2014 QCCQ 6539, 2014 QCCQ 6539

Sugarman c. Uddin 2014 QCCQ 6539 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-132531-122 DATE: June 17, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ Jeffrey SUGARMAN […]Montreal, Quebec, […] Plaintiff v.

Saad UDDIN […]Dorval, Quebec, […] and Hameed UDDIN […]Pierrefonds, Quebec, […] and ASCENDA CONSULTING 1450 Hymus Boulevard, suite 1 Dorval, Quebec, H9P 1J6 MOBECOMM INC . 1450 Hymus Boulevard, suite 1 Dorval, Quebec, H9P 1J6 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jeffery Sugarman sues the Defendants for breach of contract claiming $7,000, the limit permissible in the Small-Claims Division.

He alleges that the Defendants breached an agreement (P-1) entered into between "Ascenda Consulting, a division of Mobecomm Inc." and Bizdev Management-Gestion Bizdev Inc. ("Bizdev").

[ 2 ] While the action is brought against a number of parties, namely Saad Uddin, Hameed Uddin, Ascenda Consulting and Mobecomm Inc. solidarily, it is obvious that Mobecomm Inc. (Mobecomm) is the only one of the Defendants that is a party to the agreement and therefore the only proper defendant to the action. Ascenda Consulting is simply the name given to the division of Mobecomm that was to be involved in the business activities foreseen, it is not a separate legal entity.

Messrs Hameed and Saad Uddin, father and son respectively, are active in the business of Mobecom, but are not bound personally under the contract. [ 3 ] Mr Sugarman is defined in the agreement as a representative and the president of Bizdev. If the enterprise Mr Sugarman presented as Bizdev is truly a corporation, then the party to the contract is that corporation, considered a moral person in law, and not Mr Sugarman personally.

The short answer to the suit would have been that it should be dismissed because Mr Sugarman has no contractual relationship with the Defendants but for the testimony of Mr Sugarman that Bizdev was never incorporated, just registered by him as a business name. Therefore, Mr Sugarman is the appropriate Plaintiff. [ 4 ] Mr Sugarman's claim has another weakness however. The agreement is a contract for services as defined in the Civil Code of Quebec, articles 2098 and following.

It provides that "JS" as Bizdev is described, will provide sales and business development of SRED services to Ascenda Consulting for certain financial considerations. [ 5 ] By its very nature, a contract of services is subject to a right of resiliation by the client, in this case Mobecomm Inc., without the necessity of the client showing cause or giving any particular notice of termination. In that respect, the contract for services is unlike an employment contract in virtue of which an employee is normally entitled to notice of dismissal or financial compensation in lieu thereof.

The agreement is consistent with this principle and extends the right of resiliation equally to the provider of services and to the client: 3.4 THAT either party may resiliate the present Agreement upon written notice to the other party's head office. [ 6 ] Mobecomm takes the position in its written contestation that it terminated the contract on May 6, 2011.

It asserts having paid the amounts owed under the contract up until the termination, although it refers to these payments as the Plaintiff's "salary”. [ 7 ] Mobecomm is referring to the "base service fee" of $2,000 per month for the first three months following the signing of the agreement stipulated at

section 4. It denies that any commission is due under 4.3 and following, given that there were no revenues generated by SRED clients developed and signed by "JS". [ 8 ] One client brought to the business by Mr Sugarman, known as Seats Inc. did sign an agreement with Ascenda consulting, but the relationship between Mr Sugarman and Mobecomm came to an end before any fee could be charged. [ 9 ] Mr Sugarman's assertion that Mobecomm breached its contract by not providing enough technical support was not proved conclusively through Mr Sugarman's testimony.

The general assertion that Mr Saad Uddin's efforts and time were spent on other business ventures was impressionistic, and not supported by sufficient objective evidence, only Mr Sugarman's testimony. The client, who could have perhaps shed some light on Mr Saad's involvement, or the lack thereof, as the case may be, did not testify. [ 10 ] It would have been difficult in any event to prove a breach by Mobecomm of its obligations of support set out in paragraph 2.3. The support to be provided is described, but there are no quantitative or qualitative criteria by which its sufficiency could be measured.

The process of collaboration had only just begun at the time the contract was resiliated, and neither party had gotten into a substantial amount of interaction with potential clients, of which only one was referred to in the evidence. [ 11 ] Mr Uddin, the father, testified that Mobecomm was also disenchanted with Mr Sugarman's performance and mentioned as well his aggressive manner in speaking and writing.

In ending, the contractual relationship by email exchange on May 6, he effectively gave up the client that Mr Sugarman had been working on, Seats Inc. [ 12 ] Mr Sugarman continued his business and he advised the Court that, after a certain start-up period, he had done very well with it. During the period of the first year contemplated under the agreement with Mobecomm, he made less that what he had anticipated making under the agreement.

[ 13 ] The client’s right to resiliate means that the provider of services may not achieve all that he hoped for from the contractual relationship. The financial objectives Mr Sugarman hoped to achieve through the contract may not have been met or they may, at least, have been delayed because of the termination of the Agreement. But, he has not demonstrated that this is the result of a contractual fault on the part of the Defendants. BY THESE REASONS, THE COURT: DISMISSES the Plaintiffs’ Demand; CONDEMNS the Plaintiff to pay, to the Defendants, judicial costs of $ 199.00. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 4, 2014