2011 QCCQ 11641, 2011 QCCQ 11641

Business Solutions D. & A. Ltd. c. 9167-0620 Québec inc. 2011 QCCQ 11641 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-179820-116 DATE: September 28, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ BUSINESS SOLUTIONS D & A LTD. Plaintiff v. 9167-0620 QUÉBEC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing Defendant for $60,388.13, alleging it was not paid for services rendered. Defendant denies the claim. While counsel for Defendant was present at trial, its principals were living outside Canada and did not attend the hearing.

THE ISSUES IN LITIGATION: 1) Did a service contract exist between the parties? 2) If so, were administrative services rendered by Plaintiff? 3) If Plaintiff provided such services to Defendant, what amount is owed? THE OBJECTIONS: [ 2 ] Defendant objected to the production of two invoices (P-2) since they had not been communicated to Defendant prior to trial. However, both invoices were alleged in Plaintiff's action and Defendant could have requested them but never did. In such circumstances, the Court considers the invoices admissible in evidence.

Moreover, it may be noted that since the parties' service agreement was verbal, the price for Plaintiff's services could also be established verbally. [ 3 ] Plaintiff's principal witness was questioned regarding the nature of the work he performed and how Plaintiff was remunerated. Defendant objected to Plaintiff's attempt to explain, by testimonial evidence, its services and the amounts contained in Plaintiff's invoices, given the lack of details in the invoices and the lack of supporting documentation. The evidence was admitted under reserve of these objections. [ 4 ] This evidence is admissible [1] .

The witness, Mr. Shaulov, explained the services provided to Defendant and the basis on which Plaintiff was paid. He had personal knowledge of the facts giving rise to Plaintiff's claim. The probative force of his testimony is nevertheless left to the appraisal of the Court [2] . THE EVIDENCE: [ 5 ] Alexander Shaulov, Plaintiff's property administrator, was hired by Defendant to manage its property on Cote de Neiges and Van Horne, in Montreal. The building consisted of rented commercial space on the ground floor and condominiums.

[ 6 ] In virtue of a verbal agreement with Defendant, Plaintiff charged $120 for each time Mr. Shaulov visited Defendant's property to deal with a problem. No written management contract had ever been signed. [ 7 ] Mr. Shaulov's responsibilities involved dealing with administrative problems and emergency issues, hiring a contractor and tradesmen to renovate the ground floor stores. He was also responsible for collecting rents, keeping the property marketable and in good condition and dealing with the relations between tenants, the syndicate and owners. Mr.

Shaulov claimed he was present at the building “almost every day or every second day” . [ 8 ] Mr. Shaulov recorded each visit in an agenda and the reason for same. Defendant was charged $120 for each visit. Mr. Shaulov had his agenda for 2008 but not those for 2009 and 2010, namely the years concerned by this litigation. [ 9 ] Defendant paid for Plaintiff's services until 2009. It paid for only part of 2009 and made no payments for 2010, other than the reimbursement of the petty cash account.

Normally, Defendant attempted to reduce Plaintiff’s fees and succeeded in negotiating a reduction amounting to 5% of the sum owed. [ 10 ] Plaintiff sent two invoices to Defendant for 2009 and 2010 for $39,506.25 and $20,881.88, respectively. The description of services states “administration fee(s)” and the unit price is listed as “120” . [ 11 ] According to Mr. Shaulov, Defendant's three principals had agreed to pay the entire bill and, given they did not have the necessary funds, had assured Mr. Shaulov that once they sold their building, they would pay the outstanding amount.

However, Plaintiff never received payment of its invoices P-1 and P-2. ANALYSIS: [ 12 ] Plaintiff had provided management services for Defendant for several years and had received payment until 2009. Plaintiff is now claiming for services rendered during 2009 and for 2010 and submits that in accordance with the parties' verbal agreement, payment was based on a per visit basis. [ 13 ] Plaintiff alleges Defendant promised to pay the amounts owed from the proceeds of the sale when its property was sold but no payment has been made.

Plaintiff submitted that Defendant had confirmed it would pay 45,000 Euros in an e-mail. However, the e- mail was written in Hebrew and since no translation had been provided, the document was held to be inadmissible in evidence. [ 14 ] Plaintiff has the burden of proof. It must prove that it had an agreement with Defendant to provide administrative services at a rate of $120 per visit.

It also must prove that it carried out the number of visits that it has billed. [ 15 ] Plaintiff established that it had a verbal agreement with Defendant to provide administrative services to Defendant regarding a building Defendant owned in Montreal.

Plaintiff also established, by evidence that was not contradicted, that it charged $120 per visit. [ 16 ] Plaintiff billed the amount of $39,506.25 for 2009 and $20,881.88 for 2010. [ 17 ] The two invoices, however, contain no details as to the number of visits, dates on which the services were rendered or what work was done. [ 18 ] Plaintiff was unable to provide a detailed list of when it handled administrative services for Defendant or what it did on each date. More importantly, Plaintiff, in its testimonial evidence, failed to provide the dates of each visit.

Plaintiff has the burden of establishing the number of visits it made. However, Plaintiff's evidence on this matter is insufficient [3] ; it consisted of generalities, without the requisite details. [ 19 ] The Court is nevertheless convinced that Plaintiff did render services for Defendant, by carrying out a certain number of visits, at the rate of $120 per visit, during 2009 and 2010, but the evidence does not provide the exact number of visits. Given Mr.

Shaulov's testimony, the preponderant evidence establishes that he made at least two visits per week, at the above-mentioned rate. [ 20 ] In light of the foregoing, the Court sets the amount payable at $12,000 per year ($120 per visit at two visits per week), based on a working year of 50 weeks. This sum applies for 2010. [ 21 ] With respect to 2009, Plaintiff was only incorporated on April 20, 2009, but it is claiming for the entire year.

In the absence of information as to the number of visits carried out prior to Plaintiff's incorporation, the Court establishes the amount payable for 2009 at $8,750, which represents two visits per week at the rate of $120 per visit since the incorporation, for a working year of 50 weeks. [ 22 ] The total amount for 2009 and 2010 comes to $20,750. Given that Plaintiff normally accepted a 5% reduction of its fees, the Court, after applying the same reduction, awards Plaintiff the sum of $19,713.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS 9167-0620 Québec inc. to pay Business Solutions D & A Ltd. the sum of $19,713, plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since February 9, 2011;

THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Me Michael Worsoff Campbell Cohen Worsoff Attorney for Plaintiff Me Howard Tatner Tatner and Tatner Attorney for Defendant Date of hearing: July 7, 2011