2018 QCCQ 8852, 2018 QCCQ 8852

Bergeron (Troubadour Communications) c. Magazine Maison Montréal Inc. 2018 QCCQ 8852 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155833-173 DATE: November 12, 2018 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ CHRISTIAN BERGERON carrying on business under the registered trade name of TROUBADOUR COMMUNICATIONS Plaintiffs v. MAGAZINE MAISON MONTRÉAL INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, a provider of translation and revision services, in particular from English to French, sues Defendant, a magazine publisher, for $10,805.05 for translation services rendered. Application for Revocation of Previous Judgment [ 2 ] A previous judgment was rendered by default against Defendant on February 26, 2018 by the Honourable Judge Mark Shamie, J.C.Q. [ 3 ] On April 2, 2018, Defendant made an Application of Revocation of that judgment.

On April 9, 2018, the Honourable Judge Louise Comeau, J.C.Q. decided that the grounds of revocation invoked were on their face sufficient and ordered a stay of execution of the judgment. The issues of the revocation and, if necessary, the review of merits of Plaintiff’s claim were referred to a judge at a further hearing, in accordance with

Article 348 of the Code of Civil Procedure . [ 4 ] The grounds for revocation are that Defendant did not receive the Notice of Convocation to the initial hearing. [ 5 ] According to the evidence heard, the notice for the first hearing was not received by Defendant as a result of a change of ownership of the Defendant and a change of address of Defendant. An honest mistake of miscommunication and transition occurred. There was no negligence on the part of Defendant. [ 6 ] On that basis, the Court will grant the Application for Revocation and hear the evidence and grounds of defence presented by Defendant. Hearing on the merits

[ 7 ] According to the evidence, Plaintiff provided to Defendant excellent translation work for articles for three issues of Defendant’s publications, namely for the magazine issues of Spring, Summer and September (the latter referred to as “Trends”) in 2016. [ 8 ] Defendant used and published all of the material created and sent by Plaintiff. Defendant obtained all the financial benefits of using these translated materials. Plaintiff’s invoices for these services are dated respectively April 26, June 23 and September 19, 2016 [1] . [ 9 ] Defendant now contests the quality of the published translated articles.

Defendant referred the Court to several alleged errors. [ 10 ] In the Court’s opinion, the allegations of poor quality work are groundless. Defendant referred to turns of phrases and not actual mistakes of French or otherwise. Translation is not just a technical and scientific process but also an artistic one. Defendant does not agree with some of the artistic choices of translation made by Plaintiff.

Defendant had no qualms of actually using and publishing the material sent by Plaintiff. [ 11 ] Furthermore, Plaintiff filed numerous e-mails from Defendant’s representatives which include compliments and enthusiastic praise of Plaintiff’s work with regard to the quality of his translation services as well as the timeliness of his work with respect to deadlines. [ 12 ] In support of its written contestation, Defendant produced no document contemporaneous to the alleged dissatisfaction with Plaintiff’s services, such as an e-mail or letter from Defendant indicating dissatisfaction with Plaintiff’s services. [ 13 ] With regard to the quality of the translation services provided, there is no reason to deny or reduce Plaintiff’s claim. [ 14 ] The witness on behalf of Defendant, Elizabeth Leah Lipkowitz, also complained of Plaintiff’s alleged failure to deliver the translated materials in a timely manner. [ 15 ] During the timeframe of the actual events and when the work was being performed, and even after delivery of the work, Defendant never sent any e-mail or any other written notice of dissatisfaction about Plaintiff’s alleged lateness or failure to respect any deadline. [ 16 ] The absence of any such e-mail is striking against a backdrop of constant complimentary and effusive comments of satisfaction made by Defendant’s representatives and sent to Plaintiff [2] .

As late as December 9, 2016, well after the contested invoices were issued, Defendant’s Editor-in-Chief Stephanie Whittaker, requested Plaintiff to carry out further work for Defendant [3] . [ 17 ] After the translation work was delivered by Plaintiff, he made several requests for payment of the outstanding invoices.

Again, during that time, Defendant never objected to payment and never expressed any dissatisfaction with Plaintiff’s services. [ 18 ] In April 2017, only after Plaintiff instituted the present legal proceedings, for the first time, Defendant complained in writing, through its contestation, of the quality of Plaintiff’s services. [ 19 ] When confronted at the trial with this lack of evidence in support of its position, Defendant obtained a new e-mail, during a Court recess, on the specific request of Defendant, from a former advertiser [4] .

However, the advertiser, according to the text of the e- mail, has no personal knowledge of reasons why any particular edition would have been late and makes no complaint regarding the quality of the translation of the published materials. [ 20 ] The preponderance of the evidence confirms that Plaintiff performed quality and timely work, in accordance with the rules of the trade.

[ 21 ] The only valid point of defence raised by Defendant is that there was a unilateral change made by Plaintiff to the previously agreed charge of $3,000 per issue for the translation work to $3,200. The first invoice (Spring 2016) of Plaintiff was in fact for $3,000 but the second (Summer 2016) and the third (Trends) were for $3,200. [ 22 ] Plaintiff states that a representative of Defendant verbally authorized the increase.

Defendant denies that any such authorization was given. [ 23 ] On this point, the Court concludes that the preponderance of the evidence supports Defendant’s position that the agreed price per issue was $3,000, plus taxes. [ 24 ] The Court will therefore reduce the amount of the claim by $400, plus taxes, which is $459.90. The revised amount owed by Defendant to Plaintiff is $10,347.75.

FOR THESE REASONS, THE COURT: REVOKES and ANNULS the judgment of February 26, 2018 of the Honourable Judge Mark Shamie, J.C.Q.; CONDEMNS Magazine Maison Montréal Inc. to pay Christian Bergeron the amount of $10,347.75, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , starting from the demand letter (Exhibit P-4), January 16, 2017; CONDEMNS Magazine Maison Montréal Inc. to pay Christian Bergeron the legal costs of $211.50 ($200 Judicial Stamp + $11.50 registered mail). __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: November 12, 2018