2015 QCCQ 6672, 2015 QCCQ 6672

Friedman c. Primo Bedding Company Inc. (Primo International) 2015 QCCQ 6672 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-140165-137 DATE: July 7, 2015 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ RACHEL FRIEDMAN Plaintiff v.

PRIMO BEDDING COMPANY INC. doing business under the firm and style name of "PRIMO INTERNATIONAL" Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS a contract for services intervened between the parties, on January 4, 2012 (exhibit P-1); [ 3 ] WHEREAS defendant retained plaintiff's services as a sales representative; [ 4 ] WHEREAS defendant unilaterally resiliated the contract, in April or May, 2013, as Dennis Moody, general sales manager, felt that plaintiff "was not spending enough time in her territory (South Florida) working with customers» (exhibit D-1); [ 5 ] WHEREAS defendant paid plaintiff all monies owed to her, upon resiliation of the contract, by cheque, in the amount of $749.66 U.S. (exhibit P-9); [ 6 ] WHEREAS plaintiff did not cash the above cheque; [ 7 ] WHEREAS , at trial, plaintiff admitted that she is suing defendant "for commission that (she) could have earned if (she) could have continued working"; [ 8 ] WHEREAS plaintiff was never a salaried employee of defendant; [ 9 ] WHEREAS defendant retained her services solely as an independent contractor; [ 10 ] GIVEN

article 2129 of the Civil Code of Quebec ; [ 11 ] WHEREAS plaintiff's recourse for unearned commission and lost earnings is ill-founded; [ 12 ] WHEREAS , furthermore, there is no preponderant evidence that defendant acted in bad faith (art. 1375 C.C.Q .); [ 13 ] WHEREAS , at trial, defendant's executive vice-president David Itzkovitz undertook to issue another cheque, in an amount equivalent to $749.66 U.S., converted into Canadian dollars at the exchange rate which was applicable on August 2, 2013, as a replacement for cheque P-9; [ 14 ] WHEREAS Itzkovitz further declared that defendant would forgo its judicial costs in the event the suit was dismissed; WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's action, without costs; ORDERS defendant to execute its undertaking to issue a new cheque made to plaintiff's order, in an amount equivalent to $749.66 U.S., at the exchange rate which was applicable on August 2, 2013, the whole within 30 days from the date of this judgement.

__________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: June 29, 2015