2019 QCCQ 1305, 2019 QCCQ 1305

Chrisovalantou Cheretakis Orthodontiste Inc. c. Design Shopp International Inc. (Design Shopp) 2019 QCCQ 1305 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-701540-173 DATE: March 8, 2019 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ CHRISOVALANTOU CHERETAKIS ORTHODONTISTE INC. Plaintiff/cross-defendant v.

DESIGN SHOPP INTERNATIONAL INC. doing business under the firm and style name of DESIGN SHOPP Defendant/cross-plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A services contract intervened between the parties, on September 27, 2016 (exhibit P-17). [ 2 ] Plaintiff company operates an orthodontics clinic, where Dr.

Chrisovalantou Cheretakis runs a solo practice. [ 3 ] Plaintiff retained defendant’s services to design, create and deliver a website, as well as a logo and graphic design for a stationary package. [ 4 ] The parties agreed to a price of $10,324.76 ($8,980.00, plus tax), for the services. [ 5 ] Time frames for delivery of the services are outlined on page 14 of the contract. [ 6 ] Plaintiff is suing defendant, in damages, for having failed to honour its contractual obligations. [ 7 ] Defendant, on the other hand, alleges that it completed from 90% to 95% of its mandate, and is counter-suing plaintiff for $3,079.18, which represents the balance owing, in its estimation. [ 8 ] Sections 2098 and 2100 of the Civil Code of Québec state: “ 2098 .

A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him.

2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract. Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force.” [ 9 ] Furthermore,

section 1458 C.C.Q . states: “ 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.” [ 10 ] Finally,

section 1375 C.C.Q . states: “ 1375 . The parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished.” [ 11 ] Defendant’s contractual obligations are set out on pages 2 and 3 of the contract: “ WEB DESIGN WEBSITE DESIGN FROM TEMPLATE $8,980.00+tx ($8,980.00 ) The objective of this project is to be accomplished through a site that boasts ease of use, numerous call to actions, various tracking tools and marketing thought processes throughout.

Best practice rules such as 3 clicks or less, language toggle in the top right corner and creating a home page that is scrolling with multiple sections acting as a portal to the rest of the site are some examples to be used. Ease of navigation and promoting various call to actions for the user to get in touch with the clinic for appointment request and/or for more information is a primary goal. A secondary focus of the site is to help bolster the brand perception of the clinic in ensuring a polished and professional yet approachable image throughout.

Careful consideration will be made for the user at all levels, to help them find what they are looking for, but to also present content in a way that is intuitive and easy to consume. The design will be organized to help get the message across quickly to help coax users to look more and see why it matters to them. The more time on site, and the more pages viewed, will help improve the organic ranking of the site which is just one example of how the design will help improve search engine results and ultimately have more people find and use the site.

This project will be developed in a modular format allowing for the ease of adding further components in the future. Sourcing of a pre-built template which accommodates the client’s page layouts as needed Content entry of up to 4 pages, including up to 5 articles/services Self-manageable solution : Wordpress backend allowing the ability to edit content on the website. 2 languages (French & English) with the possibility to add additional languages in the future.

Includes all communications for project management, drafts and presentations, organization of content. • Design of website and text integration o Content will be written by Design Shopp, and will be optimized for SEO o Design Shopp will produce content for up to 250 words per page (Content for product pages not included) o Translation will be done by Design Shopp if French is required o Up to 3 rounds of revisions included Designs o Design Shopp will use a template as the base structure for the web build […]” (contract, exhibit P-17)

[ 12 ] Plaintiff, who had the burden of proof (s. 2803 and 2804 C.C.Q. ), demonstrated, in painstaking detail, how and why defendant failed to honour its contractual obligations. [ 13 ] Firstly, contrary to what is stipulated in the contract, defendant failed miserably to accommodate plaintiff’s page layouts as needed. [ 14 ] From the outset, plaintiff provided defendant with “a website (it) wanted to be used as a close reference” (chronology of events, exhibit P-24). [ 15 ] Not only did defendant represent to plaintiff that it was up to the task and undertake to deliver the product as requested; but, it also assured plaintiff that the end result “would be even better”.

However, according to the preponderance of evidence, including the testimony of Cheretakis, Josef Azam, Thomas Hamilton-Piercy, as well as exhibits P-1 to P-34 and D-1 to D-5, the end result was anything but. [ 16 ] The final version of the template presented to plaintiff (colored paper version, exhibit P-23) was a huge disappointment to plaintiff, and did not reflect what was ordered and asked for.

More specifically, the template had nothing in common with plaintiff’s reference website, despite concerns voiced by Cheretakis over the course of the mandate ( inter alia , email dated October 13, 2016, exhibit P-3; email dated November 11, 2016, exhibit P-7; emails dated November 21, 2016, exhibit P-30; emails dated December 23 and 28, 2016, exhibit P-9; email dated January 6, 2017, exhibit P-10; email dated January 17, 2017, exhibit P-11; email dated February 2, 2017, exhibit P-32; email dated February 14, 2017, exhibit P-12; email dated February 26, 2017, exhibit P-14; emails dated March 3 and 6, 2017, exhibit P-14). [ 17 ] In fact, instead of advising Cheretakis that it would not be able to “accommodate (plaintiff’

s) page layouts”, as per the contract, defendant’s Julie Bourgeois reassured her that the website templates were “extremely customizable”, when in fact they were not, as evidenced by template, exhibit P-23. [ 18 ] Cheretakis’ notes in her chronology of events, exhibit P-24, describe perfectly why defendant’s work was unacceptable: “To further describe Exhibit P23, this is a basic template that has barely been customized.

You can not read most of the content on these pages, there is still gibberish and space filler everywhere and they claim that all that is left at this point is French content translation and insertion, that the site is 95% complete. There are pictures and names of doctors I have never seen or heard of which are stock images from the template. I run a solo practice with no associate. There are no pictures of what I do, I have not chosen or approved any of the pictures, they came with the template, they do not represent what I do.

In Exhibit P7, I talk about the photos that they were supposed to provide for the project as we had originally discussed during our kick-off meeting on September 29 th , 2016 . […]” [ 19 ] Defendant also failed to respect the agreed-upon timetable, and blaming this on plaintiff was ludicrous.

The evidence shows that, other than one 4-day lapse, defendant is liable and accountable for the numerous delays incurred. [ 20 ] Defendant also refused to translate the contents into French, contrary to the terms of the contract. [ 21 ] Defendant was bound to produce results ( s. 2100 in fine , C.C.Q .), and, according to the preponderance of evidence, it did not. [ 22 ] Defendant was bound to act in the best interest of its client, with prudence and diligence ( art. 2100 C.C.Q .), and, according to the preponderance of evidence, it did not ( s. 2100 C.C.Q .). [ 23 ] Defendant was bound to ensure that the work was carried out in conformity with the contract ( art. 2100 C.C.Q .), and, according to the preponderance of evidence, it did not. [ 24 ] Cheretakis did everything she could to cooperate with defendant, with a view to bring the product to fruition or mitigate the damages, but in vain. [ 25 ] Defendant’s modus operandi was to blame Cheretakis for basically everything (for example, for delaying the project, which she did not; and for asking defendant to “work for/free”, which she did not). [ 26 ] To make matters worse, towards the end of the parties’ relationship, rather than try to satisfy plaintiff as per the terms of the contract, by, inter alia , providing a French translation and taking responsibility for its ongoing server trouble, a new person, one Tom Hamilton-Piercy (“Hamilton”), was brought into the picture to “fix things”. [ 27 ] In fact, Hamilton’s intervention exasperated the situation (emails, exhibits P-14, P-15, P-16).

Inter alia , he imposed translation costs not mentioned in the contract, and demanded more monies for basic revisions: “ ° The major disagreements started during a call, followed by an email from Tom Hamilton, a few days after submitting my revisions on February 26 th , 2017 Exhibit P14.4. ° To summarize Tom Hamilton’s email in Exhibit P14.4, basically all revisions were to be considered change orders and surcharges applied, and I also had to assume on my own the French translation of the content and the entire insertion of the English and French content!

One example that stands out was a request to change 2 icons that referred to surgical and adult orthodontic treatments. They selected, without my approval, a rocket ship to depict surgical treatments and a button for adult treatments. When I asked for something

more appropriate, Tom Hamilton said that this would cost me $150+tx to do. Also, I would like to emphasize here that in this email there is a clear admission that NONE of my English content had been inserted in the site since he was asking me to complete the task myself!

And this, despite having my content since October 23 rd , 2016. ° To clarify, the contract calls for up to 3 revisions of the website; however, Design Shopp refused to make revisions and attempted to charge me additional fees for said revisions; On page 3 of the contract (Exhibit P17.2) under the heading “Design of Website and text integration”, the fourth bullet states: “Up to 3 rounds of revisions included Designs”. Firstly, the word Designs seems misplaced there.

Secondly, any reasonable person reading this would understand that it means revisions of the entire website , given that it’s under the “Design of Website and text integration” header.

It is unreasonable to assume that approving a template and a homepage would be considered revisions. ° Several email exchanges then took place between Tom Hamilton namely this one on March 3 rd , 2017 5:43PM Exhibit P15.2 (read email in order provided) ° He then replied on March 6 th> 2017 Exhibit P14, I will only read a few sections of his email, to which we replied that they had only allocated 2.7% of the entire budget to the French translation of an entire website! ° More specifically, with respect to the French translation: Design Shopp imposed arbitrary limits on the French translation of the website content; however, the contract does not impose such limitations. ° Please see Exhibit P10, the email dated January 6, 2017 where Julie Bourgeois sent me what was supposed to be a final version of the website, she stated in this email that they were ready to send my content to translation the week after!

There is no mention of a translation budget or me having exceeded it. ° In Exhibit 14, in the emails I just went through from Tom Hamilton dated between February 26 th and March 6th, arbitrary fees were provided about what the translation would cost and new fee breakdown values were listed to justify surcharges Exhibit P15. Nowhere are these breakdowns stated in the contract.

My contract was fixed price and included one all inclusive fee for a finished product, their breakdown fees as far as anyone is concerned are arbitrary and irrelevant. ° At this point, I had lost all confidence In Design Shopp’s ability to deliver on their contract, both in terms of timeline and content. Timeline was very relevant for me given that in January 2017, when the first draft of the site was delivered, 2 months after the whole project was scheduled to be completed, I was now starting construction on my clinic and I was 6 months into a high-risk pregnancy.

I started the process with Design Shopp in August 2016 to avoid this exact scenario, expecting the products to be completed and delivered way before. ° As such, I demanded a refund for the website portion of the work. I was prepared to pay for the work behind the logo and stationary design development. top of page Exhibit P15.1 ° Tom Hamilton responded on March 9 th , 2017 Exhibit P15. Now he was crediting me for the Insertion of the French content which, in an earlier email, he was stating that it was my responsibility and to be completed on my own. But he was still not going to insert my English content.

Furthermore, he was now charging me $899.13+tx for the static page which, as previously mentioned, was offered to me for free back in August, 2016! ° Now to further discuss the newly imposed content restrictions, going back to the email on February 26 th 2017, almost 4 months after I provided my content on October 23 rd , 2016, Tom Hamilton of Design Shopp, also arbitrarily put restrictions on the amount of content to be inserted to 250 words per page. Exhibit P14.4. The only time 250 words is mentioned in the contract is with respect to production of content Exhibit 17.2.

Lastly, here is 250 words of content (Exhibit NP33) I would never had agreed to be restricted to 4 times this amount of content and to have to insert any additional content myself for close to $10 000 dollars. ° On March 10 th , 2017, we sent a formal notice (Exhibit P16.1 P16.2) with a final reply from Tom on April 11 th , 2017 giving us 3 final choices (Exhibit P16) 1. Settle the full bill and continue with only one forth of my content translated to French, not as per the contract, and I insert the French content 2.

Settle the final bill less the work which remains to be done ($915+tx), not sure at this point whether I would be charged the additional $899.13 for the static page as previously discussed, leaving me with $16 dollars to hire someone new to translate my content and insert it in the template, train me on how to do back end modifications and deploy my website after making a few needed corrections. 3. Walk away with no further payment or website, after having paid $7227.33 for a logo business card and letterhead designs.

All of these options were clearly unfavorable to me, DS basically gets to keep my money and not do any more work. Also, they were unfortunately in a position of advantage since they had a significant amount of my money already and I had no recourse other than being here today.” (chronology of events, exhibit P-24) [ 28 ] Cheretakis is a professional, who testified in an honest, open, convincing and reliable manner. The Court is convinced that, as

plaintiff’s representative, Cheretakis acted in good faith throughout this matter. The Court is also convinced that defendant did not respect the website portion of the contract. According to the preponderance of evidence, it most certainly did not deliver “roughly 95% of the contract”. [ 29 ] In the end, the website portion of defendant’s faulty services was useless to plaintiff. The template provided was nothing but a generic template, totally uncustomized to plaintiff’s very specific professional needs. [ 30 ] If this is what defendant intended to deliver, it should have been clear from the start.

Accepting plaintiff’s reference website as a guideline, and promising to do “even better”, was misleading. [ 31 ] Ultimately, plaintiff clearly did not get what it paid for. [ 32 ] On March 10, 2017, plaintiff sent defendant the following demand letter: “Sir: I am writing to inform you that I am claiming the sum of $4,786 plus applicable taxes from you.

The reasons include, but are not limited to the following: • To-date, the sum of $6,286 plus taxes has been paid to Design Shopp in advance of project delivery for the creation of a website as well as graphic design and branding; • “5 articles and services” have not been provided as per the contract; • 250 words per page of content have not been provided as per the contract; • SEO Pack installation to facilitate the insertion of web optimization has not been provided; • Integration of basic Javascript or jQuery components on website (banner or image transitions and movement, interaction within text areas, etc.) have not been provided as per contract; • Integration of an online Booking Request or Contact Form of up to 10 fields and the request is sent to an email address and the user receives an email notification to confirm that his or her message was successfully sent.

The template was in no way customized for our specific needs and as such this service has not been provided as per the contract. • The contract terms stipulate that initial homepage design would be completed in 5-7 business days from the date of the template selection; however, it was not completed within this timeframe; • The website remains substantially incomplete despite content being provided to Design Shopp by Dr. Cheretakis on October 23, 2016; • The contract terms stipulate that each modification or revision would be completed by Design Shopp within 2-4 business days.

An inactive link to an incomplete first draft of the website was provided to Dr. Cheretakis on January 6, 2017, which was inaccessible until February 14, 2017. This is 78 business days following submission of content to Design Shopp by Dr. Cheretakis; • No revisions have been completed to-date despite the first round of revision comments being provided by Dr. Cheretakis to Design Shopp on February 21, 2017; • The contract calls for up to 3 revisions of the website; however, Design Shopp has refused to make revisions and has attempted to charge Dr.

Chrisovalantou Cheretakis Inc. additional fees for said revisions; and • Mobile version of draft site provided did not respond automatically and adapt to a mobile device as per the contract; • Design Shopp has imposed arbitrary limits on the French translation of the website content; however, the contract does not impose such limitations. Despite Design Shopp having breached the terms of the contract for since late 2016, we have made every effort to work with your company in order to mitigate our losses and minimize the impact on our business.

At this point we have lost all confidence in your ability and willingness to deliver the website as promised as per the contract. This letter constitutes formal notice to refund Dr. Chrisovalantou Cheretakis Inc. the sum of $ 4,780 plus taxes within ten days . Otherwise, I may take legal action against you immediately and without further notice. I agree to consider any reasonable proposal for reimbursement that you present. Please act accordingly. (signature) Dr. Chrisovalantou Cheretakis” (exhibit P-22)

[ 33 ] On April 11, 2017, Hamilton responded with the following ultimatum: “Hello to you both, It appears we did not receive any rebuttal response to our previous offer. Did you plan to make further arrangements regarding your mandate? At the moment we are proposing any of the following options: 1. settle the full final bill of the mandate and we deliver as agreed within the contract, which was outlined in our previous email. 2. settle the final bill minus the remaining components of the mandate and hand over the project as is. 3. walk away entirely with no further payment, we maintain the website as is.

I sincerely wish to offer you some finality to your project without having things cost more to redo elsewhere, especially considering the mandate is nearly entirely delivered. As it stands we cannot offer any sort of refund, as your request asks for. We can offer simply to deliver as is, or finish the project. If you are not prepared to make any more payments of any kind, then I suppose option 3 is the option you would like to pursue. We look forward to closing this project so please let us know and thanks.

Tom” (email dated April 11, 2017, exhibit P-16) [ 34 ] Plaintiff had no choice but to institute proceedings on April 24, 2017. [ 35 ] Defendant filed its contestation, on May 26, 2017, and a cross-demand, on June 2, 2017, for $3,079.18. [ 36 ] Plaintiff was entitled to unilaterally resiliate the contract, even though the work was already in progress.

Section 2125 C.C.Q. states: “ 2125. The client may unilaterally resiliate the contract even though the work or provision of service is already in progress.” [ 37 ] Defendant did not deliver 95% of the work; plaintiff did not refuse multiple offerings to help finalize the project; the website component of the project was not completed; and, what was provided to plaintiff, was useless. [ 38 ] The evidence clearly shows that the project was NOT on hold due to plaintiff.

On the contrary, the numerous emails above- cited show that all delays (except for a 4-day delay) were caused by defendant. [ 39 ] Template, exhibit P-23, did not even begin to address and deliver plaintiff’s needs. [ 40 ] Clearly, if defendant thinks its work “accommodated (plaintiff’

s) layouts as needed”, it never understood its mandate to begin with. [ 41 ] At trial, Hamilton attempted to persuade the Court that defendant executed its mandate according to the terms of the contract; but, in the end, he failed, as his position flies in the face of reason. [ 42 ] As for the damages, plaintiff is claiming the « cost to build a new website”: $6,714.54. [ 43 ] In actual fact, plaintiff paid $5,247.50 for a new functioning website (invoice of W.I.G.

Design Inc., exhibit P-33, en liasse ). [ 44 ] Plaintiff paid defendant $7,227.33. [ 45 ] The price of the contract was $10,324.76 ($8,980.00 plus tax). [ 46 ] Plaintiff’s claim does not concern the logo and stationary portion of the contract. [ 47 ] Taking all of the above into account, the Court estimates plaintiff’s damages, due to the faulty execution of the website portion of the contract by defendant, to be worth $5,250.00. [ 48 ] This translates into a payment of approximately $2,000.00 (including taxes), for the stationery and logo portion of the contract (s. 2129 C.C.Q. ). [1] [ 49 ] In view of the foregoing, the cross-demand is denied.

WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim, in part;

CONDEMNS defendant to pay plaintiff the sum of $5,250.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , from March 10, 2017, and legal costs in the amount of $250.00. DISMISSES defendant’s cross-demand. __________________________________ ELIANA MARENGO, J.C.Q. Dates of hearing: October 30, 2018, and February 5, 2019 [1] s. 2129 C.C.Q.: “ 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.”