2017 QCCQ 896, 2017 QCCQ 896

Al-Janazra c. MSK Technologies International Inc. 2017 QCCQ 896 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-22-220871-159 Date: February 16 th , 2017 BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. Ashraff al-janazra and mouayad al-janazra Plaintiffs v. MSK TECHNOLOGIES INTERNATIONAL INC. AND MARWAN KATBE Defendants JUDGMENT JQ 0059 [ 1 ] The Plaintiffs claim $35,700, namely $16,700 transferred to the Defendants towards the purchase of merchandise that was never delivered to them, incidental costs of $9,000 and general damages of $10,000.

In an amended claim, the Plaintiffs ask for the reimbursement of the extrajudicial fees paid to their attorney of $4,106. [ 2 ] The Defendant Marwan Katbe by his cross-claim, seeks from Plaintiffs $5,000 in damages following the threat uttered by the Plaintiff Mouayed Al-Janazra. [ 3 ] The questions in issue are as follows: 1. Who, between the Plaintiffs or a third party, have standing to institute this claim? 2. Are the Plaintiffs justified in recovering $16,700 transferred to the Defendants or are they precluded from claiming this sum following their refusal to accept part of the merchandise? 3.

Are the Plaintiffs justified in claiming $9,000 for the incidental costs, namely the rent paid for a warehouse and a store, in anticipation of receiving the merchandise? 4. Are the Plaintiffs justified in claiming $10,000 for general damages? 5. Are the Plaintiffs justified in claiming $4,106 for the extrajudicial fees paid to their attorney? 6. Are both Defendants solidarily liable towards the Plaintiffs? 7. Is the Defendant Marwan Katbe justified in claiming damages of $5,000? THE FACTS

[ 4 ] In January 2012 by email [1] the Plaintiff Ashraff Al-Janazra ( Ashraff ) contacts the Defendant Marwan Katbe ( Katbe ) an employee of MSK Technologies International Inc. ( MSK ) wishing to purchase various garments. [ 5 ] After further discussion, Ashraff writes to Katbe confirming he is willing to buy 10,000 pieces of garments for women for Spring, Summer and Winter. [ 6 ] Katbe informs him that he can supply 50,000 pieces, including jackets, jeans, shirts, belts and sweaters. [ 7 ] Ashraff confirms to MSK that his brother, the Plaintiff Mouayad Al-Janazra ( Mouayad ) is willing to purchase 20,000 pieces of clothing from MSK.

Katbe confirms that the garments will be a mix of brands from Canadian retailers. [ 8 ] At the end of January 2012, MSK quotes a price of $17,000 for the merchandise, and the parties agree that the final price, including shipping, is $16,700. [ 9 ] Ashraff wires the funds to MSK; $10,000 on February 2 nd , 2012 and $6,700 on February 9 th , 2012 [2] . [ 10 ] In February 2012, Katbe, on behalf of MSK, contacts a freight forwarder Associated Cargo Specialists ( ACS ) to organize the shipment of the goods to the Plaintiffs. Several emails are exchanged between Katbe and ACS as well as between Ashraff and Katbe [3] .

A review of these emails reveals the following: • On February 13 th , 2012, ASC asks Katbe to provide the booking information to ship the merchandise to the Port of Ashrod, Israel; • On February 15 th , 2012, Katbe specifies to ASC that the shipper is MSK, the consignee is Shamikat Sami and Osama Tayeh Company ( S&

T) and the merchandise is Susy Shier, women clothing; • On February 16 th , 2012, ASC provides Katbe with a copy of the bill of lading; • In the following days, ASC asks Katbe to confirm that the bill of lading is accepted; • Katbe emails Ashraff asking that he obtain from his brother Mouayad the telephone number and the physical address of the person receiving the shipment; • Ashraff replies that if he needs the exact address, he must wait until they wake up in Palestine; • On the same day, Ashraff informs Katbe that the company is S&T and the address is Palestine, Gaza; • Immediately Katbe replies that the destination mentioned was Jordan and the Territories but not Gaza;

• Ashraff answers that he does not know how it works, he is only the messenger; • Sometime later, Ashraff confirms to Katbe that the consignee S&T is located in Al Rimall, Gaza Strip, Palestine Territories; • A few days later, ASC again asks that Katbe approve the bill of lading.

Katbe then informs ASC that the consignee is S&T and the address is Al Rimall, Gaza; • ASC informs him that if there is to be a correction made to the bill of lading, a $150 US charge will be applied, to which Katbe replies that if fees are to be paid, there is no need to make the change; • On February 28 th , 2012, ASC informs MSK that the original bill of lading is ready to be picked up. [ 11 ] The bill of lading issued on February 22 nd , 2012 [4] indicates as consignee S&T with an address in Amman, Jordan, port of discharge Ashrod, Israel. [ 12 ] The merchandise was to arrive on March 25, 2012.

On March 19, 2012, ASC emails the Export Document Coordinator asking that the name of the consignee on the bill of lading be changed to Algherbal Company ( Algherbal ) instead of S&T [5] . [ 13 ] The new bill of lading is backdated to February 22, 2012 indicating as the consignee Algherbal with an address in Gaza. [ 14 ] As of April 5 th until August 17 th , 2012, Ashraff and Katbe communicate through emails and text messages [6] .

The Court highlights the more important communications between these parties as follows: • On April 5, Ashraff asks Katbe to either deliver the merchandise or reimburse the money; • On April 6, Katbe writes: Of course you will get your money back, it is simply a matter of a short time till I come back; • On April 25, Ashraff asks again that the money be reimbursed; • On April 27, Katbe asks Ashraff to wait a bit (not long) I am making the arrangements with Gaza, waiting for transfer confirmation; • On May 2 nd , Katbe writes: I am expecting the funds anytime from Gaza be assured…yes you will get yur money; • Ashraff continues requesting reimbursement of the funds; • On June 7, 2012, Katbe writes a text message: Had U said that the final destination was GAZA.

We would not have this issue. Any way it has to be solved. Pls reply to my email. As I want to know your position. Thanks. [ 15 ] On July 2 nd , 2012, Ashraff sends his demand letter [7] and legal proceedings follow. THE ANALYSIS

Who, between the Plaintiffs or a third party, have standing to institute this claim? [ 16 ] MSK refers the Court to the proforma invoice it prepared [8] where S&T is indicated as the customer, to the bill of lading also showing S&T as the consignee [9] and to the February 17th, 2012 email [10] in which Ashraff describes himself as a messenger. [ 17 ] Ashraff testified to the fact that he is in business with his brother Mouayad, an evidence which was not contradicted by the Defendants. [ 18 ] It is Ashraff who negotiated the contract with MSK, with the approval of Mouayad [11] . [ 19 ] The payment of $16,700 was done by Ashraff [12] . [ 20 ] As for the implication of S&T, the Plaintiffs provided the Court with the contract concluded between Ashraff and S&T [13] .

In this contract, S&T undertakes to make all the necessary arrangements to clear the goods from customs, in exchange of a $1,000 US remuneration. [ 21 ] The Court concludes that MSK’s argument is unfounded and that the Plaintiffs and not a third party, have standing to institute their action against the Defendants, whatever arrangement exists between Ashraff and his brother Mouayad. 2.

Are the Plaintiffs justified in recovering $16,700 transferred to the Defendants or are they precluded from claiming this sum following their refusal to accept a part of the merchandise? [ 22 ] The evidence clearly shows that the Plaintiffs paid $16,700 to MSK to purchase merchandise, which merchandise was not delivered to them. [ 23 ] The evidence also shows that it was at Katbe’s initiative that the consignee on the bill of lading was changed from S&T to Algherbal. [ 24 ] In several emails and text messages, as reviewed above, Katbe promises that the Plaintiffs would be reimbursed. [ 25 ] Katbe also stated, on more than one occasion, that he was expecting to receive payment from his agent in Gaza.

Obviously, if the Defendants did not obtain a reimbursement from their agent, the Plaintiffs should not suffer any consequence deriving from this situation. [ 26 ] Katbe decided to ship the merchandise to Algherbal when he realized that the Plaintiffs intended to sell the merchandise in Gaza and not in Jordan, because MSK has an exclusive agent in Gaza to sell the Suzy Shier brand of clothing.

MSK decided to protect its relationship with its agent, to the detriment of Plaintiffs. [ 27 ] Even if Ashraff initially mentioned that the merchandise could be shipped to Jordan, he was never made aware that the Suzy Shier brand was included in the brands sold or that MSK had already an agent in Gaza who had exclusivity for this brand of clothing. [ 28 ] The Plaintiffs were under no obligation to accept a portion of the merchandise only.

[ 29 ] Clearly, the Defendants had the obligation to reimburse to the Plaintiffs $16,700, if they could not deliver the merchandise as promised. 3. Are the Plaintiffs justified in claiming $9,000 for the incidental costs, namely the rent paid for a warehouse and a store, in anticipation of receiving the merchandise? [ 30 ] The Plaintiffs provide the Court with a copy of the lease, concluded between Mouayad and Mr.

Fawzi Rabah Ajjour [14] that covers a period of one year, from February 1 st , 2012 to January 31 st , 2013, at a rent of $5,000 US, the leased premises to be used as a showroom or warehouse. [ 31 ] A second lease was also signed at the same time for the same period, at a rent of $3,000 to be used as a store [15] . Mr.

Ajjour provided the Plaintiffs with a receipt [16] , confirming he received from the Plaintiff Mouayad $8,000 US for the rent. [ 32 ] The Defendants did not object to the filing of these documents. [ 33 ] The Court concludes that the Plaintiff Mouayad did pay rent for $8,000 US for a warehouse and a store, with the intent of selling the merchandise to be shipped by MSK. [ 34 ] The Plaintiffs had however the obligation of showing that they minimized their damages, either by obtaining a cancellation of the lease or by subletting the premises to a third party. [ 35 ] However, the evidence shows that until the end of August, the Plaintiffs tried to reach an agreement with the Defendants. [ 36 ] Therefore, the Court concludes that an adequate compensation consists of the reimbursement of half the rent paid by the Plaintiffs.

At the date of the present judgment, as the US exchange to Canadian dollars is 1.3058, the conversion of $5,000 US represents $6,529. 4. Are the Plaintiffs justified in claiming $10,000 for general damages? [ 37 ] Although the Plaintiffs did not receive the reimbursement of the amounts paid to MSK, they did not demonstrate to the Court that they suffered the damages claimed. The Court will not grant this portion of the claim. 5.

Are the Plaintiffs justified in claiming $4,106 for the extrajudicial fees paid to their attorney? [ 38 ] The Plaintiffs argue that the Defendants committed an abuse of right by hiding their true intentions, namely that the merchandise would be delivered to a third party. [ 39 ] Although the Defendants did not fulfill their obligation to deliver the merchandise or reimburse the monies received, the Court cannot conclude that they committed an abuse of right justifying the Court to order the reimbursement of the fees paid to their attorney. 6.

Are both Defendants solidarily liable towards the Plaintiffs? [ 40 ] The evidence shows that Katbe’s spouse Khaulah Abbas is the president and majority shareholder of MSK. She describes her husband Katbe as a business developer.

[ 41 ] Although the Plaintiffs dealt with Katbe only, he was not acting in his personal capacity but as a representative of MSK. The Plaintiffs’ action will be dismissed against Katbe personally. 7. Is the Defendant Marwan Katbe justified in claiming damages of $5,000? [ 42 ] Katbe states that Mouayad would have called him and uttered threats against him and his family. [ 43 ] No evidence was presented to the Court. It is not sufficient to simply assert a fact. A party seeking to assert a right shall prove the facts on which is claim is based. The Court will not grant Katbe’s claim of $5,000 in damages [17] .

FOR THESE REASONS, THE COURT: GRANTS in part Plaintiffs’ action; CONDEMNS the Defendant MSK Technologies International Inc. to pay to the Plaintiffs Ashraff Al-Janazra and Monayad Al-Janazra the sum of $23,229; DISMISSES Plaintiffs’ action against the Defendant Marwan Katbe; DISMISSES Defendant Marwan Katbe’s cross-claim; WITH THE JUDICIAL COSTS. Diane Quenneville, J.C.Q. Date of hearing: October 20 th and 21 st , 2016