2018 QCCQ 4222, 2018 QCCQ 4222

Progressive Waste Solutions Canada Inc. c. 9285-4439 Québec inc. (Fruiterie Green Canadian) 2018 QCCQ 4222 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155346-168 DATE: June 13, 2018 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ PROGRESSIVE WASTE SOLUTIONS CANADA INC.

Plaintiff v. 9285-4439 QUÉBEC INC. doing business under the trade and style name of FRUITERIE GREEN CANADIAN Defendent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A judgment was rendered, by default, in this matter, on January 30, 2018, granting plaintiff’s demand. [ 2 ] Defendant subsequently filed an application for revocation of judgment, which the undersigned granted. [ 3 ] It became apparent, as the Court proceeded to hear the matter on the merits, that the testimony of defendant’s principal Rajendra Pararajasingam was not reliable. [ 4 ] Pararajasingam insisted that he did not know why plaintiff’s case was being heard in the small claims division. [ 5 ] When the Court showed Pararajasingam his own application to transfer the file from the civil division to the small claims division, and, although he acknowledged his signature on the document, he continued to deny that he himself had asked for the transfer. [ 6 ] Just as he denied having received a convocation for the hearing and denied having requested the above transfer, Pararajasingam also denied knowing Kumar Kana, the person who signed the contract on defendant’s behalf (exhibit P-2). [ 7 ] The contract is duly signed by Kumar Kana, as is the application to open an account with plaintiff (exhibit P-6).

In this document, Kana clearly identified himself as having signing authority for defendant. Said document was forwarded to defendant’s bank, and was never contested. [ 8 ] What is more, Pararajasingam acknowledged that plaintiff’s container(

s) was (were) on site when he bought and took over the business located at […] in Montreal, in July, 2013; and the evidence clearly shows that defendant received plaintiff’s garbage disposal and recycling services as of July 2013, under the previous owner’s contract, and then from February 27, 2014, onwards, under defendant’s own contract (exhibit P-2). There was no protest whatsoever on defendant’s part, until such time as it decided to unilaterally cancel the contract, on January 25, 2016, with a view to deal with one of plaintiff’s competitors.

[ 9 ] The Court does not believe Pararajasingam when he claims that he has no idea who Kana is or that Kana had no authority to act on defendant’s behalf. Pararajasingam would have the Court believe that Kana is a purely fictitious character made up by plaintiff, with a view to fraudulently fill out the contract and other ancillary documents. The argument is ludicrous. [ 10 ] The Court heard Gustavo Duran, plaintiff’s account manager, who dealt directly with Kana, on site and in person, on February 27, 2014.

He recounted meeting with Kana to conclude the new contract under defendant’s name, and that Kana said he was defendant’s “president”. Duran also filed documentary evidence attesting to Kana’s various calls to and from plaintiff, in 2015 and 2016, with respect to late payments. [ 11 ] Plaintiff proved all of its allegations, by a preponderance of evidence, whereas defendant did not. [ 12 ] The Court does not believe that Kana was not authorized to sign contract P-2 or that consent was not freely given.

As to the argument that defendant was not made aware of the penalty clause, since Kana did not testify, it is rejected. WHEREFORE THE COURT HEREBY: GRANTS plaintiff's application; CONDEMNS defendant to pay plaintiff the sum of $5,385.90, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , from June 5, 2016 and legal costs in the amount of $200.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: May 28, 2018