2012 QCCQ 9701, 2012 QCCQ 9701

2012 QCCQ 9701 Ramiscal c. Novack COUR OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division N° : 500-32-121930-103 DATE : October 22, 2012 ______________________________________________________________________ BY THE HONORABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Hazel RAMISCAL […] Montreal, QC, […] Jodelyn GARCIA RAMOS […] Montreal, QC, […] Gilbert T. VALDEZ […] Montreal, QC, […] Janice AGUNDANG […] Montreal, QC, […] Annabelle V. ISON […] Montreal, QC, […] Plaintiffs v . David M.J.

NOVACK […] Kitchener, ONT, […] Go-Remit Inc. 370 Frederick Street, Kitchener, ONT, N2H 2P3 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiffs sue for the recovery of amounts remitted to the defendant Go-Remit Inc., a business that dealt in money transfers to the Philippines.

[ 2 ] They alleged that the amounts they remitted, in cash and by interac payment, were not remitted according to their instructions. [ 3 ] They include Go-Remit Inc.'s president David M.J. Novak as an additional defendant. [ 4 ] The contestation alleges an inability to reimburse the plaintiffs because of burglary in the premises of Go-Remit Inc. on September 29, 2009. [ 5 ] Neither of the defendants was present or represented at trial, despite having been duly summoned. [ 6 ] The Court heard the testimony of all the defendants.

Each of them substantiated the amounts remitted and established that, despite their instructions to Mr Novak and his assurances, the amounts were not deposited to their accounts or to the account of their relatives in the Philippines, as the case may be. [ 7 ] The remittances ranged over the period from August 16, 2009 to November 1, 2009. [ 8 ] To their dismay, the plaintiffs learned that the offices of Go-Remit closed in early November 2009. Several of them went to the premises on […] in the Côte-des-Neiges neighbourhood to inquire as to why their funds had not been transferred.

They met other unfortunate clients of Go-Remit Inc. who had suffered the same fate congregating outside the closed offices. [ 9 ] Each of the Plaintiffs property put the defendants in default to pay the amounts owed. [ 10 ] The liability of Go-Remit Inc. is obvious: it was entrusted with the funds and failed to transfer them according to the plaintiffs' instructions. The obligation is of result, and the result was not achieved. [ 11 ] The liability of Mr Novak is different. It is obvious that, as the controlling mind of Go-Remit, he acted dishonestly.

He wrote a circular letter to clients, including the plaintiffs, who had lost money remitted to Go-Remit (P-15). In the letter he makes the allegation that on September 29, 2009 "we experienced a robbery, [sic] a large cash amount that was to be deposited in the bank that day." He goes on to relate the efforts being made to restructure and refinance the company and his personal commitment to see that all amounts will be credited to clients.

Sadly, these were empty promises. [ 12 ] What is particularly shocking about this allegation of a burglary on September 29 is that the transactions in question in the present file occurred, except one, after September 29. If there really was a significant loss of funds, Mr Novak should not have accepted additional remittances promising, as he did to the plaintiffs, that the money would be transferred in a certain number of days.

If the burglary had really occurred, and that prevented him from honouring commitments, he would have suspended his activities. [ 13 ] If indeed there was a burglary, by continuing to accept remittances, he deliberately put his client's funds in jeopardy, because the business had become insolvent. But there probably was no burglary. If there had been one, insurance would have covered the loss and it would have been business as usual. In all probability, it is a fraud. [ 14 ] As well, one of the remittances was made by Hazel Ramiscal on August 16, 2009, long before the alleged burglary.

The failure to remit these funds is indicative of foul play on the part of Mr Novak as perpetrator, not as victim. [ 15 ] Elizabeth Raquel, a prominent person within the Montreal Pilipino community testified that she had assisted thirty-one persons in the same position as the plaintiffs. In most cases, the transactions resulting in the losses took place in August, October and November 2009.

If the losses resulted from a burglary of funds to be deposited at the bank on September 29, one would have expected losses from that day only. [ 16 ] Clearly, Mr Novak has perpetrated a fraud, and the flimsy excuse of a burglary and the promises to reimburse the clients were made in order to gain time and postpone litigation. WHEREFORE, THE COURT: CONDEMNS the Defendants to pay to the Plaintiff, Ms Hazel Rasmical, the sum of $3,092.24, 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 January 11, 2009; CONDEMNS the Defendants solidarily to pay to the Plaintiff, Ms Jodelyn Garcia Ramos, the sum of $5,228.12, 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 December 18, 2009; CONDEMNS the Defendants solidarily to pay to the Plaintiff, Mr Gilbert Y. Valdez, the sum of $4,263.79, 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 December 27, 2009; CONDEMNS the Defendants solidarily to pay to the Plaintiff, Ms Janice Agundang, the sum of $1,423.33, 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 January 30, 2010; CONDEMNS the Defendants solidarily to pay to the Plaintiff, Annabelle V. Ison, the sum of $2,113, 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 February 5, 2010;

CONDEMNS the Defendants solidarily to pay to the Plaintiff, Ms Jodelyn Garcia Ramos , judicial costs in the amount of $157. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing : October 10, 2012