2015 QCCQ 6778, 2015 QCCQ 6778

Dayvis c. Entreprises Sweetnfit inc. (Posture Pro) 2015 QCCQ 6778 JP2262 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CIVIL DIVISION No: 500-32-142306-143 DATE: July 3, 2015 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE VINCENZO PIAZZA, j.c.Q. ______________________________________________________________________ MIRANDA DAYVIS (A.K.A. MIRANDA GREENACRE) and DR. PAUL GREENACRE Plaintiffs v. LES ENTREPRISES SWEETNFIT INC. d.b.a.

POSTURE PRO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs. Dayvis and Dr. Greenacre registered online for a 2-day training workshop in “posturology” held in Toronto by Les Entreprises Sweetnfit Inc. (“ Posture Pro ”).

They paid $5,548.97 for this registration and educational materials associated with the workshop (books, etc.). [ 2 ] They claim that it is only after their payment had been processed that they were sent a 9-page contract by Posture Pro, which they were requested to sign in order to be admitted at the workshop. [ 3 ] Mrs. Dayvis and Dr. Greenacre strongly disagreed with several provisions of this contract, including confidentiality and non- competition clauses providing for severe penalties in case of breach.

They refused to sign and requested to cancel their registration and be reimbursed. [ 4 ] Posture Pro refuses. It pleads that the 9-page contract was posted on its website. It adds that in order for their payment to be accepted via its website, Mrs. Dayvis and Dr. Greenacre had to click on an acceptance form which clearly indicates that the registration fees are non-refundable. Furthermore, this acceptance form contains a hyperlink entitled “terms and conditions” which leads to the 9- page contract in question, in easy to print pdf format. [ 5 ] Mrs. Dayvis and Dr.

Greenacre claim a refund in the amount of $5,296.24 plus punitive damages of $1,650.00. ANALYSIS AND DISCUSSION [ 6 ] Posture Pro is a “merchant” within the meaning of the Consumer Protection Act [1] . The contract entered into by Mrs. Dayvis and Dr. Greenacre to attend Posture Pro’s workshop is governed by Division VI of

Chapter III of this statute.

Section 189 of the Act states: 189. This subdivision applies to contracts of service involving sequential performance, except contracts made by a merchant operating a physical fitness studio, the object of which is (

a) to obtain instruction, training or assistance for the purpose of developing, maintaining or improving the health, appearance, skills, qualities, knowledge or the intellectual, physical or moral faculties of a person, (

b) to assist a person in establishing, maintaining or developing personal or social relations, or (

c) to grant a person the right to use goods to attain any of the purposes provided for in paragraph a or b. [ 7 ] Unfortunately for Posture Pro, sections 193 and 194 of the Act are fatal to its defence against the claim for reimbursement of the registration fees: 193 . The consumer may, at any time and at his discretion, cancel the contract by sending the form provided for in

section 190 or another written notice to that effect to the merchant. The contract is cancelled of right from the sending of the form or notice.

194 . If the consumer cancels the contract before the merchant has begun the performance of his principal obligation, the cancellation is effected without cost or penalty to the consumer. [ 8 ]

Section 196 gives the merchant 10 days from the cancellation to refund the consumer. [ 9 ] In case of failure by a merchant to fulfil an obligation imposed by the Act, the consumer may demand punitive damages, as Mrs. Dayvis and Dr. Greenacre do. [ 10 ] In Richard v.

Time Inc. [2] , the Supreme Court of Canada writes: [180] In the context of a claim for punitive damages under s. 272 C.P.A., this analytical approach applies as follows: • The punitive damages provided for in s. 272 C.P.A. must be awarded in accordance with art. 1621 C.C.Q. and must have a preventive objective, that is, to discourage the repetition of undesirable conduct; • Having regard to this objective and the objectives of the C.P.A., violations by merchants or manufacturers that are intentional, malicious or vexatious, and conduct on their

part in which they display ignorance, carelessness or serious negligence with respect to their obligations and consumers’ rights under the C.P.A. may result in awards of punitive damages. However, before awarding such damages, the court must consider the whole of the merchant’s conduct at the time of and after the violation. [ 11 ] The Tribunal considers that Posture Pro has not displayed the type of behaviour which would warrant a condemnation to punitive damages.

Posture Pro’s president testified that she had relied on an attorney’s advice to take the position not to reimburse. [ 12 ] The Tribunal surmises that this judgment will have an educational effect on Posture Pro, who will no doubt adjust its business practices in order for such a situation not to occur again. The risk of “repetition of undesirable conduct” appears highly unlikely.

FOR THE FOREGOING REASONS , the Court: GRANTS the action, in part; CONDEMNS Les Entreprises Sweetnfit Inc. to pay $5,296.24 to Miranda Dayvis and Paul Greenacres; CONDEMNS Les Entreprises Sweetnfit Inc. to pay the Court fees of $169.00 to Miranda Dayvis and Paul Greenacres. __________________________________ VINCENZO PIAZZA, J.C.Q. Hearing date: June 29 th 2015