2012 QCCQ 7776, 2012 QCCQ 7776

McKay c. Summit Energy Quebec, l.p. 2012 QCCQ 7776 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-120966-108 DATE: OCTOBER 4, 2012 _____________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX J.C.Q. _____________________________________________________________________ ROSS M C KAY Plaintiff/Cross-Defendant v.

SUMMITT ENERGY QUEBEC LP Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $6,667 from Defendant following a promise to pay a “bonus incentive”. Defendant files a cross- demand claiming the re-imbursement of the partial payment of the bonus, an amount of $3,333.

THE CONTEXT [ 2 ] Defendant is a supplier of fixed price gas and in January 2008, Plaintiff became one of Defendant’s independent representative paid on commission. [ 3 ] Plaintiff’s job is basically to find clients and his commissions are paid in the following manner: - when the client makes the upfront payment: 10 % - when the client pays the balance, within 3 months: 90 %. [ 4 ] Plaintiff recalls a meeting that was held at Defendant’s office on July 16, 2008 where Mr. Tattersall, Mr.Borg, Mr. Daly and Mr.

Shanahan, members of the direction of Defendant, were present together with several independent representatives such as himself. On that day, Mr. Tattersall informed the representatives that he was happy to announce a “bonus incentive” policy which Plaintiff understood as follows: Defendant will match the highest flow cheque paid to the representatives for the period between August 1 st , 2008 and July 31, 2009. The bonus will be paid in a lump sum. [ 5 ] According to Plaintiff, everyone was excited about this bonus. However, later on that same day or the next morning, Mr.

Borg informed the representatives that the bonus would be capped at $10,000. [ 6 ] Mr. McKay worked as an independent representative for the entire period between August 1 st , 2008 and July 31, 2009 and was expecting the payment of the maximum bonus since his highest flow cheque was above $10,000. [ 7 ] In August 2009, and considering that no bonus was paid, the representatives became annoyed and upset. Plaintiff testifies that a conference call took place in early September where Mr.

Borg mentioned that the bonus was a “loyalty” bonus which would be paid, not in a lump sum but rather, in a few installments and following specific conditions. [ 8 ] In an email sent to Mr. Borg on September 2, 2009, Plaintiff suggests that his $10,000 bonus be paid in three equal installments, the first being payable immediately, then on December 2, 2009 and finally, on April 7, 2010, should he still be actively representing Defendant at the time of each cheque issuance. [ 9 ] Mr.

Borg answers this email on the same day and agrees to Plaintiff’s proposition with two provisions, one related to the notion of Plaintiff being an active agent of Defendant at the time of payments. [ 10 ] Following said exchange of emails, the first installment of $3,333 was paid to Plaintiff in September 2009, but the second installment, due on December 2, 2009, was not paid. On December 18, after a few telephone conversations with Mr.

Borg, Plaintiff decided to send a letter of default to Defendant claiming the remaining of his 2008-2009 bonus, a sum of $6,667. [ 11 ] There was no written follow-up of this letter of default and Plaintiff filed his claim in early January 2010.

[ 12 ] Plaintiff’s claim relies on the following testimonies: Mr. Shanahan’s and Mr. Daly’s, who were both sales managers at Defendant in the summer of 2008, together with Mr. Ottoni’s and De Cubellis’s who were also independent representatives at the relevant period. Except for Mr. Daly, all witnesses explained that the bonus announced by Defendant in the July 2008 meeting was not conditional nor subjected to criteria such as loyalty, sales minima, etc. These witnesses also understood that the bonus announced by Defendant was to match the highest flow cheque of every independent representative. [ 13 ] Mr.

Daly rather testifies that the bonus was for the highest flow cheque of all representatives and that therefore only one bonus would be paid. [ 14 ] In any event, Mr. Otteli and Mr. De Cubellis both received said bonus some time in the fall of 2009. [ 15 ] Defendant’s representative, Mrs. Girardi, argues that representatives such as Plaintiff were allowed to their bonus solely if they remain with Defendant.

From her stand point, representatives are entitled to their bonus as long as they keep working as such. [ 16 ] She denies owing Plaintiff’s bonus as he showed less interest in his work in the fall of 2009 and clearly indicated his intention to leave the Defendant when he sent his December 18, 2009 letter of default. She claims that the $3,333 paid to Plaintiff in September 2009 should be reimbursed considering the circumstances of the present case. ANALYSIS [ 17 ] Plaintiff has the onus of demonstrating by preponderant proof that the parties came to an agreement with respect to a bonus incentive, as per

Section 2803 C.C.Q . which reads as follows: 2803. A person wishing to assert a right shall prove the facts on which his claim is based.

A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. [ 18 ] The testimony offered by witnesses Shanahan, Ottoni, De Cubellis and, of course, Plaintiff, convinced the Court that Defendant promised to pay a bonus incentive of a maximum amount of $10,000 matching the highest flow cheque of each representative. [ 19 ] The proof also reveals that Plaintiff was an active independent representative during the entire relevant period. Furthermore, in September 2008, Mr.

Borg accepted to pay Plaintiff the $10,000 bonus in three installments, the first was in fact paid in September 2009. However and although Plaintiff was active as an independent representative in December 2009, the second installment was not paid to him. This default lead Plaintiff to claim the remaining of the bonus owed to him, $6,667. [ 20 ] In view of the foregoing, the Court must conclude that the $10,000 bonus incentive should have been paid completely to Plaintiff.

Considering the $3,333 payment made to Plaintiff in September 2009, Plaintiff’s claim of $6,667 is well founded. [ 21 ] As regards Defendant’s cross-demand, the Court must dismiss it considering the Court’s conclusion with respect to Defendant’s promise to pay the bonus incentive to its independent representatives. FOR THOSE REASONS,THE COURT: GRANTS Ross McKay’s claim against Summit Energy Quebec LP; CONDEMNS Summit Energy Quebec LP to pay Ross McKay an amount of $6,667 with interest at the legal rate, together with the additional indemnity as per

section 1619 C.C.Q . as of December 19, 2009; THE WHOLE , with costs ($157); DISMISSES Summitt Energy Quebec LP’s cross-demand against Ross McKay; WITHOUT costs. __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: August 27, 2012