2016 QCCQ 2677, 2016 QCCQ 2677

Bendayan c. Amar 2016 QCCQ 2677 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-144535-145 DATE: February 25, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Becky Bendayan Plaintiff v.

Elinor Amar Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant an amount of $1,023 pursuant to an agreement to provide certain goods and services. [ 2 ] Defendant refuses to pay this amount because she claims that Plaintiff only partially delivered the agreed goods and services.

By way of a cross-claim, she also seeks damages of $3,000 for stress, aggravation, distraction and loss of income allegedly suffered as a result of Plaintiff’s conduct. questions in issue [ 3 ] The case raises the following questions:

a) Did Plaintiff fully and correctly execute her obligations towards Defendant?

b) Is Defendant entitled to the damages claimed by way of her cross-claim?

FACTUAL CONTEXT [ 4 ] In July 2014, Defendant retained Plaintiff to provide certain goods and services for the celebrations surrounding her son’s Bar Mitzvah, to take place on September 7 and 8, 2014. [ 5 ] Pursuant to the verbal agreement between the parties (the « Contract »), Plaintiff was to provide the following for the prices indicated (inclusive of applicable taxes) : ➢ Napkin rings (160 @ $1.35 each) $216 ➢ Seating cards/Kippah table décor $150 ➢ Table numbers (23@$5 each) $115 ➢ Candy Bar (220 people) $1,500 Total $1,981 [ 6 ] For the Candy Bar, Plaintiff was to provide materials and goods and set up a table with an assortment of candies for 220 people, [1] to be organized in personalized packaging to match Defendant’s theme for the event. [ 7 ] Specific details about the set up and presentation of the Candy Bar were not determined in advance, but it was to be similar in style to a candy bar prepared by Plaintiff at another event, which Defendant had seen on Plaintiff’s Facebook page. [2] Plaintiff was also to coordinate with Defendant’s other suppliers, including the event planner hired by Defendant. [ 8 ] Defendant made a $500 deposit on the agreed price. [3] [ 9 ] A few days before the event, Defendant sought Plaintiff’s opinion on the best time to deploy the Candy Bar during the event.

Although this was not her responsibility, Plaintiff indicated that it could be rolled out shortly before the sweets table. [4] [ 10 ] At the event, Plaintiff set up the Candy Bar ahead of time in a separate room, where it was shown to Defendant, who voiced no concerns or complaints. [ 11 ] The next day, Defendant and her husband called Plaintiff to complain about the Candy Bar. [5] They claimed that the quantity of candy was insufficient for 220 people, that its presentation was not as expected based on the candy bar shown on Plaintiff’s Facebook page and that it was located too close to the sweets table, disrupting the event.

[ 12 ] On September 15, 2014, Plaintiff sent Defendant a demand letter seeking payment of the outstanding balance of the Contract within 10 days, failing which legal proceedings would be instituted. [6] [ 13 ] On September 18, 2014, Defendant sent payment of the agreed price for the napkin rings ($216), table numbers ($115) and seating cards/kippah table décor ($150). [7] As for the Candy Bar, she paid only $477 of the agreed $1,500, leaving an outstanding balance of $1,023.

According to her, this represented the value of Plaintiff’s services for the Candy Bar. [ 14 ] Plaintiff deposited the cheque under protest and reserved her rights to claim the outstanding amount [8] . She filed her claim on October 1, 2014. ANALYSIS

a) Did Plaintiff fully and correctly execute her obligations towards Defendant? [ 15 ] Pursuant to the Contract, [9] Plaintiff was bound to act prudently and diligently and in the interest of Defendant, as well as to ensure that the agreed services were rendered, and the agreed products supplied, in conformity with the Contract. [10] [ 16 ] Defendant claims that Plaintiff’s services as concerns the Candy Bar were not in conformity with the Contract as concerns the quantity of candy, the quality of the presentation and the timing and location of the table. [ 17 ] Plaintiff disagrees.

She states that the quantity of candy and the table set up were as agreed.

As for the timing and location of the Candy Bar, she claims that this was the responsibility of Defendant and her event planner and that she cannot be held responsible for any problems in this regard. [ 18 ] On a balance of probabilities, Plaintiff has established to the satisfaction of the Court that she fully and correctly executed her obligations towards Defendant. [ 19 ] Firstly , as concerns to the quantity of candy, the Court accepts Plaintiff’s testimony that the 8-foot table used for the Candy Bar is typical of tables used for similar events and that the quantity of candies she used is typical of a 220-person event. [ 20 ] Defendant testified that the quantity of candy was barely enough for 70 people, but she offered no evidence to support this assertion other than her impression that the candies were taken from the table in very little time.

This is insufficient, given the many factors that can affect how quickly a group of young people will take the candy from a candy table similar to the table at issue.

The evidence shows that certain guests who were given backpacks as prizes were filling these backpacks up with bags of candies, which explains why they went so quickly. [ 21 ] On a balance of probabilities, the Court concludes that the quantity of candies provided was sufficient for 220 guests. [ 22 ] Secondly , as concerns the set up and presentation/décor of the table, the photographic evidence [11] shows that the Candy Bar was quite similar in style and presentation to the other table on Plaintiff’s Facebook page. [12] Of course, the packaging and general presentation was different to accommodate the theme of Defendant’s event, but the Court does not find that the Candy Bar was of a lesser quality or style. [ 23 ] Defendant complained that the candy box mock-ups used on the other table were not used at Defendant’s event, but the Contract did not provide that they would be used.

The Court finds that Plaintiff fulfilled her obligations in this regard. [ 24 ] Thirdly , as concerns the emplacement of the Candy Bar and the exact time that it was rolled out, the Court finds, on a balance of probabilities, that Plaintiff’s obligation in this regard was to follow the instructions of Defendant’s event planner and that she did.

Moreover, the evidence shows that the Candy Bar was placed closer to the sweets table because it was impossible to put it where it was originally supposed to be and Plaintiff cannot be held responsible for this. [ 25 ] The Court therefore concludes that Plaintiff fulfilled her obligations towards Defendant and is entitled to the outstanding balance of the agreed price, namely $1,023.

b) Is Defendant entitled to the damages claimed by way of her cross-claim? [ 26 ] By way of a cross-claim, Defendant seeks damages of $3,000 for stress, aggravation, distraction and loss of income purportedly suffered as a result of Plaintiff’s conduct.

She claims that she suffered stress and aggravation because she has to find alternative solutions and deal with conflicts during the events. [ 27 ] To succeed on this cross-claim, Defendant must prove the existence of a contractual default, an injury and a causal link between the default and the injury suffered. [13] [ 28 ] The Court has already concluded that Plaintiff has fulfilled her obligations regarding the Candy Bar and Defendant has failed to establish any other default.

Moreover, Defendant has provided no evidence other than her general statements to prove the existence of the alleged injury. [ 29 ] Consequently, Defendant’s cross-claim must be dismissed FOR THESE REASONS, THE COURT: GRANTS the action; CONDEMNS Defendant Elenor Amar to pay to Plaintiff Becky Bendayan the amount of $1,023 together with interest at the legal rate plus the additional indemnity stipulated in

article 1619 of the Civil Code of Québec as of October 18, 2014;

WITH COSTS of $106 representing the judicial stamp on the Application; DISMISSES the cross claim; WITHOUT COSTS. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: October 27, 2015