2012 QCCQ 5100, 2012 QCCQ 5100

Capitale Action c. Dora 2012 QCCQ 5100 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-124317-100 DATE: June 11, 2012 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ LA CAPITALE ACTION Plaintiff v. MONIKA DORA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On December 10th, 2010, Mrs.

Dora was condemned by default. Actually, she is claiming the revocation of this judgment because she has been told by a clerk that she would receive a notice of hearing, after the demand would had been served, but she only received the judgement rendered by default. [ 2 ] She also asked the clerk to get an English version of the demand because she does not understand French but she had been informed that this was impossible. [ 3 ] The Court considers that the Defendant invoked a sufficient cause for the revocation of the judgment (a. 989 C.C.P.). [ 4 ] On the merit of the case, the Plaintiff proved that Mrs.

Dora signed an agreement with La Capitale Action on July 15th, 2005. Annex 1 of the contract was signed on July 16th, 2005.

Clause Two of this Annex stipulates: Participation to the Franchisor's Systems The independent Representative shall pay to the franchisor the services royalty* that is one hundred and forty dollars ($140.00) per month; starting January 1, 2008, it shall be $150.00, and the training, Internet, motivation and marketing (T(MM fund) royalty)**, which is one hundred dollars ($100.00) per month, both of which are payable on the first day of each month, for the term of this appendix and any renewal thereof, if applicable. [ 5 ] Mrs.

Dora did not pay her royalties from September 2009 to June 2010 when she ceased to act as an Independent Representative for La Capitale Action (exhibits P-4 and P-6). [ 6 ] On May 10 th , 2010, Mrs. Dora wrote a letter to La Capitale Action in which she admitted she was late with her payments (exhibit P-2). [ 7 ] On May 25th, 2010, Mrs. Dora received a letter from Mrs. Chantal Turcot from La Capitale Action (exhibit P-3) to which a Statement of Account showing an amount due of $3,271.35 was attached. [ 8 ] On June 30 th , Mrs. Dora received another Statement of Account from Mrs.

Johanne Grenier, Manager/Broker for La Capitale Action (exhibit P-7). [ 9 ] Mrs. Dora is unable to contest the fact that she did not pay her royalties. [ 10 ] The amount claimed included interests on the capital. But, those interests must be substracted of invoices P-5 because the Agreement P-1 does not stipulate any rate or any agreement on which La Capitale Action could base its claims. [ 11 ]

Section 1617 of Civil Code of Quebec stipulates: Damages which result from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, in the absence of any agreement, at the legal rate.

The creditor is entitled to the damages from the date of default without having to prove that he has sustained any injury.

A creditor may stipulate, however, that he will be entitled to additional damages, provided he justifies them. [ 12 ] For those reasons, the Court will consider only the following fees: Invoice Variable Other Fixed fees Amount Sub- date fees fees received total 2009-08-01 —- —- $250.00 $90.00 $160.00 2009-09-01 —- —- $250.00 0 $410.00 2009-09-30 $1.50 $28.89 —- —- $440.39 2009-10-01 —- —- $250.00 —- $690.39 2009-10-31 —- $28.89 —- —- $719.28 2009-11-02 —- —- $250.00 —- $969.28 2009-12-01 —- —- $250.00 —- $1,219.28 2010-01-01 —- —- $250.00 —- $1,469.28 2010-01-31 $82.56 —- —- —- $1,551.84 2010-02-01 —- —- $250.00 —- $1,801.84 2010-03-01 —- —- $250.00 —- $2,051.84 2010-04-01 —- —- $250.00 —- $2,301.84 2010-05-01 —- —- $250.00 —- $2,551.84 2010-06-01 —- —- $250.00 —- $2,801.84 [ 13 ] La Capitale Action calculated G.S.T. and P.S.T.: Amount due $2,801.84

P.S.T. (5%) +140.09 $2,941.93 G.S.T. (8.5%) +250,06 TOTAL $3,191,99 [ 14 ] Interests will be calculated from the date of the demand, May 25, 2010 (exhibit P-3). FOR THOSE REASONS, THE COURT: PARTIALLY GRANTS the suit; CONDEMNS Defendant Monika Dora to pay Plaintiff La Capitale Action the amount of $3,191,99 plus interest at the rate of 5% per annum plus the additional indemnity pursuant to the provisions of

article 1619 C.C.Q., since the demand letter of May 25, 2010. CONDEMNS Defendant Monika Dora to pay Plaintiff La Capitale Action the legal fees of $176.00. __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. Date of hearing: April 23, 2012