2016 QCCQ 530, 2016 QCCQ 530

9257-2841 Québec inc. c. Produits Plasti-World ltée 2016 QCCQ 530 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF Montreal TOWN OF Montreal Civil Division No: 500-22-217826-141 DATE: January 25, 2016 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ 9257-2841 QUÉBEC INC. Plaintiff v.

LES PRODUITS PLASTI-WORLD LTÉE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is a claim for unpaid services rendered. [ 2 ] 9257-2841 Québec Inc. (“Québec Inc.”) is what is commonly referred to as a “manpower agency” (agence de placement). It supplied employees to Les Produits Plasti-World. Ltée (“Plasti-World”) over a period of more than 14 months. Although its services were paid in part, a sum of $51 881.65 is still owing. [ 3 ] Plasti-World contests the claim.

The reasons invoked will be discussed further in this judgment. The facts [ 4 ] Amine Zarrouk is a representative of Québec Inc. His main responsibility is to solicit new clients. [ 5 ] In August 2013, he met with Javed Diwan, Vice President of Plasti-World. A verbal agreement is made and after negotiations, the delays for payment are clarified. Thus, services rendered to Plasti-World are billed weekly and are to be paid after three weeks. The statements include the name of the employees supplied as well as the hours worked and fees. [ 6 ] Quickly, payment becomes a problem.

Different attempts are made to facilitate payments for Plasti-World, however it does not respect its undertakings. [ 7 ] According to Mr. Zarrouk, the only reason invoked by Plasti-World for its shortcomings are late subsidies as well as late payments from its own clients. [ 8 ] Mr. Zarrouk is adamant that Plasti-Word never asked for proof of payment by Québec Inc. of deductions at source (“D.A.S.”) for its employees. In any case, after the oral defense was given, Québec Inc. did in fact provide such proof (see exhibits P-3 and P- 4) [1] . [ 9 ] Mohammed Javed Diwan, has a different view the situation.

According to him, the verbal agreement included, from the outset, an undertaking by Québec Inc. to provide Plasti-World with documents proving that it had paid its D.A.S. for all of its employees. He further adds that proof of Québec Inc. being up to date with its CSST payments was to be supplied monthly and similar proof was to be provided quarterly in regards to Revenue Québec. [ 10 ] Mr Diwan states that he was insistent on this because Plasti-World had been assessed in the past by Revenue Québec concerning another manpower agency and wanted to avoid a repetition of the situation.

He states that things went wrong from day one with Québec Inc. He never received the expected documents. He also learned that «20 of 23 employees were paid cash». This was reported to him by one of the supplied employees. This person did not testify at trial. According to Mr. Diwan, Québec Inc. is not up to date with the Registraire des entreprises du Québec. He therefore refused to pay fees to Québec Inc. until he received “T-4 slips” for every employee supplied to Plasti-World. [ 11 ] The CEO of Plasti-World, Nazir Diwan also testified. He states that Plasti-World does not contest the bills.

Although he is not involved in the companies’ daily activities, he also states that the conditions described by his colleague were to be strictly applied. In his view, the certificates filled as exhibits P-3 and P-4 are not sufficient. This in his opinion justifies Plasti-World for making the holdback

in question here. Decision [ 12 ] Plasti-World has the burden of proving [2] that it is justified to not pay the fees claimed. The contract is admitted, as are the fees. Therefore, Plasti-World must prove its means of defense according to preponderance of evidence [3] . Plasti-World alleges: 3. The total value of the agreement between the parties was in excess of $130,000.00 and Defendant has honoured majority of the invoiced amounts to Plaintiff; 4.

Plaintiff was to invoice Defendant on a periodic basis, as well as to provide written proof to Defendant that CSST payments, as well as other deductions at source (ex.. retenue d’impôt , RRQ, ROAP, PSS, etc.) were being paid directly to the fiscal authorities for those employees that were furnished to Defendant; 5. Defendant was to pay Plaintiff for the use of the latter’s employees after written proof that deductions at source were paid by Plaintiff; 6.

Plaintiff has defaulted on its obligation to pay the deductions at source and to provide written proof of same to Defendant and as such is in material breach of its obligations; [ 13 ] The conclusion in this case depends entirely on the credibility the Court gives to the witnesses presented by each party. For the reasons set out in the following paragraphs, the Court concludes that Plasti-World has not respected its burden of proof.

The evidence, both testimonial and documentary presented by Québec Inc. is more convincing. [ 14 ] Firstly, if the conditions invoked by Plasti-World were in fact so important, why were they not put in writing? There is no written contract notwithstanding the fact that these conditions according to Plasti-World’s witnesses were “strict criteria” and that it wanted to avoid being put at risk with Revenue Québec. Further, there is not even a single letter or email sent by Plasti-World to corroborate its version.

Since all the communication between the parties was done by email, this absence of corroboration is a serious deficiency in Plasti-World’s evidence. [ 15 ] Secondly, the long delays before Plasti-World complained of the fees play against its version. Plasti-World admits that the services billed were in excess of $130,000 and that it “honoured the majority of the invoiced amounts”. The parties began to do business in September 2013. It was not until June of 2014, that Plasti-World for the first time, refused specifically to pay the fees.

If these conditions had been so important, and that things went wrong “from day one”, how is it that Plasti-World paid the fees nonetheless for a period of 10 months? [ 16 ] Finally, it is inconceivable that Nazir Diwan can still maintain that exhibits P-3 and P-4 do not constitute sufficient proof to show that Québec Inc. has in fact respected its obligations as to its D.A.S. The Court concludes that in fact, Québec Inc. is up to date in regard to its fiscal and corporate obligations.

Consequently, even if Plasti-World’s defense had been proven, the alleged conditions for a holdback would not have been met. conclusion [ 17 ] The Court concludes that the “holdback” alleged by Plasti-World was never part of the agreement between the parties. Plasti- World never refused to pay Québec Inc.’s services for this reason. It is, in the Court’s estimation, an afterthought. [ 18 ] The fees claimed by Québec Inc. are not contested. The defense is unfounded.

FOR THESE REASONS, THE COURT: GRANTS the introductory motion; Condemns Les Produits Plasti-World Ltée to pay to 9257-2841 Québec Inc. the sum of $51 881.65, with legal interest as well as the additional indemnity provided for in

article 1619 of the Civil Code of Québec , since service of the introductory motion. The whole with legal costs. __________________________________ SCOTT HUGHES, J.C.Q. Me Diane Lafond For the Plaintiff Joseph Neudorfer Sarna Neudorfer For the Defendant Date of hearing: September 10, 2015

[2] Art. 2803 . A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim.