2012 QCCQ 7348, 2012 QCCQ 7348

Bagiotas c. Figiel 2012 QCCQ 7348 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-22-185088-112 DATE : September 19, 2012 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ DIMITRIOS (JAMES) BAGIOTAS Plaintiff v.

RICHARD FIGIEL and NICK FAZZARI and VINCE FAZZARI Defendants ______________________________________________________________________ JUDGMENT RENDERED FROM THE BENCH ______________________________________________________________________ The written version of this judgment contains some minor modifications. [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS plaintiff is a chartered accountant; [ 3 ] WHEREAS , according to the preponderance of evidence, a contract for professional services intervened between plaintiff, codefendant Richard Figiel and codefendant Vince Fazzari (hereinafter collectively "the codefendants") in February of 2008, with a view to prepare a business plan for the obtention of a small business loan for a start-up operation called Restaurant Bisi; [ 4 ] WHEREAS , as admitted by codefendants, plaintiff executed his mandate (exhibit P-5), and the requested loan of $245,000.00 was effectively disbursed as a result of his services; [ 5 ] WHEREAS codefendant Vince Fazzari also admitted that plaintiff disclosed his fixed fees of $7,500.00, to him, before executing the mandate; [ 6 ] GIVEN codefendants' promises to pay, as well as cheques P-3 and P-4; [ 7 ] WHEREAS , according to codefendants, there is no lien de droit between themselves and plaintiff; [ 8 ] WHEREAS they claim that the other contracting party was Restaurant Bisi's operating company, 9195-4909 Quebec Inc., which was incorporated April 7, 2008 and which went bankrupt on January 27, 2010; [ 9 ] WHEREAS , however, plaintiff convinced the Court, by a preponderance of evidence, that he made it abundantly clear to codefendants, at the outset, that he was entering into a contract with them and not with the company to be incorporated; [ 10 ] GIVEN , furthermore, art. 320 of the Civil Code of Quebec which states : "320.

A person who acts for a legal person before it is constitued is bound by the obligations so contracted, unless the contract stipulates otherwise and includes a statement to the effect that the legal person might not be constituted or might not assume the obligations subscribed in the contract." (which is not the case here);

[ 11 ] WHEREAS plaintiff executed his professional and contractual obligations vis-à-vis codefendants; but codefendants failed to execute theirs and to pay the price of the professional services rendered; [ 12 ] WHEREAS plaintiff executed his mandate for the benefit of and as requested by codefendants; [ 13 ] GIVEN , furthermore, s. 2100 and 2108 C.C.Q.; [ 14 ] WHEREAS , however, there is no evidence that defendant Nick Fazzari was party to the above contract; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's introductory motion in part; SENTENCES Richard Figiel and Vince Fazzari jointly and severally to pay plaintiff the sum of $8,465.63, plus legal interest and the additional indemnity provided for in s. 1619 C.C.Q. from the date of service of the action; THE WHOLE with costs; DISMISSES plaintiff's motion against Nick Fazzari, with costs. __________________________________ ELIANA MARENGO, J.C.Q.

M e Tom Markakis De Louya Markakis Lawyers for plaintiff Richard Figiel, Nick Fazzari and Vince Fazzari Date of hearing : September 19, 2012