2017 QCCQ 370, 2017 QCCQ 370

7334150 Canada inc. c. Jayne Blumenthal International Inc. 2017 QCCQ 370 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148595-152 DATE: January 18, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ 7334150 CANADA INC. Plaintiff v. JAYNE BLUMENTHAL INTERNATIONAL INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence (testimony of John Squicciarini, Wendy Lee Kennedy, Jayne Blumenthal, Brahm Blumenthal and Diana Lidstone, as well as exhibits P-1 to P-24 and D-1); [ 2 ] WHEREAS a consulting services contract intervened between the parties, on March 1, 2014 (exhibit P-6); [ 3 ] WHEREAS defendant undertook to provide the services outlined in exhibit P-9, to plaintiff, at a cost of $10,000.00, which plaintiff paid; [ 4 ] WHEREAS, according to plaintiff, some of the services rendered by defendant were either poorly rendered or not at all rendered; [ 5 ] WHEREAS plaintiff is petitioning the Court to:

a) set aside the agreement;

b) order defendant to reimburse plaintiff the fees paid ($11,497.50); and

c) order defendant to pay damages in the amount of $3,502.50, representing the trouble and inconvenience and loss of income incurred by plaintiff; [ 6 ] WHEREAS , however, plaintiff has the burden of proof ( articles 2803 and 2804 Civil Code of Quebec ); [ 7 ] WHEREAS , indeed, plaintiff has an obligation to prove fault, damages and a causal link between the two, by a preponderance of evidence; [ 8 ] WHEREAS , despite the voluminous documentation filed into the Court record by plaintiff (some of which indicates that plaintiff, au contraire , was satisfied with the services: see emails exhibit P-15), plaintiff failed to meet its burden of proof; [ 9 ] WHEREAS defendant denies all of plaintiff’s allegations; [ 10 ] WHEREAS plaintiff’s witnesses and defendant’s witnesses were of equal credibility; [ 11 ] WHEREAS, when the Court is unable to ascertain where the truth lies, it is not obliged to pick one side over the other; and, given that it is plaintiff who has the burden of proof, under the circumstances, plaintiff’s application must be denied; WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's amended application;

EACH PARTY paying its own costs. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: December 12, 2016