2012 QCCQ 3820, 2012 QCCQ 3820

Moscowitz c. Canadian Massage and Acupressure Therapists Association 2012 QCCQ 3820 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-123768-105 DATE: May 3, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MTRE GARY MOSCOWITZ […] Montreal, Quebec […] Plaintiff v. CANADIAN MASSAGE AND ACUPRESSURE THERAPISTS ASSOCIATION, Legal person 1088 St-Laurent Blvd.

Suite 2 Montreal, Quebec H2Z 1J5 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mtre Gary Moscowitz, a member of the Quebec Bar, sues one of his clients, the Canadian Massage and Acupressure Therapists Association ("CMATA"), on a cheque in the amount of $1,500 dated May 15, 2010, with costs of stop payment of $24.15. [ 2 ] CMATA contests the action alleging that no amount was due because of the failure on the Plaintiff's part to provide any professional services. [ 3 ] CMATA also brings a counter claim to recover $1,500 representing the amount of an earlier cheque also in the amount of $1,500 dated March 25, 2010. [ 4 ] This action in reimbursement is also based on the allegation that the Plaintiff failed to provide any professional services. [ 5 ] The head of the association, Mr Zhen Fang alleges that the mandate given to Mtre Moscowitz was to intervene with two group insurance companies, the CCQ and Claim Secure. [ 6 ] These two companies had refused to accredit the members of the CMATA thereby refusing to indemnify their patients for the services they rendered according to the insurance policy. [ 7 ] Mtre Moscowitz's mandate, according to Mr Fang, was to take the necessary steps with these two insurers in order to obtain their recognition of its members.

He asserts that the $1,500 paid on March 15, 2010 was for the work to be accomplished while the second payment of $1,500 was conditional upon achieving the expected results, as a bonus. [ 8 ] There is no written confirmation of the mandate. [ 9 ] Mtre Moscowitz states that the intervention, on which he was already working, related to Sun Life and Industrial Alliance, that the initial payment of $3,000 was staggered at the client's request and that it was a payment towards the anticipated fee not comprising any bonus.

[ 10 ] According to Mtre Moscowitz, the mandate to deal with Industrial Alliance and Sun Life went back to an earlier time; this was the continuation of work that had already begun. [ 11 ] Correspondence produced (P-6 and P-7) show dealings with Industrial Alliance as early as 2009 on behalf of the Association des Naturopathes Holistiques du Québec/ANHQ – Holistic Naturopaths Association of Quebec/HNAQ. [ 12 ] Although Mtre Moscowitz could not produce an invoice at trial, the Defendant forwarded to the Court an invoice dated March 25, 2010 addressed to CMATA in an amount of $3,000. [ 13 ] The services are described as: PROFESSIONAL SERVICES RENDERED in connection with corporate and membership issues.

MY FEE: ONE CHARGE IN ALL AS AGREED $3,000.00 [ 14 ] The two cheques dated March 25 th and May 15 th are listed. [ 15 ] Other correspondence show that the file was active with Sun Life as well. There is a confirmation from Sun Life dated April 26, 2010, acknowledging receipt of a letter and confirming that the process of reviewing the information is underway. [ 16 ] The fact that the mandate that Mtre Moscowitz was working on involved Sun Life is confirmed by the exchanges of emails with Mr Fang.

Mtre Moscowitz conveys to Mr Fang the message received from Sun Life on April 26, 2010. [ 17 ] Mtre Moscowitz tells him that: The letter from Sun Life was forwarded to you at the ANHQ email address because that is the address which you advertise on the ANHQ website as the one to use to contact you on ANHQ business. [ 18 ] Mtre Moscowitz goes on, in this email of May 17, 2010, to state his expectation that the cheque for $1,500 due on May 15 th will be honoured. [ 19 ] Mr Fang replies: Your email just reminds me the fact that I have already paid $2,500 but received ZERO so far.

If you want to get more money from me, you should work faster, more honestly and more effectively instead of deliberately playing game, delaying and ignoring. […] [ 20 ] Apart from showing that Mr Fang is not happy with the services, this exchange also confirms that the work for which the payment was requested and for which it had initially been given on a post-dated basis was the work on behalf of the ANHQ dealing with Sun Life. [ 21 ] This letter is incompatible with Mr Fang's assertion that the work involved two other insurance companies that are not mentioned in the correspondence and that the second payment was a bonus for results achieved. [ 22 ] The email speaks of $2,500, meaning that before the initial payment of $1,500 there had already been payment.

This confirms that this was an ongoing mandate that commenced before March 2010. [ 23 ] Much of the testimony in the case concerned parallel communications between the parties about a possible purchase of an existing association from a third party. [ 24 ] Mtre Moscowitz was interested in acquiring the rights to this association jointly with Mr Fang as a partnership but Mr Fang did not follow up. [ 25 ] This parallel narrative is not particularly relevant in deciding the issue of the obligation on the cheque. [ 26 ] A cheque is an instrument of payment and giving a cheque to the payee gives the payee the right to sue on the cheque if it is not honoured. [ 27 ] Mtre Moscowitz is an ordinary holder, not a holder in due course, and so his action on the cheque can be met with a defence of a personal nature between himself and the person who made the cheque.

In other words, if the amount was not due, the cheque need not be honoured. [ 28 ] The cheque is drawn by the CATA on an account controlled by Mr Fang. He states that the name was changed to the CMATA but he continued to use the old chequebook. [ 29 ] Therefore, there is no doubt that the CMATA could make a defence based on the default of Mtre Moscowitz to provide the promised legal services. [ 30 ] It would, however, have the burden of proving the facts on which this defence is based.

On the whole of the testimony, it seems more likely that Mr Moscowitz's recollection of the mandate he had and the steps he carried out is accurate. [ 31 ] Mr Fang's testimony is contradicted implicitly by his email of May 17 th that tends to confirm that this was an ongoing mandate from an earlier time and that it included dealing with Sun Life. [ 32 ] There is no evidence confirming his assertion that this was an entirely new mandate dealing with two other insurance

companies. If that had been the case and he realised that Mtre Moscowitz was working only on the issues relating to Sun Life and Industrial Alliance, one would have expected to read texts complaining about this. His complaints seem to be limited to his lack of satisfaction with the progress made in the existing files for Sun Life and Industrial Alliance. [ 33 ] Thus, the Defendant has failed to prove its defence and the same considerations apply to the cross-demand.

FOR THESE REASONS, THE COURT: GRANTS the Plaintiff's action; DISMISSES the Defendant's cross-demand; CONDEMNS the Defendant to pay, to the Plaintiff the sum of $1,524.15, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from June 11, 2010; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $100. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 9, 2012