2017 QCCQ 7310, 2017 QCCQ 7310

Marino c. Tiffany Handbags Inc. 2017 QCCQ 7310 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152238-160 DATE: June 28, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ FRANCESCO MARINO Plaintiff v.

TIFFANY HANDBAGS INC. and RO-EL SOLUTIONS INC. and ADAM DYM Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendants, on account, for services rendered. [ 2 ] A notice for stay of proceedings was filed into the Court record by Trustee Druker & Associates Inc., on June 9, 2016, with regards to defendant Tiffany Handbags Inc. (“Tiffany”).

This judgment therefore concerns defendants Ro-El Solutions Inc. (“Ro-El”) and Adam Dym (“Adam”) only. [ 3 ] Tiffany retained plaintiff’s services in graphic design, on an ongoing basis, since 2012. In fact, plaintiff and Tiffany had a robust and healthy business relationship, and plaintiff’s invoices had always been paid, until the month of August, 2015. [ 4 ] The services carried out by plaintiff, from August 1, 2015 through January 8, 2016, are detailed in the numerous invoices filed as exhibit P-1 en liasse .

These invoices were not paid and constitute the basis of this claim. [ 5 ] In paragraph 5 of his claim, plaintiff alleges the following; “5. The Plaintiff makes the following clarifications to the facts set out above: Freelance Graphic designs services provided for Tiffany Handbags Inc. doing business under the trade name and style RO-EL, RO- EL Group, Click RO-EL, Tetra promotions, since July 2012. Seeking payment for outstanding invoices for the total sum of $11,447.41 plus interest. (Invoices not paid from August 2015 - January 2016). Lawyer letter was served on March 31, 2016.

They are claiming that they have no assets and that seizure had taken place early January but company has not filed for any seizure, or bankcruptcy. According to the Registraire des enterprises du Québec, as of April 28 the company is "en vigeur"

Mr.

Adam Dym is personally liable for the said claim as he made representation directly to Plaintiff that he knew that Defendant Tiffany Handbags Inc. was insolvent, yet continued to mandate the Plaintiff to provide graphic work as such engendering his personal liability; The newly constituted Defendant Solutions RO-EL Inc. is using the same trade name and styles as Defendant Tiffany Handbags Inc. as well as using the exact graphic work as provided by the Plaintiff; The newly constituted Defendant Solutions RO-EL Inc. is a carbon copy of the Defendant Tiffany Handbags Inc., doing the same business and sing same graphic work provided by the Plaintiff; Adam Dym, exhibits the REQ reports of both companies.” (sic) [ 6 ] Tiffany lost one of its major suppliers during the month of October, 2015, which caused it financial difficulties. [ 7 ] However, between the months of October, 2015 and March, 2016, every effort was made by Tiffany to find a new supplier and to continue paying its bills.

It wasn’t until the month of March, 2016, that Tiffany exhausted its financial capabilities and could no longer pay its bills. It filed an assignment in bankruptcy, on June 8, 2016. [ 8 ] In the meantime and, more specifically, on December 3, 2015, Mark Dym and his brother Adam Dym incorporated Ro-El Solutions Inc. (certificate of constitution, exhibit D-3), which would later buy some of Tiffany’s assets, including its inventory, machinery and trade name. [ 9 ] Plaintiff is essentially alleging that Adam acted in bad faith, as he knew that Tiffany was insolvent, yet continued to order plaintiff’s services.

However, several orders were placed by Tiffany employees, between August 31, 2015 and January 8, 2016; and, of 43 orders on list P-1, Adam only placed 6. [ 10 ] Be that as it may, good faith is always presumed (

article 2805 of the Civil Code of Quebec ); and, based on plaintiff’s testimony, as well as that of Adam and Mark Dym, the Court is unable to conclude that Adam ordered plaintiff’s services knowing that he would never be paid; nor is there any evidence of fraud, on Adam’s part, as suggested by plaintiff (articles 2803 and 2804 C.C.Q .). [ 11 ] However, plaintiff did demonstrate that Ro-El used his graphic work, once in operation (graphic work, exhibit P-3, en liasse ). [ 12 ] Therefore, whereas Ro-El was incorporated, on December 3, 2015, and benefited from plaintiff’s work, the Court finds it liable for payment of invoices 0708, 0711, 0712, 0713, 0714, 0716, 0721, 0723 and 0731, for a grand total of $1,924.43. [ 13 ] However, the Court deems that there is no lien de droit between plaintiff and Adam personally.

WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's claim against Adam Dym, without costs; GRANTS , in part, plaintiff’s claim against Ro-El Solutions Inc.; CONDEMNS Ro-El Solutions Inc. to pay plaintiff the sum of $1,924.43, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , from April 13, 2016, and legal costs, as well as bailiff fees in the amount of $111.57. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: June 5, 2017