2020 QCCQ 143, 2020 QCCQ 143

Norexco Inc. c. Yamb Closeoutcabinets.ca Inc. 2020 QCCQ 143 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-157059-173 DATE: January 15, 2020 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ NOREXCO INC. Plaintiff v. YAMB CLOSEOUTCABINETS.CA INC. and KITCHENWHOLESALERS.CA INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence, namely exhibits P-1 to P-7 and D-1 to D-3, as well as the testimony of Philippe Charbonneau and Yosef Aisenstark; [ 2 ] WHEREAS , on June 12, 2014, in the context of a commercial building project, plaintiff placed an order for 5 sets of kitchen cabinets, with an entity calling itself “Kitchen Wholesalers”, for the price of $25,856.73 (purchase order, exhibit P-4); [ 3 ] WHEREAS , as appears from emails exhibit P-6, plaintiff was dealing with Jessica Coen and Aisenstark of ʺKitchenwholers.caʺ at the time the contract was entered into; [ 4 ] WHEREAS plaintiff paid $13,112.32, on account, for said cabinets; [ 5 ] WHEREAS , unbeknownst to plaintiff, another entity calling itself ʺKitchen Connectionʺ (hereafter ʺKCʺ), took possession of said funds (statement of account, exhibit P-5); [ 6 ] WHEREAS KC is the firm and style name of Yamb Closeoutcabinets.ca Inc. (hereafter “Yamb”) (REQ, exhibit P-2); [ 7 ] WHEREAS Aisenstark is the president and secretary of Yamb, as well as the president and secretary of Kitchenwholesalers.ca Inc.; [ 8 ] WHEREAS 3 business days after the order was placed, plaintiff was obliged to put said order “on hold”, as the condominium project was halted, through no fault of its own; [ 9 ] WHEREAS Coen acknowledged and accepted plaintiff’s request to put the order on hold and advised Aisenstark accordingly; [ 10 ] WHEREAS production of the cabinets was never initiated; [ 11 ] WHEREAS the condominium project was eventually cancelled, again for reasons unattributable to plaintiff;

[ 12 ] WHEREAS , in the meantime, Yamb went out of business; [ 13 ] WHEREAS , due to an administrative oversight, plaintiff only officially demanded reimbursement of the amount paid on account, on January 12, 2017 (demand letter, exhibit P-7); [ 14 ] WHEREAS defendants refuse to reimburse said sum, and would now have the Court believe that they are not liable therefor, albeit admitting that the kitchen cabinets were never manufactured; [ 15 ] WHEREAS Aisenstark’s claim that there is no lien de droit between defendants and plaintiff is unfounded; [ 16 ] WHEREAS , as above stated, Yamb took plaintiff’s money and enriched itself at plaintiff’s expense (Aisenstark’s admission and Visa Desjardins statement of account, exhibit P-5) (

section 1479 of the Civil Code of Québec ); [ 17 ] WHEREAS , although Kitchenwholesalers.ca Inc. was only incorporated on July 11, 2014, namely 17 business days after the contract was formed, it always represented itself as being party to the transaction; [ 18 ] WHEREAS plaintiff had no way of knowing that the company was not yet incorporated; [ 19 ] WHEREAS , as above stated, Aisenstark corresponded with plaintiff under the name of ʺKitchenwholesalers.ca ʺ (emails P-6); [ 20 ] WHEREAS Kitchenwholesalers.ca Inc. only refuted being party to the contract when plaintiff instituted its claim, and, as such, tacitly ratified the acts posed by Aisenstark and Coen in 2014, in its name (section 319 C.C.Q .); WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim, in part; CONDEMNS Yamb Closeoutcabinets.ca Inc. and Kitchenwholesalers.ca Inc., jointly and severally, to pay Norexco Inc., the sum of $13,112.32, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , from April 21, 2017, with legal costs. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: November 25, 2019