2017 QCCQ 12284, 2017 QCCQ 12284

Québéc Ô Famille cabinet conseil c. Benitez Salinas 2017 QCCQ 12284 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149093-157 DATE: July 5, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ QUÉBÉC Ô FAMILLE CABINET CONSEIL Plaintiff v.

CESAR BENITEZ SALINAS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Québec Ô Famille inc., doing business under the name of Cabinet-Conseil en immigration, claims from Cesar Benitez Salinas an amount of $5,500 representing a balance due for immigration consulting services rendered for Mr. Salinas and his family. [ 2 ] Mr. Salinas refuses to pay the amount claimed.

He contends that Plaintiff did not provide the services as agreed, which justified the termination of the contracts entered into between the parties. By way of a cross-demand, he seeks reimbursement of the $9,000 already paid to Plaintiff. FACTUAL CONTEXT [ 3 ] In September 2013, Mr. Salinas contacted immigration consultant Garsendy Emmanuel Guillaume, Plaintiff’s principal, to obtain advice in relation to his immigration status and that of his family. [ 4 ] At the time, Mr. Salinas and his family had been in Canada for about two years.

They had applied for refugee protection pursuant to the Immigration and Refugee Protection Act [1] (the “ Act ”), but their application had been denied on November 7, 2012. [2] They were subject to a removal order. [ 5 ] During a preliminary consultation on or around September 25, 2013, Mr. Guillaume recommended that Mr. Salinas and his family seek from Canada Immigration and Citizenship (“ CIC ”) :

a) a temporary resident permit (“ TRP ”);

b) a pre-removal risk assessment (“ PRRA ”); and

c) permanent residence for humanitarian and compassionate considerations (“ H&C ”). [ 6 ] Two contracts were entered into on October 22, 2013 [3] .

A first one, for the preparation and filing of the TRP application (the “ TRP Contract ”), provided for a price of $4,500, payable by way of an initial instalment of $1,000 and seven monthly instalments of $500 from November 2013 onwards. [4] This was based on an anticipated 18 hours of work at the rate of $250 per hour, with any additional work to be charged at a rate of $150 per hour. [ 7 ] A second contract, relating to the PRRA and H&C applications (the “ PRRA/H&C Contract ”), provided for a price of $10,000, payable by way of an initial instalment of $2,000 and seven monthly instalments of $1,000 on the same dates as the TRP Contract. [5] This was based on an anticipated 20 hours of work at the rate of $250 per hour for each of the PRRA and H&C applications, with additional work to be charged at the same hourly rate of $150.

Mr. Salinas paid a total of $9,000 towards the total agreed fees of $14,500. [ 8 ] Mr. Guillaume and Mr. Salinas offer contradictory versions of what happened after the contracts were entered into. [ 9 ] According to Mr. Guillaume, it was very difficult to obtain information from Mr. Salinas. He claims that much of the documentation and information requested at the initial consultation and subsequently by telephone and email [6] was not provided and that he eventually prepared the TRP, PRRA and H&C applications and required CIC forms with incomplete information, [7] sending the draft applications and forms to Mr.

Salinas in order for him to provide the missing information. [8] [ 10 ] Mr. Salinas denies this. He claims that he provided most of what was requested right from the outset and that when he needed clarifications from Mr. Guillaume to provide the remaining information, he was unable to reach him. He claims that he tried many times to contact Mr. Guillaume by telephone and email, worried that the steps needed in order for his family to remain in Canada were not being taken, and that he did not hear back from him.

[ 11 ] On March 19, 2014, Mr. Salinas advised Mr. Guillaume by email that he was terminating Plaintiff’s services. In this email, he refers to the absence of any communications from Mr. Guillaume since the contracts were entered into and requests a full refund of the $9,000 already paid to Plaintiff. [9] [ 12 ] Given the termination of Plaintiff’s services, the draft TRP, PRRA and H&C applications and CIC forms prepared by Mr. Guillaume were not finalized, nor filed with CIC. [ 13 ] In the fall of 2014, Mr. Salinas retained another immigration consultant.

He also retained an attorney to recover the fees paid to Plaintiff. After unsuccessful attempts to resolve the matter, Plaintiff issued formal invoices for each of the TRP, PRRA and H&C applications. [10] [ 14 ] In August 2015, Plaintiff formally demanded payment of an amount of $5,500 from Mr. Salinas. [11] It filed its application claiming the same amount on September 5, 2015. ANALYSIS

a) Is Plaintiff entitled to the amounts claimed in the principal action? i. The termination of the contracts [ 15 ] The contracts entered into by the parties are contracts for services. [12] They obliged Plaintiff to supply the agreed services to Mr. Salinas and to act prudently and diligently in doing so. They also obliged Mr. Salinas to pay the agreed price. [ 16 ] Mr. Salinas terminated the contracts before the services had been fully rendered by Plaintiff. What is the impact of such termination? [ 17 ] Contracts for services can be terminated by a client in two different manners.

Firstly, a client can terminate such a contract unilaterally at any time, at his or her own discretion, [13] but he or she must then pay the service provider for the value of the services rendered up to termination. [14] [ 18 ] Secondly, a client can terminate a contract for services for breach of contract, in accordance with the general regime applicable to all contracts. [15] Under this regime, the client must establish a serious default on the part of the service provider [16] and must first notify the service provider of the default and grant him the opportunity to correct the situation within a reasonable period of time. [17] If these conditions are met, a client may be released in whole or in part from its obligation to pay the service provider for services already rendered. [ 19 ] In the instant case, Mr.

Salinas is not entitled to the termination of the contracts for default under the general regime, as the evidence does not establish that Plaintiff breached its obligations so as to justify such termination. [ 20 ] Although Mr. Salinas alleges a total lack of communications with Plaintiff to justify termination – he claims that Mr. Guillaume did not respond to a single email or telephone call from him after the contracts were entered into [18] – this is in direct contradiction with the exchange of emails between the parties. [19] The Court also finds it highly improbable that Mr.

Salinas would have made monthly instalments towards Plaintiff’s fees from November 2013 to February 2014, if he had not received any communication from Plaintiff, as he alleges in his email of March 19, 2014 and stated at trial. [ 21 ] The Court prefers Mr. Guillaume’s testimony to the effect that he spoke to Mr. Salinas by telephone several times, at which time he answered his questions regarding the various applications and requested the necessary documents and information. [ 22 ] In his written contestation, Mr.

Salinas also alleges that Plaintiff did not provide competent advice and that he misrepresented to him the steps needed to rectify his immigration status and that of his family. He abandoned this argument at trial, however, and no evidence was provided in response to Mr. Guillaume’s detailed explanations in this regard. [ 23 ] In any event, Mr. Salinas did not notify Plaintiff of any default and did not give it the opportunity to cure such default prior to termination and this precludes termination under the general regime. [ 24 ] Mr. Salinas’ decision to terminate the contracts was unilateral.

Consequently, he must pay Plaintiff for the actual value of the services rendered up to date of termination. [20] ii. The value of the services rendered at the time of termination [ 25 ] Plaintiff argues that most of the work relating to the TRP, PRRA and H&C applications was complete when Mr. Salinas terminated the contracts and that it is therefore entitled to the full anticipated price of $14,500. [ 26 ] Mr.

Salinas responds that the services were of no value to him because the applications and forms were not filed, but this is the consequence of his decision to terminate the contracts. [ 27 ] Plaintiff has proven to the satisfaction of the Court that the services were in part provided in accordance with the contracts, but the applications and forms were clearly not complete. Were it not for the termination, they would have had to be completed and finalized after receipt of Mr. Salinas’ comments and missing information and then filed with CIC.

The amount claimed must be reduced to take this into account. [ 28 ] On the basis of the evidence, the Court believes that an amount of $3,000 must be deducted from the agreed price and that the actual value of the services at the time of termination is $11,500. Given that Mr. Salinas has already paid $9,000, he must pay to Plaintiff the balance of $2,500.

b) Is Mr. Salinas entitled to the reimbursement of the $9,000 as requested by his cross-demand? [ 29 ] Given the Court’s conclusion that Plaintiff did not breach its obligations towards Mr. Salinas and that subject to completion, Plaintiff provided the agreed services pursuant to the contracts, it follows that Mr. Salinas is not entitled to the reimbursement of the fees already paid. [ 30 ] His cross-demand must therefore be dismissed.

FOR THESE REASONS, THE COURT: GRANTS the action in part; CONDEMNS Cesar Benitez Salinas to pay to Quebec Ô Famille inc. an amount of $2,500, together with interest at the rate of 5% plus the additional indemnity provided by law from August 16, 2015. DISMISSES the cross-demand. WITH LEGAL COSTS of $222 representing the judicial stamp on the Demand. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: December 13, 2016 and February 27, 2017