2014 QCCQ 7266, 2014 QCCQ 7266

Tsai (Global Intertrans) c. 7649860 Canada inc. (Guru Transportation) 2014 QCCQ 7266 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-129176-113 DATE: July 8, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ CATHERINE TSAI doing business under the business name of GLOBAL INTERTRANS Plaintiff v. 7649860 CANADA INC. doing business under the business name of GURU TRANSPORTATION -and- PRABHIJEET RIAR Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Plaintiff claims for a refund of an amount of $5,000 as overpayment made under a contract to provide delivery and freight for merchandise sent from St-Jérôme, Quebec, Canada, to Gardena, California, United States of America.

Position of the Parties [ 2 ] The representative of the Plaintiff Global Intertrans (“Global”) at the hearing was Mr. Jason Zeng, its Manager. Mr. Zeng filed into the Court record Plaintiff’s exhibits (Exhibits P-1 to P-11) in support of the claim. The representative of Defendants was Mr. Harpreet (Mike) Singh Bhullar, who dealt directly with Plaintiff throughout. [ 3 ] The invoice dated March 7, 2011 (Exhibit P-1) of Defendant 7649860 Canada Inc. (“Guru”) was for $5,000. On March 11, 2011 payment was made by Global by wire transfer (Exhibit P-2).

However, on the same day, Guru’s representative advised Global that it had not received the wire transfer and asked that the money be sent. Otherwise, Guru threatened that it would bring the delivery back to Canada. Global then decided to send a second amount of $5,000 assuming that there was some delay with the first wire transfer and that it would be worked out later with their bank. Global sent the second wire transfer by Western Union (Exhibit P-3). [ 4 ] On the request of Defendants, this second amount was sent to Prabhijeet Riar.

At the hearing, it was confirmed that this amount was also received as requested by Defendants. In the meantime, the merchandise was properly delivered. Upon verification, Global

established that both amounts paid of approximately $5,000 were received by Guru (Exhibits P-6 to P-8). However, Defendants refused to reimburse the second payment on grounds that were unclear. Defendants wanted to keep all or part of it. On April 5, 2011, Global sent a demand letter requesting the refund of $5,000 (Exhibit P-10). Defendants did not respond. On June 28, 2011, Plaintiff filed a Motion in the present Court for recovery of $5,000, plus interest, special indemnity under

Article 1619 of the Civil Code of Quebec and costs. [ 5 ] On July 29, 2011, Defendants filed a contestation stating that the delivery was delayed due to non payment and that they claimed waiting charges of $450. Analysis and Decision [ 6 ] According to the proof at the hearing, there was no late payment by Global. Plaintiff could not send payment until it had received wire transfer instructions. Plaintiff only received wire instructions on March 10, 2011. The next day, namely on March 11, 2011, payment was sent by way of the first wire transfer.

At trial, it became clear that there was no truth or merit to Defendant’s grounds of contestation. [ 7 ] The contestation appears purely dilatory in nature and unfounded in fact and in law. Defendants appeared to simply want to take advantage of receiving the second payment and did not expect Plaintiff to persevere and institute legal proceedings in the Court of Quebec (Small Claims Division) in Montreal, Quebec, Canada as Plaintiff is based in the Los Angeles area.

Defendants’ claim for an additional $450 amount for a layover is specious and without merit in fact or in law. [ 8 ] It is also unjustifiable that Defendants would not have returned at least the uncontested overpayment amount, which is the bulk of Global’s claim, beyond the claimed amount of Guru for the “layover” charge. [ 9 ] Nevertheless, the actual total amount received by Defendants was $9,633.64 ($4,723.31 (CAN) (first payment Exhibit P-2) plus $4,910.33 (CAN) (Exhibit P-3)). There were other amounts charged by the bank or Western Union for wire and service charges.

These additional fees were received by the financial institutions that processed the wire transfer of funds. But those amounts are not owed to Global. The only amount that Defendant should have retained is the amount charged in Exhibit P-1, namely $5,000. Accordingly, the difference, namely $4,633.64 (CAN) is owed as a refund to Plaintiff.

The Court will maintain the action for that amount, plus the applicable interest, special indemnity and judicial costs. [ 10 ] As both Defendants received the amounts as per their instructions to Plaintiff, and both Defendants contracted their obligations for the service or for the carrying on of a commercial enterprise ( Article 1525 (2) of the Civil Code of Quebec ), both Defendants will be condemned solidarily.

FOR THESE REASONS, THE COURT: MAINTAINS Plaintiff’s action; CONDEMN Defendants 7649860 Canada Inc. and Prabhijeet Riar solidarily to pay Plaintiff the amount of $4,633.64 (CAN) with legal interest of 5% and the additional indemnity provided by

Article 1619 of the Civil Code of Quebec , to be calculated from the demand letter of Plaintiff (Exhibit P-10) dated April 5, 2011; WITH JUDICIAL COSTS of $207 in favour of Plaintiff. __________________________________ Jeffrey Edwards, J.C.Q.

Date of hearing: April 7, 2014