2017 QCCQ 14163, 2017 QCCQ 14163

Sebastiampillai c. Akhter 2017 QCCQ 14163 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-22-204710-134 DATE: December 1, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ MARINE FLORIDA JEYARANEE SEBASTIAMPILLAI Plaintiff v.

NILUFA AKHTER -and- MD SALEHIN Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Overview [ 1 ] Plaintiff Marine Florida Jeyaranee Sebastiampillai and Defendants Nilufa Akhter and MD Salehin were partners in a grocery business. After approximately six months, the business ceased to operate. Ms. Sebastiampillai sues Ms. Akhter and Mr. Salehin on the basis of fault, fraud, failure to respect their contractual and partnership obligations and unjust enrichment. After making various amendments, Ms.

Sebastiampillai claims $57,691.23 in compensation. Question in Issue Did Defendants engage their civil or contractual liability, or liability from another source of law, towards Ms. Sebastiampillai, and if so, what is the amount of damages owed? Context The Parties

[ 2 ] From 2009 to 2011, Defendants MD Salehin and Plaintiff’s son, Jason Thomas, were friends during their later teenage years (16 to 18). They had mutual friends, grew up in the Park Extension area of the City of Montreal, and generally socialized together. They were also both part of Montreal’s East Asian community. Mr. Salehin’s family is from the Bangladeshi community and he also speaks Bengali. Mr. Thomas is part of the Sri Lankan Tamil community and he speaks Tamil. [ 3 ] Mr. Salehin told Mr. Thomas that he was knowledgeable and experienced in the grocery business which he said was very profitable. Mr.

Thomas told Mr. Salehin that he would be interested in starting a grocery business with him. [ 4 ] Defendant Nilufa Akhter is Mr. Salehin’s mother. She speaks Bengali and has a limited knowledge of English. She testified in Court through an interpreter. Since 2005, Ms. Akhter has been an owner or partner in three different grocery stores in different neighbourhoods of Montreal (Jarry, St-Michel and Park Extension). She was also the owner of a dry cleaner/laundromat. [ 5 ] Ms. Sebastiampillai speaks Tamil and also has a limited knowledge of English. She also testified in Court through an interpreter. [ 6 ] Mr.

Salehin had some experience in the fruit and vegetable business. He became aware that fresh produce could be purchased at very competitive prices from various wholesalers and resold at a profit to various grocery retailers. [ 7 ] On June 7, 2011, after carrying on this business for some time informally, he registered a business name for this purpose called “Opus Fruits” [1] . Marché Monselet [ 8 ] During the summer of 2011, Mr. Salehin approached Mr. Thomas with a business proposal. Mr. Salehin was interested in acquiring the “Marché Monselet” grocery store located on Monselet Street in Montreal North.

He felt that the proposed sale price was competitive. He was confident that he could, as a result of his knowledge and contacts, grow and develop the business. Mr. Thomas and his father Jesudasan Thomas (Ms. Sebastiampillai’s husband, a baker by profession [2] ), went to visit the premises on at least two occasions to consider Mr. Salehin’s business proposal. [ 9 ] Progressively, a preliminary plan emerged. The business would be operated by MD Salehin and Jason Thomas. They would benefit from the help of their mothers, Ms. Akhter and Ms. Sebastiampillai to be in the store during business hours. Mr.

Thomas’ father, Jesudasan Thomas, would also help out by providing fresh baked goods. [ 10 ] However, in September 2011, that plan was cancelled when Jason Thomas was accepted as a student at Ryerson University in Toronto. [ 11 ] Jason Thomas and Mr. Salehin discussed what to do next. Mr. Thomas suggested that his mother, Ms. Sebastiampillai, replace him in the future business. [ 12 ] For reasons that are unclear, even though Mr. Salehin was remaining in Montreal, he suggested that his mother, Ms. Akhter, also replace him in the business. In any event, Mr.

Salehin’s role of real partner and participation was not changed. Mr. Salehin spoke to his mother about being a partner in the business. She accepted to act in that capacity. Price and Purchase of Marché Monselet

[ 13 ] Mr. Salehin had initially told Jason Thomas that the purchase price would be $30,000 and each of them would pay $15,000. Subsequently, Mr. Salehin told Jason Thomas that given the extensive equipment, merchandise and stock in the store, the price was instead $60,000. However, the split of 50/50 remained. Each party would then have to pay $30,000. [ 14 ] This information was conveyed by Mr. Salehin to Jason Thomas who was residing in Toronto after September 2011. Jason Thomas in turn relayed the information to his family and in particular, his mother, Ms.

Sebastiampillai, who would be replacing him as the co-owner and a partner in the store. The information was also relayed to his sister Jesmine Thomas. [ 15 ] Arrangements were made between Mr. Salehin and the owner of Marché Monselet for the purchase of the store to take place in Montreal on October 25, 2011. Jason Thomas was in Toronto and did not attend. [ 16 ] Ms. Sebastiampillai came with her daughter, Jesmine Thomas, who was 17 at the time. Jesmine speaks English fluently as well as French. Jesmine had spoken to her brother and her mother about the details of the business purchase.

She had also agreed to work, on a temporary basis, as the cashier and general worker at the new business. [ 17 ] Jesmine was told by her brother and her mother that the purchase price was $60,000. This amount was to be split two ways, with Ms. Sebastiampillai paying $30,000 and Mr. Salehin and his mother paying the other $30,000. [ 18 ] Ms. Sebastiampillai obtained a money order of $25,000 [3] and brought cash of $5,000. [ 19 ] Strangely, when they arrived, no sale documentation at all had been prepared. The seller expected to simply receive the money and hand over the keys to the premises. But Jesmine and Ms.

Sebastiampillai stated that the sale should be documented in writing, lest the seller, after receipt of payment, claim back the equipment and inventory in the store. It was therefore agreed by the parties to confirm the sale in writing. Jesmine wrote up the document by hand. Mr. Salehin made some suggestions as to the content. The document reads as follows: “I, Mr. Brahim Diyane, I am living at this address […], My number is […], for my identification my licence # […].

I am selling my store Marché Monselet to Marine Florida Jeyaranee Sebastiampillai and Nilufa Akhter with these appliances: – all the products; – 1, vegetable cooker, 2 big 24”-16”; – 3 small vegetable cooler; – 1 10 door freezer; – camera system; – 1 dairy cooler; – television; – 2 Pepsi cooler; – Showcase freezer; – 1 meat cutter; – cold room 14x14; – 1 oven; – 1 steamer; – 1 mixer. The total price is $ 60 25,000.

I am responsible for any deaths (sic, “debts”), all the bills, like electricity. Brahim Diyane Marine Florida Jeyaranee Sebastiampillai Nilufa Akhter” [Private information has been redacted by the undersigned.] [ 20 ] With regard to the agreed price, Jesmine first wrote down $60,000, as had been previously told to her by her brother and mother. But then the seller looked at the document and objected to this figure. He spoke to Mr. Salehin. [ 21 ] Contradictory reasons were given by Mr. Salehin to Jesmine and Ms. Sebastiampillai as to why the price indicated should be only $25,000. They were told by Mr.

Salehin that, for tax purposes, the seller objected to a declared price of $60,000 since he would have to pay taxes on it. Also, Mr. Salehin stated that he had already paid his share of $30,000 to the seller. [ 22 ] In her examination on discovery, Ms. Sebastiampillai stated as follows: “120Q-Okay. Can you tell me what number was written before twenty-five thousand dollars ($25,000.00), if you were there? The number we see under. A- Because my daughter had written sixty (60). When she wrote sixty (60), the owner said, “No, no, no,” and he was fighting with him, and… 121Q-Fighting with whom?

A- The owner was fighting with Salehin, and told to write twenty-five (25). So my daughter said we will give you thirty (30), because we are giving thirty (30) and he’s giving thirty (30), and we have to write sixty (60), so Salehin was saying, “Don’t shout… don’t shout. Write twenty-five (25), and after that, we will talk.” So we gave cheque twenty-five (25), and also five thousand (5,000) cash. At the time we asked him “where is the proof that the money that you gave?” He said’ “I’ve already spoken to him and I’ve given to him.” 122Q-Okay. But the owner was there?

A- He said, “Okay, okay, okay, that is my problem.” 123Q-Who said that? A- Salehin.” [4] The Operation of the New Business [ 23 ] The new owners of the business began to operate the next day, on October 26, 2011. The hours of operation were 9 a.m. to 9 p.m. From Monday to Friday, the store was opened by Jesmine at 9 a.m. She worked until 4:30 p.m. At that time, her mother Ms. Sebastiampillai arrived and replaced her.

[ 24 ] Jesmine had various responsibilities. She was cashier. She stocked the shelves and cleaned the floors (“pass the mop”). She put uncooked baked products, prepared by her father the night before, into the oven, removed them when baked and prepared them for sale. [ 25 ] Mr. Salehin would arrive around 11 a.m. and leave at 12:30 a.m. He would arrive with the fresh provisions of fruit and vegetables and other goods to stock the shelves. [ 26 ] After 4:30 p.m., Ms. Sebastiampillai arrived and would stay until closing time at 9 p.m. [ 27 ] During the week days, Ms.

Sebastiampillai worked full time (8 a.m. to 4 p.m.) at the clothes manufacturer “Peerless”. [ 28 ] At 8:30 p.m., Mr. Salehin would return to the store. Each evening, he and Ms. Sebastiampillai would count together the cash receipts. They would put aside the money for the invoices received for deliveries (e.g. meat and milk) and the money for the salary of the meat-cutter. They would leave about $200 in the cash register in order to be able to start cash operations on the following day. The balance would be split 50/50 between them. [ 29 ] On Saturday, Ms.

Sebastiampillai would open the store and remain there all day until closing. At 8:30 p.m., Mr. Salehin would come by to count and split the cash receipts of the day. [ 30 ] On Sunday, Ms. Sebastiampillai would not be able to be present in the morning as she went to church at that time. For approximately 2 hours on Sunday, Ms. Akhter would come to the store and attend the cash. Ms. Akhter would be replaced at approximately 11 a.m. by Ms. Sebastiampillai who would remain for the rest of the day. Mr. Salehin would come in at 8:30 p.m. to count and split the cash receipts of the day. [ 31 ] Ms.

Sebastiampillai paid, out of her own pocket, a weekly amount of $200 to Jesmine for her time. [ 32 ] All business expenses were to be paid equally, including the rent of $2,000. The landlord had given the new business a “rent holiday” for the months of November and December 2011 and January 2012. Departure of Jesmine Thomas [ 33 ] In February 2012, Jesmine Thomas stopped working at the store. She had been admitted to the nursing program at Dawson CEGEP. She later graduated from the program.

At the time of the trial, she was a registered nurse and member of the Quebec Order of Nurses (Ordre des infirmières et des infirmiers du Québec). [ 34 ] In February 2012, Mr. Salehin found a replacement worker who was a friend of his family (and was referred to as his “cousin”), namely Mamoon. [ 35 ] Mr. Salehin told Ms. Sebastiampillai that she would have to pay the “salary” of Mamoon. Ms. Sebastiampillai did not agree. She had understood that Mr. Salehin and his mother would work at the store the same hours as she and her daughter. Together with her daughter, she put in 12 hours every day.

Multiplied by 7 days, that was 84 hours each week. But the tandem of Mr. Salehin and Ms. Akhter only put in a total of 13 hours a week. [ 36 ] But Mr. Salehin told Ms. Sebastiampillai that it was her responsibility to pay Mamoon because Jesmine was leaving and Ms. Sebastiampillai was not present full time because of her work. [ 37 ] Ms. Sebastiampillai did not find it fair but she reluctantly went along. She therefore paid $200 a week to Mamoon.

Other Business Operation of Mr. Salehin [ 38 ] At the time that Mr. Salehin was a partner in “Marché Monselet” business, he was carrying on other business operations, including Opus Fruits. These other businesses appeared to have occupied most of his time. The extent to which Mr. Salehin’s time was spent at Opus Fruits was a source of frustration on the part of Ms. Sebastiampillai. She had understood that Mr. Salehin together with Ms. Akhter would put in full time hours to favour the success of the new venture.

As stated, she was doing so, either by her own hours at the store or the hours spent by her daughter, who was paid by Ms. Sebastiampillai. [ 39 ] According to the evidence, Mr. Salehin was not clear or transparent with Ms. Sebastiampillai that he was earning income from his other business activities and spending his time on them instead of the Marché Monselet store. [ 40 ] Furthermore, Mr. Salehin used the premises of Marché Monselet to carry out his business of Opus Fruits. In the cold room and storage area of Marché Monselet, he stored fruit and vegetable produce to be sold by Opus Fruits. [ 41 ] However, Ms.

Sebastiampillai was paying one half of the rent for the premises of Marché Monselet. Also, the vehicle that Mr. Salehin was using to deliver fruits and vegetables broke down. Mr. Salehin purchased another vehicle for $2,000. He asked Ms. Sebastiampillai to pay one half of the cost. She agreed. Credit and Debit Card Operations, Bank Account and Registration of a Business for “Marché Monselet” [ 42 ] Mr. Salehin was operating, as a parallel business, Opus Fruits while being a partner at “Marché Monselet”. [ 43 ] On January 19, 2012, Mr.

Salehin opened a bank account for Opus Fruits. [5] [ 44 ] At the time of purchase, Marché Monselet was equipped with a credit and debit machine. Unfortunately, it was connected to the bank account of the seller. For a period of time after the sale, the seller of the store would return every week to remit the funds received. This amount would be split equally by the new owners. [ 45 ] In November 2011, the debit/credit card machine was lost or stolen. Mr. Salehin obtained a new one which was put on line starting February 1, 2012. [6] [ 46 ] Mr.

Salehin had not yet opened a bank account for the Marché Monselet business. But the bank required a bank account in order to direct amounts received from the new debit/credit card machine. Strangely, Mr. Salehin decided to not open a new bank account for Marché Monselet but instead used the Opus Fruits’ bank account for that purpose. As such, amounts paid by customers at Marché Monselet were deposited into the bank account owned and controlled only by Mr. Salehin. [ 47 ] The amounts deposited via the credit and debit machine were not shared with Ms. Sebastiampillai. Instead, Mr.

Salehin told her that those amounts should and would be saved in order to make future improvements to the business and the store premises over the long term.

[ 48 ] As a result of speaking with friends, Ms. Sebastiampillai was advised that her name should be on the Quebec Corporate Registry ( Registre des entreprises du Québec ) as an owner of the business. On March 5, 2012, Mr. Salehin and Ms. Sebastiampillai, along with Ms. Sebastiampillai’s son Jason attended at the offices of the Quebec Corporate Registry. They registered a company under the name “Opus Entreprise Import Export Inc.” [7] . The shareholders and officers were listed as Mr. Salehin and Ms. Sebastiampillai. Ms. Sebastiampillai paid the entire government registration charge of $308 [8] .

End of Business Operations of Marché Monselet [ 49 ] In May 2012, Mamoon left Marché Monselet for other opportunities. [ 50 ] At that point, Mr. Salehin felt that the business was not financially viable. He unilaterally decided to close the store. He did not advise Ms. Sebastiampillai of that decision. [ 51 ] In the first week of May 2012, Ms. Sebastiampillai went to work on Saturday morning and, to her surprise, the store was closed. Brown paper had been put on the windows by Mr. Salehin indicating “Renovation”. [ 52 ] Ms. Sebastiampillai wanted to hire a replacement for Mamoon but Mr.

Salehin stated that he would not trust anyone other than family to deal with the cash. [ 53 ] The evidence was contradictory and inconclusive as to the disposal of the equipment, merchandise and stock of the store. Ms. Sebastiampillai states that the landlord took it in compensation for future lost rent. Mr. Salehin states that he tried to sell it, but to no avail. [ 54 ] After a demand letter dated May 21, 2013 [9] , Ms. Sebastiampillai instituted the present legal proceedings on August 15, 2013. [ 55 ] Mr. Salehin takes a Cross-Application which, as amended, was reduced to $8,400. Mr.

Salehin claims that while he was away during the month of October 2012 for a death in his family, he was not compensated for the receipts received during that time. Ms. Sebastiampillai contests this claim and states that Mr. Salehin was in fact paid for that time period. Analysis and Decision Did Defendants engage their civil or contractual liability, or liability from another source of law, towards Ms. Sebastiampillai, and if so, what is the amount of damages owed? [ 56 ] Ms.

Sebastiampillai alleges that Defendants acting individually or jointly, carefully organized and executed a scheme which allowed them, in a premeditated and covert fashion, to defraud Ms. Sebastiampillai and/or enrich themselves at her expense [10] . Ms. Sebastiampillai claims the following amounts: • Half of the purchase price: $15,000 • Bank deposits: $16,132.20 • Debit and credit card transactions: $3,159.86 • Unshared expenses: $3,399.17 • Unjust enrichment: $10,000.00

• Punitive damages: $10,000.00 $57,691.23 The Court will assess each Defendant’s liability with respect to each amount claimed. Half of the Purchase Price [ 57 ] The evidence supports Ms. Sebastiampillai’s allegation that she was misled that the purchase price was $60,000. The agreement was that each of the two family groups was to pay one half of that amount, namely $30,000. As the real purchase price was $30,000, Ms. Sebastiampillai overpaid $15,000 as a result of Mr. Salehin’s misrepresentations. The latter as well as Ms. Akhter benefitted from that amount having been unknowingly paid by Ms.

Sebastiampillai on their behalf. [ 58 ] The testimony of Jason Thomas, Jesmine Thomas and Ms. Sebastiampillai is clear and cogent that the purchase price was $60,000 and each of the two family groups were to pay one half of that amount for ownership of the store. They all state that there were never any discussions that Ms. Sebastiampillai would pay 100% and Mr. Salehin and Ms. Akhter would pay 0% in order to purchase the store. [ 59 ] Mr. Salehin acknowledges that the purchase price was $30,000. He also acknowledges that he never paid $30,000 or, for that matter, any other amount to the seller.

He states that what he brought to the partnership was his expertise in the grocery business, the purchase of fresh produce and that he was going to spend long hours at the store to make it a success. [ 60 ] The Court concludes that the preponderance of the proof supports Ms. Sebastiampillai’s version regarding this claim of damages for the following reasons: 1. All parties agree that all profits and expenses were to be split evenly between the two family groups, which is in accordance with the legal principle applicable to general partnership.

Article 2202 of the Civil Code of Quebec ( C.C.Q. ) reads as follows: 2202. The share of each partner in the assets, profits and losses is equal if it is not determined by the contract. This

article also applies to an undeclared partnership which appears to have been constituted in the present circumstances. Articles 2250 and 2251 C.C.Q. read as follows: 2250. The contract by which an undeclared partnership is constituted may be written or verbal. It may also arise as a result of facts clearly indicating the intention to form an undeclared partnership. Mere indivision of property existing between several persons does not create a presumption of their intention to form an undeclared partnership. 2251.

The partners agree upon the object, operation, management and other terms and conditions of the undeclared partnership. Failing any special agreement, the relations of the partners between themselves are subject to the provisions governing the relations of general partners between themselves and with the partnership, adapted as required. The principle underlying the partnership in the present instance is that there were two groups equally benefiting from and contributing to the partnership. On the one hand, there was Ms. Sebastiampillai. On the other hand, there was Mr. Salehin and his mother Ms. Akhter.

Accordingly, there is a presumption of law that all expenses were to be paid equally, including the initial purchase price. 2. Mr. Salehin’s version of events is not credible. He states that his contribution entitling him to 50% of the profits was his business experience and that he was going to work long hours at Marché Monselet. But in fact, there was little tangible experience he brought to the business. For the purchase of the business, he did not even prepare a written agreement of sale. That was the initiative of Ms. Sebastiampillai and her daughter.

As for his time spent at the store, the evidence does not support the version presented by Mr. Salehin. Contrary to his promise, he was mostly absent from the store. He and his mother only put in minimal hours at the store that were dwarfed in comparison by the hours of Ms. Sebastiampillai (by her presence or in salary payments to ensure the presence of Jesmine and Mamoon at the store). Based upon that ratio of attendance at the store, Mr. Salehin only contributed 15% compared to 85% on behalf of Ms. Sebastiampillai. 3. Apart from the above contradictions and inconsistencies of Mr.

Salehin’s evidence, his credibility is further diminished by the fact, admitted in evidence, that he was recently convicted of creating false documents to be submitted to a bank for financing of an immovable. Mr. Salehin was sentenced to 44 months in prison as a result of this conviction. [ 61 ] Ms. Akhter had at the time experience with the purchase, operation and sale of four (4) other businesses. The preponderance of the proof is that she was aware that Mr. Salehin was not being truthful with Ms.

Sebastiampillai when he represented that both groups were paying equal shares. [ 62 ] She must have known that she was not making any financial contribution herself. She must have also known that her son would not be transferring a share of ownership to her in a business without compensation. [ 63 ] Accordingly, the liability for payment of the $15,000 amount is solidary amongst both Defendants. Both Defendants participated in the wrongful act that they committed.

Article 1480 C.C.Q. applies. This

article reads as follows: Where several persons have jointly participated in a wrongful act or omission which has resulted in injury or have committed separate faults each of which may have caused the injury, and where it is impossible to determine, in either case, which of them actually caused the injury, they are solidarily bound to make reparation therefor. [ 64 ] To the extent that the obligations were contractual, they were contracted for the service or carrying on of an enterprise.

Article 1525 C.C.Q. reads as follows: Solidarity between debtors is not presumed; it exists only where it is expressly stipulated by the parties or provided for by law. Solidarity between debtors is presumed, however, where an obligation is contracted for the service or operation of an enterprise. The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the operation of an enterprise. [ 65 ] The Court therefore concludes that the claim for $15,000 against both Defendants should succeed.

Bank Deposits [ 66 ] Ms. Sebastiampillai claims $16,132.20, being one half of deposits of $32,265 made by Mr. Salehin to Opus Fruits’ bank account [11] . Ms. Sebastiampillai alleges in her legal proceeding that Mr. Salehin committed a fault by syphoning or redirecting amounts intended for the Marché Monselet’s business to Opus Fruits. [ 67 ] The evidence does not support Ms. Sebastiampillai’s claim in that regard.

The amounts declared in the table filed with Exhibit P-9, identifying deposits into Opus Fruits’ bank account, vary in general from $500 to $5,350. [ 68 ] Amounts of this size do not correspond to purchases at a local grocery store by consumers. The evidence supports the allegation of Mr. Salehin that these amounts were instead generated by sales by Opus Fruits. Ms. Sebastiampillai further alleges that part of these deposits and revenues should revert to her since Mr. Salehin committed a fault by using the resources of Marché Monselet.

She states that she was paying one half of the expenses of Marché Monselet and she did not receive payment for the benefit received for use of these resources. Two specific examples were shown by the evidence. [ 69 ] First, Mr. Salehin used the storage and cold room areas of Marché Monselet to store fruit and vegetable produce that was sold by Opus Fruits. Second, Ms. Sebastiampillai payed $1,000 for the truck used for transport of fruit and vegetable produce for the benefit of Opus Fruits. This was not disclosed by Mr. Salehin to Ms.

Sebastiampillai. [ 70 ] The Court’s view is that such conduct is a fault either under the partnership agreement (

Article 2202 C.C.Q.) or on the basis of an extracontractual fault (Article 1457 C.C.Q.). [ 71 ] With regard to the question of damages owed thereby, it appears appropriate to take the unpaid amount by Opus Fruits relating to these undeclared benefits. It is not appropriate to claim a share of these total deposits since Ms. Sebastiampillai had no proprietary interest in Opus Fruits. [ 72 ] Regarding rent, the only months paid were February, March, April and May 2012. Ms.

Sebastiampillai paid, or as a result of this judgment, will pay one half, namely $1,000 of the $2,000 rent payment, namely $4,000. [ 73 ] Given the physical dimensions of the space involved, the Court considers that 15% of that amount should be paid by Mr. Salehin, or $600 ($150 x 4). [ 74 ] Regarding the delivery vehicle, it was also used to transport fresh produce for the benefit of Marché Monselet. The Court arbitrates that it was used 80% of the time for Opus Fruits.

A supplemental factor should be considered since, irrespective of percentage of use, Marché Monselet benefitted from the vehicle since it was used for bringing other goods to the store. The Court arbitrates that Ms. Sebastiampillai should be compensated 50% of the purchase price that she paid, namely $500. [ 75 ] Based upon this reasoning, and since not all amounts of deposit into the Opus Fruits’ account will be considered, there is no reason to deduct amounts claimed by Mr. Salehin as expenses [12] . The preponderance of the evidence is that all these expenses were paid equally by Mr. Salehin and Ms.

Sebastiampillai. These amounts were taken into account on an ongoing basis at the time of the splitting of the proceeds, every night at the time of counting of the cash receipts. [ 76 ] Ms. Sebastiampillai should therefore succeed under this item and obtain $1,100 ($600 + $500). [ 77 ] This award results directly from Mr. Salehin’s wrongdoing. It was not established that Ms. Akhter was either aware of these undeclared benefits of Opus Fruits or that she benefitted therefrom. As such, the condemnation of this amount will be for Mr. Salehin alone.

Debit and Credit Card Transactions [ 78 ] Ms. Sebastiampillai claims from Defendants the debit and credit card payments received from transactions at the store. These were deposited into the Opus Fruits’ bank account. The total amount was $6,119.72, as documented by the evidence [13] . [ 79 ] Ms. Sebastiampillai’s claims one half, namely $3,159.86. Mr. Salehin claims that, even though these amounts were directed and deposited into Opus Fruits’ account, they were calculated and taken into account at the end of each day when the amounts in cash were split equally. [ 80 ] Mr.

Salehin’s version is not credible on this point. The amounts received of debit and credit were significant. It is unlikely that a practice could be followed of simply taking these amounts from the cash proceeds since there would not have been enough from these receipts to pay the bills for milk, meat and the meat-cutter’s salary. The Court believes the testimony of Ms. Sebastiampillai and Jesmine that they were told by Mr. Salehin that these amounts were to be saved for future improvements to the business. [ 81 ] The Court also refers to the reasons stipulated above regarding the lack of credibility of Mr.

Salehin [14] . [ 82 ] The preponderance of the evidence is that these amounts were paid exclusively to Mr. Salehin on the basis of his promise that they would be held by him on a temporary basis for the future interest of the partners and the business. [ 83 ] However, when the store closed, Mr. Salehin kept these amounts. [ 84 ] Accordingly, Ms. Sebastiampillai has established her claim to $3,159.86 owed by both Defendants solidarily under Article 1525(3) C.C.Q. Unshared Expenses [ 85 ] Ms.

Sebastiampillai claims that certain expenses were paid entirely by her and instead should have been divided equally, as per the agreed rule under the partnership. [ 86 ] The first expense relates to Hydro Quebec charges for the Marché Monselet store. Mr. Salehin offers no serious contestation that these amounts are owed by him in a proportion of 50%. The invoices and proof of payment are filed into evidence [15] . The total amount of payments made by Ms. Sebastiampillai was $1,641.35. Ms. Sebastiampillai is entitled to one half of that, namely $820.68. [ 87 ] The second relates to various items [16] : (

a) Ms. Sebastiampillai states that she alone paid the rent of May 2012 ($2,000); (

b) an order for meat of April 3, 2012 ($1,707.23); and (

c) the Registry fees to the Quebec Business Registry for registration of the Marché Monselet business ($308). [ 88 ] These amounts total $4,015.23. Ms. Sebastiampillai claims payment of one half, namely $2,007.62. [ 89 ] For the rent, Mr. Salehin states that he paid one half in cash. His evidence in this regard is not convincing. He alone knew that he was going to close the business in May 2012. He did not share that information with Ms. Sebastiampillai. That is why he did not participate in payment of half of that amount. Ms. Sebastiampillai paid in good faith the entire amount expecting the business to continue.

[ 90 ] Regarding the meat order, Ms. Sebastiampillai’s testimony was convincing. She stated that she begged Mr. Salehin to pay his share but that he refused. Again this is in the time period that Mr. Salehin had decided to close the business but he did not share with his partner that information. Ms. Sebastiampillai did what she felt was necessary to keep the store open and the counters stocked. Mr.

Salehin stated that he paid this amount by cheque but he was unable to refer the Court to any particular cheque prepared by him for the Marché Monselet business, even though they were all filed into evidence [17] . [ 91 ] Finally, regarding the payment to the Quebec Business Registry, Mr. Salehin did not contest that Ms. Sebastiampillai paid entirely this amount. [ 92 ] The Court concludes that Ms. Sebastiampillai should be granted the amount claimed of $2,828.30 ($820.68 + $2,007.62). Defendants owe that amount solidarily (Article 1525 C.C.Q.). Unjust Enrichment [ 93 ] Ms.

Sebastiampillai claims $10,000 under the theory of unjust enrichment (Article 1492 C.C.Q.). The amount is presented generally and not tied to any specific evidence. Ms. Sebastiampillai’s attorney refers to the use of the premises for the business of Opus Fruits and the use of the delivery vehicle purchased to carry on business for Opus Fruits. However, these amounts have already been compensated under the head of damages relating to unshared expenses. The recourse of unjust enrichment is only available when another legal remedy is not available as stipulated in

Article 1492 C.C.Q. As this is not the case, no amount is owed under this heading. Punitive Damages [ 94 ] Ms. Sebastiampillai claims $10,000 in punitive damages. However, such damages can only be obtained when specific legislation allows for such damages (Article 1621 C.C.Q.). The attorney for Ms. Sebastiampillai was unable to refer the Court to any legislation which would support this claim. As such, no amount will be granted under this head of damages. Conclusion on Principal Claim [ 95 ] The business was unfortunately founded upon a misrepresentation. Mr.

Salehin was not personally invested in the success of the business since, unbeknownst to Ms. Sebastiampillai, he had made no investment and had a disproportionally small financial stake in its demise. As soon as circumstances became difficult, Mr. Salehin was willing to “throw in the towel” and not make significant new efforts to save the business. For her part, Ms. Sebastiampillai was interested in trying to save the business but couldn’t do so with Mr. Salehin’s help. [ 96 ] In light of the above reasons, Ms.

Sebastiampillai is well founded in claiming the amount of $20,988.16 ($15,000 + $3,159.86 + $2,828.30) against Defendants solidarily. Ms. Sebastiampillai is also entitled to obtain an additional amount of $1,100 against Mr. Salehin alone. [ 97 ] The amounts will bear interest and additional indemnity from the date of the Demand Letter [18] , namely May 21, 2013. Cross-Application [ 98 ] The preponderance of the evidence supports Ms. Sebastiampillai’s version of events that Mr. Salehin was paid his share of sale proceeds for the month of October 2012. Ms.

Sebastiampillai testified convincingly that the appropriate amount was remitted to Mr. Salehin. The latter’s version of events on this point was not credible. It is unlikely that he would accept not to be paid for some six

(6) months. Furthermore, Mr. Salehin never made a claim for this amount until adding a Cross-Application by amendment to his defence some two years (December 30, 2014) after the money was allegedly owed. The Court also refers to previous reasons detailed above undermining Mr. Salehin’s credibility [19] . Legal Costs [ 99 ] Legal costs will be awarded solidarily against both Defendants. FOR THESE REASONS, THE COURT: CONDEMNS MD Salehin and Nilufa Akhter solidarily to pay Marine Florida Jeyaranee Sebastiampillai the amount of $20,988.16, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from May 21, 2013 (Demand Letter, Exhibit P-8); CONDEMNS MD Salehin to pay Marine Florida Jeyaranee Sebastiampillai an additional amount of $1,100, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from May 21, 2013 (Demand Letter, Exhibit P- 8); WITH LEGAL COSTS against MD Salehin and Nilufa Akhter solidarily. __________________________________ Jeffrey Edwards, J.C.Q. Me Jean-Faustin Badimboli-Atibasay Me Cassandra Guarascio DJB Avocats Attorneys for Plaintiff Me Robert Tobgi Robert Tobgi, avocat Attorney for Defendants Dates of hearing: November 16 and 17, 2017