2014 QCCQ 6535, 2014 QCCQ 6535

Gluckman Szabo (Harriet Publishing (The Montreal Jewish Magazine)) c. Estandra Sante inc. 2014 QCCQ 6535 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-130653-118 DATE: May 27, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ HARRIET GLUCKMAN SZABO, doing business under the name "HARRIET PUBLISHING (THE MONTREAL JEWISH MAGAZINE)" 5477 Paré St., Suite 102, Montreal, QC, H4P 1P7 Plaintiff v.

ESTANDRA SANTE INC. 275 Markham Rd, Beaconsfield, QC, H9W 2C1 And SANDRA BURROWES […] ., Beaconsfield, QC, […] And ESTHER CLARKE […] , Pierrefonds, QC, […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Harriet Gluckman Szabo, who operates her publishing enterprise under the name "Harriet Publishing", sues Estandra Santé Inc. and its principals, Sandra Burrowes and Esther Clarke for a balance owing in respect to a contract to place an ad in the plaintiff’s publication called “The Jewish Magazine” in the fall/winter 2011/12 issue.

The amount claimed is $1, 424.06. [ 2 ] Mrs Gluckman alleges that this was the second of two contracts, the first being for an ad placed in the edition of summer 2011. [ 3 ] The Defendants allege that the only contract formed was for the summer 2011 issue and that the amount was paid in full for that advertising. [ 4 ] They deny having entered into a contract to place an ad in the fall/winter 2011/12 issue. They allege moreover that they notified the Plaintiff by e-mail on June 17, 2011 that they did not want to place a second advertisement when they were asked to approve the text.

[ 5 ] The Defendants Sandra Burrowes and Esther Clarke also contest the action on the basis that they are not personally liable for any debt of the corporation through which they operated, of which they are the shareholders and directors. [ 6 ] The Plaintiff replies that, although she received a notification on July 17, 2011 that the Defendants did not wish to place an ad, the contract signed in January was for two issues of the magazine and in consideration of the promise to place the ads in the two issues a complementary editorial was printed in the first issue.

The contract being indivisible, the Plaintiff claims the full payment, having published the ad in the second issue. [ 7 ] There is also a counter claim of $ 295.46, related to the Defendants' legal expenses. Issues [ 8 ] The Court must determine: 1. Did the parties agreed to not one but two publications of the ad in the Montreal Jewish Magazine and, if so, 2. Were the Defendants precluded from resiliating the agreement for the second publication of the ad? 3. Are the Defendants entitled to legal fees?

Facts [ 9 ] The Defendants were interested in placing an ad in the Montreal Jewish Magazine in order to become known among members of the Jewish community who were potential clients for their business, an agency providing the services of nurses for homecare. [ 10 ] According to Mrs Szabo’s testimony, the deal she struck was a standard promotion that she offers to her clients to carry a one- half-page ad in two consecutive editions, in this case the spring/summer issue of 2011 and the fall/winter edition of 2011/1202. [ 11 ] She states that, in consideration of placing that ad twice, the client received a free editorial normally worth $400.00.

Mrs Szabo testifies - and her testimony is corroborated by her employee Ann Perez - that the documents were filled out by Miss Perez and signed by Esther Clarke and Sandra Burrowes on December 13, 2010. [ 12 ] There is one contract for each edition, both dated December 13 (P-4 and P-1). P-4 for the first publication includes the inscription under the heading Special Conditions “Business Buzz Editorial” N/C (worth $400.00). [ 13 ] The contract for the fall/winter issue 2011/12 exists in two versions.

In P-1, the date is "December 13 th /10" although it is written over liquid paper apparently used to correct an error. When the matter became litigious, the Defendants received from the Plaintiff a different version of the contract by an electronic transmission.

The text of this version is identical to P-1 except that the date is January 1/11. [ 14 ] It is interesting to note as well that the PST rate applied to this second version of the contract is the rate that came into effect in January 2011 while the rate applied to the calculation in P-4 is the rate in force in December 2010. [ 15 ] Mrs Szabo is adamant that she would not have given the free editorial in the first edition in the spring/summer edition 2011 free of charge if her clients had not signed the second contract for the fall/winter edition.

She believes that the two contracts were signed on the same date in December and the contract for the fall/winter edition 2011/12 was redated, for GST and QST purposes, some time later. [ 16 ] There is also a change to P-4 in the contract; the number was changed from 11467 as appears in D-2, the yellow version of the contract in possession of the Defendants, to 11468 in the white copy retained by the Plaintiff. [ 17 ] Esther Clarke and Sandra Burrowes have no recollection of signing for two issues.

They were aware that they were getting a free publication of an editorial about their business but they deny having agreed to the second publication of the ad. When asked to recognize their signatures, they did not give a clear denial that the signatures appearing on P-1 are theirs. The signatures are, to the untrained eye, very similar to the signatures appearing on another document that is clearly authentic: the written contestation in the file. [ 18 ] When the time came to approve the text of the ad for publishing, communication took place by e-mail (P-8).

On July 12th, 2011 Ann Perez wrote to Esther Clarke seeking approval of the proof of the ad. On July 17th, Esther Clarke replied stating: At this time we are not ready to place another ad in your publication. We will contact you when we had decided to place another ad. [ 19 ] The following e-mails show that Ann Perez took the position that the contract was signed as a whole: You signed a contract in January for 2 issues of our magazine. That is why we offered you a complimentary editorial in the last issue.

We cannot now cancel this fall/winter 2011-12 issue. [ 20 ] Mrs Clarke replied: We looked at our contract dated Dec. 13/10, and we only signed for the spring/summer issue. In the Special Conditions box of the contract it shows there is a “no charge for” the editorial. There is no mention of signing up for a second edition. [ 21 ] It is at that point that the Plaintiff sent the copy of the second contract in the version dated January 1/11. [ 22 ] In the Plaintiff’s letters of demand, reference is first made to the version of the contract dated January 1, 2011/September 23rd, 2011 (D-7).

In the subsequent letter of demand dated September 27, 2011 (P-2) reference is made to contract 11608 dated December 13, 2010.

[ 23 ] Ms Clarke mentioned in her testimony that the business has since been discontinued and, at the time when their approval was sought for the second ad, the partners did not feel that they had received much interest as a result of the first ad and so they decided not to go ahead with the second ad as requested.

Analysis [ 24 ] In a matter such as this one, the Plaintiff has the burden of proof, in this case, the burden of proving that the Defendants agreed to the total package of two ads in two consecutive editions of the magazine and that they were not entitled to change this obligation after the first publication. [ 25 ] When the parties have made a written agreement, in a perfect world, there should be no room for doubt and therefore no litigation.

The Plaintiff would fulfill the burden of proof simply by producing the written document bearing the signature of the Defendants. [ 26 ] The contract is quite clear that the representatives signing on behalf of the advertiser are equally responsible.

Under "terms and conditions", number 11, its written in bold and in very clear type “The signer of this contract otherwise known as the representative personally as well as the company they represent guaranties payment of the amounts due according to this agreement." [ 27 ] The idea that the contracts were signed at the same time and formed a complete deal is less clear.

There is no written term that would suggest that the price given in the two contracts is conditional upon the customer's agreement to both publications nor is there any clear language to indicate that the discount given by way of a free editorial is also conditional upon both publications going ahead. [ 28 ] On the other hand, the Defendants did sign two distinct agreements, presumably on the same date. One is for the spring/summer edition and the other is for the fall/winter edition.

The standard form contract includes a right for the company (Plaintiff) to annul the contract at any time but no similar right for the client, (Defendant). [ 29 ] It is a contract of enterprise or for services and the law is clear that the client has the right to resiliate the contract without any particular reason, though the resiliation carries with it the obligation to pay the value of the services rendered to date.

In contracts where the provider of services has already started to work, the payment is usually based on the value of the services rendered to date in the form of a quantum meruit . [ 30 ] Various elements of fact confused the issue, namely the discrepancies in the serial numbers and the dates depending on which document is exhibited.

The Court's view however is that these discrepancies are red herrings: they point to a slightly disorganized administrative process involving contracts and billing but they did not show anything significant in terms of the consent that parties exchanged concerning the contract. [ 31 ] In a contract of enterprise or for services, if the right of the client to resiliate the contract is to be limited in any way, this must be done with clear contractual stipulations and, in the case of a written contract, the text must be unambiguous. [ 32 ] In the present case, there is no language which would suggest that the parties decided to opt out of the usual contract rules which allow the client to resiliate the contract.

The decision not to go ahead with a second ad was given well in advance at a time when the Defendants had not received any benefit and the Plaintiff had not yet incurred a printing cost. The Plaintiff decided to go ahead with the printing of the ad anyway but she did so notwithstanding clear instructions from the client that the ad should not be placed. [ 33 ] The argument that the Plaintiff should be entitled to payment, because of the condition that the pricing of the first ad depended upon the commitment to place the second ad is not established in the document itself.

The testimony that Mrs Gluckman gave on this issue is credible but so is the testimony coming from the Defendants who sincerely did not understand that they were making such a commitment. [ 34 ] The Court concludes therefore that the Plaintiff has not fulfilled her burden of proving that, by a clear stipulation, the parties opted out of the general rule that a client can resiliate a contract for services. The Plaintiff’s assertion that a price must be paid for the second ad has not been established on the balance of probabilities.

Therefore, the Plaintiff’s case must fail. [ 35 ] The counter claim, for legal fees, is not well founded. Participation in the legal process, including obtaining legal advice or assistance in preparing a claim or a defence, is not considered to be part of the subject matter for which legal proceedings can be brought. It is a cost each party assumes in order to participate in the judicial process.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s action; DISMISSES the Defendant's counter claim; CONDEMNS the Plaintiff to pay the Defendants' judicial costs of $136.00. __________________________________ DAVID L. CAMERON J.C.Q . Date of hearing: February 3, 2014