2020 QCCQ 1724, 2020 QCCQ 1724

9255-7594 Québec inc. c. Samuelsohn limitée 2020 QCCQ 1724 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL Civil Division No: 500-32-704191-180 DATE: April 2, 2020 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ 9255-7594 QUÉBEC INC. Plaintiff v.

SAMUELSOHN LIMITÉE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Parties and procedures [ 1 ] The Plaintiff, 9255-7594 Québec inc., known as Integria Consulting, (“Integria”) a firm that acts in the recruiting of employees for its clients, claims payment of an invoice in the amount of $ 10,000, plus taxes and interest, for a total of $ 11, 689.12 from its former client , the Defendant Samuelsohn Ltd (“Samuelsohn), a clothing manufacturer based in Montreal. [ 2 ] The invoice, based on a contract dated August 11, 2017 and signed by the Human Resources (HR) Director of Samuelsohn, Sandra Starna on behalf of the President and C.O.O., Mr.

Alan Abramovicz, ( P-1 ) provides for a placement fee of 20 % of the candidate’s first- year base salary.

There is a guarantee clause and a payment clause, the reading of which have given rise to litigation in the present matter. [ 3 ] The employee, whom Samuelsohn signed up on September 13, 2017, with the hiring to begin October 10, 2017, was fired within a relatively short time, having not been able, in Samuelsohn’s judgement, to acquire the capabilities required to carry out the work of a payroll technician. [ 4 ] The claim arises from Samuelsohn’s refusal to pay the invoice, and Integria’s refusal to replace the candidate, having not been paid for the services rendered. [ 5 ] Samuelsohn brings a counterclaim for $ 5,000 in damages, alleging Integria’s contractual fault in recommending an inappropriate candidate, in refusing to replace the candidate and in making a post on LinkedIn which Samuelsohn treats as both a contractual fault in and of itself, and also as an admission of fault.

Issues [ 6 ] To resolve this dispute, the Court will address the following questions: 1. Is Integria entitled to payment even though the candidate hired was fired after a short period of time? 2. Was Integria under an obligation to propose a replacement candidate pursuant to the guarantee stipulated? 3. Is there liability on the part of Integria for its conduct in connection with the services provided? Facts [ 7 ] The context of the agreement and the services is singular. Samuelsohn had just hired a new Director of Human Resources, Ms. Sandra Starna, a person of experience and recognized ability.

Shortly after taking on her new functions, in the summer of 2017, she promptly resigned, with effect in a short interval, because she had received an offer from an employer she had approached at the same time as Samuelsohn, but who had been slower to make an offer. This was her preferred employer of the two. Despite the efforts of Samuelsohn’s management, she could not be retained.

[ 8 ] It became necessary for a new payroll technician to be hired, so that the person currently performing payroll functions could be promoted to the position of HR Director to be vacated in short order by Ms. Starna. [ 9 ] Ms. Starna knew Samantha Bateman, the person in charge at Integria, and called upon her to provide the service of recruiting a candidate for the new position of “Payroll & Benefits Technician” for a base salary of $ 50,000 per year. [ 10 ] Ms. Batement sent a letter agreement dated August 11, 2017 (P-1). It was returned to her signed by Ms. Starna with the manuscript note, “For A.

ABRAMOVICZ”. [ 11 ] Mr. Abramovicz states in his testimony that he discussed with Ms. Starna the basic terms of the agreement to be reached, namely the rate of the fee and the stipulation of a six-month guarantee. [ 12 ] Integria proposed two candidates. Its preferred candidate accepted a position with another employer. This left S. M. [1] , a person having relevant payroll experience but with a less impressive profile than the other candidate. [ 13 ] She was submitted to various tests carried out under standardized protocols at Integria’s expense.

The results of these tests raised a certain amount of doubt as to her competence for the position. [ 14 ] The interviews created a good impression. There were two crucial interviews involving Samuelsohn itself. At one of them, both Mr. Abramovicz and the company’s C.F.O., Mr. Alan Peck attended. Mr. Abramovicz explained in his testimony that, as C.O.O., he interviews employees and deals with them on a personal level on issues related to their employment. Samuelsohn has hundreds of employees, but it maintains a policy of direct involvement of management in employee relations.

The other interview that was critical was carried out by Cynthia Vitalei, the person moving into the role of Director of Human Resources. [ 15 ] In communications between Samantha Bateman and Sandra Starna by email ( D-4 ) on September 8, 2017 there is much concern about the results of a excel test perceived by Ms. Starna as not depicting someone with a strong payroll profile. [ 16 ] The PPA test, more of a psychological profiling, also raised significant concerns that were discussed between Ms. Bateman and Ms.

Starna. [ 17 ] Cynthia Vitalei was brought into the process as the person who would be responsible for the training and supervision of the new employee. [ 18 ] Despite these concerns, Samuelsohn hired the candidate on September 13 with her job to commence on October 10, 2017. [ 19 ] Cynthia Vitalei explained to the Court that everyone was satisfied with the interviews; that the decision was made to give her a chance, that “maybe it will work out”. [ 20 ] Ms.

Bateman expressed her reservations about the candidate, but was supportive of the decision as well. [ 21 ] However, on November 16, 2017 Samuelsohn took the decision to fire S. M. The letter of termination (DH) was written and signed by Cynthia Vitalei in her new capacity as HR & payroll manager. [ 22 ] The Court retains from her testimony that, despite her best efforts at training her new employee, the latter was simply “not getting it”. The accumulation of mistakes was having an impact on the operations and preventing Cynthia Vitalei herself from having the time to devote to her new duties.

It was impossible to train her to take on the essential tasks of payroll. [ 23 ] In the meantime, Samantha Bateman had already begun efforts to get payment from Samuelsohn. According to her reading of the agreement, payment was due 15 days after the start date, therefore on October 25, 2017. The invoice had been issued on September 14, the day after the employment agreement was signed. [ 24 ] Her efforts at obtaining payment were met with a refusal on the part of the accounts payable department. On November 29, 2017 she addressed an articulated letter of demand to Mr. Abramovicz.

This led to a conversation between them on December 1st, 2017. [ 25 ] Mr. Abramovicz testified that he wanted to work the problem out. He refused to pay for what he considered to be a “sub-par candidate”, but he proposed that another candidate be found and Samuelsohn would “pay its bills.” Samantha Bateman testified that she lost confidence, understanding that the proposal was to make payment only after the replacement.

Thus she would be extending a guarantee without prior payment. [ 26 ] She offered to waive the interest, stipulated at 20 % per annum, as a concession in order to be paid, an offer that was not accepted. Her last demand letter is dated December 15, 2017. It calls upon Samuelsohn to pay the outstanding sum of $ 11,069.12 via certified check or money order within five days failing which legal action would be taken. [ 27 ] The post on LinkedIn is referred to by Samuelsohn as both an admission of fault and as fault in and of itself. Ms.

Bateman explained that she frequently makes posts on LinkedIn and receives comments from readers. The post-dated November 14, 2017 mentions no names. Samantha Bateman begins with the declaration that she made a huge mistake by headhunting someone from a tenured position and placing them in an organization that failed to support them. [ 28 ] Although she expresses regret for what she considers to be her mistake, she attributes the problem to the employer not meeting its commitment to support and train the candidate.

What she refers to as a disaster is more of an admission of fact in respect of the candidate than it is any recognition of fault on her part toward the client, Samuelsohn. [ 29 ] There is nothing in the

article that would permit a reader to identify Samuelsohn or the candidate nor even the timeframe in which this “disaster” occurred.

Analysis [ 30 ] The first question depends on the intensity of the obligation to provide a candidate that would be hired. In one sense, it is a responsibility of result, because if no candidate is hired, the fee cannot be claimed. Payment is conditioned upon acceptance by the candidate of an offer of employment by the client. [ 31 ] But the obligation to provide a candidate whose qualities make her suitable is an obligation of means, because the payment is conditioned upon hiring, not upon longevity of the employment.

Typically, the employment is subject to probation, but payment is immediate. [ 32 ] What constitutes a suitable candidate it is a very relative question. Integria carried out a search, coming up with the candidates that it could find, in the time given and at the salary rate offered. [ 33 ] Its client had the capacity to evaluate the CVs, read the test results and conduct its own interviews.

The persons who exercised the judgement to hire the candidate, despite her imperfections, were an experienced HR director, a longstanding and trusted employee who was being promoted to HR Director who herself mastered the work that would be assigned to the candidate, the President and C.O.O. of a major player in the industry, himself a highly educated and experienced executive, as well as his financial counterpart in senior management, the C.F.O. [ 34 ] It is a rather brash assertion that Integria was at fault in proposing a candidate that was found to be a worthwhile risk to the business by so qualified a group of decision makers. [ 35 ] Integria did not fail to conduct objective and standardised testing, to show and discuss the results of the testing, and to offer its own pros and cons for the consideration of her client.

There is no fault here. [ 36 ] The LinkedIn post shows a certain spin on why the employment did not work out, and a mea culpa toward the employee who was recruited away from a secure position. It is not necessary for Integria to prove that the job did not work out because of the employer’s lack of attention to training. The contract provided for payment if the contract led to hiring, and immediate payment at that.

It would be up to the client to prove fault if this essential obligation of providing a candidate who was hired was met. [ 37 ] The second question depends upon two clauses in the letter agreement: Payment Placement fees are invoiced upon the acceptance of the employment offer. In order for our guarantee to be effective, we require the invoice be paid within 15 days from the start date of employment for our candidates. All payments not received within 15 days will accrue interest at a rate of 20% per annum.

Guarantee If a hired candidate referred by Integria consulting terminates employment with or is terminated by Samuelsohn Limited within the first six (6) months of their employment, Integria Consulting will identify new candidates and provide a one-time replacement employee at no additional charge. Note that this guarantee shall not apply if the candidate’s employment is terminated due to a layoff (shortage of work), elimination of position, or a change in the candidate’s compensation package or core responsibilities.

It is understood and agreed that Integria Consulting has no control over the work or actions of candidates referred by Integria Consulting. Therefore, Samuelsohn Limited Canada hereby indemnities and holds harmless, Inegria Consulting from all liability, loss or damage, related to the interviewing, hiring, or employment by Samuelsohn Limited of candidates referred by Integria Consulting. [ 38 ] Mr. Abramovicz challenges the payment condition on several levels. His first objection is that he never agreed to this drafting.

The indoor management rule prevents him from raising this objection, even though he did not personally sign the agreement. By putting Sandra Starna in charge of Human Resources and making her the key person in setting up this arrangement, he led the outsider, Integria, to believe that she had the authority to bind the company to the written agreement. He did not insist on seeing the written agreement, he relied upon Sandra Starna to take care of it.

He cannot put his own lack of attention to the detail of the drafting on the opposing party. [ 39 ] Secondly, he asserts that the clause is not clear and that the invoicing made no mention of it and that it contradicts the essential clause of the guarantee. [ 40 ] In the Court’s view, the clause, although the payment requirement of 15 days is quite short, is quite clear and therefore binding on the parties. Integria used the phrase “in order for our guarantee to be effective” to express the notion that the guarantee obligation is conditional upon the client respecting this stipulation of prompt payment.

The language used is plain English, not complex legal drafting. Integria cannot be faulted for choosing simple standard English rather than convoluted drafting. Nor can a commercially sophisticated party such as Samuelsohn complain that it was not given warning of the application of the clause in the invoicing or the letters of demand for payment. When called upon to pay it refused, and when engaged in negotiation, it took the position that it should not pay for services that were not rendered.

It cannot, in the Court’s view, fall back upon the requirement of a demand when the time fixed for performance (payment) was specifically stipulated in the agreement and when, in reply to informal and formal requests for payment, it stated that it would not. [ 41 ] Payment was overdue, the guarantee was forfeited and Integria was not under a duty to provide a new candidate, not having renounced the condition of prior prompt payment. [ 42 ] The third question is answered in our response to the first and second questions. The conduct on the part of Integria in suggesting a

candidate for whom it had reservations was not faulty, because it expressed and did not hide its reservations. All the information about the candidate was shared in all transparency. [ 43 ] Whatever wisdom or lack thereof led Integria to post its thoughts on LinkedIn, the post might be considered as a form of disloyalty if anything in the post would permit a reader to know that Samuelsohn was the client referred to or S. M. the candidate. The Court heard no evidence that would establish this.

It is only through Samuelsohn’s publication of the link through its evidence in these proceedings that a connection can be made by someone in the public. [ 44 ] Do the statements constitute admissions? The expressions of shortcomings are in relation to duties to the candidate, not to the client, and they are ambiguous, not clear admissions. They have little probative value. [ 45 ] The counterclaim mentions an attempt to defame.

The Court does not see any such effort, because care was taken to write about the situation in an anonymous way, like a case study, not the criticism of anyone that could be identified, other than Inegria’s self-criticism. The cross-demand, if it is for defamation, is not within the jurisdiction of the Small Claims division, but, the subject matter of the claim, as alleged, is not really a defamation. Samuelsohn takes exception to it, and choses to refute it, but it would otherwise not have had any impact upon it. [ 46 ] The claim of the Plaintiff therefore succeeds, and the counterclaim fails.

BY THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiff the sum of $ 11,689.12, together with interest at the contractual legal rate of 20 % per annum and the additional indemnity provided in

article 1619 of the Civil Code of Quebec, calculated from November 25, 2017; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $ 302; DISMISSES the Defendant’s counterclaim. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 2, 2019