2017 QCCQ 13771, 2017 QCCQ 13771

Nauth Industries Inc. c. Ledamp Technologies Inc. 2017 QCCQ 13771 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151964-162 DATE: October 25, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ERIC DUFOUR, J.C.Q. ______________________________________________________________________ NAUTH INDUSTRIES INC. Plaintiff vs. LEDAMP TECHNOLOGIES INC.

SARATHKUMAR KUMARAIAH KATHY LOW PRASANTH RAMA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Nauth Industries Inc. (Nauth) claims $ 15,000 from Defendants Ledamp Technologies Inc. (Ledamp), Sarathkumar Kumaraiah (Kumar), Kathy Low (Low) and Prasanth Rama (Rama) following a contract of partnership [1] from which Ledamp allegedly wrongfully withdrew. FACTS [ 2 ] Part of Nauth’s business includes the sale of Bar-B.-Q. ovens.

Defendant Ledamp engineers products. [ 3 ] On July 3, 2015, Nauth and Ledamp enter into an agreement by which they become partners for the BBQ industrial design and functionality, the hardware and software design and the sales and marketing strategies. The responsibilities, the profits and the losses shall be shared equally between the Nauth and Ledamp. [ 4 ] Soon after, Nauth asks Ledamp to design the software of the main board of an oven whose grills are designed to rotate while the meal is being cooked.

The customer can thus program the oven so the meal be cooked at a certain temperature, for a certain period of time, while the grills rotate, without the cook watching over. This was a new feature in the BBQ oven market. [ 5 ] Nauth plans to attend an important BBQ trade show, held yearly in the United States. The 2016 edition of the event is held in New Orleans, Louisiana, where Nauth wishes to showcase its new oven including the rotating grill feature. [ 6 ] The weeks pass and Peter Nauth, president of Nauth, does not hear from the Defendants.

He worries about the situation, wondering if he will be ready to attend the trade show with a final equipment to demonstrate. [ 7 ] In September 2015, Peter Nauth asks Kumar when the prototype of the software is to be ready for testing. Kumar reassures Mr. Nauth, saying that he is working on it and that everything will be ready in time. [ 8 ] In December, Nauth asks Kumar again when the prototype will be ready and the answer given is more or less the same as his previous statement. [ 9 ] In mid-January 2016, a meeting is held at Nauth’s premises. «Heated discussion» is the atmosphere described by Peter Nauth.

Voices raise and insults start to fly. From that point on, the relationship becomes strained. The more Kumar postpones the delivery of the prototype of the software, the more Nauth is worried. Still, Kumar promises that the board will be ready in time. [ 10 ] Meanwhile, Ledamp introduces the idea of a smaller BBQ oven on which the programming board can be installed. The small BBQ could be presented at the trade show in New Orleans. Ledamp shares its views on this point with Peter Nauth.

However, as the relationship between the partners becomes bitter, Ledamp fears that its idea of smaller ovens will be stole by Nauth which is a bigger company. Ledamp says that Peter Nauth was giving the impression to be the inventor of the device. Kumar refers to the badges P-5. [ 11 ] On March 9 2016, an important meeting is held at Nauth’s offices. Defendants Kumar, Low and Rama lose confidence in Nauth and its president. They say that the current wasn’t passing anymore. More importantly, they fear that Nauth will swallow their idea of installing the software on small size Bar-B-Q ovens.

Once returned to their business place, Kumar, Low and Rama consider that the

partnership was not 50/50 anymore. They feel they are not being treated as partners but rather as Nauth’s employees. They decide to put an end to the commercial agreement with Nauth. [ 12 ] The day after, Ladamp informs Nauth that it withdraws from the partnership and that Kumar, Low and Rama won’t travel to New Orleans. [ 13 ] Nevertheless, Ledamp does provide Nauth with the software, which is installed on the prototype of a regular size BBQ.

Peter Nauth decides to attend the trade show with this prototype. [ 14 ] Once arrived in New Orleans, Peter Nauth shows the Bar-B-Q oven in a parking lot next to the Exhibition. Peter Nauth starts to operate the oven. He testifies that the board wasn’t working properly. In fact, the grills did not rotate correctly. Instead of ending the rotation in a flat position, it stops at a certain degree which does not allow the meat to grill as requested. The video recorded at that time illustrates the problem [2] . [ 15 ] The parties blame one another for that malfunction.

Peter Nauth alleges that the defect in the rotation is due to the software created by Kumar, whereas the latter testifies that this defect is probably caused by misfunctionning bearing balls or gear. QUESTIONS IN DISPUTE [ 16 ] The questions in dispute are the following :

A) Does Nauth have a cause of action against Kumar, Low and Rama?

B) Has Nauth proven a fault by the Defendant Ledamp?

C) Has Nauth proven its damages? ANALYSIS

A) Does Nauth have a cause of action against Kumar, Low and Rama? [ 17 ] Petitioner has no cause of action against Defendants Kumar, Low and Rama. [ 18 ] The basis of Petitioner’s claim is the partnership entered into with Ledamp. None of the individuals signed the agreement on their behalf. None of them is a party to the contract.

There is no contractual link between Nauth and Kumar, Low or Rama, even though Kumar is the engineer appointed to the task of the creating of the software. [ 19 ] At the hearing, Peter Nauth frankly admitted that Nauth sued the individuals only because he feared that he would not be able to execute a judgment against Ledamp. Such a fear creates no right. [ 20 ] The claim against Mrs. Low, Mr. Kumar and Mr. Rama will thus be set aside.

B) Has Nauth proven a fault by the Defendant Ledamp? [ 21 ] The Court first heard the testimony of Peter Nauth, who asserted that the malfunction of the rotating grills of the Bar-B-Q oven was because the software created by Kumar was not working properly.

When asked by the Court on what basis this claim was made, Peter Nauth answered that he relied on his own experience in the Bar-B-Q oven market. [ 22 ] No expert opinion was filed by the parties to help the Court in deciding whether the problem with the rotating grills is due to the software created by Ledamp or the bearing balls or the gear provided by Nauth. [ 23 ] Kumar is of the opinion that the bearing balls and the gear are more likely to trigger the kind of problem seen in the videotape. [ 24 ] Plaintiff has the burden of the proof [3] .

At the hearing, the Court specifically asked Peter Nauth to explain the basis underlying his reasoning. He solely relied his conclusion on his own experience. Defendant Kumar, for his part, gave a probable explanation to the malfunction of the device. [ 25 ] Faced with two probable explanations, both being of the same weight, the Court must dismiss Plaintiff’s claim, for it is his burden to convince that his version must prevail. This is not to say that the explanation given by Peter Nauth is of no credibility, rather than it should have been more convincing than the one given by Defendant Kumar.

Again, as the two explanations are of equal value, the Court must dismiss the action. [ 26 ] Despite the above, Plaintiff alleges that the defect would have been corrected if Ledamp had bring earlier the prototype of the software of the board. A series of trials and errors often occurs when dealing with new concepts and it takes time to fix every new problem. [ 27 ] That may be the case. But this allegation is theoretical. The fact is, as Kumar testified, that the grills were perfectly rotating when Ledamp delivered the device to Nauth. The Court cannot rely on hypothetical facts as the foundation of a judgment.

C) Has Nauth proven its damages? [ 28 ] Given the previous answers, it is not necessary to address this question. For theses reasons, the Court:

[ 29 ] DISMISSES Plaintiff’s application, with the costs of $ 300 representing the fees paid on the contestation. __________________________________ ERIC DUFOUR, J.C.Q. Date of hearing: August 28, 2017