2020 QCCQ 203, 2020 QCCQ 203

Mirzakhani c. Ghazibayat 2020 QCCQ 203 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-704957-184 DATE: January 6, 2020 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ MAJID MIRZAKHANI Plaintiff v.

OMID GHAZIBAYAT Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Majid Mirzakhani engaged Omid Ghazibayat to provide catering services and paid him a $100 deposit (“ Deposit ”). [ 2 ] The day after he entered into the contract, he cancelled it unilaterally and without cause and requested a refund of the Deposit. [ 3 ] Mr. Ghazibayat refused to refund the Deposit on the grounds that he had already spent the deposit money to purchase ingredients for the meals he was to prepare for Mr.

Mirzakhani. [ 4 ] Mr. Mirzakhani claims he is entitled to a refund of the Deposit. [ 5 ] The Court must address the following issues in ordered to adjudicate the parties’ dispute:

a) Was Mr. Mirzakhani entitled to unilaterally and without cause cancel the Catering Contract?

b) If so, is he entitled to a refund of the Deposit? Analysis and Decision

a) Was Mr. Mirzakhani entitled to unilaterally and without cause cancel the Catering Contract? [ 6 ] Omid Koobideh Restaurant (“ Restaurant ”) is a sit down restaurant which specialises in Persian delicacies. [ 7 ] Mr. Ghazibayat claims that during the time frame relevant to these proceedings, he was not the owner of the restaurant, but only its manager. The Court disagrees. [ 8 ] The evidence shows that he operated the Restaurant as a sole proprietorship. [1] Mr.

Ghazibayat paid the rent for the premises where the Restaurant operated, managed and ran the restaurant with the help of a part time employee, and pocketed all the revenues and profits. That said, he failed to register the sole proprietorship with the enterprise register as required by the Act Respecting the Legal Publicity of Enterprises . [2] This likely contributed to the Plaintiff’s confusion as to the identity of the Defendant. [ 9 ] On March 24, 2018, Mr. Mirzakhani and his wife ate a meal at the Restaurant. Since they were pleased by the food served by Mr.

Ghazibayat and considering that they were planning to host a social gathering at their home one week later, they decided to retain Mr. Ghazibayat’s services to cater their party. [ 10 ] Accordingly, on the same day, Mr. Mirzakhani ordered from Mr. Ghazibayat an assortment of food platters for a 20 person group, including kebabs, chicken plates and eggplant based platters for a price of $200 plus taxes (“ Catering Contract ”). [3] The food was to be prepared and delivered to Mr. Mirzakhani’s home one week later. Mr. Mirzakhani paid a $100 deposit. [ 11 ] As some of the food platters ordered by Mr.

Mirzakhani are not regular menu items, Mr. Ghazibayat had to purchase the ingredients to prepare the food platters pursuant to the Catering Contract. [ 12 ] On March 25, Mr. Mirzakhani unilaterally cancelled the Catering Contract without cause and asked for a refund of the Deposit. [ 13 ] To determine whether Mr. Mirzakhani was entitled to unilaterally resiliate the Catering Contract, the Court must first

characterize the nature of the contract entered into between the parties. Indeed, this step is crucial as not all contracts can be unilaterally resiliated by the one of the parties without cause. [ 14 ] In the instant case, the Court concludes that due to the nature of the prestation to be performed by Mr.

Ghazibayat, the Catering Contract must be characterized as a contract for services governed by articles 2098 and following of the Civil Code of Québec (“ C.C.Q. ” ). [ 15 ] As a general rule, a contract may not be unilaterally resiliated, modified or revoked by a party, except for the grounds recognized by law or by agreement of the parties. [4] [ 16 ] Consumer contracts whereby the vendor provides for a refund or return policy are a common example of contracts whereby the parties have agreed that one party to the contract may unilaterally resiliate the contract.

No evidence was made of such a refund or return policy being part of the Catering Contract. [ 17 ] However,

article 2125 C.C.Q., which applies to the Catering Contract, exceptionally affords the client the right to unilaterally resiliate the contract for services, even without cause. [ 18 ] Considering that the Catering Contract is a contract for services, Mr. Mirzakhani was entitled, pursuant to

article 2125 C.C.Q., to unilaterally and without cause resiliate it on March 25.

b) If so, is he entitled to a refund of his $100 deposit? [ 19 ] Although Mr. Mirzakhani was entitled to unilaterally resiliate without cause the Catering Contract, is he entitled to a return of the $100 deposit? [ 20 ] The outcome to this question is governed by

article 2129 C.C.Q. : 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered. [ 21 ] Mr. Mirzakhani’s right to unilaterally resiliate without cause the Catering Contract was subordinated to his obligation to pay to Mr. Ghazibayat “the value of the work performed before the end of the contract or before the notice of resiliation”. [ 22 ] The uncontradicted evidence establishes that prior to the notice of resiliation, Mr. Ghazibayat purchased ingredients and supplies that he needed to perform the Catering Contract. His testimony was corroborated on this point by his employee Mrs.

Eehmazi. [ 23 ] Mr. Ghazibayat claims that he spent $100 to purchase supplies, but he kept no copies of purchase receipts or invoices. Given the lack of probative evidence on the cost of the supplies purchased by Mr. Ghazibayat, the Court must necessarily arbitrate this amount. The Court believes it is fair and reasonable to assess the cost of the supplies purchased prior to the resiliation of the Catering Contract at $50. [ 24 ] Accordingly, while Mr. Mirzakhani had the right to unilaterally and without cause cancel the Catering Contract, he nonetheless had to pay Mr.

Ghazibayat $50 for the cost of supplies purchased. Considering that he paid a deposit of $100 on March 24, he is entitled to restitution of $50. [ 25 ] Accordingly, Mr. Ghazibayat will be ordered to pay Mr. Mirzakhani $50. [ 26 ] Considering the mixed result of Mr. Mirzakhani’s claim, the Court believes it is fair and reasonable not to award him legal costs. FOR THESE REASONS, THE COURT: [ 27 ] GRANTS in part Majid Mirzakhani’s claim; [ 28 ] CONDEMNS Omid Ghazibayat to pay to Majid Mirzakhani $50 with interest at the legal rate and the additional indemnity provided for

article 1619 of the Civil Code of Québec , as of the date of the judgment; [ 29 ] WITHOUT LEGAL COSTS. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: November 26, 2019