2018 QCCQ 8909, 2018 QCCQ 8909

Grover (Chequers Management Corporation) c. Samuelsohn Limited 2018 QCCQ 8909 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702216-179 DATE: November 30, 2018 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ NEAL GROVER doing business under the name of THE CHEQUERS MANAGEMENT CORPORATION Plaintiff v.

SAMUELSOHN LIMITED Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff operates under the firm and style name of “The Chequers Management Corporation” (hereafter “Chequers”). [ 2 ] Chequers operates a coffee and vending services business. [ 3 ] On or about January 18, 2017, defendant retained Chequers’ services to install and service coffee, beverage and snack machines in its offices and factory. [ 4 ] Chequers installed the requested machines on defendant’s premises, machines with which defendant was not satisfied for the following reasons:

a) the coffee machine delivered by plaintiff did not meet defendant’s specifications, neither in terms of size (it did not fit in the specified location), nor in terms of the quality of the coffee (email, exhibit D-1);

b) plaintiff replaced the first machine with another, which also did not fit in the specified location;

c) the coffee machine malfunctioned and leaked on several occasions (emails, exhibits D-8 and D-9);

d) the coffee tasted like it was “watered-down” and of poor quality (emails, exhibits D-5, D-11 and D-18);

e) the coffee machine couldn’t be connected to the water supply, and defendant was obliged to use “galloned water”;

f) the sandwiches and snacks were past their expiration date (email, exhibit D-12);

g) plaintiff did not deliver the products selected by defendant (product list, exhibit D-25);

h) plaintiff did not keep the machines properly stocked (emails, exhibits D-6, D-7, D -11, D-12 and D-16);

i) the coffee machine malfunctioned and was out of service (emails, exhibits D-12, D-16 and D-19);

j) defendant asked plaintiff to make changes in the services, that which plaintiff refused to do (email, exhibit D-13);

k) the defendant’s employees were dissatisfied with the machines (emails, exhibits D-14, D-15, D-16, D-17 and D-18).

[ 5 ] On March 27, 2017, given the foregoing, defendant advised plaintiff that it wanted the coffee machine in the staff lunchroom to be removed; however, despite its dissatisfaction, defendant was nevertheless prepared to continue to do business with plaintiff and keep the other machines. [ 6 ] It is plaintiff who, subsequently and in a cavalier fashion, resiliated the contract for all its machines, and then sent defendant a demand letter (exhibit P-11), with 2 invoices (exhibits P-9 in the amount of $3,702.29 and P-10 in the amount of $8,555.08, for, inter alia , “dismantling fees” and “loss of revenue for 10 months”). [ 7 ] A judicial claim, for $12,258.27, ensued, on June 28, 2017. [ 8 ] GIVEN t he evidence (testimony of Neal Grover, Mariangela Zografakis and Alex Zivic, as well as exhibits P-1 to P-17 and D- 1 to D-25); [ 9 ] WHEREAS Zografakis’ testimony was both credible and convincing; [ 10 ] WHEREAS plaintiff did not honour his contractual undertakings towards defendant ( art. 1458 of the Civil Code of Québec ); [ 11 ] WHEREAS plaintiff did not act in the best interests of his client, with prudence and diligence, and did not supply the requested services in conformity with the contract (art. 2100 C.C.Q .); [ 12 ] WHEREAS plaintiff did not conduct himself in good faith, both at the time the obligations arose and at the time they were performed and then extinguished (arts. 6, 7 and 1375 C.C.Q .); [ 13 ] WHEREAS plaintiff’s contractual obligations were obligations of result, which he did not fulfill; [ 14 ] WHEREAS defendant was entitled to unilaterally resiliate the contract, with respect, more specifically, to the coffee machine located in the employees’ kitchen (art. 2125 C.C.Q .). [ 15 ] WHEREAS, furthermore, the services contract which intervened between the parties had no term; [ 16 ] WHEREAS plaintiff acted abusively when he unilaterally resiliated the contract for all the machines, without serious reason (art. 2126 C.C.Q .); [ 17 ] WHEREAS , furthermore, it was negligent of plaintiff to return the old machines, taken from defendant’s premises, to a third party, without notifying defendant beforehand, given his undertaking to store the equipment, on defendant’s behalf, at a specified location, for a 12-month period, without charge (email, exhibit D-4) (articles 2280 ff C.C.Q.); [ 18 ] WHEREAS plaintiff acted in an abusive and negligent fashion; WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's claim, with legal costs in the amount of $200.00. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: November 13, 2018