2012 QCCQ 11047, 2012 QCCQ 11047

Orfaly c. Bell Canada inc. 2012 QCCQ 11047 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBE DISTRICT OF MONTREAL Civil Division No: 500-32-123311-104 DATE: November 1, 2012 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ FAYEZ ORFALY Plaintiff v. BELL CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Fayez Orfaly seeks judgment against Bell Canada Inc. (Bell) in the amount of $5,000.00 alleging that the monthly billing he receives does not respect a promised monthly maximum. He also alleges that his internet service is faulty ("not fast enough"). [ 2 ] Bell denies all liability. Its position is that it never guaranteed a monthly rate to Mr.

Orfaly but rather guaranteed him a monthly $10.00 rebate to be applied to the actual cost of his service consumption. It adds that it also reserved its right to modify the cost of basic service on 60 days notice. As for the speed of the internet service, it pleads that Mr. Orfaly never returned the service calls from the appropriate department. Bell therefore cannot be held responsible, if in fact there is a problem. THE FACTS [ 3 ] In September 2009, Mr.

Orfaly received a "proposition" from Bell (contained in a circular, received by mail) stating that if a past client (as he was) chooses to return to Bell, a rebate of $10.00 per month will be guaranteed for 12 or 24 months. [ 4 ] Further to this promotion, Mr. Orfaly once again became a client of Bell. He received both telephone and internet service. The billing sent to Mr. Orfaly confirms that the $10.00 monthly rebate was applied to all monthly billing as of September 10, 2009.

Each bill specifically states that there is a $5.00 rebate for telephone services and a $5.00 rebate for internet services. [ 5 ] At trial, Mr. Orfaly explained his understanding of the agreement. His version is that his monthly bill would be "a maximum of around $59.04" (emphasis added). [ 6 ] No contract specifically stating so has been filed. Nothing in writing from Bell would tend to corroborate this. Also, apart from Mr. Orfaly's testimony, all other witnesses have specifically denied this fact. [ 7 ] The September 2009 billing sent to Mr.

Orfaly shows an amount due of $73.01 representing the cost of the monthly services used, minus the $10.00 rebate. On receipt of this bill, Mr. Orfaly immediately complained to Bell (Exhibit P-1). He writes: I speak with him, I decided to return back to Bell,. And I signed the contract with him,. Bell give me telephone and Internet services-full and best services, cost: $ 52.31 per month . (Reproduced as drafted) (Emphasis added) [ 8 ] Mrs. Brigitte Paquet, of Bell's complaints Department, was assigned this complaint. She explained to Mr.

Orfaly that the promotion offered no guarantee of a monthly total but rather a monthly rebate. As

an act of good faith, she reduced the September billing to $59.00. [ 9 ] For a period of 24 months, the $10.00 rebate was given to Mr. Orfaly notwithstanding the fact that he persisted in paying $ 59.00 each month . As of the date of trial, Mr. Orfaly's unpaid balance stands at some $689.60. [ 10 ] Concerning the quality of the internet service, Mr. Orfaly testified that in the fall of 2009 a Bell technician told him that his problems stemmed from the fact that Bell has too many clients in the Montreal downtown area. This, according to Mr. Orfaly, is the

cause of his slow service. [ 11 ] The complaints departments informed Mr. Orfaly to contact a Bell internet specialist to discuss the problem he was alleging. He has not attempted to do so, nor has he returned the calls from the technician. ANALYSIS AND DICISION [ 12 ] Mr. Orfaly had the burden of proving by preponderance of evidence that Bell was in default of its contractual obligations. These rules of evidence are set out in the Civil Code of Québec : 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. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 13 ] No written contract exists, notwithstanding Mr. Orfaly's latter (Exhibit P-1) alleging so. Nothing in the exhibits or testimony corroborates Mr. Orfaly's version. In fact, his version varies; was the monthly billing supposed to be $59.04 (Mr.

Orfaly's testimony); $52.31 (as stated in Exhibit P-1), or $59.00 (as he has paid since September 2009)? [ 14 ] In view of this, the Court concludes that Mr. Orfaly has not proven the contract he alleges. The evidence shows that Bell undertook to give him a $10.00 a month rebate, and has respected its obligation. [ 15 ] As for the internet service, Mr. Orfaly has neglected to respond to Bell's attempts to investigate the problem. By doing so, he has hindered Bell form correcting the situation (if in fact there is a problem). Since Mr.

Orfaly has not returned any of Bell's service calls concerning his internet, Bell cannot be held liable for the alleged service problem.

Article 1591 of the C.C.Q. states: 1591. Where the obligations arising from a synallagmatic contract are exigible and one of the parties fails to perform his obligation to a substantial degree or does not offer to perform it, the other party may refuse to perform his correlative obligation to a corresponding degree, unless he is bound by law, the will of the parties or usage to perform first. A party who has not respected its part of the bargain cannot hold the other liable. [ 16 ] Mr. Orfaly's application will be dismissed.

FOR THESE REASONS, THE COURT: DISMISSES the application of Fayez Orfaly with judicial costs in the amount of $194.00. __________________________________ Scott Hughes, J.C.Q. Date of hearing: July 31, 2012