2016 QCCQ 2853, 2016 QCCQ 2853

Amram c. Tuddenham 2016 QCCQ 2853 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142620-147 DATE: April 25, 2016 ______________________________________________________________________ BY THE HONOURABLE MADAM JUSTICE MARIE MICHELLE LAVIGNE, J.C.Q. ______________________________________________________________________ NAOMI AMRAM Plaintiff v.

CAROL TUDDENHAM ET WEST ISLAND BABYSITTING, HOUSEKEEPING & ELDERCARE SERVICES Defendants ______________________________________________________________________ JUDGMENT RENDERED ORALLY ______________________________________________________________________ [ 1 ] Mrs. Naomi Amram is claiming from Mrs. Carol Tuddenham the amount of $725.00 representing a deposit of $200.00 and punitive damages. This claim is in the context of a contract entered into between the parties to find a nanny. Mrs.

Naomi Amram could not find the ideal nanny and therefore she is asking for a reimbursement of her deposit of $200.00 and damages. [ 2 ] The contract between the parties is a contract of services. This contract provides for an obligation of means and not an obligation of result. [ 3 ] Mrs. Carol Tuddenham did not have the obligation to find the perfect nanny. She had the obligation to introduce nannies to Mrs. Naomi Amram so she could make her choice. [ 4 ] A contract of services is governed by some specific articles in the law especially 2125 of the Civil code of Quebec which states: 2125.

The client may unilaterally resiliate the contract even though the work or provision of service is already in progress. [ 5 ] Mrs. Amram could cancel the contract with Mrs. Tuddenham at anytime. However,

section 2129 of the Civil Code of Quebec states: 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price , the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered . [ 6 ] In this case, the parties agreed on the terms of a contract. Although the contract was not signed by the parties, they both refer to it as being the Agreement. [ 7 ] This contract states clearly that a retainer fee of $200.00 is requested to begin the nanny/housekeeper search. The contract stipulates that this amount is non refundable. [ 8 ] The proof is clear. Some searches were made by Carol Tuddenham to find a nanny for Mrs. Amram.

Therefore this amount cannot be refunded. [ 9 ] As for the rest of the claim consisting of punitive damages, no punitive damages that can be given in such a situation. No law provides for awarding punitive damages in such circumstances. [ 10 ]

Article 1621 C.C.Q. states that:

1621. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose. Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor's fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the reparatory damages is wholly or partly assumed by a third person.

FOR THESE REASONS, THE COURT: DISMISSES the Plailntiff’s claim; THE WHOLE with judicial costs. __________________________________ MARIE MICHELLE LAVIGNE, J.c.Q Date of hearing: April 25, 2016