2023 QCCQ 5789, 2023 QCCQ 5789

Taseen c. Kaléido 2023 QCCQ 5789 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF SAINT-FRANÇOIS TOWN OF SHERBROOKE Civil Division No: 450-32-701751-216 DATE: August 24, 2023 ______________________________________________________________________ BY THE HONOURABLE MARTIN TÉTREAULT, J.C.Q. ______________________________________________________________________ MADHIHA TASEEN Plaintiff v.

KALÉIDO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $3,000 from Defendant, a foundation also known as Fondation Universitas, because money would have been withdrawn without her consent and despite the fact that she had not provided her son’s social insurance number. [ 2 ] The amount claimed is made up of an amount withdrawn from her account ($2,117.70) and expenses incurred and time spent to « chase »

Defendant ($882.30 $). [ 3 ] Kaléido contests on the basis that the money was withdrawn in conformity with the contract between the parties. [ 4 ] Plaintiff had the burden to prove, upon the balance of probabilities, the facts on which her claim is made [1] . She did not succeed. [ 5 ] The Court must underline the fact that Plaintiff, a chartered accountant, did not attend the trial but was represented by her father, Dr. Arshad Taseen.

Hence, the Court could not benefit from Plaintiff’s testimony regarding her exchanges with Defendant’s representative throughout the pertinent period of this litigation. [ 6 ] However, in an email dated July 10, 2021, sent to Defendant, Plaintiff provided the reasons for her claim: 1. Ms. Lauziere, on behalf of Universitas Foundation contacted me in the same week as my son was born on […], to explain about RESP and Universitas Foundation at my house located at […]. 2. We had 2 meetings at my house during my postpartum days. 3. During Ms.

Lauziere's visit to my house on 6 th June 2018, I wanted to know more about the process. She wanted me to fill in a form to be able to provide complete information as it is based on my income and residency. 4 I wanted more information in written English but was only spoken to in French. I had difficulty understanding the plan. She took my information, filled it herself, and asked me to put signatures on an iPad. There were no documents provided on hand at any point. They would only be given on the website upon becoming a client.

Although at the time I was interested in the plan, I needed time to comprehend everything before I made my decision. 5. I never got to read anything on the iPad since my newborn was crying. I asked if I can do it later in paper form but she showed me where to quickly sign - while I managed a crying newborn. 6. Later I found that $2,117.70 had been withdrawn from my account before my final consent. 7. I called several times over phone to return my money, but the customer service attendants kept stating that I had signed the agreement and the money will not be returned. 8. I also emailed to Ms.

Lauziere to meet me to settle the matter, but she too expressed inability to do anything and did not respond to a meeting. 9. The money was withdrawn against my concern and without my son's Social Insurance Number.

10. According to the form on which my signature was taken to provide further information, States that: " I mandate Universitas Management Inc. to automatically transfer my contributions to the subscriber account once I have provided the missing SIN(

s) and to register this ESP with the Canada Revenue Agency pursuant to

Article 146.1 of the Income Tax Act." (Article 6. (C) ) 11. Yet, Universitas withdrew the funds and has repeatedly refused to return the funds. 12. After I realized the money was being taken and I had no control then I had to close that account and open another account just to prevent Universitas from withdrawing additional funds on 28 August 2019 [Exact reproduction] [2] [ 7 ] The Court also underlines the fact that Defendant’s representative who discussed with Plaintiff in 2018, Mrs. Mélanie Lauzière, did not testify at the hearing.

Therefore, Defendant’s proof was only based upon the documents filed [3] . [ 8 ] Despite these deficiencies in the evidence provided by the parties, the Court was able to sort out some relevant pieces of information from the documents filed by both parties. [ 9 ] Firstly, although a reading of Plaintiff’s complaint seems to imply that she would not have had the time to review the documents before signing up a RESP through Defendant, Defendant’s internal documents show that she took the initiative to get back to Mrs. Lauzière informing her that she wanted to sign up after she had met with her [4] .

This email would have been sent 11 days after her son’s birth. [ 10 ] Secondly, though Mr. Taseen puts a lot of emphasis on the fact that his daughter could not know the number of units corresponding to the amount paid and, therefore, of the sale charges that would be kept if the contract was cancelled within 60 days of its signing, it clearly appears from

section 3 of the contract [5] : [ 11 ] Thirdly, according to Defendant’s representative, Mrs. Véronique Guimond, though every call, email or other type of communication with clients is registered in Defendant’s system, no trace of communication from Plaintiff between June 2018 and July 2019 has been found. [ 12 ] In fact, when one reads Plaintiff’s email dated June 21, 2019, which was sent after Mrs.

Lauzière wrote to her concerning the fact that her contributions had been suspended for two years, there is no reference to any attempt to ask for the return of the money invested: Hello Melanie, l'd like to still have the meeting in July to look at options as we discussed. Since I have two RESP's either the amount taken needs to transferred or returned or simply stay in the plan to earn from investments. l'm afraid our language barriers caused a lot of miscommunication at the time so I hope we can solve these issues together soon.

Thank you Madhiha On Fri, Jun 21, 2019, 8:34 PM Melanie Lauziere < Melanie.Lauziere(Suniversitas.ca > wrote: Hello Madhila, I saw that you had suspended your contributions for two years. Do you want me to follow up with you in April 2021 or do you want to contact me? Thank you and again sorry for the inconvenience this may have caused you. I wish you a nice day. Mélanie Lauzière [Exact reproduction] [6] [ 13 ] At that time, the money had been withdrawn since July 1 st , 2018.

[ 14 ] In view of these elements, the Court allows little credibility to the explanations provided by Plaintiff in her document dated July 10, 2021. This conclusion is reinforced by the fact that Plaintiff is educated and that the Contract was drafted in English and initialed by her. [ 15 ] The Contract was clear concerning the sales charges to be paid in case of cancellation of the scholarship plan agreement when the SIN was not received within the prescribed time frame: Sales charges We remind you that sales charges of $200 per whole unit are required, and will be deducted from your first contributions.

Sales charges for unit fractions are proportional to those for a whole unit. Your contributions will be returned to you in full (including the sales charges) in one or several instalments, as of the maturity date indicated in your agreement. Upon written request, you may obtain the refund of your savings before your agreement's maturity date; however, the sales charges already paid will not be refunded. If you cancel your agreement within 60 days of signing hereof, your contributions will be refunded in full (including the sales charges).

Unregistered education savings account The Income TaxAct requires that you provide your social Insurance number (SIN) as well as that of your beneficiary before you contribute to a Registered Education Savings Plan (RESP). If either of these numbers is unavailable at the date of signature hereof, the contributions will be deposited into an unregistered (non- interest-bearing) education savings account pending our receipt of the missing SIN. Your education savings plan (ESP) cannot be registered as an resp with the Canada Revenue Agency until the missing SIN is received.

The plan's registration is a prerequisite for the coming into force of the scholarship plan agreement. If you provide the SIN within twenty-four (24) months following the contract's signature date, the contributions made to the unregistered account are then automatically credited to your registered plan.

However, if the missing SIN is not received within the prescribed time frame, your contract will be cancelled and ail the contributions made to the unregistered account will be refunded, less the sales charges already paid. [7] [Our underlining] [ 16 ] In this case, the Contract was canceled on November 10, 2020, because Plaintiff did not provide her son’s SIN [8] . She cannot complain of the situation since she prevented the condition from being fulfilled [9] . [ 17 ] On that day, a cheque in the amount of $164,55 was sent to Plaintiff [10] .

This amount corresponded to the contribution made minus the sales charges. [ 18 ] Plaintiff never cashed this cheque. [ 19 ] In view of the foregoing, Plaintiff’s claim must be dismissed with costs. FOR THESE REASONS, THE COURT: [ 20 ] DISMISSES Plaintiff’s Demand ; [ 21 ] WITH COSTS in favour of Defendant. __________________________________ Martin Tétreault , J.C.Q.