2015 QCCQ 4415, 2015 QCCQ 4415

Kay c. 4193113 Canada Ltd. (AMJ Campbell Commercial) 2015 QCCQ 4415 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139491-130 DATE: May 22, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ PATRICIA KAY -and- STUART KAY Plaintiffs v. 4193113 CANADA LIMITED also doing business under the name of AMJ CAMPBELL COMMERCIAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs hired Defendant to move, store and return their personal effects. [ 2 ] Plaintiffs claim damages (as detailed in Exhibit P-16) for 1) alleged loss and non return of items ($3,140); 2) alleged damage to items ($1,800); 3) overcharge ($810) and loss of enjoyment of a carpet and couch for two and a half years before and during Court proceedings ($450). [ 3 ] The Court heard from both Plaintiffs.

The Court also heard from the representative of Defendant. [ 4 ] Essentially, with very minor exceptions, the Plaintiffs have no proof to support their claim that items were either lost, not returned or damaged, beyond what AMJ Campbell has already admitted and offered to compensate in that regard. Alleged Lost Items [ 5 ] Plaintiffs claim that various items packed were not returned to them. They include a mop, broom and bucket valued together at $30, pillow slips ($160), sheets ($50 each), artificial Christmas tree with lights ($100), a bureau key ($40) and other items.

Plaintiffs have no photographs, no receipts and no independent witness to support their claim. [ 6 ] On the other hand, Defendant has, as proof of return, the list of numbered boxes which bears the signature of Plaintiff and indicates that every box packed was returned to Plaintiffs (Exhibit D-3). [ 7 ] Article 2803 (1) of the Civil Code of Quebec (C.C.Q.) states: “A person seeking to assert a right shall prove the facts on which his claim is based.”

[ 8 ]

Article 2804 C.C.Q. states: “Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof.” [ 9 ] Plaintiffs have failed to discharge their burden of proof that items were not returned. The proof of Defendant is preponderant. Plaintiffs’ claim is dismissed for alleged lost items. Alleged Damaged Items [ 10 ] Plaintiffs claim $1,800.

They claim 6 items were damaged: 1) Floor lamps x 2 $300 2) Shelf unit $100 3) Ping Pong table $100 4) Couch $500 5) Clock $500 6) Garden chair $300 [ 11 ] For items 1 and 2, Defendant acknowledges the damage and offered to pay the amount requested. It even sent a cheque (Exhibit D-8) for such amount ($400). Plaintiffs refused and returned the cheque as insufficient. This amount of $400 should be given. [ 12 ] For item 3, apparently the Ping Pong table was already damaged before the move and this was documented by Defendant’s representative.

However, based upon the verbal testimony of Plaintiffs, there was minor additional damage. The Court will grant an additional amount of $20 for this item. [ 13 ] For item 4), the damage was repaired by Defendant. Plaintiffs acknowledge that it was a good repair but state that the repair should be improved further. But they have no objective proof other than their testimony.

Based upon their testimony however, the Court will give an additional $20 as compensation. [ 14 ] For item 5, the clock, again Plaintiffs have no proof of damage. [ 15 ] For item 6, the garden chairs, there is very little proof and this item was only recently added to the claim some 2 ½ years after delivery and return. In any event, the alleged damage is minor. Based upon the testimony of Plaintiffs, an additional $30 will be given.

Lost Enjoyment of Stored Items [ 16 ] As for the Plaintiffs’ claim for loss of enjoyment of use of the carpet and couch, these were being withheld by Defendant because of the refusal to pay by Plaintiffs, in virtue of its right of retention. Plaintiffs’ refusal to pay was unjustified, so they only have themselves to blame. Furthermore, the Plaintiffs stated several times in the exhibits that they were happy to have Defendant retain custody of these items and without charge while the dispute was pending.

In a letter to Defendant dated April 23, 2013 (Exhibit P-9), Plaintiff Stuart Kay wrote: “Otherwise, it can go on indefinitely as far as I am concerned, and I thank you for the free storage of the carpet and the couch.”

That claim is rejected. [ 17 ] Accordingly, the total recognized damages of Plaintiffs are limited to $470. Cross-Demand and Alleged Overcharge [ 18 ] Defendant’s Cross-Demand of $3,721.75 is entirely proven as justified in fact and in law. All the services were rendered and within the time requirements of Plaintiffs. Plaintiffs signed the working statement confirming that amount and the details of the charge after the work was performed (Exhibit D-4).

So there is no proof at all of any overcharge as claimed by Plaintiffs. [ 19 ] Accordingly, the Court will operate judicial compensation (Article 1673 C.C.Q.) of the respective amounts, leaving a balance of $3,251.75 owed by Plaintiffs to Defendant. [ 20 ] Defendant has, amicably at the request of the Court, waived past interest and costs. The Defendant declares itself willing to return the carpet and couch in issue.

FOR THESE REASONS, THE COURT: GRANTS in part Plaintiffs Patricia Kay and Stuart Kay’s motion for the amount of $470; GRANTS Defendant/Cross-Plaintiff 4193113 Canada Limited’s claim for the amount of $3,721.75; OPERATES JUDICIAL COMPENSATION between the two amounts; CONDEMNS Plaintiffs Patricia Kay and Stuart Kay solidarily to pay Defendant 4193113 Canada Limited the amount of $3,251.75, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , starting thirty (30) days from the present judgment; TAKES ACT of Defendant 4193113 Canada Limited’s undertaking to deliver to Patricia Kay and Stuart Kay the carpet and couch in issue and ORDERS Defendant 4193113 Canada Limited to comply with such undertaking within thirty (30) days of the present judgment; WITHOUT COSTS. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: May 22, 2015