2011 QCCQ 2404, 2011 QCCQ 2404

Sport Cartise inc. c. 9130-6472 Québec inc. (Sinogateway) 2011 QCCQ 2404 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF QUÉBEC TOWN OF MONTRÉAL Civil Division No: 500-32-123165-104 DATE: February 15, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ SPORT CARTISE INC. 6161, Cypihot, Saint-Laurent, Québec H4S 1R3 Plaintiff v. 9130-6472 QUÉBEC INC., doing business under the name SINOGATEWAY 43, boulevard Samson #196, Laval Québec H7X 3R8 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Sport Cartise Inc. seeks the reimbursement of its $2,607 U.S. deposit from Defendant 9130-6472 Quebec inc. (doing business as Sinogateway), after Defendant was unable to deliver, in a timely manner, the manufactured product Plaintiff had ordered.

Defendant denies liability for the delays that occurred. Evidence: [ 2 ] Plaintiff sent Defendant a purchase order on March 27, 2009 to manufacture sweaters in China. It requested delivery by May 30, 2009; the cancellation date was June 13, 2009. Defendant confirmed the order and delivery date with a pro forma invoice. It requested a 30% deposit of $2,607 U.S.. [ 3 ] The process involves Plaintiff sending a sample of what it wishes manufactured.

Defendant provides a counter sample, which Plaintiff must approve before the material is dyed and manufactured. [ 4 ] At the outset, Plaintiff sent Defendant a fabric sample, indicating the type of yarn it wanted for the manufacture of sweaters. On April 2, 2009, Plaintiff asked for a different yarn. Defendant claims it took four weeks to source the new yarn quality. [ 5 ] On April 8, 2009, Defendant provided Plaintiff with a yarn sample, at its China office, for its approval.

Plaintiff's representative in China was absent for a few days. [ 6 ] On April 16, 2009, Plaintiff's representative in China advised Defendant of her dissatisfaction; the sample did not meet its specifications. [ 7 ] Defendant provided a new swatch; Plaintiff's representative sent it the Canadian office for approval. [ 8 ] On April 27, 2009, Defendant asked that the delivery date be extended to June 25, 2009; it needed 30 days for knitting, linking and finishing.

Plaintiff accepted the request, provided the extension did not go beyond June 30th. [ 9 ] On May 20, 2009, Defendant advised Plaintiff that after approval is given, there remained the “need to dye bulk yarn and do the fit sample” . Defendant added it was not certain it could meet the June 30 th deadline since the fit and yarn quality had not yet been approved. [ 10 ] On May 21, 2009, Plaintiff advised Defendant, it would approve the swatch by May 25th, which provided Defendant with 35 days to deliver. Plaintiff asked Defendant to confirm its ability to deliver by June 30th; it would not extend the delivery date.

[ 11 ] On May 22, 2009, Defendant claimed the delays resulted from the change in yarn quality and the time needed to obtain Plaintiff's approval of the swatch. In addition, there were not many three gauge automatic machines in China, needed for production and since it was peak season in China, it would not be able to ship the goods on time. The soonest expected delivery date was July 22, 2009. [ 12 ] Plaintiff advised Defendant it could not accept that delivery date. Plaintiff cancelled its order and requested the reimbursement of its deposit.

Defendant offered to remit $500, which Plaintiff refused. [ 13 ] Defendant claims the delivery date was never firm or binding. Since Plaintiff's approval was needed during the manufacturing process, any delay in approval affects the final delivery date. It submits timely delivery depends on timely input from Plaintiff. [ 14 ] Defendant invokes an initial delay of 4 weeks to source a new yarn quality due to a change made by Plaintiff.

Defendant also refers to a 4-5 day delay in approval by Plaintiff's representative in China. [ 15 ] Defendant also claims the deposit is non refundable since it was used to pay its suppliers in China and invokes the difficulty of reselling the goods. Analysis: [ 16 ] Defendant entered into a contract with Plaintiff for the manufacture and shipment of sweaters. The delivery date foreseen by the contract was May 30th 2009. By mutual agreement, the delivery date was extended to June 30, 2009. [ 17 ] However, Defendant was unable to respect that commitment.

It claimed Plaintiff was responsible for the delays. [ 18 ] Plaintiff admits that its China representative was absent for four to five days and the correspondence shows that the yarn sample was changed on April 2, 2009, a few days after Plaintiff sent its purchase order to Defendant. [ 19 ] However, for Plaintiff, a change in yarn is normal and does not affect delivery dates. In its experience, delivery usually takes place two to three months from the date of order. Plaintiff was nevertheless prepared to extend delivery by one month to account for any delays.

That extension was not sufficient for Defendant, which advised Plaintiff the most probable delivery date would be July 22, 2009. Even that date was not firm. [ 20 ] On May 25, 2009, Defendant wrote to Plaintiff, admitting that it was not the right supplier for Plaintiff; its current sweater factories were not appropriate for Plaintiff's styling. Defendant added that it was difficult to rush orders during the peak season; its customers normally give it four months from the date of order.

Defendant apologized for not having informed Plaintiff of this fact at the outset: “…I have to accept your instruction to cancel the orders… I admit currently we're not right supplier for you. My current sweater ftys are not good for your stylings. During the peak production season, it's difficult for us to rush the orders in 2-3 months. Normally our customers give us 4 months from date of order. This is the truth, I don't want to lie you.

Sorry if we didn't let you know clearly in the beginning….” [ 21 ] In sum, Plaintiff had accepted a four week extension of time to allow for the delivery of the goods but Defendant was nevertheless unable to provide the service and respect its undertaking. It acknowledged its inability to meet the delivery date established. [ 22 ]

Article 1590 of the Civil Code of Quebec states that a creditor has the right to demand that the obligation be performed in full, properly and without delay. When the debtor fails to perform his obligation without justification and he is in default, as in the present case, the creditor may obtain the resolution of the contract. [ 23 ] Given Defendant’s failure to perform its obligations properly and in a timely manner, the Court cancels the contract and requires Defendant to reimburse the deposit it received.

FOR THESE REASONS, THE COURT: GRANTS Plaintiff's action; CONDEMNS Defendant 9130-6472 Quebec inc. (doing business as Sinogateway) to pay Plaintiff Sport Cartise Inc. the sum of $3,360.42 [1] ($2,607 U.S.), with interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since February 4, 2010; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: November 23, 2010