2014 QCCQ 8298, 2014 QCCQ 8298

Saveutel Communications inc. c. Convergia Networks Inc. 2014 QCCQ 8298 QUEBEC COURT CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL LOCALITY OF MONTRÉAL "Civil Division" N°: 500-22-193484-121 DATE: August 4 th , 2014 ______________________________________________________________________ BY THE HONORABLE SYLVIE LACHAPELLE, J.C.Q. ______________________________________________________________________ SAVEUTEL COMMUNICATIONS INC. Plaintiff vs. CONVERGIA NETWORKS INC. -and- FUTURE ELECTRONICS INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Saveutel Communications Inc. ("Saveutel") is a telecom consultant that provides telecom auditing services, telecom expense management services and acts as a "liaison agent" between its clients and their telecom service provider in order for its clients to save money on those services. [ 2 ] Saveutel alleged that Defendants, Convergia Networks Inc. ("Convergia") and Future Electronics inc. ("Future Electronics") retained its services to perform an audit of their telecommunication bills and that Saveutel would receive 50% of the monthly savings achieved by each of Convergia and Future Electronics for a period of one (1) year. [ 3 ] Saveutel requests that Convergia and Future Electronics be solidarily condemned to pay its share of 50% that is $32,367.18, including HST. [ 4 ] Convergia and Future Electronics contest Saveutel's claim.

Convergia alleged that no contract was concluded with Saveutel as there was no exchange of consent. [ 5 ] Also Convergia alleged that Saveutel did not find any billing errors as these errors were previously found by their service provider Rogers. [ 6 ] Future Electronics alleged that it was never involved in the discussion with Saveutel and that there is no lien de droit between these parties. [ 7 ] Consequently, the Court is asked to declare abusive the proceedings against Future Electronics.

The Questions in Litigation [ 8 ] Was an agreement concluded between the parties? [ 9 ] In the affirmative, can both Convergia and Future Electronics be held liable for the payments Saveutel is seeking? [ 10 ] Are the proceedings against Future Electronics abusive according to

Article 54.1 of the Code of Civil Procedure [1] (" C.C.P. ")? The Evidence [ 11 ] The contention presented at trial by Mr. Robert Benchetrit ("Mr. Benchetrit") is that an agreement was concluded on September 2 nd , 2010 during a telephone conversation between Mr. Frederick Miller ("Mr. Miller") and himself. [ 12 ] It is in the course of that telephone conversation that Mr. Miller and Mr. Benchetrit agreed on the terms of the agreement that would be the same as those contained in the written contract concluded in 2008 for the same services rendered by Saveutel for Convergia.

[ 13 ] Mr. Benchetrit testified that this time he did not submit a draft agreement for signature since he trusted the President, Mr. Miller who verbally accepted Saveutel's offer of services. [ 14 ] Mr. Benchetrit filed a copy of the page of his electronic agenda for September 2 nd , 2010 where it is noted: "Updated: Convergia – Saveutel; call – 416-559-5555 Patricia Marvin" (Exhibit P-13 ). [ 15 ] According to Mr. Benchetrit, Mr. Miller would have said in the course of that telephone conversation that he would provide him with telecommunication bills in order for Mr.

Benchetrit to do his audit. [ 16 ] As of October 1 st , 2010, Mr. Miller did not provide Mr. Benchetrit with same and therefore, the latter transmitted at 10:55 a.m. to Mr. Miller an email (Exhibit P-5 ) that reads: "Hi Frederick, good morning, I have not received any copies of your wireless bills to review. Did you still want to proceed with having us do an audit? Best regards, Rob Benchetrit, President" [ 17 ] The same day, at 11:21 a.m., Mr. Miller answers Mr. Benchetrit with a copy addressed to Mr. Sean Sang ("Mr. Sang") and Mr. Moshe Simhon ("Mr. Simhon") the following: "Yes. Moshe is back now.

Sean and Moshe, please set up a call with Rob to discuss moving forward." [ 18 ] Mr. Benchetrit replies at 11:42 a.m.: "That's great, thanks Frederick. " [ 19 ] At 11:50 a.m., Mr. Simhon contacts Mr. Benchetrit, with a copy addressed to Mr. Sang: "Hello Rob It has been a while, can you let me know what is your best free available time." [ 20 ] Then, on October 22 nd , 2010 at 4 p.m., Mr. Simhon sent an email to Mr. Benchetrit with a copy to Mr. Sang, that is in fact addressed to Mr. Sang, it read as follows: "Hi Sean, whenever you are available let's set up a call." [ 21 ] It is mentioned on that email from Mr.

Simhon that communication is subject to Future Electronics' email policy. [ 22 ] Mr. Benchetrit testifies that at that point, which was on October 21 st , 2010, he started his audit. He tried the code used in 2008 with Rogers to have access to Convergia's account and it worked. "I had access to Convergia's account that contained both Convergia and Future lines." [ 23 ] Mr. Benchetrit would have told Mr. Simhon that there was no need to send him the invoices as he could get them on line, with the code confirming that he was able to start the audit. [ 24 ] On November 8 th , 2010, at 9:18 a.m., Mr.

Benchetrit emails Mr. Sang. The subject of that email is: wireless savings – costs recovery report. He specifies that the communication is of high importance. It reads: "Hi Sean: Good morning. I hope all is well with you. Moshe mentioned you will be our main contact on this project. Please find attached our wireless audit report showing various billing errors on your existing Rogers accounts. We will arrange to have these errors corrected as soon as possible. In addition, we will request credits be issued where necessary.

Please note, Rogers will require 30 days from your next billing date to make these corrections. Any credits issued by Rogers will appear on page 3 on either your November or December invoice. Should you have any questions or wish to discuss this report, please do not hesitate to contact me directly. Best regards, Rob Benchetrit, President Saveutel" [ 25 ] On November 9 th , 2010, at 6:43 p.m., Mr. Sang answers Mr. Benchetrit: "Hi Rob.

Try to talk to you but your assistant said you left. I am not really sure what you sent? I look at your report quickly and do not see much new or valuable information from you, which I do not know myselves before. Is it a final analysis you did or you will send the real one after Dec. 1 st ? By the way, from where do you get our data? I thought we will have a call (or you will visit us) on Dec. 1 st and we will provide you our data then after? Let have a call tomorrow. Please let me know, what time you will be available? Thanks, Sean Sang, Controller" [ 26 ] On November 10 th , 2010, at 9:43 a.m., Mr.

Benchetrit answers Mr. Sang and attached the Future Electronics' request for quotation ("RFQ") for wireless services – November 2010, draft1.doc. which reads: "Hi Sean: We have concluded your current Rogers rates are very poor and in comparison to what other companies your size are paying for wireless services. We are recommending an amendment be made to your existing contract allowing your company to take advantage of discounted wireless corporate rates. These improved rates should have been made available to your company over a year ago. Attached is a draft of the RFQ document to send to Rogers.

Once it is submitted, Rogers will have 14 days to provide a new quote. Going through this process will reduce your monthly wireless costs by at least 25%. I am available to be speak by phone on Friday, November 12 at 10 a.m., 11 a.m. or 2 a.m. Please let me know which of these times is convenient to you to discuss our "findings". Best regards, Mr. Rob Benchetrit" [ 27 ] At trial, Mr. Benchetrit testified that he did not understand what Mr. Sang meant by "datas". "Is he referring to the bills – the contracts, etc. … ? I didn't want to be confrontational, so I answered: here's my opinion.

I did not want to complicate. I wanted to address the issue of what about my findings. But I did have a conversation. Moshe knows he added me as an authorizer." [ 28 ] So according to Mr. Benchetrit, on November 8 th , 2010 Mr. Sang was provided with the audit of the wireless report and with the RFQ on November 10 th , 2010. [ 29 ] Mr. Benchetrit added that Mr. Miller told him to hold off until December 1 st , 2010 because he was too busy. [ 30 ] Mr. Benchetrit testified that he found that request strange. He did not understand why Mr.

Miller was postponing a meeting until December 1 st , 2010. [ 31 ] Then, on December 1 st , 2010, Mr. Benchetrit asked Rogers to provide him with a duplicate copy of the monthly invoice for the different accounts. [ 32 ] Before doing so, Mr. David Malenfant ("Mr. Malenfant"), business consultant for Rogers, asked Mrs. Antoinette Henry and Mr. Simhon to confirm that he could send these invoices to Mr. Benchetrit. Mr. Malenfant put the latter in copy. [ 33 ] Thus on the same day, Mr. Benchetrit asked Mr. Simhon to send Mr.

Malenfant a message allowing him to have the duplicate billing sent to Saveutel, adding that "otherwise we can't do our job Frederick hired us to do". [ 34 ] Mr. Benchetrit ends the email by asking Mr. Simhon to let him know if he has a problem with this. [ 35 ] Approximately thirty minutes later, Mr. Simhon responds to Mr. Benchetrit with the following answer: "No problem, I just got the O.K. from Sean, I will send them (Rogers) the O.K." [ ADDED BY THE COURT ] [ 36 ] As a matter of fact, on December 1 st , 2010, Mr. Simhon informs Mr. Malenfant that "in speaking with management we are O.K.

Please give access to Saveutel the copies". [ 37 ] Mr. Benchetrit testified that the authorization given to Rogers on December 1 st , 2010 to obtain a copy of the invoices is different from the authorization he obtained from Mr. Simhon on October 2010 to consult the accounts. [ 38 ] Actually, since October 2010, Rogers was giving Mr. Benchetrit all the information he needed, sending him the telephone bills

that were reviewed for the purpose of doing his audit. [ 39 ] The second request formulated on December 10 th , 2010 was for another purpose. Mr. Benchetrit wanted to have a copy of the monthly billings, as he needed them to see the savings Defendant's beneficiated from in order to invoice them, since Saveutel is paid 50% of the savings. [ 40 ] If he asked for a copy of those bills it is because, according to Mr. Benchetrit, the site is unpredictable and, that for the data clerk, it is easier to work with a hard copy. [ 41 ] Thus, once Mr. Simhon authorized Mr.

Malenfant at Rogers to give access to Saveutel to the requested copies, the latter was provided with the invoices transmitted to Convergia for January and February 2011. [ 42 ] The savings for January and February 2011 being respectively of $2,875 and $3,721.45, Saveutel claims $1,624.44 and $2,102.62, including the HST. [ 43 ] Saveutel obtained the invoices for the following months until December 11 th , 2011 following an order given to Convergia and Future Electronics to do so by Mr.

Justice Mongeon. [ 44 ] Thus, Saveutel itemized for each month the amount representing 50% of the savings, which totals $32,367.18, including HST (Exhibit P-11 , second page-tab 13). [ 45 ] At trial, it was admitted that there is no issue with the calculation supported by the documentary evidence. [ 46 ] Mr. Benchetrit raises the point that Convergia and Future Electronics only had 7 Mb and, because of Saveutel's wireless report, they got 50 Mb. [ 47 ] Mr.

Benchetrit testified Saveutel was never informed before November 10 th , 2010 that Rogers was already reviewing Convergia and Future Electronics' accounts and he adds that anyhow by then, he had completed his audit. [ 48 ] To do the audit and the wireless report, Mr. Benchetrit reviewed the telecommunication bills line by line, which according to him took several hours.

However, in doing so, he found billing errors, that once corrected, saved Convergia and Future Electronics money, in addition to the fact that he changed the plan so that Convergia and Future Electronics beneficiated rather from 500Mb than from 7 Mb. [ 49 ] Mr. Benchetrit testified that Rogers received the audit he had prepared for Convergia and Future Electronics who get their savings based on his findings but, unfortunately, he did not get paid for his 50% share. Mr. Benchetrit refers the Court to Exhibit D-7 being an email dated December 1 st , 2010, from Mr. Benchetrit to Mr.

Sang, which reads: "Hi Sean: I just spoke with Sébastien at Rogers and he says he is not working on any new pricing quote for Convergia. He mentioned your company is currently into the first year of a three-year contract. At the moment, there are no plans to do an amendment to the existing contract. He has agreed to look over the RFQ we send him and will have a quote within 2 weeks. When you receive the new quote there is no obligation on your end. You can either accept or reject it. Regards, Rob Benchetrit" [ 50 ] On December 2 nd , 2010, Mr. Sang answers Mr.

Benchetrit: "Hi Rob, We decide to keep what we are now and do not want any analysis/works from you or your company. Please stop contacting Rogers and no need spending time on us. I don't know how you get our data and our Rep contact information before, but please stop accessing them going forward. We will contact you, if we need your service one day in the future. Thanks and have a good weekend. Sean" [ 51 ] In his testimony, Mr. Miller refused the testimony of Mr. Benchetrit and denied that any agreement was concluded on September 2 nd , 2010. Also, he denies that any specific terms were discussed.

He made it clear "I don't talk about verbal contract". [ 52 ] Later, in the course of his testimony, Mr. Miller testified that he would have had a conversation with Mr. Benchetrit sometime during the month of October as he could have rescheduled three-four times the appointment set in August by his secretary. [ 53 ] Finally, Mr. Miller stated that a phone call with Mr. Benchetrit possibly occurred in September. [ 54 ] Mr. Miller explained that when he answered Mr. Benchetrit: "Yes: "Moshe is back now. Sean and Moshe, please set up a call with Rob to discuss moving forward".

it meant that he wants to move to the next step which is to "discuss entering into an agreement and negotiating the terms and conditions of such a potential agreement". [ 55 ] Mr. Miller, afterwards put forth that "the next step" meant that he wanted Rogers to do their work first. He is the one who would have contacted Rogers. "I contacted Sébastien from Rogers asking him why don't you do an audit. Please make sure you do a good job because if Rob finds errors, I will charge them to you and Rogers came with that new plan 7 Mb change for 500 Mb.

So, it was not suggested by Rob." [ 56 ] That is also the essence of Mr. Sang's testimony explaining that he understood that Mr. Miller wanted him to be part of the discussion in order to determine whether Saveutel would be retained and an agreement entered into eventually. [ 57 ] According to Mr. Miller, Mr. Benchetrit was well aware of that plan. He would have said to Mr. Benchetrit: "After December 1 st , 2010, we signed a contract and you will have access to my accounts and the savings will be charged to Rogers." [ 58 ] Mr. Miller is not sure there is a writing telling Mr.

Benchetrit he was to do the audit after Rogers will do his. "I haven't seen an email, could have been a phone call." [ 59 ] According to Mr. Miller, the emails filed as Exhibit D-1 would confirm that Convergia and Future Electronics wanted Saveutel to do an audit but only after Rogers had completed theirs, which was due December 1 st , 2010. [ 60 ] On November 12 th , 2010, Mr. Sabourin from Rogers emailed Mr. Miller with his findings (Exhibit D-5 ). Mr. Sabourin's letter read as follows: "Good morning Frederick, I hope that you are doing well.

As per our conversation last week here is a conclusion of our research. We found a few mistakes on your invoices that we corrected. We did not find anything major but a few things that needed to be corrected. 5 numbers 4039214001, 5144496940, 5144630579, 5144654145 and 5145152813 were missing the 4$ pooling discount for the last 12 invoices. A credit of 48$ per lines has been applied for a total of 240$. The discount for v4data options on 5144581758 was missing for the last 14 invoices. A credit of 140$ has been applied. That's all we found, so a credit of 380$ has been applied.

One of our recommendations is that you still have many lines that are under the BlackBerry 7Mb plan. You can change this plan to 500Mb with no extra cost. This should give you an insurance policy and avoid any extraordinary BB data usage. Please advise if you want us to go ahead with this change. I hope everything to your satisfaction, please call me if you have any questions or comments. FYI, we are still working on an analysis in optimize your plan; I will get back to you once the analysis is complete. Regards, Sébastien Sabourin, Gestionnaire de comptes, ventes sans" [ 61 ] At trial, Mr.

Miller mentioned he was shocked to hear Saveutel was using a 2008 code to access their accounts at Rogers adding that prior to November 2010 he did not authorize Mr. Benchetrit to access as it was premature. [ 62 ] Mr. Miller testified that Mr. Sang was dealing with Rogers account whereas Mr. Simhon was in charge of hardware for Future Electronics. [ 63 ] When Mr. Miller is asked why his company agreed on December 1 st , 2010 to send copies of the invoices to Saveutel, if there was no contract, he answered that he had no idea. He didn't know. [ 64 ] Since Mr. Simhon wrote to Mr.

Benchetrit that "he got the O.K. from the management that he can access to the accounts", Mr. Miller clarified that "the management" could be either himself, Mr. Simhon's supervisor or Mr. Sang". [ 65 ] Then, Mr. Miller added that Mr. Sang is not the best communicator and maybe Mr. Simhon misunderstood Mr. Sang. [ 66 ] Mr. Sang confirms that Rogers' invoices cover the lines of both Convergia and Future Electronics.

[ 67 ] With respect to the wireless report and the audit that was sent to him by Mr. Benchetrit on November 8th and 10 th , 2010, Mr. Sang took a very quick look at them not knowing whether they were a sample. [ 68 ] Mr. Sang testified that he did not believe when he received these documents that it was possible for Mr. Benchetrit to have done an audit of their accounts since he didn't have access to the datas. For Mr. Sang, "the plan was that it is only after they finish with Rogers that Mr. Benchetrit will only get the datas December 1 st , 2010". [ 69 ] On December 1 st , 2010, Mr.

Sang did not succeed to reach Mr. Benchetrit. [ 70 ] Then, on December 2 nd , 2010, Mr. Sang told Mr. Benchetrit "not to take the Convergia and Future Electronics' datas". Analysis [ 71 ] Articles 1386 , 1387 and 1388 of the Civil Code of Québec [2] (« C.c.Q. ») states: 1386. The exchange of consents is accomplished by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person. 1387.

A contract is formed when and where acceptance is received by the offeror, regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to secondary elements. 1388. An offer to contract is a proposal which contains all the essential elements of the proposed contract and in which the offeror signifies his willingness to be bound if it is accepted. [ 72 ] Was there an exchange of consents in the present case? [ 73 ] By email dated October 21 st , 2010 (Exhibit P-5 ), Mr. Benchetrit asks Mr.

Miller a very precise question: "I have not received any copies of your wireless bills to review. Did you still want to proceed with having us to do an audit?" [ 74 ] Mr. Miller answers: "Yes. Moshe is back now. Sean and Moshe please set up a call with Rob to discuss moving forward." [ 75 ] Mr. Benchetrit testified he sent his email to follow-up after the telephone conversation he had with Mr. Miller on September 2 nd , 2010, in the course of which Mr. Miller and himself agreed that the conditions would be the same as in 2008. [ 76 ] At first, Mr.

Miller categorically denied that a telephone conversation took place in September 2010 but then, he finally admitted that it is possible that he spoke with Mr. Benchetrit in September 2010 previously to that email dated October 21 st , 2010. [ 77 ] What was discussed during the course of this conversation? [ 78 ] Since Mr. Benchetrit wrote in that email that he has not received any copies of Convergia and Future Electronics' wireless bills, it seems probable, as Mr. Benchetrit explained, that Mr. Miller said he would transmit the wireless bills. As a matter of fact, as he did not do so, Mr.

Benchetrit reminds him by email. [ 79 ] According to Mr. Benchetrit, it had been discussed and agreed in the course of that same telephone conversation with Mr. Miller that the audit would be done on the same terms and conditions than those of the written contract of 2008. [ 80 ] This is also denied by Mr. Miller. The latter testified that no specific terms were discussed and that no agreement was concluded on September 2 nd , 2010. [ 81 ] Mr. Miller insisted that the parties sign a written contract in 2008, which proves that they entered into an agreement then. [ 82 ] According to Mr.

Miller, since no written contract was signed in 2010, no agreement had yet been reached this time. [ 83 ] Mr. Benchetrit explains that if he did not ask Mr. Miller to sign a contract, it is because he knew him, had confidence in him and took his word when he verbally agreed and then proceeded to the audit. [ 84 ] This explanation seems probable to the Court since the two men had previously worked together with good results and actually the relationship between them seemed open, even friendly as it transpired from their correspondence. [ 85 ] Mr. Miller testified he had informed Mr.

Benchetrit that he wanted first to have the audit from Rogers and that he would give him access to the invoices after December 1 st , 2010. [ 86 ] This is categorically denied by Mr. Benchetrit who insisted he was not aware of that plan. [ 87 ] The Court doubts that Mr. Benchetrit had been informed of that plan. [ 88 ] Firstly, when by email dated October 1st, Mr. Benchetrit asked Mr. Miller if he wanted Saveutel to do an audit, Mr. Miller did not ask Mr. Benchetrit to hold his work until Rogers finished his mandate. It would have been easy to mention it at that moment. [ 89 ] Also, when Mr.

Benchetrit stated in that email that he had not received any copies of the wireless bills to review, Mr. Miller did

not say he never agreed to give him access to the invoices. On the contrary, Mr. Miller immediately answers "Yes". [ 90 ] In addition, Mr. Miller testified that the emails filed as Exhibit D-1 support his version that Mr. Benchetrit was aware of the fact that Rogers was doing an audit. [ 91 ] Thus, a review of those emails reveals that there is no mention whatsoever of the mandate Mr. Miller would have given to Rogers. [ 92 ] The Court does not believe, as it was raised in the course of the trial, that Mr.

Benchetrit obtained the information on Convergia and Future Electronics' accounts by using a subterfuge. [ 93 ] The proof reveals that Mr. Miller gave the mandate to Mr. Simhon and Mr. Sang to set up a telephone call with Mr. Benchetrit to move forward and, actually, it is Mr. Simhon who made the arrangements in contacting Mr. Benchetrit. [ 94 ] Mr. Benchetrit's contact person at that point was Mr. Simhon. [ 95 ] According to the uncontradicted testimony of Mr. Benchetrit, the latter informed Mr.

Simhon that it was not necessary to transmit him a copy of Convergia and Future Electronics' accounts since he was able to obtain them in using the same code he used in 2008. [ 96 ] Mr. Simhon was aware that Mr. Benchetrit was accessing Defendant's accounts in order to do the audit. [ 97 ] For the Court at all times, Mr. Benchetrit acted openly and in good faith. [ 98 ] Mr. Benchetrit was in communication with Mr. Simhon until November 8 th , 2010 when the latter mentioned that Mr. Sang would be the main contact for this project. [ 99 ] From that point, it transpires from the emails between that Mr. Sang and Mr.

Benchetrit that they did not understand each other. The Court understands that there is some confusion there. [ 100 ] On November 8 th , 2010, Mr. Sang is under the impression that Mr. Benchetrit will start the audit after December 1 st , 2010, whereas Mr. Benchetrit has already provided Mr. Sang with the result of the audit. [ 101 ] The proof reveals that Mr. Sang mistakenly thought that Mr. Benchetrit provided him with a draft or a sample of an audit report to come, as he didn't know that Mr. Benchetrit had had access to the accounts. [ 102 ] Mr. Sang had been made aware that Mr.

Miller contacted Rogers and was waiting for their report on December 1 st , but obviously Mr. Benchetrit was not aware of that plan. [ 103 ] So, when Mr. Miller confirmed, on October 21 st , 2010 that he wanted Mr. Benchetrit to do an audit, Mr. Benchetrit started his review and on November 8 th , 2010, Mr. Benchetrit finished his audit which revealed billing errors on the existing Rogers accounts. [ 104 ] Mr.

Benchetrit recommended changing the plan from 7 Mg to 50 Mg but he also succeeded in having Convergia and Future Electronics benefit from savings in the amount of $51,455,44, as described in Exhibit P-11 . [ 105 ] These savings are, for the Court, the result of the work of Saveutel and not of Rogers, as it appears from the documentary evidence. [ 106 ] More particularly, according to the email dated November 12 th , 2010 from Sébastien Sabourin ("Mr. Sabourin") to Mr. Miller, it shows that the findings of Sabourin are not the same than those of Saveutel. Mr.

Sabourin found at that time only a few mistakes that he corrected in giving credit amounts in the range of $140. [ 107 ] In addition, on December 1 st , 2010, Mr. Benchetrit informed Mr. Sang about the conversation he had with Mr. Sabourin (Exhibit D-10 ), who told him Rogers was not doing any review of Defendants' accounts: "Hi Sean: I just spoke with Sébastien at Rogers and he says he is not working on any new pricing quote for Convergia. He mentioned your company is currently into the first year of a three year contract. At the moment, there are no plans to do an amendment to the existing contract.

He has agreed to look over the RFQ we send him and will have a quote within 2 weeks. When you receive the new quote there is no obligation on your end. You can either accept or reject it." [ 108 ] Thus, the proof reveals that Mr. Benchetrit sent to Mr. Sang on November 8th the audit report and sent the report to Rogers on December 1 st , 2010. [ 109 ] Afterwards, based on that audit, Rogers corrected the billing errors with the result that Convergia and Future Electronics beneficiated from savings of $51,455.44 for the year 2011, thus Mr.

Benechirt claiming 50% of these savings, which amounts to $32,367.18, including HST. [ 110 ] The Court concludes that on September 2 nd , 2010, there was a verbal exchange of consent between Saveutel and Mr. Miller on behalf of Convergia and Future Electronics.

[ 111 ] Saveutel made an offer to review the telecommunication accounts to find billing errors according to the same terms and conditions of the contract performed in 2008, which was presented to Mr. Miller and accepted by him on September 2 nd , 2010 and which was confirmed again by Mr.

Miller by email dated October 1 st , 2010. [ 112 ] Saveutel reviewed the telecommunication accounts of Convergia and Future Electronics and succeeded to prove, according to the balance of probability, that Saveutel found billing errors and that both Convergia and Future Electronics beneficiated from savings of $51,455.44 for the year 2011. [ 113 ] Thus, Saveutel is entitled to be paid 50% of these savings, which represents an amount of $29,072.32, inclusive of the HST. [ 114 ] Mr. Frederick Miller is the Chief Executive Officer of Convergia, provider of telecommunication services and solutions.

Whereas, Future Electronics provides hardware and the President is Mr. Robert Miller. [ 115 ] These are two different entities. [ 116 ] However, the proof reveals that the audit performed in 2008 covered the invoices of Convergia and Future Electronics, as it appears from Exhibit P-17 , tab 19. [ 117 ] The email address for Mr. Simhon is simhon.future.ca, whereas Mr. Sang's address is […]@convergia.com. [ 118 ] Mr. Sang confirmed that Rogers' invoices covered the lines of both Defendants, Convergia and Future Electronics. [ 119 ] When Mr.

Miller agreed to transmit the Rogers wireless bills for review, since these accounts were covering the billing for both Convergia and Future Electronics, he acted as the mandatory of Future Electronics as well. [ 120 ] Since both Convergia and Future Electronics beneficiated from the savings, the Court concludes that Convergia and Future Electronics are solidarily responsible for the payments owed to Saveutel. [ 121 ] Considering the conclusion of the Court on that issue, the request to declare abusive the proceedings against Future Electronics is dismissed.

FOR THESE REASONS, THE COURT: GRANTS Plaintiff's Motion Introductory of Suit; CONDEMNS Defendants solidarily, Convergia Networks inc. and Future Electronics inc., to pay to Plaintiff the amount of $32,367.18, including HST, plus interest at the legal rate of 19%, plus the special indemnity provided for by the Civil Code of Québec , as of the date of the demand letter dated March 10 th , 2011; ORDERS that the security of $1,800 be returned to Saveutel Communications inc.; WITH COSTS. __________________________________ SYLVIE LACHAPELLE, J.Q.C. Plaintiff's attorney: Me Jeffrey N.

Schwartz GURMAN SCHWARTZ 5165 Queen Mary Road, Suite 405 Montréal, QC H3W 1X7 Defendants' attorney: Me Karim Renno IRVING MITCHELL KALICHMAN Place Alexis-Nihon, Tour 2 3500 de Maisonneuve Boulevard West, Suite 1400 Montréal, QC H3Z 3C1 Date of Hearing: November 7 th , 2013