Bagiotas c. Figiel

2012 QCCQ 7348

 

COURT OF QUEBEC
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTREAL
Civil Division
N° :		500-22-185088-112
DATE :	September 19, 2012
______________________________________________________________________
BY THE HONOURABLE					ELIANA MARENGO, J.C.Q.
______________________________________________________________________
DIMITRIOS (JAMES) BAGIOTAS
Plaintiff
v.
RICHARD FIGIEL and NICK FAZZARI and VINCE FAZZARI
Defendants
______________________________________________________________________
JUDGMENT RENDERED FROM THE BENCH
______________________________________________________________________

The written version of this judgment contains some minor modifications.

[1]            GIVEN the evidence;

[2]            WHEREAS plaintiff is a chartered accountant;

[3]            WHEREAS , according to the preponderance of evidence, a contract for professional services intervened between plaintiff, codefendant Richard Figiel and codefendant Vince Fazzari (hereinafter collectively "the codefendants") in February of 2008, with a view to prepare a business plan for the obtention of a small business loan for a start-up operation called Restaurant Bisi;

[4]            WHEREAS , as admitted by codefendants, plaintiff executed his mandate (exhibit P-5), and the requested loan of $245,000.00 was effectively disbursed as a result of his services;

[5]            WHEREAS codefendant Vince Fazzari also admitted that plaintiff disclosed his fixed fees of $7,500.00, to him, before executing the mandate;

[6]            GIVEN codefendants' promises to pay, as well as cheques P-3 and P-4;

[7]            WHEREAS , according to codefendants, there is no lien de droit between themselves and plaintiff;

[8]            WHEREAS they claim that the other contracting party was Restaurant Bisi's operating company, 9195-4909 Quebec Inc., which was incorporated April 7, 2008 and which went bankrupt on January 27, 2010;

[9]            WHEREAS , however, plaintiff convinced the Court, by a preponderance of evidence, that he made it abundantly clear to codefendants, at the outset, that he was entering into a contract with them and not with the company to be incorporated;

[10]         GIVEN , furthermore, art. 320 of the Civil Code of Quebec which states :

"320. A person who acts for a legal person before it is constitued is bound by the obligations so contracted, unless the contract stipulates otherwise and includes a statement to the effect that the legal person might not be constituted or might not assume the obligations subscribed in the contract." (which is not the case here);

[11]         WHEREAS plaintiff executed his professional and contractual obligations vis-à-vis codefendants; but codefendants failed to execute theirs and to pay the price of the professional services rendered;

[12]         WHEREAS plaintiff executed his mandate for the benefit of and as requested by codefendants;

[13]         GIVEN , furthermore, s. 2100 and 2108 C.C.Q.;

[14]         WHEREAS , however, there is no evidence that defendant Nick Fazzari was party to the above contract;

 

WHEREFORE THE COURT HEREBY:

GRANTS plaintiff's introductory motion in part;

SENTENCES Richard Figiel and Vince Fazzari jointly and severally to pay plaintiff the sum of $8,465.63, plus legal interest and the additional indemnity provided for in s.  1619  C.C.Q. from the date of service of the action;

THE WHOLE with costs;

DISMISSES plaintiff's motion against Nick Fazzari, with costs.

		__________________________________ ELIANA MARENGO, J.C.Q.
M e Tom Markakis
De Louya Markakis
Lawyers for plaintiff
Richard Figiel, Nick Fazzari and Vince Fazzari
Date of hearing :	September 19, 2012