2015 QCCQ 2441, 2015 QCCQ 2441

DNTW, s.e.n.c.r.l. c. Oxingale Productions inc. 2015 QCCQ 2441 JV0516 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139875-134 DATE: March 16, 2015 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE SUZANNE VADBONCOEUR, J.C.Q. ______________________________________________________________________ DNTW s.e.n.c.r.l. Plaintiff v. OXINGALE PRODUCTIONS INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, a firm of accountants, sues the Defendant (Oxingale) for the amount of 1,589$ which represents its fees for professional services provided to the Defendant in the years 2011 and 2012. [ 2 ] The Defendant denies owing that amount, stating that its representatives offered a settlement to the Plaintiff who accepted it.

The Defendant also states that the amount claimed is not justified, namely because the work done for the fiscal year 2011 by Mr Tabac, a chartered accountant who also is a partner in DNTW, had to be completely redone by another accountant, Mr Bogdan.

Furthermore, according to the Defendants’s representatives (a young composer and his wife, a cellist oriented in classical music), Mr Tabac failed to file their GST/QST report for 2011. [ 3 ] The representatives of the Defendant claim that DNTW, through Mr Tabac, gave them wrong advice concerning investments and encouraged them to buy a computer system and accounting software which were to be compatible with DNTW’s system so that they could save money on its accounting fees. The result was the opposite : the figures entered into their new system could not be uploaded to Mr Tabac’s system.

The facts established by the evidence [ 4 ] DNTW, through Mr Steven Terry Tabac, provided professionnal services to the Defendant, not as a financial counselor but as a chartered accountant, during seven years (until April 2012) by preparing and filing its financial statements, its corporate income tax returns as well as both of its representatives’ personal income tax returns. [ 5 ] In April 2012, the two representatives of Oxingale Productions inc., namely Mrs. Luna Pearl Woolf and Mr.

Matt Haimovitz, decided to consult another accountant, having a bad feeling about Mr Tabac’s competence. [ 6 ] For the fiscal year ending August 31 st 2011, Mr Tabac sent a bill of 1,955$ (P-11 or D-8) to Oxingale for having prepared its financial statements, plus another bill of 632$ (P-2) related to the personnel income tax returns filed in the name of Woolf and Haimovitz. [ 7 ] There was a stop payment put on the cheque of 632$ made by Oxingale, as appears from exhibit P-2.

The e-mail dated June 28 2012 (in the liasse P-9), sent by Mrs Woolf to Mr Tabac, shows that Mrs Woolf stopped payment on the cheque on the advice of her new accountant, Joe Bogdan. This cheque was not replaced. [ 8 ] A payment of 1,000$ was sent to DNTW by Oxingale after having received a first mise en demeure dated October 19, 2012 (P- 3), leaving an outstanding balance of 1,587$ (see letter dated October 25, 2012, signed by Mrs. Woolf and produced as exhibit P-6 and D-1). [ 9 ] In the meantime, Mrs Woolf had sent an application for conciliation to l’Ordre des comptables professionnels agréés du Québec (D-11) .

L’Ordre decided to close the file because, according to the information they had at their disposal, it was clear that a settlement could not be reached (see letter dated October 10, 2012, filed as exhibit P-1).

[ 10 ] This cheque of 1,000$ which bears the mention « final settlement of accounts » (P-9 or D-2) was obviously made with a view to settling the disagreement existing between DNTW and Oxingale (P-7). [ 11 ] Mr Tabac, in the name of DNTW, refused that offer and made a counter-proposal to the Defendant by asking Oxingale to add the sum of 1,200$ to the 1,000$ already paid for a total amount of 2,200$ which amount DNTW was ready to accept (see letter dated October 30, 2012, produced as P-8).

Mr Tabac underlined the fact that there was 10.5 hours of his time that was never charged. [ 12 ] Being left without any news from Oxingale, DNTW advised the latter on May 31, 2013 (part of P-9), that it had deposited the cheque but endorsed it with these words : « accepted and negociated under protest and without prejudice to any of our future rights and recourses ». The letter specifies that DNTW totally rejects the note on the cheque that states « final settlement of accounts » and considers that cheque only as a partial payment on account. A copy of the deposited cheque is produced as exhibit D-4. [ 13 ] Mrs.

Woolf produced two e-mails as exhibit D-9 proving that Mr. Tabac failed to submit to the fiscal authorities all the GST/QST filings for 2011. [ 14 ] During the hearing, she said that Mr. Tabac’s work regarding the company’s activities as well as their personal revenues was not satisfactory. Oxingale had a few big losses and he never came up with solutions. His invoices were never accompanied with timesheets so she never could verify the time spent on the work done for them. [ 15 ] She also said that she and her husband were advised by their new accountant, Mr Bogdan, not to proceed to arbitration.

She felt that, due to the way the arbitration committee was composed (2 members of the Order out of 3), that committee would be biased and they would never have won their case. [ 16 ] Mrs.

Woolf also said that, after they decided to hire another accountant, Mr Tabac was not cooperative with him and was reluctant to provide him with the documents he had requested. [ 17 ] Mr Tabac’s delay in sending the fiscal reports to the Government resulted in the Defendant being audited. [ 18 ] Mrs Woolf produced an e-mail (D-12) written by Mr Bogdan and sent to l’Ordre des comptables professionnels agréés du Québec , dated September 17, 2012, in which Mr Bogdan denounces Mr Tabac’s incompetence and negligence.

Mr Tabac said he had never seen, in 40 years of practice, such a letter from a confrère; if he had had a copy of that letter, he would have responded that the GST/QST reports were filed on time, with no penalty nor interest asked. [ 19 ] Finally, she claims that she and her husband were harassed by telephone calls from Ron Ellis of DNTW. She produced as exhibit D-13 her notes made immediately after the phone calls.

Analysis [ 20 ] In any legal suit, the Plaintif has the burden of demonstrating to the Court, on the balance of probabilities, that his pretentions are well founded in fact and in law, as stated in sections 2803 and 2804 of the Quebec Civil Code , which read as follows : « 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. » [ 21 ] In the present case, the balance of probabilities is in favour of DNTW but not for the full amount claimed. [ 22 ] The evidence brought before the Court shows that Mr Tabac was the Defendant’s accountant during seven (7) years and that none of DNTW’s files were ever audited.

Mr Tabac used to prepare, on a yearly basis, financial statements and GST/QST filings for the company as well as personal income tax returns for both of its representatives, for the U.S. and Canada. [ 23 ] As far as the Defendant and its representatives are concerned, it was said during the hearing that there was no re-assessment done by the fiscal authorities during the years of Mr Tabac’s work.

That statement was not contradicted. [ 24 ] It is true that the letter sent by Mr Bogdan to l’Ordre des comptables professionnels agréés du Québec contains severe accusations against Mr Tabac but none of them was proven at the hearing and I have to conclude that the answers given by Mr Tabac in the questionnaire prepared by the syndic’s office were satisfactory enough because nothing was retained against him. [ 25 ] Nevertheless, I have to take into consideration the fact that Oxingale, through its representatives, lost confidence in Mr Tabac and decided to hire another accountant. [ 26 ] Furthermore, the evidence demonstrates that Mr Tabac did not provide Mr Bogdan with all the documents he requested and did not prepare the GST/QST filings in a proper way, namely every three months. [ 27 ] Therefore, the Court is prepared to grant the motion but only for the sum of 900$.

That includes the fees for the preparation of the personal income tax returns (632$) for which Mrs Woolf had put a stop payment order on the cheque. [ 28 ] Mrs Woolf and Mr Haimovitz assert that Mr Tabac accepted their offer by cashing the cheque of 1,000$ made by Oxingale, on which it was written « final settlement of accounts » and « payment in full ». The Court does not agree with that assertion : the Plaintif endorsed the cheque and wrote these words on it : « accepted and negociated under protest and without prejudice to any of our future rights and recourses ».

Furthermore, he sent a letter (P-13) to Oxingale on May 31 st 2013 to that effect and explaining that DNTW totally

rejects the note that states « final payment of accounts » and considers the 1,000$ cheque « only as a partial payment on account ». [ 29 ] The Court considers the note written on the cheque by Me Tabac and the letter he sent as a clear demonstration of his intention not to accept Oxingale’s position in relation with the full payment of the account. FOR THESE REASONS, THE COURT : GRANTS , in part, the Plaintiff’s action; CONDEMNS the Defendant to pay to the Plaintiff the sum of 900$ with legal interest of 5% per annum and the additional indemnity provided for by

section 1619 of the Quebec Civil Code as of October 31 st , 2012, plus the legal fees amounting to 105$. __________________________________ SUZANNE VADBONCOEUR, J.C.Q. Date of hearing: September 16, 2014