2018 QCCQ 359, 2018 QCCQ 359

Hughes c. Gerry Black (Relax Communications) 2018 QCCQ 359 COURT OF QUÉBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-152881-167 DATE: January 3, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ IVON T. HUGHES Plaintiff v. GERRY BLACK (RELAX COMMUNICATIONS) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Ivon T. Hughes is suing Mr. Gerry Black, carrying on business under the trade name of Relax Communications (“ Mr. Black ”), alleging that the latter copywriting services were not satisfactory and did not meet his requirements. He requests that the services agreement be annulled and that the $3,500.00 advance retainer be reimbursed to him. [ 2 ] Mr. Black contests the claim. He argues that the value of the work he carried out before the unilateral resiliation of the contract exceeds the advance retainer paid by Mr. Hughes, thus preventing him from obtaining any reimbursement or compensation.

QUESTIONS IN ISSUE [ 3 ]

a) Has Mr. Hughes proven facts justifying that the services agreement be annulled?

b) Should the advance retainer be reimbursed to Mr. Hughes? CONTEXT [ 4 ] Mr. Hughes is an insurance broker who offers part of his services through financial websites since 1998. [ 5 ] In the summer of 2015, he decided to refurbish his website. [ 6 ] At the beginning of July 2015, Mr. Hughes contacted Mr. Black, who specializes in copywriting and marketing communications, after he saw his website on the internet. [ 7 ] On July 10, 2015, after several email exchanges, Mr.

Black sent a first proposal in which he detailed his fees for the various components of the contract, as well as defining his role and what he intended to do to fulfill same: Here’s how I see my role: • Write sales copy for your home page/landing pages and a couple of existing pages (notably, About Us) that immediately attracts the attention of qualified prospects and leads them through your selling story in an organized way. […] • Write a 5-6 message follow up email campaign designed to nurture the prospect until he or she is ready to buy.

My idea would be to create a series of messages centered around increasing your “know, like and trust factor” with the prospect. […] • Leverage my copywriting, marketing and sales skills wherever/whenever possible to assist Hughes Trustco sales efforts.

For my fee, I will: • Spend time with you to learn more your business. • Read all current brochures, web copy, direct mail, and other relevant materials including industry reports, studies, trade magazine articles, statistical tracking reports etc. • Gain insights into the current market environment so we can tailor our marketing efforts to meet the needs of Hughes Trustco prospects. • Review competitive/like-minded web sites (if applicable) so we know how the competition is positioning itself. • Submit rough drafts of all content I write for review and approval.

• Deliver finished copy to you for approval. • Provide you with the benefit of my experience wherever I can. [ 8 ] On July 15, 2015, Mr. Hughes contacted Mr. Black and stated his precise needs, following which Mr.

Black prepared a revised proposal: Life Annuities landing page $750.00 Wealth Management landing page $750.00 Segregated Funds landing page $750.00 RRIF landing page $750.00 Life Annuities 5-6 email follow up campaign $2,450.00 Wealth Management 5-6 email follow up campaign $500.00 Segregated Funds 5-6 email follow up campaign $500.00 RRIF 5-6 email follow up campaign $500.00 About Us page $200.00 Fee Total: $7,150.00 Plus HST: $929.50 Total: $8,079.50 40% Advance Retainer Required: $3,231.80 […] Please make your cheque payable to Relax Communications for the amount listed under “Advance Retainer Required” and mail it to the address below.

This will give me the go-ahead I need to process with this assignment. [ 9 ] On the same day, Mr. Hughes sent a cheque in payment of the agreed upon retainer that he rounded up to $3,500.00. [ 10 ] On July 22, 2015, Mr. Black sent the first draft of the landing page to Mr. Hughes. In Mr. Hughes’ opinion, the work was totally unsatisfactory. However, he never directly informed Mr. Black of his disappointment. Instead, he sent him emails containing links of various websites he liked. Mr. Black interpreted that those links were the indications of the approach Mr.

Hughes was expecting for his website. [ 11 ] On August 6, 2015, Mr. Black informed Mr. Hughes that he was working on a second version of the landing page which the latter commented to be more appealing. [ 12 ] In spite of this, Mr. Hughes continued to send links of different websites that led Mr. Black to produce a third version of the landing page he thought would respond to his client’s needs. [ 13 ] At the end of August 2015, a fourth version was sent to Mr. Hughes. [ 14 ] During a telephone conversation that took place in mid-September 2015, Mr. Hughes clearly expressed his disappointment with Mr.

Black’s work. He informed him that he had decided to stop the project and was expecting the advance retainer to be reimbursed to him. ANALYSIS Has Mr. Hughes proven facts justifying that the services agreement be annulled? [ 15 ] The contract concluded between the parties can be characterized as a contract for services governed by articles 2098 to 2129 of the Civil Code of Québec ( C.C.Q .). [ 16 ]

Article 1407 C.C.Q. sets the conditions pursuant to which the annulment of a contract may be applied for: 1407. A person whose consent is vitiated has the right to apply for annulment of the contract; in the case of error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claim damages or, where he prefers that the contract be maintained, apply for a reduction of his obligation equivalent to the damages he would be justified in claiming. [ 17 ] In civil matters, a person wishing to assert a right must prove the facts on which his claim is based [1] .

Consequently, the person who requests that a contract be annulled is obliged to prove the facts on which he bases his allegation. The evidence will be weighed on a balance of probabilities [2] . To convince the Court, the Plaintiff must demonstrate that the existence of a fact is more

probable than its non-existence [3] . [ 18 ] Although Mr. Hughes testified that he was completely unsatisfied with Mr. Black’s work, he failed to present evidence establishing any of the conditions set forth in

article 1407 C.C.Q. which may lead to the annulment of the contract for services. In the absence of any proof of error, fraud, violence or fear that could have vitiated Mr. Hughes’ consent, the validity of the contract must be maintained. Should the advance retainer be reimbursed to Mr. Hughes? [ 19 ] In addition to the generally applicable rules concerning enforcement of a contract and its resolution in case of breach,

article 2125 C.C.Q. grants a client, who is a party to a contract for services, the exceptional right to unilaterally cancel the contract even though the provision of service is already in progress. [ 20 ] In this case, that is exactly what Mr. Hughes has done when he contacted Mr. Black in mid-September 2015 to inform him of his decision to end the project. [ 21 ] However, upon resiliation of the contract, the client must comply with

article 2129 C.C.Q. by paying the fair value of the services rendered up to the date of resiliation: 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. [ 22 ] Consequently, even in the presence of the resiliation of the contract, Mr. Black is entitled to be compensated for the services rendered. [ 23 ] Mr. Hughes claims that the draft of copyright work performed by Mr. Black is of no value to him and that the entirety of the advance retainer he paid must be reimbursed to him. [ 24 ] The Court cannot accept Mr.

Hughes’ position that the work completed by Mr. Black has no value. Indeed, Mr. Black testified of the important amount of work that had to be done prior to working on the landing page. For example, as mentioned in his proposal, Mr. Black spend several hours learning about Mr. Hughes’ business by reviewing his e-books, his marketing material and “competitive/like-minded” websites, as well as doing some research.

Although he has not kept any time sheets, he estimated at 15 to 20 hours the time he spent before starting to create the four versions of the landing page. [ 25 ] Clearly, the work carried out has some value, even if it is less than the advance retainer paid by Mr. Hughes.

In the absence of proper documentation allowing the Court to assess the exact value of the work done prior to the resiliation of the contract, the Court has the discretion to assess this value, which it arbitrates to a total of $1,650.00 (representing $750.00 for the landing page and $900.00 for the time spent prior to writing it, at an hourly rate estimated at $100.00). The balance, $1,850.00, will be reimbursed to Mr. Hughes. FOR THESE REASONS, THE COURT: GRANTS in part the action of Mr. Ivon T. Hughes against Mr. Gerry Black (Relax Communications); CONDEMNS Mr. Gerry Black (Relax Communications) to pay to Mr.

Ivon T. Hughes the sum of $ 1,850.00 together with interest at the legal rate and the additional indemnity foreseen by

article 1619 of the Civil Code of Québec , calculated from September 30, 2015, plus judicial fees of $125.00. __________________________________ MARIE-JULIE CROTEAU, J.C.Q.

Date of trial: Date at which the file was taken under advisement: July 17, 2017 September 20, 2017