2014 QCCQ 7563, 2014 QCCQ 7563

Johnston c. Services de recrutement Ed Kaluzny inc. 2014 QCCQ 7563 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Small Claims Division No: 500-32-130337-118 DATE: August 21, 2014 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE VÉZINA, Q.C.J. ______________________________________________________________________ MARC JOHNSTON Plaintiff and Cross-Defendant v. SERVICES DE RECRUTEMENT ED KALUZNY INC.

Defendant and Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Marc Johnston claims $4,235.00 from Services de recrutement ED Kaluzny inc. ( Services de recrutement ) for unpaid services rendered as a computer programmer and for damages for time wasted to get his two invoices paid. [ 2 ] Services de recrutement denies owing the total of these two invoices, alleging that the services rendered by Mr.

Johnston were inadequate. [ 3 ] Furthermore, by way of a cross-claim, Services de recrutement sues Mr. Johnston for $7,000. It wants to be reimbursed for the first invoice paid to Mr. Johnston and for various damages linked to the malfunctioning of its website and email system which were the object of the mandate given to Mr. Johnston by Services de recrutement. [ 4 ] Mr. Johnston contests the cross-claim and denies owing any sum to Services de recrutement, explaining that he did his best to complete the mandate and succeeded in solving the problems encountered. QUESTIONS OF LAW Main Action

A) Did Mr. Johnston provide the requested services to Services de recrutement?

B) To which damages is Mr. Johnston entitled? Cross-Claim

C) Did Services de recrutement establish its right to be reimbursed for the first invoice paid to Mr. Johnston?

D) Did Services de recrutement establish its right for the other damages claimed? CONTEXT AND ANALYIS [ 5 ] In civil matters, a person wishing to assert his right shall prove the facts on which his claim is based [1] . In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence, which will be weighed on the balance of probability, which is also called preponderance of evidence.

This implies that the demand demonstrates that the existence of a fact is more probable than its non-existence [2] . [ 6 ] Every person has a duty to honour his contractual undertakings [3] . [ 7 ] In this matter, a contract of services for computer programming was concluded between Mr. Johnston and Services de recrutement [4] . [ 8 ] As provider of services, Mr. Johnston was bound to act in the best interest of Services de recrutement. He was also bound to act in accordance with the usual practices and the rules of art. He had to ensure that the work done was in conformity with the contract [5] .

[ 9 ] Furthermore, before the contract was entered into, the provider of services, Mr. Johnston, was bound to provide to Services de recrutement, as far as circumstances permit, any useful information concerning the nature of the task and the time required for it [6] . [ 10 ] In light of these principles, the Court refers to the relevant facts proven at trial. Main Action

A) Did Mr. Johnston provide the requested services to Services de recrutement? [ 11 ] Mr. Johnston is a computer programmer. [ 12 ] In June 2010, a first contact took place between him and Services de recrutement to design a new website for the recruiting company. More specifically, Services de recrutement uses its website and email system to match available employees wishing to offer their curriculum vitae with employment requests and specific needs of its clients (employers). However, Services de recrutement put that 2010 project and proposal of Mr. Johnson in abeyance.

No contract was concluded at the time. [ 13 ] In April 2011, Services de recrutement contacted anew Mr. Johnston for an urgent mandate. Its request was different from the project contemplated in 2010. [ 14 ] Indeed, Services de recrutement had received a notice [7] from the actual hosting server of its website informing it that the hosting services would be terminated as of May 31, 2011. [ 15 ] Time was of the essence especially considering that the representative of Services de recrutement, Mr. Kaluzny himself, acting as the contact with Mr.

Johnston at all times, was having surgery on May 19, 2011, and could not predict how long his recovery period would last. [ 16 ] Mr. Kaluzny gave an urgent mandate to Mr. Johnston on behalf of Services de recrutement and in view of the time span, made a close follow-up on the execution of such mandate [8] . [ 17 ] Mr. Johnston defined the mandate: he had to handle the website transfer, to redesign the website, to update the search engines and to ensure that the email system would work adequately. [ 18 ] On May 9, 2011 [9] , Mr. Johnston confirmed to Mr.

Kaluzny: As discussed with you, I will ensure that your site ( consulpro.com ) is up and running on a new server by May 18th, 2011. (…) My rate is $70/hour (same as my other client) I will be starting the work today, but before I start I need your permission to open the hosting plan. (…) I will be hosting your site on Thesba , previously called CrystalTech. This hosting company is rock solid with close to 100,000 domains hosted there. I have been with them for almost 6 years. I have 15 web sites with them. They answer phone calls within 15 minutes and take care really good of their clients.

You will have access to a very nice control panel where you will have the possibility to view your daily stats, handle emails and much more. (…) So just email me a go ahead, and I start today! [ 19 ] The parties agreed upon an hourly rate of $70 to be charged by Mr. Johnston. No specific budget for the mandate was discussed. [ 20 ] Mr. Johnston proceeded to do the necessary computer programming to fulfill his mandate. [ 21 ] The new selected host server for the website was CrystalTech [10] with which Mr. Johnston dealt with since 2006 and for which he made representations to Mr.

Kaluzny about its efficiency. [ 22 ] Mr. Johnston tested with his own equipment the programming made, including the website and the emailing system, with success. According to Mr. Johnston, on May 18, 2011, the website of Services de recrutement was transferred to the new host server and was functional. [ 23 ] The same day, Mr. Johnston forwarded his first invoice [11] , which was paid by Services de recrutement. [ 24 ] On the same day, Mr. Kaluzny also talked to Mr. Johnston. He had no time to test the website and email system as his surgery was planned for the following day but he was comforted by Mr.

Johnston saying that the site was fully operational and without problems.

[ 25 ] Services de recrutement therefore believed that the services and mandate were completed by May 18, 2011. Nothing from the chain of emails [12] before that date proved otherwise. [ 26 ] Unfortunately, after that date, the subsequent chain of emails [13] established that it was not the case. In fact, the website and email system were not operational neither functional. [ 27 ] After May 18, 2011, Mr. Johnston admitted having faced problems with the email system being unstable.

According to him, the problem was caused by the Microsoft Office Outlook [14] environment used by Services de recrutement which was not compatible with the host server CrystalTech chosen and recommended by him. Mr. Johnston was facing that type of problem for the first time. [ 28 ] During the absence of Mr. Kaluzny, Marilyn Woodfine held the fort for Services de recrutement and had to handle the email system. She noticed that it was not functioning properly and that the sending and receiving functions were erratic. [ 29 ] Mrs. Woodfine is a third party, working freelance for Services de recrutement.

Her job is to attract clients willing to use the services of Services de recrutement to recruit employees. When she succeeds, she receives from Services de recrutement finder’s fees for recruiting new clients. [ 30 ] On May 25, 2011, upon his return after surgery, Mr. Kaluzny found out about the problems. [ 31 ] Mr. Kaluzny called Mr. Johnston. Offering a computer technology website, he worried about the problems of access to the data and difficulties to reach and broadcast the necessary information to the clients or to the potential matches. [ 32 ] Mr.

Johnston then guaranteed Services de recrutement that the problems with the systems would be fixed within one week. [ 33 ] In that context, Mr. Kaluzny told Mrs. Woodfine to continue prospecting for new clients. [ 34 ] Therefore, Mrs. Woodfine got two new clients for Services de recrutement. Unfortunately, Services de recrutement could not offer them the appropriate services as the website and emailing system problems were not fixed after the promised delay of seven days. [ 35 ] Notwithstanding the fact that Services de recrutement could not satisfy these two clients, it paid the finder's fees to Mrs.

Woodfine who confirmed having received such payment. [ 36 ] Indeed, during that time, Mr. Johnston undertook and tried to correct the problems. However, the solution was not found within a week. [ 37 ] A frenetic period followed where Mr. Kaluzny was persistent and tenacious with Mr. Johnston and where he requested a rapid solution. [ 38 ] After a while, still unhappy and unsatisfied, Mr. Kaluzny requested that Mr. Johnston consider using another host server. Mr.

Johnston had therefore to resume working to transfer the website of Services de recrutement from the host server CrystalTech to another host server. [ 39 ] That demand triggered additional work which was charged by Mr. Johnston in his two additional invoices [15] . [ 40 ] Prior to proceeding to such transfer, Mr. Johnston wanted to make sure that he would be paid for it and discussed it with Mr. Kaluzny. [ 41 ] Pressed by time, Mr. Kaluzny reluctantly agreed to pay the necessary hourly rate of $70 to proceed to the transfer and changes. However, considering that the work performed by Mr.

Johnston was inadequate, Services de recrutement then changed its mind and decided not to pay the two invoices sent by the latter. [ 42 ] Mr. Johnston spent 51.5 additional hours to meet the requirements of Services de recrutement.

According to him, 24 hours of these were spent on the requested transfer of host server by Services de recrutement, leaving 27.5 hours for other modifications or alterations of the website requested by Services de recrutement. [ 43 ] Services de recrutement rather evaluated that possibly 15.5 hours could be linked to modifications or alterations requested by it, but pleaded that those hours should have been done from the start and should have been finalized by May 18, 2011. [ 44 ] The website transfer and email system work was completed around mid-June 2011. [ 45 ] Mr.

Johnston sent his two invoices but Services de recrutement refused to pay them and Mr. Kaluzny failed to answer and respond to his numerous demands. Mr. Johnston was upset about that. [ 46 ] On July 15, 2011, Mr. Johnston's attorneys sent a letter of notice [16] . [ 47 ] At the same period of time, Services de recrutement looked for another computer programmer to correct and modify the website as completed by Mr. Johnston. [ 48 ] In view of the evidence presented, the Court concludes that Mr. Johnston did not fulfill his part of the contract as foreseen at the beginning. [ 49 ] Mr.

Johnson's own admission proved that the work was not done in conformity with the terms of the contract. [ 50 ] Indeed, Mr. Johnston had to spend additional hours to get the website and email system functional. The Court dismisses Mr. Johnston’s argument that the bugs encountered were part of any computer programming.

[ 51 ] The obligations undertaken by him were clearly defined. Mr. Johnston had an obligation of result to meet, which he failed to encounter. The site was not up and running at the foreseen date. [ 52 ] An example of a similar debate and confirmation of the obligation of result imposed upon a computer programmer can be found in Technologies Trellisys inc. v.

Rousseau Métal inc . [17] : [59] Dans les dernières années, plusieurs jugements concernant des réclamations dans le secteur informatique rappellent l’importance d’examiner le contenu de l’entente conclue entre les parties pour qualifier l’obligation de chacune. (…) [66] Le choix du logiciel Scheduler découle des représentations de Trellisys après évaluation des besoins de Rousseau. (…) [70] Les termes du contrat sont précis quant aux tâches et aux délais et démontrent que Trellisys s’engage à fournir, installer et implanter un logiciel d’ordonnancement personnalisé fonctionnel, c’est-à-dire efficace. [71] Que se passe-t-il lors de l’exécution ? [72] L’installation du logiciel nécessite l’intervention du fabricant mais c’est au stade de l’implantation que le travail échoue au point de réunir tous les intervenants, installateur, fabricant et client, à la fin de février 2003.

À ce moment, tous cherchent la solution. (…) [76] Aucun des documents déposés ni aucune entente verbale, antérieure ou postérieure, ne prévoient le paiement des services malgré l’absence de résultat ou que le client accepte le risque relié à l’implantation du nouveau logiciel. [ 53 ] No written document or testimony established that it would be usual for a programmer, such as Mr. Johnston, not to respect the time frame agreed upon and to charge for the corrections of the various bugs in the system, nor can the Court find an agreement of Services de recrutement for that. [ 54 ] In that context, Mr.

Johnston failed to provide useful information to Services de recrutement concerning the nature of the task and the time required for it. [ 55 ] Mr. Johnston knew fully well that time was of the essence for Services de recrutement. [ 56 ] Mr. Johnston did not provide the requested services to Services de recrutement.

B) To which damages is Mr. Johnston entitled? [ 57 ] Mr. Johnston has not proven his right to obtain the full payment of $3,535 for the two invoices [18] . [ 58 ] However, Mr. Johnston provided explanations on such invoicing and indicated that some hours were not claimed for the corrections and the transfer of the site but were rather associated with modifications or refinements requested by Services de recrutement to improve its website. [ 59 ] Services de recrutement contested the number of hours mentioned by Mr.

Johnston but was willing to consider that some hours could be linked to some refinements requested by it. However, its argument is that those refinements should have been completed by May 18, 2011. [ 60 ] The Court concludes that, had it been the case, Services de recrutement would have paid for these hours based on its own requests of refinements. [ 61 ] The parties presented contradictory evidence with respect to the number of hours spent for these refinements. The Court can arbitrate damages.

Therefore, excluding all the time associated with correcting and transferring the website, the Court evaluates that $1,500 is due to Mr. Johnston by Services de recrutement for some unpaid services rendered. [ 62 ] As for Mr. Johnston's claim of $700 for the time wasted spent on collecting his two invoices, in view of its preliminary conclusion, the Court allocates no amount. Cross-Claim

C) Did Services de recrutement establish its right to be reimbursed for the first invoice paid to Mr. Johnston? [ 63 ] Services de recrutement has paid $3,195 for the first invoice [19] of Mr. Johnston for the services rendered. [ 64 ] At the time, Services de recrutement had agreed to the hourly rate of Mr. Johnston to fulfill the mandate. [ 65 ] Apart from minor adjustments made by the other computer programmer retained by Services de recrutement in June 2011, Services de recrutement is still using the website and email system, as planned and programmed by Mr.

Johnston. [ 66 ] Granting a reimbursement of the first invoice to Services de recrutement would lead to let it get free computer programming services.

[ 67 ] The first invoice was validly paid to Mr. Johnston and Services de recrutement did not establish its right to be reimbursed for it.

D) Did Services de recrutement establish its right for the other damages claimed? [ 68 ] For the other damages claimed by Services de recrutement, the Court must decide whether or not it has met its burden of proof and if the damages were caused by an immediate and direct fault of Mr. Johnston [20] . [ 69 ] In view of the representations made by Mr. Johnston and his reassuring confidence that the problems would be solved rapidly by him, Services de recrutement had reasons to rely on Mr. Johnston and to trust him in this regard. [ 70 ] Services de recrutement was therefore well founded to let Mrs.

Woodfine continue her work to attract clients for its website. The finder's fees of $3,417.75 [21] were paid to Mrs. Woodfine by Services de recrutement even though the clients did not use its website and services. The Court allocates that amount as direct damages. [ 71 ] The computer programmer fees of $225 [22] are also granted as expenses paid by Services de recrutement to solve the problems of the website and email system after Mr.

Johnston had completed his work. [ 72 ] The last item claimed by Services de recrutement ($372.25) was based on an argument that Services de recrutement's website was invaded maliciously by Mr. Johnston. According to Mr. Kaluzny, Mr.

Johnston filled out various subscriptions on Services de recrutement's behalf and also sent, under a different name, an email with a disgusting attachment on its website. [ 73 ] Services de recrutement claimed an amount for the time wasted to remove all the alerts and to unsubscribe from the various sites to which it was registered, without its consent. [ 74 ] Considering the behaviours of both parties at trial and sensing the explosive tensions between them and their difficulty to discuss the file in a reasonable manner, the Court might question which party could have an interest in doing such inappropriate gestures. [ 75 ] However, no expert testified to establish the source of the documents or to prove that the emails and documents were not tampered with.

The Court cannot conclude in this regard and Services de recrutement did not meet its burden of proof. [ 76 ] Therefore, the Court will only grant $3,642.75 to Cross-Plaintiff Services de recrutement. For thEse reasons, the Court: GRANTS , in part, the action of Plaintiff Marc Johnston against Defendant Services de recrutement ED Kaluzny inc.; CONDEMNS Defendant Services de recrutement ED Kaluzny inc. to pay $1,500.00 to Plaintiff Marc Johnston plus the interest rate of 5% per annum and the additional indemnity provided for in

Article 1619 C.C.Q., calculated as of July 15, 2011; GRANTS , in part, the action of Cross-Plaintiff Services de recrutement ED Kaluzny inc. against Cross-Defendant Marc Johnston; CONDEMNS Cross-Defendant Marc Johnston to pay $3,642.75 to Cross-Plaintiff Services de recrutement ED Kaluzny inc. plus the interest rate of 5% per annum and the additional indemnity provided in

Article 1619 C.C.Q., calculated as of October 18, 2011; ORDERS both parties to operate compensation with these amounts, with calculations made as of the date of the judgment; THE WHOLE , without cost, in the Main Action and in the Cross-Claim. __________________________________ DOMINIQUE VÉZINA, Q.C.J. Date of hearing: July 24, 2014