2019 QCCQ 2358, 2019 QCCQ 2358

Wang c. Assayag 2019 QCCQ 2358 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155608-179 DATE: April 16, 2019 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ QIN WANG and 9211-1517 QUÉBEC INC. Plaintiffs v. SERGE ASSAYAG and BOTICA FINANCIAL GROUP INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Qin Wang describes herself as being an accountant (“cpa”), financial advisor and insurance broker.

She is the president, secretary and treasurer of plaintiff company 9211-1517 Québec Inc. [ 2 ] Defendant company Botica Financial Group Inc. (“Botica”), whose president is defendant Serge Assayag, entered into a services contract [1] (exhibit P-1) and a lease agreement (exhibit D-5), with plaintiffs, on or about July 9, 2015. [ 3 ] Plaintiffs, acting as independent contractors/brokers/agents, sold insurance and financial products in Botica’s place of business, and Botica acted as master general agent (“MGA”), offering support services, staff and advice to plaintiffs. [ 4 ] As MGA, Botica agreed to pay plaintiffs, inter alia , an “override commission/bonus” of 160%, for insurance products sold by plaintiffs, while working with Botica. [ 5 ] The terms of the mutual services agreement appear in an email exchanged between the parties, on July 9, 2015: “[…] For the bonus, I cannot pay more than 160%.

We have brokers making significantly more FYC that are paid less than 175%. Our model is to give excellent service, order medicals, quotes… and keep enough margins to do so. I am will to start at 160% and review it in 12 months after we see the total FYC settled. If you reach $200,000 of settled FYC, I can increase to 170% and pay the difference retroactively. […]”

(sic) (email, exhibit P-1) [ 6 ] Botica’s broker contract listing (exhibit P-10) confirms this bonus agreement of 160%. [ 7 ] The lease agreement provides for an 11 month term, at a monthly rent of $574.88 (exhibit D-5). [ 8 ] Wang decided to leave Botica, on May 21 or 22, 2016, as she was not satisfied with Botica’s staff and services.

When she left, she took 2 chairs with her, that presumably belonged to Botica (email dated May 24, 2016). [ 9 ] Plaintiffs are suing defendants for the 160% override commission, which defendants refused to pay, for 3 specific policies (the policies are identified in a letter from Canada Life, exhibit P-4, as well as several other documents introduced into evidence). [ 10 ] Although plaintiffs received all other commissions owed for said policies, at trial, Assayag admitted that Botica did not pay plaintiffs the override commission, as per the parties’ agreement. [ 11 ] Furthermore, on November 2, 2016, Assayag wrote the following letter to Wang: “Quin All settled business will be paid to you at the override level we had agreed upon.

As mentioned in my previous email, commissions have been put on hold and override at zero until you transfer your life and investment contracts out of Botica. This is our common practice as the new agency has to accept your business along with full responsibilities for any potential chargeback. As soon as the paper work is done, we will instruct companies to release all amounts owed to you. Regarding investment, we will continue to serve your clients for any redemptions, switch or investment instructions. However, we will not accept any new account openings.

Please proceed accordingly so we can release any amounts due to you.

Serge Assayag” (email, exhibit P-12) [ 12 ] Although the 3 policies in question did not lapse, and plaintiffs’ new MGA declared itself “responsible for all chargebacks that may arise” (letter from AWM Financial Services Inc., exhibit P-6), Assayag continued to withhold the outstanding commission owed to plaintiffs. [ 13 ] At trial, Assayag himself calculated said commission, and determined it to be worth $16,308.00 (furthermore, a letter from Canada Life, dated October 24, 2018, exhibit P-4, confirms this amount). [ 14 ] At trial, Assayag stated that he was “entitled to change (the parties’ agreement) as (he) saw fit… based on risk”, and because Wang left less than 12 months after she started working with Botica. “I decided I won’t pay 160%”, declared Assayag. [ 15 ] Assayag claims that he was justified in not respecting the agreement, as he “wasted a lot of time and effort”, on plaintiffs, with “training and seminars” and the like. [ 16 ] However, contract P-1 is for an indeterminate term and does not provide that the agreed-upon percentage is at defendants’ discretion, whim or fancy. [ 17 ] There is no justification for Botica’s breach; and, since Botica received all commissions it was owed by Canada Life on the 3 policies in question (testimony of independent witness Yves Durivage, V-P product solutions at Canada Life, and testimony of Assayag, as well as letters, exhibits P-4 and P-6), which were not cancelled and did not lapse within 2 years, there is no evidence that plaintiffs resiliated the contract at an inopportune moment ( s. 2125 and 2126 Civil Code of Québec ) or acted in bad faith ( s. 1375 C.C.Q .). [ 18 ] Plaintiffs did, however, fail to respect the term of lease D-4, as they left the premises at the end of May, rather than the end of June, 2016. [ 19 ] In view of the foregoing, Botica is liable towards plaintiffs for unpaid commission, reduced in plaintiffs’ claim to $15,000.00, less $574.88 for one month’s rent and an amount of $200.00, arbitrarily set by the Court, for the 2 chairs which plaintiffs removed from the premises without right. [ 20 ] Lastly, there is indeed no lien de droit between plaintiffs and Serge Assayag personally, Assayag having always acted in his capacity as president of Botica, in this matter.

WHEREFORE THE COURT HEREBY: GRANTS Serge Assayag’s motion to dismiss, with legal costs in the amount of $300.00; GRANTS plaintiffs’ amended claim, in part;

CONDEMNS Botica Financial Group Inc. to pay plaintiffs the sum of $14,225.12, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , from October 14, 2016, and legal costs in the amount of $302.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: March 7, 2019