2012 QCCQ 6086, 2012 QCCQ 6086

Graur c. Diner 2012 QCCQ 6086 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Civil Division» N°: 500-32-119784-090 DATE: May 29, 2012 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ BEN GRAUR Plaintiff v.

JODY DINER and DEBBIE SHARIF Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing Jody Diner and Debbie Sharif, on account, for $6,913.63. [ 2 ] Diner and Sharif are, in turn, suing plaintiff for $7,000.00 each. [ 3 ] Plaintiff is a small flyer distributor. [ 4 ] Defendants are real estate brokers. [ 5 ] In April 2009, defendants retained plaintiff's services to deliver commercial flyers for them. There were to be no deliveries in July, August and December, 2009 and January, 2010.

The price agreed upon was $45.00 per 100 flyers, plus tax. Plaintiff asked that the flyers be stored in his warehouse. JODY DINER [ 6 ] In Diner's case, plaintiff delivered flyers in May, June and September, 2009. His fees were paid. [ 7 ] However, Diner unilaterally resiliated the contract, as she was not satisfied with plaintiff's services. He did not follow her instructions regarding the delivery areas, and made the deliveries according to his

schedule and routes, not Diner's. [ 8 ] On September 28, 2009, Diner demanded that plaintiff return her "remaining inventory of 64,000 flyers" to her (exhibit D-3), which he refused to do. She asked again, on November 17, 2009 (exhibit D-5), to no avail. [ 9 ] Diner is claiming $7,000.00, for the printing cost of the unreturned flyers (exhibit D-6) and "potential loss of commission". DEBBIE SHARIF [ 10 ] In Sharif's case, plaintiff delivered flyers in June, 2009.

Although she was dissatisfied with his services, as the delivery was incomplete, she decided to "give him another chance", in September, 2009, after verbally complaining to him, on several occasions. [ 11 ] In September, 2009, plaintiff failed once again to deliver the flyers to certain households, and Sharif therefore decided to resiliate the contract.

Plaintiff was nonetheless paid for the services rendered (cheques D-9 and D-10). [ 12 ] On October 20 and November 17, 2009, Sharif demanded that the remaining flyers be returned to her (demand letters D-12 and D-13), but plaintiff refused to do so. [ 13 ] Sharif's cross-demand is for the printing costs of the unreturned flyers and for unspecified damages totalling $7,000.00. DISCUSSION [ 14 ] Under s. 2125 of the Civil Code of Quebec , the client may unilaterally resiliate the contract even though the work or provision

of service is already in progress. [ 15 ] Under s. 2129 C.C.Q., upon resiliation of the contract, the client is bound to pay the provider of services, in proportion to the agreed price, that which defendants did. [ 16 ] Plaintiff contends that he suffered injury as a result of the termination of the contracts, but he alone is responsible therefor, as he did not act in the best interests of defendants, with prudence and diligence, nor were his services provided in conformity with the contracts (s. 2100 C.C.Q.). [ 17 ] Plaintiff's application is therefore unfounded. [ 18 ] As regards the cross-demands, in refusing to return the flyers as requested, plaintiff did not conduct himself in good faith.

This is contrary to ss. 1375, 1458, 6 and 7 C.C.Q. [ 19 ] Accordingly, defendants are entitled to compensation for the damages which they sustained, and which the Court hereby evaluates at $700.00 for Diner and $750.00 for Sharif.

WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's application; GRANTS Jody Diner's cross-demand, in part; SENTENCES plaintiff to pay Jody Diner the sum of $700.00, plus interest at the annual rate of 5% and the additional indemnity provided for by s. 1619 C.C.Q. as of September 28, 2009, plus the judicial fees; GRANTS Debbie Sharif's cross-demand, in part; SENTENCES plaintiff to pay Debbie Sharif the sum of $750.00, plus interest at the annual rate of 5% and the additional indemnity provided for by s. 1619 C.C.Q. as of October 20, 2009, plus the judicial fees. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: May 1, 2012