2011 QCCQ 2778, 2011 QCCQ 2778

Rénovations Danar ltée c. Fraenkel 2011 QCCQ 2778 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-115704-092 DATE: March 30, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ RÉNOVATIONS DANAR LTÉE (Danar Restorations) Plaintiff v.

PETER FRAENKEL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Rénovations Danar ltée (Danar Restorations) (hereinafter « Danar ») claims from Peter Fraenkel the amount of $6,395.36 detailed as follows: Deductible: $5,000.00 GST on $9,287: 650.08 QST on $9,287: 745.28 [ 2 ] In his contestation, Mr Fraenkel pleads, in particular, that "Danar's action is incorrectly taken against Peter Fraenkel personally & Peter Fraenkel Consultant Inc.". [ 3 ] Also, Mr Fraenkel files a cross demand in the amount of $1,031 asking for legal costs consultation ($767) and «fees and filing fee» ($264). [ 4 ] The only question to be resolved in the present case is whether there is a contractual link between Danar and Mr Fraenkel.

In fact, despite the allegation of Mr Fraenkel, his company, Peter Fraenkel Consultants Inc., is not involved in the present case. Danar sues him on a personal basis. [ 5 ] It appears clearly from Danar's introductory motion to institute proceedings that its claim is based on a contractual document filed as Exhibit P-1, drafted as follows: "As owner of this property, I understand that I must authorize this work. I hereby authorize DANAR RESTORATION to perform this work.

I authorize and direct my Insurance Company …………………………………………………………………………………………….. to make payment direct to DANAR RESTORATION for doing this work and to that extent, I hereby assign the benefits applicable to this loss to DANAR RESTORATION. I also agree to pay the applicable deductible direct to DANAR RESTORATION ($5,000.00) upon completion of the work." [ 6 ] The name of Mr Peter Fraenkel appears at the beginning of this "Contract" P-1, but in the place where the parties have to sign, under the

section "ASSURÉ/INSURED", the name of Polifaro Inc. appears with the initials of Mr Fraenkel. [ 7 ] At the hearing, Mr Fraenkel testifies that he never acted towards Danar as the owner of the property where Danar performs its work. He also mentions that Polifaro Inc., who is the sole owner of the property in question, signed the contract P-1. [ 8 ] After the trial, following some interrogations from the Court, Mr.

Fraenkel, in a letter dated March 18, 2011, specifies that two corporations, Polifaro Inc. and Peter Fraenkel Consultants Inc., own the property, each in the proportion of an undivided 50 % interest. [ 9 ] This being the case, it is clear that there is no contractual link between Danar and Peter Fraenkel. Moreover, the signature of the "INSURED" to the contract P-1 is Polifaro Inc., represented by Mr. Fraenkel.

[10] In consequence, the Court has no choice but to dismiss Danar's introductory motion to institute proceedings. [11] As for the cross demand, in application of the judgment rendered by the Québec Court of Appeal in Viel v. Les Entreprisesimmobilières du terroir ltée[1], the Court cannot conclude to any abuse of right nor any abuse of right to institute legal proceedings fromDanar. Also, there is no document in support of the claim of $264 as "fees & filing fee".

THEREFORE, the Court: DISMISSES Rénovations Danar Ltée's motion to institute proceedings; DISMISSES Peter Fraenkel's cross demand; THE WHOLE, each party paying its own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: March 7, 2011 [1] (QC CA), [2002] R.J.Q. 1262 (C.A.).