2012 QCCQ 5769, 2012 QCCQ 5769

Arshinoff c. Warner 2012 QCCQ 5769 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-119382-093 DATE: May 17, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ LLOYD ARSHINOFF [...], Pierrefonds (Qc.) [...] Plaintiff v.

GARY WARNER [...], Coborne (On.) [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Lloyd Arshinoff is suing Defendant Gary Warner for $6,472.50, alleging a breach of contract and loss of profits following Defendant's cancellation of his booth at Defendant's jamboree. Defendant contests the jurisdiction of the Court of Quebec. Alternatively, Defendant maintains he did not contract with Plaintiff. He presented a cross demand for $2,000, namely his costs to defend the action.

The evidence: [ 2 ] Plaintiff sells clothing and other goods at trade fairs and rents space for a booth. From 2006 to 2009, his wife had operated a registered business under the name “Exciting Things in Embroidery” . Its registration was discontinued in 2009. Plaintiff then took over the operations; he operated under the name “Cave Creations” . [ 3 ] Early in 2009, Plaintiff's wife contacts Defendant wishing to arrange a meeting to discuss an agreement and product line. Defendant, however, is not interested in obtaining her products.

Subsequently, Plaintiff takes over the correspondence with Defendant. [ 4 ] On April 22, 2009, Defendant asks Plaintiff whether he intends to participate in the 2009 jamboree. Plaintiff immediately replies that he intends to be present. [ 5 ] On May 24, 2009, Plaintiff asks about the cost of the event and where to send his cheque. On June 24, 2009, Defendant replies with the details. [ 6 ] On June 29, 2009, Plaintiff tells Defendant he was out of town and the cheque will be mailed that week. Plaintiff mails his cheque on July 16, 2009.

On July 24, 2009, not having yet received the cheque, Defendant assumes Plaintiff will not be attending; he tells Plaintiff he will not be including vendors at the event. [ 7 ] On July 30, 2009, Plaintiff indicates his concern over Defendant's cancellation of his contract. Defendant claims that without a cheque, the contract is incomplete. The cheque arrives on August 4, 2009.

Defendant returns the cheque and maintains his position, refusing to allow Plaintiff to sell his goods at the event. [ 8 ] Plaintiff disputes Defendant's reasons for refusing him a booth, invoking that payment in the past had been made at the event,

not in advance, and contrary to Defendant's allegations, other vendors had booths at the 2009 jamboree. [ 9 ] Plaintiff submits that because of Defendant's actions, he lost sales and interest on the sales in 2009 and future sales. He is seeking damages. Analysis: 1. The existence of a contract: [ 10 ] Defendant claims that a contract was not completed since payment had not been made. However, an agreement, in the absence of particular conditions, is formed by the exchange of consents, namely the willingness of a person to accept an offer that is made to him by another person.

While a fee was payable to rent a booth, it was not foreseen that payment prior to the event was a condition that had to be met in order to form the contract. [ 11 ] In sum, the evidence indicates that Defendant operated a fair at which Plaintiff wished to sell goods. Plaintiff indicated his intention to participate and upon doing so, a contract between the parties was formed. However, it was not respected. 2.

The parties to the contract: [ 12 ] Plaintiff claims he contracted with Defendant. [ 13 ] Defendant denies this claim and maintains that he does not live in Quebec and only does business in Ontario, as does “Exciting things in Embroidery” . He submits that if a contract was concluded, it was not with Plaintiff but between his company and “Exciting things in Embroidery” , namely an Ontario company, operated by Plaintiff's wife. Defendant therefore contends that this Court does not have jurisdiction. [ 14 ] This argument is not valid.

Firstly, neither Plaintiff (whose business is called “Cave Creations” ) nor Defendant operates an incorporated business; the same situation applied to Plaintiff's wife. [ 15 ] The e-mail correspondence regarding the sale of Plaintiff's goods at Defendant's jamboree clearly takes place between Plaintiff and Defendant. [ 16 ] The Court concludes that for the 2009 event, Plaintiff and Defendant were dealing with each other. 3.

The jurisdiction of the Court of Quebec, Small Claims Division: [ 17 ] The Court of Quebec, Small Claims Division only has jurisdiction if Defendant is domiciled in Quebec, has a residence or establishment in this province or if the contract was formed in Quebec or if the cause of action arose in Quebec (article 958 of the Code of civil procedure).

a) Defendant's domicile, residence of place of establishment: [ 18 ] Defendant is not domiciled in Quebec; he has no residence or establishment in this province.

b) Where the contract was formed: [ 19 ] We turn now to the issue of where the contract was concluded. [ 20 ]

Article 1387 of the Civil Code of Quebec states that a contract is formed when and where acceptance is received by the offeror, regardless of the method of communication used. [ 21 ] In this case, in April of 2009, Defendant asks Plaintiff if he plans to participate in the 2009 jamboree event. This, in the view of the Court, constitutes an offer. Plaintiff replies from Quebec that he does intend to be present at the event. His reply is sent by e-mail to Defendant, who lives in Ontario. [ 22 ] In light of the evidence, the Court concludes that the contract was formed in Ontario, where Defendant received Plaintiff's acceptance.

c) Where the whole cause of action arose: [ 23 ] Finally, we must consider where the whole cause of action has arisen. [ 24 ] After concluding an agreement with Plaintiff, Defendant decided he did not wish to allow Plaintiff sell his goods at the 2009 jamboree. Consequently, Defendant breached the contract that had been formed, which is the cause of the action.

According to Doctrine, the failure to respect the contract took place in Ontario, where Defendant made his decision and communicated that decision to Plaintiff. [ 25 ] In sum, the formation of the contract and the cause of action took place in Ontario, which is Defendant’s domicile and residence and the place where he has an establishment. Quebec does not have competence over the present action or cross demand. Plaintiff must therefore institute his action in Ontario. FOR THESE REASONS, THE COURT: DISMISSES the action and the cross demand for lack of jurisdiction. THE WHOLE , with costs.

__________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: April 17, 2012