause to the effect that they would be redeemable only if the clients purchasing the said certificates agreed to sign with Defendant a "contract for the full meal food services for a minimum of 50 guests".

This had been verbally agreed to with the representative of Plaintiff. [ 8 ] From the evidence adduced to trial, it appears that Plaintiff printed and sold gift certificates that did not contain the above said limitation clause. [ 9 ] Defendant testified that she realized that Plaintiff had auctioned the gift certificates without including the said limitation clause only when three clients requested from her the preparation of food orders each worth $400.00.

These clients subsequently offered to pay Defendant with the gift certificates sold to them by Plaintiff which certificates did not contain the limitation clause requesting the signing of a contract for full meal food services for a minimum of 50 guests to render them negotiable. [ 10 ] Defendant testified that she honoured the three gift certificates only to preserve her business reputation but, afterwards, she refused to honour any of the other certificates printed and sold by Plaintiff. [ 11 ] As a result of Plaintiff's inexecution of the contract, Defendant alleges that she suffered $7,000.00 in damages for loss of the gross sales that could have resulted from the sale of the 16 gift certificates had they contained the requested limitation clause.

Such damages are hypothetical and have not been established. [ 12 ] In the opinion of Court, Defendant has established that Plaintiff did not comply with the terms of the agreement concluded with her as to the contents of the gift certificates that were to be auctioned. Therefore, Plaintiff cannot claim anything from Defendant in payment of the publicity services rendered.

[ 13 ] As for the cross-demand, Defendant has established that she honoured three gift certificates which did not contain the requested limitation clause relating to how they could be redeemed. Consequently, she was paid for the sales with the auctioned gift certificates thereby incurring a loss of $175.00 per gift certificate representing the cost of the food prepared for each client. [ 14 ] The Court is therefore of the opinion that Defendant has established that, by the fault of Plaintiff, she has suffered damages which total the amount of $525.00. This amount is therefore awarded to her.

FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff's action, with costs in the amount of $165.00. GRANTS in part Defendant's cross-demand. CONDEMNS Plaintiff to pay to Defendant the sum of $525.00 with interests at the legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of June 22, 2010, plus the judicial costs in the amount of $79.00. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: October 15, 2012.