2015 QCCQ 4694, 2015 QCCQ 4694

Agenda familial LB inc. c. Lachance (Parfaitement Bilingue) 2015 QCCQ 4694 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-216342-140 DATE: June 2, 2015 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ AGENDA FAMILIAL L.B. INC. Plaintiff vs.

JULIE LACHANCE, operating under the name PARFAITEMENT BILINGUE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming $1,144.00 plus interests from the Defendant for services rendered. [ 2 ] Defendant contests the claim, alleging that Plaintiff did not provide the services for which it is claiming payment. QUESTIONS AT ISSUE [ 3 ] The Court will determine whether:

a) Plaintiff rendered the services for which it is claiming payment;

b) Defendant’s motive for refusing to pay is well founded. CONTEXT [ 4 ] The Defendant has been teaching English for over 20 years. She is self-employed, giving private, semi-private and group lessons, in private residences and businesses. [ 5 ] Through the years she used several means to advertise her services, from posting up self-made rudimentary advertisements in various places, to having a more elaborate announcement delivered to homes and businesses using Canada Post, and, more recently, a Website. [ 6 ] Defendant is the mother of a handicapped child.

A few years ago, in order to be able to care for her sick daughter, she had to slow down her income-generating activities and even stop them completely for months or years (the evidence is not clear on the duration). Thus, she stopped advertising her services for some time. [ 7 ] Sometime in 2012 she was ready to resume her English teaching lessons.

Using an ad she had developed through the years [1] , she then resumed advertising for her services and looking for clients. [ 8 ] On September 26, 2012, she signed a contract with Plaintiff [2] in order to have the advertisement she had developed published in the Agenda Familial – Telephone Directory of the South Shore (the Directory ), for the cost of $995 plus taxes, for a total of $1,144. [ 9 ] The Defendant approved the following text for the advertisement: Cours d’anglais privés Cours privés ou semi-privés pour enfants et adultes (…)

Jour, soir ou fin de semaine, aussi en milieu de travail. [3] [ 10 ] The Directory is published on a yearly basis and delivered to homes and businesses of several towns on the South Shore, including Léry where the Defendant resides. [ 11 ] The Defendant testified that she had never herself seen the Directory prior to signing the contract with Plaintiff.

She also mentioned that she understood that by offering or accepting to publish her ad, Plaintiff was not offering her any guaranty that clients would actually contact her as a result of seeing her advertisement. [ 12 ] Defendant’s main criticism against Plaintiff’s claim is that it did not comply with the obligation it undertook, i.e. that it did not distribute the Directory. [ 13 ] Éric Foucher ( Foucher ) testified for Plaintiff.

He explained that while Plaintiff distributes the Directory to businesses, it contracts its delivery to private homes to a distribution company, namely Transcontinental. [ 14 ] Sylvain Desjardins ( Desjardins ), of Transcontinental, was called as a witness to explain the distribution agreement Transcontinental has with Plaintiff. [ 15 ] On November 16, 2012, Plaintiff and Transcontinental signed a distribution contract relating to the distribution of 30 297 copies of the Directory.

Desjardins explained, to the satisfaction of the Court, how Transcontinental executed its obligations in accordance with the distribution contract. [ 16 ] Because of its size and weight, the Directory cannot be distributed in the Publisac, the bag in which advertisement flyers of various businesses are being delivered weekly all over the province. The Directory is delivered to individual homes into a transparent bag.

In the case of apartment buildings, it is left for tenants to take at the entrance or the lobby. [ 17 ] The Defendant contends that Plaintiff did not distribute the Directory at all, not to residences and not to businesses. In support of her assertion she declares that except for her son the people she enquired to about the Directory denied having received it. She did not summon any of the persons she claims she spoke to, to testify. [ 18 ] She also blames Plaintiff for not having distributed the Directory itself and having hired Publisac to do the distribution to private homes and apartment buildings.

She contends that her understanding that Plaintiff would assume the responsibility of the entire distribution of the Directory was an important condition of the contract. [ 19 ] Consequently, Plaintiff having failed in Defendant’s mind to respect what she considered to be an important condition of the contract, she takes the position that she does not have to pay for the services because failure to respect that condition resulted in her not getting any clients from the advertisement.

ANALYSIS [ 20 ] Anyone who wants to assert a right shall prove the facts that sustain his claim and, safe exception, the clear and convincing evidence that makes the existence of a fact more probable than its nonexistence is sufficient [4] to satisfy the test of balance of probabilities [5] . [ 21 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical. It is sufficient that it make probable the disputed fact [6] . [ 22 ] On the question of the

interpretation of the sufficiency of the evidence, justice Denis Le Reste expressed himself as follows in Jodoin vs. Gibeau [7] : 32 (…), une preuve directe est préférée à une preuve indirecte, la preuve d'un fait positif est préférée à celle d'un fait négatif. La corroboration est une preuve qui renforce un témoignage de façon à inciter le juge à le croire, et l'attitude lors d'un procès d'un témoin peut même influencer le Tribunal. 33 Plus récemment, l'Honorable juge Rothstein de la Cour Suprême du Canada, dans l'affaire de F.H. c.

Mc Dougall , rappelait les critères applicables suivants de la preuve en matière civile: [45] […] Il n'existe qu'une seule règle de droit : le juge du procès doit examiner la preuve attentivement. [46] De même, la preuve doit toujours être claire et convaincante pour satisfaire au critère de la prépondérance des probabilités. Mais, je le répète, aucune norme objective ne permet de déterminer qu'elle l'est suffisamment. […]Aussi difficile que puisse être sa tâche, le juge doit trancher.

Lorsqu'un juge consciencieux ajoute foi à la thèse du demandeur, il faut tenir pour acquis que la preuve était à ses yeux suffisamment claire et convaincante pour conclure au respect du critère de la prépondérance des probabilités. 34 Le Tribunal doit donc, à la lumière de tous les éléments de la preuve, soit la preuve matérielle, documentaire et la preuve testimoniale reçue lors du procès, déterminer si la

partie demanderesse a réussi à le convaincre selon les règles des probabilités. (Reference omitted) [ 23 ] In an attempt to establish Plaintiff’s bad faith, the Defendant alleged that:

a) She had never seen the Directory;

b) The Directory was never distributed;

c) There was a mistake in the advertisement that indicated that she was located in the town of Levis, when in fact she is located in Léry, the mistake explaining why she did not get any calls further to the publication of the ad. [ 24 ] It turned out that a Directory was delivered at Defendant’s son’s residence, that she had seen it there and therefore knew the Directory had been delivered in the area. [ 25 ] The advertisement was printed at pages 72 and 165 of the Directory [8] .

It appeared however from the Defendant’s questions to Plaintiff’s representative that she had not seen the information published at page 165. That is how she came to believe that the mistake made in the indication of her address regarding her location that appeared in the print she approved was printed in the Directory. [ 26 ] When the issue of the mistake was dissipated at hearing, the Defendant dismissed it as being relevant to the issue of the case.

Yet, when she believed that Plaintiff had allowed a mistake to be published in the Directory regarding the address of her business, she wanted the Court to conclude that the mistake was the reason why she did not get any calls from potential clients, taking the position that people would not be interested in getting language classes so far away from their location. [ 27 ] The Court is satisfied that Plaintiff has established that close to 31 000 copies of the Directory have been ordered and delivered to private individual homes and apartment buildings into Chateauguay, Léry and the nearby cities. [ 28 ] The Court has no reason to dismiss Plaintiff’s contention that it also delivered the Directory to businesses of the area, as declared by Foucher. [ 29 ] Even if Plaintiff had not delivered the Directory to businesses, the contract does not specify that it should have done so and the Defendant has not provided any proof to establish that she gets any clientele from businesses and in what proportion. [ 30 ] In order to establish that she had experience in successfully advertising her services using other means than Plaintiff’s Directory, the Defendant filed at hearing distribution contracts she signed with Canada Post [9] . [ 31 ] During the deliberation the Court realised that the distribution agreement the Defendant signed with Canada Post were executed in 2012 a few weeks or days before she contracted with Plaintiff to have her advertisement published in the Directory. [ 32 ] Indeed, in March, August and November 2012 the Defendant entered into distribution contracts with Canada Post to have the same advertisement Plaintiff was to publish in its Directory delivered in designated areas.

She had 911 ads delivered on March 19, 2012; 2 462 on August 21 and 24, 2012; and 1 280 on November 16, 2012 [10] . She paid Canada Post $851.67, almost the same amount she agreed to pay to Plaintiff, for a total of 4 653 individual ads to be delivered. [ 33 ] According to the Defendant, over 15 years ago, in an attempt to advertise her English classes and develop her clientele, she had a flyer, much less professional looking than the one she has developed through the years and is using now, put into the Publisac [11] . She contends that she did not get any clients from that advertisement.

She concluded from this unsuccessful experience that putting a flyer in the Publisac was not an efficient way to advertise. [ 34 ] The Defendant declared that she got positive results from all the other means of advertisement she has used but the Directory, including the flyer she had delivered using Canada Post.

The evidence contradicts that assertion: it is either she did not get any results from the advertisement she did through Canada Post or she got business from the advertisement she made using Canada Post and/or the Directory, because both means of advertisement were contemporaneous. [ 35 ] The Defendant explained that shortly after the distribution of the Directory she used other means of advertisement and she contends that she got positive results from those other means.

The Court concludes that, although it is possible that the Defendant got business from the other means of advertisement she used after the distribution of the Directory, it does not exclude that she may have gotten business from the Directory and the flyer delivered by Canada Post, again because all the advertisements being contemporaneous. [ 36 ] The Defendant contends that she does not believe that the Directory was in fact distributed. Yet she trusts that Canada Post did deliver her flyer.

She does not explain what makes her believe that Canada Post respected it obligation to distribute and not Plaintiff. [ 37 ] The Civil Code of Québec sets the rules that govern the contract of service, the relevant dispositions being the following: 2098. 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. 2099.

The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and the client. 2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence.

Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract. Where they are bound to produce results, they may not be relieved from their liability except by proving superior force. (Underscore added) [ 38 ] The service provider is free to choose the means to execute the contract.

In the present case Plaintiff used the same means it usually does to have the Directory distributed to individuals and businesses and the contract did not provide for any specific mean. [ 39 ] The contract specifically provided in two different paragraphs that only the content of the document signed by the parties is included in their respective obligations, the relevant clauses reading as follows:

• Les clauses et conditions décrites au verso font

partie intégrante du présent contrat. • (…) • Tout autre arrangement entre le représentant et le client doit être décrit sur les 4 copies du contrat et est sujet à l’approbation de la direction. Clause au verso du contrat 7. Aucune entente verbale et/ou arrangement ne figurant pas sur les 4 copies du contrat ne sera reconnu par la compagnie.

Cet acte constitue le contrat entier intervenu entre les seules parties signataires aux présentes. [ 40 ] The method of distribution not being specified in the contract signed by the parties, it was not a condition of the contract. [ 41 ] The Court concludes from the evidence that Plaintiff satisfied its obligations to distribute the Directory on the territory agreed upon by the parties. [ 42 ] The Defendant contended that Plaintiff chose the least effective and most inexpensive mean of distribution, yet provided no evidence to support that assertion.

Even is she had established that she is right in her assertion, it would not have changed the fact that she is still bound to pay for Plaintiff’s services and is not allowed a reduction,

article 2109 of the Civil Code of Quebec providing that w here the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen.

Interests payable [ 43 ] The Defendant contests the interest of 24% per year, 2% per month provided for at clause 6 of the contract, alleging that it is higher than the interest of 19% charged by her credit card company. [ 44 ] The Civil Code of Québec deals with the issue of interest at articles 1617 , 1618 and 1619 , which read as follows: 1617. Damages which result from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, in the absence of any agreement, at the legal rate.

The creditor is entitled to the damages from the date of default without having to prove that he has suffered any injury. A creditor may stipulate, however, that he will be entitled to additional damages, provided he justifies them. 1618. Damages other than those resulting from delay in the performance of an obligation to pay a sum of money bear interest at the rate agreed by the parties, or, in the absence of agreement, at the legal rate, from the date of default or from any other later date which the court considers appropriate, having regard to the nature of the injury and the circumstances. 1619.

An indemnity may be added to the amount of damages awarded for any reason, which is fixed by applying to the amount of the damages, from either of the dates used in computing the interest on them, a percentage equal to the excess of the rate of interest fixed for claims of the State under

section 28 of the Tax Administration Act (chapter A-6.002 ) over the rate of interest agreed by the parties or, in the absence of agreement, over the legal rate. (Underscore added) [ 45 ] The contract provided that the balance due on the contract is payable at the delivery and that administration fees of 2% per month or 24% per annum will be charged on unpaid balance due, the Directory having been distributed on November 27 and 28, 2012. [ 46 ] The Court sees no reason to modify the terms of the contract the parties agreed upon.

However it will not grant the additional indemnity requested by Plaintiff because the interest provided by the parties exceeds the statutory rate [12] . [ 47 ] WHEREFORE, THE COURT: [ 48 ] GRANTS the claim; [ 49 ] CONDEMNS Julie Lachance to pay to Agenda Familial L.B. inc., $1,144.00 with interest at the rate of 24% per annum, as of November 28, 2012. [ 50 ] THE WHOLE with costs. __________________________________ MAGALI LEWIS, J.C.Q. Me Jean-Marc Grenier Plaintiff’s attorney Madame Julie Lachance Defendant

Date of hearing: April 24, 2015