2020 QCCQ 443, 2020 QCCQ 443

Maniatakos c. Yellow Pages Digital & Media Solutions Ltd. 2020 QCCQ 443 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-157821-184 DATE: January 23 rd , 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR J.C.Q. ______________________________________________________________________ GEORGE MANIATAKOS Plaintiff v.

YELLOW PAGES DIGITAL & MEDIA SOLUTIONS LTD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Georges Maniatakos claims $15,000 from Yellow Pages Digital & Media Solutions Ltd (hereinafter “ Yellow Pages ”) for the loss of income and business opportunities that, in his view, are the result of errors in the website designed for him by Yellow Pages. [ 2 ] Yellow Pages contests the claim. It denies any error on its

part in designing the plaintiff’s website and shifts any liability for the problems the plaintiff claims to have to the plaintiff’s telephone service provider, Bell Canada. In the alternative, Yellow Pages argues that the damages claimed are non-existent and excessive. [ 3 ] Yellow Pages filed a cross-application claiming $4,364.67 from the plaintiff/cross-defendant, which corresponds to the 12 unpaid monthly payments for the advertising contract entered into on October 5, 2016. [ 4 ] At the hearing, Mr.

Maniatakos argued in cross-defence that he was prepared to pay what he owes to Yellow Pages if and only if Yellow Pages paid him the amount of $15,000. At the time of his reply, he did an about-face and alleged that he was not ready to present his cross-defence because he did not know that he had to respond to this claim on the day of the hearing. [ 5 ] Even though Mr. Maniatakos did not submit a request to postpone the hearing in accordance with the rules, the Court received it as such and decided to continue the hearing without a postponement and instructed Mr.

Maniatakos that the judgment would rule on the principal application and the cross-application. ISSUES [ 6 ] The issues in dispute are as follows:

i) Has the plaintiff proved the faulty performance of the contract for services by Yellow Pages and, if so, to what damages is he entitled? ii) Has Yellow Pages proved that it is owed a balance under the advertising contract entered into, and if so, to what amount is it entitled? CONTEXT [ 7 ] Mr.

Maniatakos has been a dental surgeon for over 30 years. [ 8 ] With his wife, who is also a dental surgeon, he practises his profession in two clinics, one located at 11360 l’Acadie Blvd (hereinafter the “ l’Acadie clinic ”), and the other located at 4509 des Sources Blvd. (hereinafter the “ des Sources clinic ”). [ 9 ] On October 5, 2016, Clinique dentaire Roxboro-des Sources, the sole proprietorship of the plaintiff and his wife (P-2), signed an advertising contract with Yellow Pages. [ 10 ] According to the terms of that contract, Yellow Pages undertook to create and develop a website, register the domain name as well as host and manage the site for a period of 12 months starting on January 1, 2017.

For this digital (electronic or mobile) and written advertising, the monthly cost was set at $325, before any applicable taxes (D-1). [ 11 ] During his testimony, Mr. Maniatakos admitted that he had not paid any of the monthly payments for the advertising contract. He explained that because he was unhappy with the services rendered by Yellow Pages, he was justified to act as he did.

[ 12 ] To illustrate the faulty performance of the services rendered, Mr.

Maniatakos filed a screenshot of a website that shows that as at November 13, 2019, the l’Acadie clinic was open until 7 p.m. (P-3), which is inaccurate (P-2B). [ 13 ] With another screenshot taken from a different website, he then established that the telephone number associated with the l’Acadie clinic was instead his fax number (P-4). [ 14 ] Finally, by using another screenshot, he showed that Yellow Pages confused the addresses and names of his clinics by erroneously associating the address of 11360 l’Acadie Blvd. with the des Sources clinic (P-5). [ 15 ] Mr.

Maniatakos claims that he contacted Yellow Pages on several occasions to express his discontent and demand that corrections be made to his website. [ 16 ] He explained that despite his demands, Yellow Pages refused to modify anything whatsoever because he was late with his payments. Ultimately, because the parties would not budge from their respective positions, no corrections were made to his website. [ 17 ] According to Mr.

Maniatakos’s arguments, the errors committed by Yellow Pages caused him, and continue to cause him, harm because the erroneous information was never corrected, as appears from the November 2019 screenshots. [ 18 ] Without being able to quantify or document his loss of income and business opportunities through direct and positive evidence, Mr. Maniatakos is convinced that the damages are real given the incorrect information posted on his website. [ 19 ] Based on documents taken from U.S. websites, Mr.

Maniatakos shows the importance of giving his clients with reliable information and the adverse financial consequences of providing the wrong information (P-7, P-8, P-9, P-11, and P-12). [ 20 ] While he assessed his loss of income at $5,000 per week, which after only 30 weeks would amount to $150,000, he has now reduced his damages to $15,000 to avail himself of the Small Claims Division. [ 21 ] Carline Richards, the director of Collections, was present and acted as representative for Yellow Pages. [ 22 ] From the outset, she explained that the plaintiff’s complaints, illustrated by copies of screenshots from various internet websites, are external and unrelated to the website designed for the Clinique dentaire Roxboro des Sources, alias Mr.

Maniatakos. [ 23 ] According to what she reports, these free listings (P-3, P-4, and P-5) are the equivalent of what used to be the phone book and are supplied by Mr. Maniatakos’s telephone service provider, in this case Bell Canada. [ 24 ] This led Ms. Richards to state that Mr. Maniatakos picked the wrong target by going after Yellow Pages because only Bell Canada can make the corrections he seeks. [ 25 ] Ms. Richards then stated that Mr.

Maniatakos never complained to Yellow Pages about the integrity and reliability of the information appearing on his website, contrary to what he implied before the Court. [ 26 ] In support of her remarks, she claims to have personally verified all the incoming and outgoing calls associated with the plaintiff’s telephone number, knowing that all calls to the multimedia and customer service departments of Yellow Pages are recorded and kept for a period of 10 years. [ 27 ] Her verification led her to state that the only call made by Mr.

Maniatakos was on April 5, 2017, and that at the time, he complained only about the few results obtained following the roll-out of the website designed by Yellow Pages. [ 28 ] She added that for the sole purpose of satisfying and keeping its client, the customer service department offered Mr. Maniatakos a $550 credit, which he accepted. [ 29 ] She continued her testimony saying that she traced a single other call to Mr. Maniatakos’s telephone number, this time initiated by her collections department. During this brief exchange, Mr.

Maniatakos refused to pay anything whatsoever beyond the advertising contract without explaining, however, the reason for his refusal. [ 30 ] This prompted Ms. Richards to say that Mr. Maniatakos is indebted to Yellow Pages for $4,364.77, representing the 12 monthly payments with applicable taxes and interest of 1.25% per month, contractually agreed upon. ANALYSIS AND DECISION Applicable law [ 31 ] The Court recalls that in civil matters, the burden of proof rests with the plaintiff, in accordance with the principles of a balance of probabilities.

This implies that the plaintiff must present the judge with evidence that surpasses and dominates that of the defendant. [1] [ 32 ] The party who bears the burden of proof must demonstrate that the fact in dispute is not only possible, but probable.

Although the evidence adduced need not lead to absolute scientific or mathematical certainty of the facts alleged, it must be clear and convincing to meet the criterion of the balance of probabilities, [2] and make the disputed fact probable. [3] [ 33 ] Here, the parties bear this burden of proof in turn because they are both plaintiffs in this case. [ 34 ] On the merits, the parties are bound by a contractual relationship. More specifically, it is a contract for services, which is defined under art. 2098 of the Civil Code of Québec (C.C.Q.):

A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. [ 35 ] In performing the contract, the service provider is bound to act in the best interests of clients, with prudence and diligence. [4] The service provider must act in accordance with usage and good practice, and ensure that the work carried out is in conformity with the contract. [ 36 ] As for art. 1458 C.C.Q., it provides that every person has a duty to honour his or her contractual undertakings, and is liable for any injury suffered by the other party when he or she fails in this duty. [ 37 ] Finally, a contract validly formed binds the parties who have entered into it as to what they have expressed in it. [5] [ 38 ] According to the above, the Court will now rule on the issues.

Has the plaintiff proved the faulty performance of the contract for services by Yellow Pages and, if so, to what damages is he entitled? [ 39 ] The Court will rule summarily on the plaintiff’s claim given the absence of evidence in support of his arguments. [ 40 ] With respect to the screenshots showing erroneous information, the plaintiff is unable to prove that they are excerpts from his website or that Yellow Pages is responsible for this false information. [ 41 ] In this instance, the Court believes Ms.

Richards’ version that the website designed by Yellow Pages no longer exists, having been taken down in December 2017 after the 12-month term of the contract (P-1). [ 42 ] That being so, the screenshots provided by the plaintiff were excerpted in November 2019, which in itself clearly shows that they were obtained from other websites that are completely external to the website designed by Yellow Pages. [ 43 ] Moreover, the Court shares Ms.

Richards’ opinion when she asserts that the documents filed into evidence by the plaintiff are visually mediocre and have nothing in common with the cost of the website designed and published online by Yellow Pages for the plaintiff. [ 44 ] Finally, despite the plaintiff’s assertion to the contrary, the evidence clearly and convincingly shows that Mr. Maniatakos never complained to Yellow Pages about the faulty performance of their work in 2017.

Yet, he could have, especially since Yellow Pages invited him to contact it when the site migrated (D-3). [ 45 ] As the evidence shows, it was in April 2017 that the plaintiff contacted the defendant for the first time and the purpose of the call was to complain about the fact that the expected financial benefits had failed to materialize. There was no mention of the presence of erroneous information on the website. [ 46 ] Mr.

Maniatakos’s silence speaks volumes and is another fatal blow to the admissibility of his proceeding. [ 47 ] For the Court, this silence infers that the website designed by the defendant was free of the faults alleged against it by the plaintiff. This evidence also undermines Mr. Maniatakos’s credibility when he asserts before the Court that he complained many times to Yellow Pages, who refused to carry out the requested corrections. Without any difficulty doing so, the Court accepts Ms.

Richards’s version, which refutes any call to the multimedia department and any refusal by that department to correct the erroneous information. [ 48 ] Faced with a complete lack of evidence, the principal application is therefore dismissed.

Has Yellow Pages proved that it is owed a balance under the advertising contract entered into, and if so, to what amount is it entitled? [ 49 ] The Court will rule just as summarily on the cross-application because the plaintiff-cross-defendant has admitted that he has not paid any of the 12 monthly payments stipulated under the advertising contract. [ 50 ] In support of its arguments, the defendant adduced the advertising contract signed by Mr. Maniatakos. [ 51 ] According to art. 1434 C.C.Q., the parties are bound by the contents of the contract.

From this principle, the following consequences arise: the contract is binding, is irrevocable and cannot be unilaterally amended. [ 52 ] It is admitted that Yellow Pages performed its prestation fully and on time and that this prestation was deemed to be free of faults or error by the Court. [ 53 ] It follows that Mr.

Maniatakos should then pay as a matter of course. [ 54 ] According to the terms of the contract, a monthly payment of $335, before applicable taxes, “ est payable dès la réception de la facture de PJ, laquelle peut être incluse dans la facture du fournisseur de services téléphoniques du client ou être transmise directement au client par PJ.

Des intérêts au taux de 1,25 % par mois composés mensuellement (16,07 %) s’appliquent à tout montant demeurant impayé un mois après la réception de la facture ” (D-1, s. 6). [ 55 ] The statement of account dated May 3, 2018 (D-4), totals $4,364.77 and includes the applicable taxes and accrued interest. At the hearing, Ms. Richards informed the Court that Yellow Pages would accept the legal interest rate of 5% after May 3, 2018. [ 56 ] The defendant has proved the claim it makes in its cross-application.

[ 57 ] For greater certainty, the Court adds that Mr. Maniatakos is personally liable for this debt even though the advertising contract was signed by his sole proprietorship, Clinique dentaire Roxboro des Sources, which is no longer registered. [6] [ 58 ] Legally, Clinique dentaire Roxboro-des Sources and Mr.

Maniatakos are inseparable because “l’entreprise individuelle n’a pas d’existence propre par rapport à son propriétaire : elle n’a ni personnalité juridique ni patrimoine distinct”. [7] FOR THESE REASONS, the Court: DISMISSES the plaintiff’s application; GRANTS the defendant’s cross-application; CONDEMS the cross-defendant Georges Maniatakos to pay the cross-plaintiff Yellow Pages Digital & Media Solutions Ltd the amount of $4,364.77 with interest and the additional indemnity as of May 9, 2018, the date of the cross-application; THE WHOLE with legal costs. __________________________________ JO ANN ZAOR J.C.Q.

Date of hearing: November 18, 2019