2013 QCCQ 12228, 2013 QCCQ 12228

175202 Canada inc. c. Sevigny 2013 QCCQ 12228 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-015124-128 DATE: The 3 rd day of September, 2013 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ 175202 CANADA INC. Plaintiff v.

SELICA SEVIGNY AND SPARTAN RACE OBSTACLE RACING SERIES Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This action claims an amount of $ 2838.05 for marketing services rendered. [ 2 ] Between the months of April and June 2011, 175202 Canada Inc. (175202) rendered different marketing services to Spartan Race Obstacle Racing Series (Spartan Race).

The total amount of three invoices issued, without interest, is $ 11 470.61; a partial payment of $ 10 329.94 was received, leaving an unpaid amount of $ 1140.67. [1] [ 3 ] 175202 also claims $ 48.97 for registered letter fees and $ 1125 for loss of time, to collect and prepare the Court file. [ 4 ] The first invoice, number 410, was paid in full. Invoices number 413 ($956.97) and 417 ($183.70) were not paid at all. [ 5 ] The amount claimed includes interest at the rate of 5%, since the invoices are "net ten days" . [ 6 ] Mrs.

Selica Sevigny is sued as, according to 175202, she acted as director of Spartan Race's canadian operations. [ 7 ] In his contestation, Spartan Race, a British company, raises six grounds of defence. 1) The promotional tents that were ordered did not arrive on time for the event they were needed for in Mont-Tremblant. Some replacement tents were offered, but they were not of the right color and were not fit for the purpose for which they were bought, as Spartan Race has strict branding rules; 2) Some of the vinyl banners that were ordered were chocolate brown instead of black.

They were changed, but not in time for the event they were ordered for. Those banners were indicating the starting and finishing point of the race; 3) There was a misprint on the time on some banners, as some hours were missing; 4) The flagging tape was never received on time (invoice no. 410) for $293.40. (The representative for 175202 indicated that the tape was delivered and put into Mrs. Sevigny's car, and that she could not find it); 5) The die cut stickers were way too expensive. Spartan Race never agreed upon the final price.

Spartan Race pretend that they cannot be charged $6.05 for those stickers, as usually, they can be obtained for less than $1;

6) The graphic fees were not justified, as the computer files with the logo were transmitted to 175202 who only had to print it; ANALYSIS AND DECISION: [ 8 ] The contractual relationship occurred between 175202 and Spartan Race. Nothing in the file, the testimonies or the documents filed show that Ms. Sevigny acted personally, and not as a representative of Spartan Race. The contract did not occurred with Ms. Sevigny, which cannot be sued on a contractual basis.

On the other hand, she committed no extra-contractual fault; corporate law rules state that the company is a moral person which is totally distinct from its directors and employees. The action against Ms.

Sevigny cannot be granted. [ 9 ] The claim for loss of time in preparing the procedures cannot either be claimed; this time represents the normal procedure that has to be taken by any Plaintiff, and, without proof of bad faith on the part of Spartan Race, cannot be awarded as damages. [ 10 ] As concerns the claim for interest, in contractual matters, an agreement has to be reached between the parties regarding the interest rate. One party cannot, on its own, decide to impose an interest rate.

The Quebec Civil Code , though, states that a creditor may claim interest at the legal rate from the date of the Letter of Demand. 175202 Canada Inc. will be awarded interest only from September 8, 2011, date of the Letter of Demand. [ 11 ] The registered letter fees can also be claimed. [ 12 ] As regards the problems with the tents and banners, a reduction of $500 seems appropriate to compensate the inconvenience caused by the print errors and untimely delivery. [ 13 ] Invoice 417 raises the issue of the $ 85 graphic fee. The Court accepts Mr. Gilmour's explanations and considers that this fee was justified.

This invoice has to be paid. [ 14 ] As for invoice 413, the graphic fee question has been decided. Does Spartan Race has to pay $6.05 for every 7" X 7" die cut sticker (100 were ordered) ? [ 15 ] In the quote dated May 2, 2011, three different die cut stickers were mentioned, at a unit cost of $5.60, $5.50 and $5.15. The price had rise to $6.05, as the dimensions were different, as explained in an email from 175202 to Ms. Sevigny dated June 15, 2011.

The email correspondence between 175202 and Spartan Race demonstrate there might have been a misunderstanding regarding the unit price, but it is impossible to think that the same product could be purchased at any other location for less than a dollar. [ 16 ] Invoice 417 also has to be paid; considering the 500 $ deduction on invoice 410, an amount of 640,47 $ is due to 175202 Canada inc., plus the registered letter cost ($ 48.97).

FOR THE ABOVEMENTIONED REASONS, THE COURT: GRANTS in part the action; DISMISSES the action against Selica Sevigny; CONDEMNS Defendant Spartan Race Obstacle Racing Series to pay to Plaintiff 175202 Canada Inc ., the amount of $689.64, with interest at the legal rate of 5 % per annum, and the additional indemnity provided for by

Section 1619 Q.C.C. from September 8, 2011, date of the Letter of Demand; THE WHOLE with judicial costs in the amount of $ 152. __________________________________ CÉLINE GERVAIS, J.Q.C.