2022 QCCQ 4243, 2022 QCCQ 4243

The Giftmasters Inc. c. Northview Sales Inc. 2022 QCCQ 4243 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-263613-203 DATE: June 27, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ THE GIFTMASTERS INC. Plaintiff v. NORTHVIEW SALES INC. OFF-BEAT RECORDS INC. SHAWN BELL -and- BARRY G.

CLARK Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The parties and the proceedings [ 1 ] The Plaintiff, The Giftmasters inc. (“ Giftmasters ”), sues the Defendants in connection with its purchase of new HP Office Jet Pro 6978 printers from the Defendant Off-Beat Records Inc. (“ Off-Beat ”) through the latter’s supplier, the Defendant Northview Sales Inc. (“ Northview ”) in March 2019. [ 2 ] The proceedings are suspended in regard to Northview and its president, the Defendant Shawn Bell (“ Bell ”), because of proceedings pursuant to the Bankruptcy and Insolvency Act [1] . [ 3 ] The case proceeded by default in regard to the Defendant Off-Beat and its president, the Defendant Barry G.

Clark (“ Clark ”). Facts [ 4 ] The affidavit of the Plaintiff, produced in support of the Plaintiff’s case, establishes that the affiant, as Giftmaster’s representative, Yossef Vidal (“ Vidal ”), received an e-mail from Bell, which described the printers as brand new, wrapped in factory sealed boxes, inclusive of ink and full HP warranty.

This was further shown by a series of pictures and videos Bell forwarded to him coming from Clark. [ 5 ] This was again confirmed in the invoice Vidal received from Off-Beat, which described the printers as new, not defective or refurbished, and including ink. [ 6 ] However, when Giftmasters received the printers, they were manifestly different from the ones that Vidal had been shown in the pictures and videos and described in the invoice. [ 7 ] They were clearly defective, consisting of used returns from major retailers such as Walmart and Best Buy.

Vidal was able to ascertain this as the return labels were still on many of the boxes. [ 8 ] The printers received were worthless and not fit for resale: they were units that still had to be repaired, containing unprocessed and untested printers, as well as printers with no ink. The printers were in very poor condition. [ 9 ] Giftmasters tried calling recycling companies to pick up the printers, but all were unavailable except for one: the electronic recycling agency.

As a result, Giftmasters was able to recycle 256 of the 1,100 printers and it received no money for the recycling. [ 10 ] As Giftmasters was desperate for warehouse space and unable to find another recycling company, it was left with no other option but to throw out the remaining 844 printers in the dumpsters of its warehouse. [ 11 ] The printers, thus, were a total loss, and Giftmasters was forced to spend a considerable amount of time and effort in not only finding a recycling company able to collect a portion of them, but also in disposing of the remaining ones itself.

Therefore, the sum of $ 60,155.01 CAD, representing the amount claimed in the originating application is the measure of damages.

Analysis [ 12 ] The circumstances of this sale establish the contractual liability of Off-Beat and the extra-contractual liability of the Defendant Clark, in solidum, for the loss incurred by Giftmasters, consisting in the amounts paid for the goods. [ 13 ] The loss results from the false representations of Bell and Clark that the printers offered for sale were brand new and in good condition. [ 14 ] The Defendants knew that the printers were used and defective, and induced Giftmasters to purchase them and to pay amounts in US dollars equivalent to $ 60,155.01. [ 15 ] Were it not for these false statements, deliberately made, Giftmasters would not have entered into the sale contract and would not have suffered the loss. [ 16 ] Off-Beat and Clark have not defended the case and have thus failed to bring any evidence to rebut the strong presumptive evidence of fault provided by the facts, as proven by the Plaintiff.

BY THESE REASONS, THE COURT TAKES NOTICE of the suspension of proceedings in respect of the Defendants Northview Sales Inc. and Shawn Bell. CONDEMNS the Defendants Off-Beat Records Inc. and Barry G. Clark, in solidum, to pay the Plaintiff, The Giftmasters Inc., the sum of $ 60,155.01 CAD together with interest at the legal rate of 5% per annum plus the addition indemnity provided at

article 1619 of the Civil Code of Québec , calculated from the date of the institution of the proceedings. WITH judicial costs in favour of the Plaintiff. ______________________ David L. Cameron, J.C.Q. Me Manon Estienne CHARNESS, CHARNESS & CHARNESS Attorney of Plaintiff Me Malcom K. Oppen SHAFFER & ASSOCIATES Attorney of Defendants Northview Sales Inc. and Shawn Bell (absent) OFF-BEAT RECORDS INC. Non represented BARRY G. CLARK Non represented Date of hearing: May 25, 2022