2015 QCCQ 478, 2015 QCCQ 478

Wener c. Tao 2015 QCCQ 478 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-134020-124 DATE: January 8, 2015 ______________________________________________________________________ BY THE HONOURABLE MADAM JUSTICE MARIE MICHELLE LAVIGNE, J.C.Q. ______________________________________________________________________ MARK E. WENER Plaintiff v. QIU TAO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Mark E. Wener claims from Mrs.

Qiu Tao the amount of $3,260.05 representing the balance of his accounts for legal services rendered between September 23, 2008 and July 27, 2009. [ 2 ] Defendant, Mrs. Qiu Tao, refuses to pay alleging numerous reasons: • She was misrepresented by Mr. Wener; • He still owes her money; • She was overbilled, Mr. Wener kept the amounts he received in trust and refused to give it to her; • She did not receive invoices for different amounts; • The hourly fee of $185.00 was supposed to include the taxes; [ 3 ] Mrs. Qiu Tao claims Mr.

Wener still owes her the sum of $6,646.45 and she filed a counter claim concerning this amount. The facts [ 4 ] Mr. Wener started representing Mrs. Tao in 2007 in relation with a tenant, Mr. Wei Lu, who was operating a commerce under the name Dépanneur Lu in her building. This tenant was not paying his rent. The services of Mr. Wener were requested to obtain the termination of the lease, the expulsion of the tenant and damages. Proceedings were filed. [ 5 ] In September 2008, an agreement intervened between Mrs. Tao and Mr. Lu by which Mrs. Tao would buy Mr. Lu’s dépanneur business.

This transaction was not completed. Proceedings were later filed by Mr. Wener on behalf of Mrs. Tao to ask for the cancellation of the agreement to purchase the dépanneur. [ 6 ] Negotiations between Mrs. Tao and Mr. Lu and some partners continued until 2009. A settlement was concluded and a deed of sale was signed on June 30 th 2009. The dépanneur was sold by Mr. Lu’s company to a company owned by Mrs. Tao. [ 7 ] This concluded the mandate of Mr. Wener. [ 8 ] He sent his accounts for professional services on September 22, 2009 [1] .

These accounts were partly paid by the money held in his trust account leaving a balance of $3,260.05. He filed a claim in this regard on June 15 th 2012. [ 9 ] Mrs. Tao raised many facts justifying the non payment of the invoices. However, all these facts relate to invoices and work previously done by Mr. Wener in 2007 and 2008. [ 10 ] Mrs. Tao’s claim was formulated in her counter claim filed in the Court record by Mr. Wener on July 20, 2012. This counter claim which does not refer to the services that are the object of the present claim, is filed more than 3 years after the services were rendered and billed.

Therefore this counter claim is prescribed in application of sections 2921 and 2925 of the Civil Code:

2921. Extinctive prescription is a means of extinguishing a right owing to its non-use or of pleading a peremptory exception to an action. 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 11 ] In demand, Mr. Wener produced the appropriate documentation justifying his services. [ 12 ] The allegations of Mrs. Tao that the accounts for professional services should include the taxes in the hourly rate are unfounded. Previous invoices were sent and paid by Mrs.

Tao and all these invoices detailed the taxes to be paid in addition to the hourly rate of $185.00 an hour [2] . FOR THESE REASONS, THE COURT: GRANTS the motion of Plaintiff Mark E. Wener; CONDEMNS Defendant Qiu Tao to pay to Plaintiff Mark E. Wener the sum of $3,260.05 with legal interest and the special indemnity provided for by

section 1619 of the Civil Code of the Province of Quebec from the introduction of the action on June 15 th 2012. THE WHOLE with costs. __________________________________ MARIE MICHELLE LAVIGNE, J.c.Q Date of hearing: October 27, 2014