2024 QCCQ 56, 2024 QCCQ 56

8092486 Canada inc. c. Barton 2024 QCCQ 56 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY “Civil Division” No.: 555-32-700082-221 DATE: January 9 th , 2024 ______________________________________________________________________ PRESIDED BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ 8092486 CANADA INC Plaintiff v.

CAROLANN BARTON and JOHN ALEXANDER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff is a corporation offering accounting services. It is represented, at Trial, by its President, Mrs. Fiona Campbell. [ 2 ] Mrs. Campbell is, at all times relevant, an accountant (CPA). [ 3 ] The Defendant, Mrs. Barton, is an employee of the Plaintiff in 2017 and 2018. She eventually becomes a subcontractor, and finally an independent contractor.

She offers marketing services to various clients, including to some of Plaintiff’s clients. [ 4 ] Briefly said, Mrs. Barton designs and sells promotional – branded - merchandise to business clients as well as to individuals. [ 5 ] Because of the past business relationship between the parties, Mrs. Campbell agrees to offer, pro bono, various billing services to help Mrs.

Barton’s business. [ 6 ] Plaintiff summarizes as follows, in paragraph 5 of its Claim, the agreement between the parties: 5. (…) Ms Barton would present invoices to me for her services provided to our clients, I would pay her, and then I would invoice the clients for her services. [ 7 ] Simply said, the Plaintiff functioned as a drop-off office to facilitate Mrs. Barton’s invoicing of her own clients. [ 8 ] Mrs. Campbell explains that Mrs. Barton was providing her with all the necessary information regarding her clients and the amounts to be billed. [ 9 ] This modus operandi is specifically confirmed by Mrs.

Barton during her testimony. She also confirms the chronology of events described by Mrs. Campbell. [ 10 ] Because of the deterioration of the relationship between the parties, they decide to part ways. Consequently, one last meeting was organized in September 2019, the objective being to finalize the invoicing activities provided by the Plaintiff. [ 11 ] In conformity with their agreed procedure, Plaintiff consequently provides Mrs. Barton with a cheque (number 1474), dated September 6 th, 2019, in the amount of 9 128,30$.

The breakdown of the content of such an amount is also provided in evidence, as Exhibit P-1. [ 12 ] Said breakdown refers to numerous clients, including: 1) Langs: 3 592,97$; 2) Thompsons: 2 414,52$; 3) St-Amour: 693,46$

[ 13 ] Mrs. Campbell explains that she proceeded, the month after – in October 2019 – to the reconciliation of her books. She submits that she then realizes that payments for those clients were also done for the exact same amounts (for 2 of the clients) on cheque 1368 dated January 28th, 2019. [ 14 ] “I realized that there were some duplicates”, states Mrs. Campbell. [ 15 ] Indeed, the documentary evidence demonstrates the following relevant breakdown for that January 2019 cheque: 1) Langs: 3 592,97$; 2) Thompsons: 2 067,76$; 3) St-Amour: 693,46$. [ 16 ] Mrs. Campbell informs Mrs.

Barton of that situation by way of an email dated November 11 th , 2019. [ 17 ] Mrs. Barton decides to defer any discussion on such a topic to her husband, co-defendant Mr. Alexander [1] . [ 18 ] Because of the absence of any response, Mrs. Campbell proceeds to revive the discussion on the matter on a couple of occasions, sending various emails to Mr. Alexander. [ 19 ] Mr. Alexander, on March 12 th , 2020, sends the following response [2] : I know I will talk to her again about it. It is ok don’t worry about asking. She wants to setup a plan to pay so much a month to pay it back.

Let me figure it out with her. [ 20 ] This email is coherent with Mrs. Campbell’s testimony. Indeed, she mentions that Mr. Alexander had specified to her that Mrs. Barton would repay her “ when she could afford it ”. [ 21 ] This email from Mr. Alexander is also consistent with Mr. Roger Younge’s testimony. Mr. Younge is Mrs. Campbell’s husband. He confirms during his testimony that Mr. Alexander had confirmed to him that the objective was to work out a repayment

schedule with Mrs. Campbell. [ 22 ] Coherently, two payments were specifically sent by Mr. Alexander to the Plaintiff. A first payment of 1 000$ in May 2021 is quickly followed by a second one of 2 000$ in August 2021 [3] . [ 23 ] Mr. Alexander, at trial, testifies however to the effect that he decided to go “ behind his wife’s back ” by providing those two payments [4] . “ She was not aware ”, he states at trial. “ I don’t like it when we owe money ”, he adds. [ 24 ] Eventually, Mrs. Barton – on July 26 th , 2022 – sends an email to Mrs.

Campbell stating the following: A note to clear up the issue of money owing. I have paid 3 500$ [5] of the money that you say I owe you. I was never provided any documentation to support this claim. Given that this overpayment was not my fault, I feel that paying half is more than fair. I will not be paying you any more money. [ 25 ] The Plaintiff consequently elects to introduce its claim in front of the Small Claims Division of the Court of Québec. It claims 3 700,95$ for the reimbursement – by both defendants - of the amounts that would have been paid twice to Mrs. Barton. [ 26 ] Mrs.

Barton contests the Claim, stating that the evidence provided in support of such is not sufficient. She argues that the Plaintiff should have produced the details and documentary evidence regarding the various invoices to her clients. [ 27 ] Mr. Alexander denies having any personal liability. “I only acted as a liaison between the parties”, he argues.

ANALYSIS [ 28 ] The evidence provided by the Plaintiff, to successfully support the Claim, must qualify as being preponderant [6] . [ 29 ] Evidence, to qualify as being preponderant, must be clear and convincing [7] . [ 30 ] Plaintiff argues that the Defendants should be condemned to reimburse amounts that would have been mistakenly paid on two separate occasions. [ 31 ] Section 1491 (1) of the Civil Code of Québec does provide, on such topic, as follows: 1491.

A payment made in error, or merely to avoid injury to the person making it while protesting that he owes nothing, obliges the person who receives it to make restitution. [ 32 ] The Courts have established that three criteria must be met under such

section [8] : 1) There must be a payment; 2) It must have been made for a debt that did not exist at the time of the payment; 3) The payment must have been made by mistake.

[ 33 ] Such action under

section 1491 C.c.Q. was deemed to exist even in the presence of a contractual relationship between the parties, notably when said mistake relates to the extent of one’s obligation [9] . [ 34 ] The evidence provided in the current instance by the Plaintiff can surely qualify as being preponderant. Mrs. Campbell’s testimony was clear, precise and convincing. [ 35 ] The cheques provided and their associated breakdown clearly demonstrate that double payments were sent, by cheques, by the Plaintiff to Mrs.

Barton. [ 36 ] Indeed, the amounts appearing on the said breakdown of the cheques are exactly the same for two of the three clients, namely the Langs and St-Amour. The amounts (3 592,97$ and 693,46$ respectively) are, up to the number of cents , identical. [ 37 ] Mrs. Barton, during her testimony, concedes that it is not likely that two different orders for clients would have been made for the exact same amount. [ 38 ] However, Mrs.

Barton also argues that those numbers indicated in Exhibit P-1 might not represent reality. “I don’t trust those numbers”, she states. [ 39 ] In all likelihood, and certainly on a preponderant basis, those payments were the results of duplicate demands for the same clients. [ 40 ] Those duplicate demands could only have been presented by Mrs. Barton. [ 41 ] Nothing in the evidence supports the idea that the documentary evidence provided by the Plaintiff would have been tampered with. [ 42 ] Mrs. Barton does concede, at Trial, that it is possible that overpayments did occur.

Her email dated July 26 th , 2022, as previously stated, was essentially to the same effect: “ Given that this overpayment was not my fault ”, she then stated. [ 43 ] Furthermore, Mrs. Campbell also testifies as to the difference regarding the amounts relating to the Thompsons. Her explanation is coherent and consequent of an email [10] she sent to Mr. Alexander on December 17 th , 2019, in which she stated the following: The two amounts for thompsons are different because I had paid for part of their expenses and so deducted it from the total when she originally billed me for it.

When she billed me the second time it was for the full amount. [ 44 ] Again, Mrs. Campbell’s testimony was solidly offered to the Court. The Court has no reason to set it aside. [ 45 ] The Defendant’s reaction following the reception of the first email of denunciation was never, at least for a very long period, one of denial of her potential liability. [ 46 ] The Defendant’s testimonies at Trial are somewhat surprising when they state that Mr. Alexander was the only one who decided to elect to reimburse an amount of 3 000$. [ 47 ] It is to be noted that Mrs.

Barton’s eventual email (dated July 26 th , 2022) which refused to proceed to other payments never mentions, nor implies, that her husband would have unilaterally decided to reimburse the amount of 3 000$. [ 48 ] The chronology of events also demonstrates that Mrs. Barton only argues the alleged absence of further documentation in 2022. [ 49 ] Indeed, Mrs. Campbell’s credible testimony is to the effect that Mrs. Barton – nor Mr. Alexander – never asked for additional documents in 2019, 2020, 2021 and for the first half of 2022. [ 50 ] Mrs.

Campbell’s email dated July 27 th , 2022, is to the exact same effect [11] . [ 51 ] The evidence convincingly demonstrates that the invoices relating to those three clients were specifically asked, requested and directed by Mrs. Barton for her marketing activities. [ 52 ] The Court believes Mrs. Campbell when she states that she did not keep – and had no need in keeping – any specific documentation in relation to those invoices considering that she was only acting as an agent for Mrs. Barton. [ 53 ] Mrs. Campbell indeed confirms that she billed Mrs.

Barton’s clients as instructed. [ 54 ] The evidence demonstrates that the double payments were only made in relation to Mrs. Barton’s clients as per her specific instructions both in January and September 2019. [ 55 ] Mrs. Campbell confirms that she did not keep any records for Mrs. Barton’s clients and business. She was not mandated to do any kind of bookkeeping . Mrs. Barton’s various expenses were in no way considered to be the Plaintiff’s expenses. [ 56 ] Mrs. Campbell furthermore states that Mrs.

Barton had all that information regarding her own clients in a binder that she brought with her at that final meeting in September 2019. “We were proceeding using her documents”, she adds. [ 57 ] The Defendants do not contradict that evidence. [ 58 ] Consequently, it appears that any further documentary evidence that could show the absence of any double payments would

have been in the sole possession of Mrs. Barton. However, at Trial, the Defendants do not produce any exhibit in the Court file. [ 59 ] This demonstrates, at the very least, the absence of any kind of records of Mrs. Barton’s marketing business. [ 60 ] Moreover, when Mrs. Campbell proposes, at Trial, to show her own invoices sent to those “duplicate” clients, both Mrs. Barton and Mr. Alexander refuse to even look at those, arguing that they are not relevant. [ 61 ] The evidence clearly demonstrates the existence of double payments for a total amount of 6 700,95$.

Considering the reimbursement of 3 000$, that leaves Mrs. Barton specifically liable for an amount, in capital, of 3 700,95$. The potential liability of Mr. Alexander [ 62 ] The Court arrives to a different outcome in regard to Mr. Alexander’s potential liability. [ 63 ] Indeed, the evidence demonstrates that Mr. Alexander was never an employee of the Plaintiff. He never had any contractual relationship with the Plaintiff or with Mrs. Campbell. [ 64 ] The Court agrees with Mr. Alexander that he only acted as the “liaison” between the parties to the litigation. [ 65 ] Of course, Mr.

Alexander does confirm that he cashed the two cheques in question in the joint bank account. However, nothing in the evidence suggests that he was aware at that time that the amounts received from the Plaintiff had already been paid many months before. [ 66 ] When questioned by the Court as to Mr. Alexander’s potential liability, Mrs. Campbell’s answer simply refers to the marital bond between the Defendants. [ 67 ] However, such marital bond, in the current circumstances, is insufficient to impose any kind of liability upon Mr. Alexander. [ 68 ] Indeed,

section 397 of the Civil Code of Québec states the following: 397. A spouse who enters into a contract for the current needs of the family also binds the other spouse for the whole, if they are not separated from bed and board. However, the non-contracting spouse is not liable for the debt if he or she had previously informed the other contracting party of his or her unwillingness to be bound. [ 69 ] The contractual relationship between the Plaintiff and Mrs.

Barton cannot qualify, in the current instance, as being “for the current needs of the family”. [ 70 ] Indeed, such contract was entered into for the development of Mrs. Barton’s marketing and branding business. Nothing more, nothing less. [ 71 ] Consequently, Plaintiff’s Claim will be granted against Mrs. Barton but it will be rejected in regard to Mr. Alexander. [ 72 ] The Court deems it useful to state that the result of this Judgment does not necessarily mean that Mrs.

Barton had any intention to defraud the Plaintiff. [ 73 ] Indeed, it is possible that this situation is the result of an honest mistake. [ 74 ] However,

section 1491 C.c.Q. specifically provides for the reimbursement of such duplicate payments. FOR THOSE REASONS, THE COURT: PARTIALLY GRANTS the Plaintiff’s Claim; CONDEMNS Mrs. Carolann Barton to pay to the Plaintiff the amount of 3 700,95$, with interest at the legal rate, and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from October 14 th , 2022 [12] , the whole with the legal costs in favor of the Plaintiff [13] ; REJECTS the Claim against Mr. John Alexander, both parties assuming their own legal costs [14] . __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: December 1 st , 2023