2012 QCCQ 14872, 2012 QCCQ 14872

ATS Consulting Inc. c. 9204-7299 Québec inc. 2012 QCCQ 14872 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-127519-116 DATE: December 19, 2012 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ ATS CONSULTING INC.

Plaintiff v. 9204-7299 QUÉBEC INC. and Mitch CHIBA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants the sum of $4,831.88 detailed as follows:

a) bookkeeping services rendered: $2,821.88

b) administrative fees: $ 300.00

c) moral and punitive damages: $1,500.00

d) cost of a letter of mise en demeure: $ 100.00

e) Canada Post fee: $ 10.00

f) lost of day in Court: $ 100.00 Total: $4,831.88 [ 2 ] Defendants contest Plaintiff's action alleging that Mr. Hasan Salhab, representative of Plaintiff, was ''negligent in his ability to perform the bookkeeping and accounting services'' involved in the present case. [ 3 ] The evidence adduced at trial has revealed that Defendant, 9204-7299 Quebec Inc., retained the services of Plaintiff in order to have Mr.

Hans Salhab, owner of Plaintiff, perform the monthly bookkeeping of the corporation and prepare the annual returns of the corporation. [ 4 ] The dispute between the parties arises from the work performed by Plaintiff at the request and for the benefit of Defendant, 9204-7299 Quebec Inc., for the year 2010. [ 5 ] More particularly, in the invoice dated December 13, 2010, sent to Defendant 9204-7299 Quebec Inc. by Plaintiff, the amount claimed is detailed as follows:

a) bookkeeping fees: $2,100.00 (7 months at $300.00 per month)

b) preparation of tax forms (T2 and CO-17) for a short year ended June 2010: $ 400.00

c) G.S.T.: $ 125.00

d) Q.S.T.: $ 196.88 [ 6 ] Defendant, Mitch Chiba, owner of Defendant, 9204-7299 Quebec Inc., admits having retained the services of Plaintiff on behalf of his corporation for bookkeeping services for the years 2009 and 2010. He admits that if the work had been performed adequately by Plaintiff, the fees claimed would be representative of the value of the work performed. However, Defendant Chiba affirms that the work performed by Plaintiff in 2010 was not a professional quality and contained errors that justify the refusal to pay the bill. [ 7 ] According to Defendant Chiba, when he confronted Mr.

Salhab with the said errors, the latter became defensive and was unable to explain why the errors had been committed. [ 8 ] Defendant Chiba states that he lost confidence in Mr. Salhab and decided to get the opinion of another accountant, Mr. Alan Kader, regarding the quality of the work performed by Plaintiff. [ 9 ] Defendant Chiba then retained the services of Mr. Kader in order to have him redo his bookkeeping for the year 2010. For these services, he paid Mr.

Kader $3,000.00 (exhibit P-6). [ 10 ] The documentation filed in evidence by Defendants to establish the existence of the alleged errors in the bookkeeping work and tax forms filed by Plaintiff in 2010 does not conclusively identify the said errors nor that they resulted from negligent work on the part of Plaintiff. On this issue, Mr. Salhab testified that Defendants did not provide him with all the information and documentation needed by him to do the work and this could explain the errors in question. [ 11 ] Mr.

Kader, the accountant who performed the work for Defendants, did not testify before the Court to explain what were the errors allegedly committed by Plaintiff, in what manner they resulted from negligent work and that the said work was of no use to Defendants. [ 12 ] The contract binding the parties is one of enterprise as defined by

article 2098 of the Civil code of Quebec which states the following: « A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay. [ 13 ] This being the case, pursuant to

article 2111 of the Civil code of Quebec , the client (i.e. the Defendants), is not bound to pay the price until the work is accepted. [ 14 ] More particularly, articles 2111 and 2112 of the Civil code of Quebec state the following: « 2111. The client is not bound to pay the price before the work is accepted. At the time of payment, the client may deduct from the price, until the repairs or corrections are made to the work, a sufficient amount to meet the reservations which he made as to the apparent defects or poor workmanship that existed when he accepted the work.

The client may not exercise this right if the contractor furnishes him with sufficient security to guarantee the performance of his obligations. 2112.

If the parties do not agree on the amount to be deducted and on the work to be completed, an assessment is made by an expert designated by the parties or, failing that, by the court. [ 15 ] As the bookkeeping services requested from Plaintiff were for the most part rendered and as Defendants were not able to establish precisely and convincingly that the work performed was of poor quality and of no use to them, Plaintiff is entitled to be remunerated for the services rendered. [ 16 ] However, as the work presented by Plaintiff to Defendants was incomplete, pursuant to

article 2111 and 2112 of the Civil code of Quebec, the amount of the bill must be diminished. In this regard, the Court will diminish Plaintiff's bill by a sum of $821.88. [ 17 ] Consequently, Plaintiff's action will maintained but for an amount of $2,000.00 and only against Defendant 9204-7299 Quebec Inc. [ 18 ] As concerns the liability of Defendant Chiba, as he was acting on behalf of Defendant 9204-7299 Quebec Inc., his personal liability is not at stake.

Therefore, Plaintiff's action as concerns Mitch Chiba must be dismissed. [ 19 ] Regarding the additional amount of $1,500.00 claimed by Plaintiff as compensation for moral and punitive damages, Plaintiff has not established having suffered the said damages nor being entitled to any compensation in this regard.

Consequently, this part of the claim is dismissed. [ 20 ] As concerns the amounts claimed by Plaintiff for administrative fees, cost of a letter of mise en demeure, Canada Post fee and loss of a day, such damages are indirect and Plaintiff is not entitled to claim them from Defendant 9204-7299 Quebec Inc. [ 21 ] Finally, as concerns the Court costs, Plaintiff is entitled to the sum of $152.00 said costs being calculated on the basis of an action not exceeding $2,999.00. FOR THE FOREGOING REASONS, THE COURT:

MAINTAINS Plaintiff's action in part. CONDEMNS Defendant, 9204-7299 Quebec Inc., to pay to Plaintiff the sum of $2,000.00 with interest at the legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of March 7, 2011. THE WHOLE with costs in the amount of $152.00. DISMISSES Plaintiff's action as concerns Defendant Mitch Chiba, without costs. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: December 11, 2012.