2016 QCCQ 3213, 2016 QCCQ 3213

Menache c. Parente 2016 QCCQ 3213 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147962-155 DATE: May 5, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ JULIA MENACHE Plaintiff v.

EDGAR PARENTE -et- DEBORAH BLAIS also doing business under the name of MA DOUCE MOITIÉ Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Julia Menache sues Edgar Parente and Deborah Blais, carrying on business under the name Ma Douce Moitié, for the amount of $122.50. Ms. Menache was employed as a part time waitress and bookkeeper by the Defendants who operate a restaurant/bakery/catering business. Ms.

Menache worked for Ma Douce Moitié from the beginning of June to August 14, 2014 at which time she resigned [1] . [ 2 ] Upon termination of the employment contract, the parties were unable to agree on two items regarding amounts owed [2] : 1) whether Ms. Menache had done bookkeeping work on two days, namely August 11 and August 12 (total 9 hours x $11 = $99); 2) whether Ms. Menache was entitled to obtain a refund of expenses of $12 incurred for the delivery of items on behalf of Ma Douce Moitié ($5 (gas) + $5 (gas) + $2 (parking)) [3] . 1) Whether Ms.

Menache had done bookkeeping work on two days, namely August 11 and August 12 (total 9 hours x $11 = $99); [ 3 ] The parties agree that Ms. Menache, as part of her employment contract, was to carry out certain bookkeeping duties related to the ongoing data entry of Ma Douce Moitié’s business receipts on an Excel spreadsheet [4] . It was agreed by the parties that Ms. Menache would perform these duties at home and not at the restaurant. This was a request of Ms. Blais. After entering the data of the receipts, Ms. Menache would send by e-mail the updated Excel spreadsheet as an attachment. Ms.

Blais would then take the spreadsheet to Ma Douce Moitié’s accountant. [ 4 ] Although Ms. Menache was primarily interested in work as a waitress, she agreed to also carry out the bookkeeping task as well [5] .

[ 5 ] Over the months of her employment, Ms. Menache was given various containers (including shoe boxes, bags) of the receipts to be entered. Her hours claimed for the performance of this task were paid upon sending of an e-mail by her detailing the hours spent. Ms. Menache would sometimes spend various hours on several days a week entering the receipts [6] . [ 6 ] Around August 4, 2014, Ms. Blais told Ms. Menache that the updated spreadsheet of receipts was needed by Friday August 8, 2014. However, by August 7, 2014, Ms. Menache advised Ms. Blais that she was still not finished the data entry.

She wrote by text [7] : "I've been working on these receipts literally non stop. I have two huge bags left and a shoebox" [ 7 ] Ms. Blais responded that the receipt work would have to wait as she needed Ms. Menache to work as a waitress on August 8, 2014 [8] . Ms. Blais wrote : "Don't worry about it. I need you here tomorrow" [ 8 ] The answer from Ms. Menache was "Ok". [ 9 ] On August 7, at 8:02 p.m. before coming in to work as a waitress the next day, Ms. Menache sent an Excel spreadsheet of work done up to that time. The Excel sheet is named "final" [9] . [ 10 ] Ms.

Blais takes the position that since the spreadsheet is entitled "final", no more work was done. [ 11 ] However, that position is inconsistent with the e-mail that accompanied that attachment sent by Ms. Menache that stated [10] : "I unfortunately wasn't able to finish a shoe box and one bag but the rest is all here" [ 12 ] The Excel document had a data size of 136K. [ 13 ] On August 8, 2014, as per Ms. Blais' request, Ms. Menache worked as a waitress at the restaurant. At the time, Ms. Blais extended the deadline for data entry of the receipts by one week. Ms. Blais told Ms.

Menache that it was necessary to finish off the receipts by August 15, 2014. [ 14 ] Ms. Menache states under oath that on Monday August 11, 2014, and on Tuesday August 12, 2014, she spent a total of 9 additional hours entering Ma Douce Moitié’s receipts. [ 15 ] It is clear that, at that time, she had the documents and receipts in her possession in order to be able to enter the supplemental data. [ 16 ] On August 14, 2015, Ms. Menache and Ms. Blais had a falling out over insufficient hours of waitressing and Ms. Menache resigned. [ 17 ] The Defendants went that evening to Ms.

Menache's residence to retrieve the accounting documents. At the time, Ms. Menache was not present and her mother gave the documents to Ms. Blais. [ 18 ] In order to respect the second deadline of Friday August 15 for the completion of the receipt work, Ms. Menache nonetheless sent by e-mail that evening a revised and updated spreadsheet document [11] .

[ 19 ] The document was no longer named "final". It was renamed "Final final" [12] . The accompanying e-mail from Julia Menache states: "Attached is the file with the receipts." [ 20 ] There is no longer a statement that the entirety of the data entry was not done. [ 21 ] The revised e-mail attachment is in fact larger in size and contained 147K. [ 22 ] On August 17, Ms. Menache sent an e-mail compiling and requesting the remaining unpaid hours. It included: - August 11, 2014: 7.5 hours - receipts; - August 12, 2014: 1.5 hours - receipts. [ 23 ] Defendants refused to pay those nine hours. Ms.

Blais states that she is convinced that Ms. Menache didn't really work those hours and that this was "added" as a punishment to the Defendants as a result of the refusal to give additional “waitress” hours, which gave rise to the resignation of Ms. Menache. [ 24 ] After review and due consideration of the evidence, including the testimony of the parties, the Court considers that the balance of probabilities favours the factual version of Ms. Menache, in particular that she did in fact work on the data entry of receipts for the additional hours claimed and on those dates.

This holding is based upon the following considerations: 1) the arrangement of working at home on an “honour system” was initiated, arranged and approved by the Defendants. There is no evidence at all which would put into question the integrity or honesty of Ms. Menache; 2) the factual events as proven are consistent with the version of Ms. Menache. On August 7, the receipt work was still unfinished. It is common ground that the work was finished by Ms. Menache. Therefore, the only data entry time for which Ms.

Menache claims payment in her time statement and during which she could have completed such work is on August 11 and August 12. On the other dates, namely between August 8 (when she was asked to resume and complete the receipt work) and August 14 (when she resigned), she worked as a waitress (August 9 and 10) for Ma Douce Moitié. 3) The receipt work went from being uncompleted to completed. It had to be done by someone. The only person who could have done so between August 8 and August 14 was Ms. Menache.

It is therefore entirely consistent with her version of events that this work was performed on Monday August 11 and Tuesday August 12, 2014. 4) The version of Ms. Menache is also supported by the fact that the revised Excel sheet sent (named "Final final") was in fact larger than the initial one (147K instead of 136K). 5) Ms. Menache filed into Court her text messages dated August 11. At 7:23 pm, she replied to her friend's inquiry about her activity at the time as "entering receipts" [13] . 6) Ms. Menache stated under oath that she worked 9 hours "entering receipts" for Defendants on August 11 and 12, 2014.

Her testimony was clear and cogent. The Court believes her. 7) Ms. Blais was unable to prove that Ms. Menache did not work the hours claimed for entering receipts on the days claimed. She

simply suspects that it wasn't the case and insisted that Ms. Menache’s claim was a type of punishment for the Defendants. Ms. Blais also submitted that she had limited the amount of hours that Ms. Menache could work [14] . But the text message invoked by Ms. Blais in support of such a statement of limitation does not support that version. It is clear that in the past as long as the hours were reasonable and for work shown, they would be honoured. There is no reason that this should not be also done for this claim of nine (9) hours. [ 25 ] As the Court stated, Ms.

Blais' version is not supported by the objective and verifiable proof heard at trial. Accordingly, the Court will grant the amount claimed by Ms. Menache of 9 hours equivalent to $99. 2) Whether Ms. Menache was entitled to obtain a refund of expenses incurred for the delivery of items on behalf of Ma Douce Moitié ($5 (gas) + $5 (gas) + $2 (parking)) [ 26 ] On August 17, 2014, in her statement of request for pay [15] , Ms. Menache also requested refund of $12 for gas and parking. The reply of Mr. Parente was that she needed to hand in receipts before those expenses could be refunded [16] . Ms.

Menache responded that this was not the policy at the time those expenses were incurred, in particular when she effected those deliveries on behalf of Ma Douce Moitié, namely June 14 and 17, 2014 [17] . Ms. Menache testified that at the time Mr. Parente had said that an expense report was sufficient. Accordingly, this is what she produced at the time [18] . Ms. Menache testified that the request for receipts came only at a later stage. [ 27 ] The texts filed into the Court Record as exhibits establish that Ma Douce Moitié agreed, as part of Ms.

Menache’s employment contract, to refund her expenses incurred for deliveries made on its behalf [19] . [ 28 ] Baring an express agreement otherwise, under Quebec law, an employer must pay an employee reasonable expenses incurred in the execution of an employee’s duties. Articles 2150 and 2151 of the Civil Code of Quebec state as follows: 2150. Where required, the mandator advances to the mandatary the necessary sums for the performance of the mandate. He reimburses the mandatary for any reasonable expenses he has incurred and pays him the remuneration to which he is entitled. 2151.

The mandator owes interest on expenses incurred by the mandatary in the performance of his mandate from the day they are disbursed. [ 29 ] The Defendants acknowledge that Ms. Menache did carry out the deliveries on the dates stated by her. [ 30 ] However, Defendants argue that the omission by Ms. Menache to remit receipts in support of the expenses is a good defence to the claim. [ 31 ] For that to be the case, Ma Douce Moitié would have to have established that, at the time the expenses were incurred, that was a clear employment policy conveyed to the employee. There was no such proof made at trial.

It is instead clear that the process for claiming refund of expenses was evolving and Ms. Menache followed the appropriate practices that were told to her at the time. [ 32 ] Defendants contest whether the claimed expenses conform to real expenses. They state that $12 in gas is far too much for the distance involved for the two deliveries, which they estimate at 3 kilometres. The Court agrees in part and will reduce the gas charge to 5 dollars in total but will maintain the requested refund of $2 for the parking charge. The total expenses allowed are therefore seven (7) dollars. FOR THESE REASONS, THE COURT:

GRANTS in part Julia Menache’s Judicial Demand; CONDEMNS Edgar Parente and Deborah Blais solidarily (Article 1525 (2) C.C.Q.) to pay Julia Menache the amount of $99 with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , calculated from Plaintiff’s demand letter dated September 4, 2014 (Exhibit P-11); CONDEMNS Edgar Parente and Deborah Blais solidarily (Article 1525 (2) C.C.Q.) to pay Julia Menache the amount of $7 with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from June 17, 2014 (Exhibit P-23); CONDEMNS Edgar Parente and Deborah Blais solidarily (Article 1525 (2) C.C.Q.) to pay Julia Menache the amount of $86.75 as legal costs (Court Stamp $75.25 + Registered mail $11.50). __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: April 25, 2016