2017 QCCQ 7169, 2017 QCCQ 7169

Goldberg c. 9094-2772 Québec inc. (Sparkle Cleaners) 2017 QCCQ 7169 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149175-152 DATE: June 20, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI J.C.Q. ______________________________________________________________________ SHELDON GOLDBERG Plaintiff v. 9094-2772 QUÉBEC INC. d.b.a.

SPARKLE CLEANERS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Sheldon Goldberg claims from 9094-2772 Québec Inc., doing business as Sparkle Cleaners (Sparkle Cleaners), $1,959.60 on the grounds that it damaged a suit which he had intrusted to it for dry cleaning. Sparkle Cleaners denies all liability and argues that it committed no fault. Moreover it adds that the damages claimed are exaggerated and should be limited pursuant to a limitation of liability clause. Questions in Issue

a) Has Sparkle Cleaners committed a fault in the execution of the dry cleaning services contract?

b) Is the limitation of liability clause contained in the contract applicable?

c) What is the amount of damages to be awarded to Mr. Goldberg? Context [ 2 ] On March 18, 2014, Mr. Sheldon Goldberg purchased a microcheck blue and white men’s suit and paid $1,959.60, taxes included (hereinafter the “Suit”). [1] [ 3 ] In early August 2015, Mr. Goldberg brought his Suit to Sparkle Cleaners for dry cleaning. When he picked up the Suit from the dry cleaner on or about August 11, 2015, Mr.

Goldberg noticed that the jacket was damaged. [2] [ 4 ] Specifically he claims that the microcheck fabric of the suit jacket was discolored (the blue color bled into the white color), the texture of the fabric was rough and the canvas lining of the jacket was ripped. [ 5 ] Mr. Goldberg returned the Suit to Sparkle Cleaners to complain about the damages. Sparkle Cleaners examined the suit and had it inspected by a third party. Ultimately, Sparkle Cleaner denied all liability and returned the Suit to Mr. Goldberg. [ 6 ] By demand letter dated August 31, 2015 Mr.

Goldberg wrote to Sparkle Cleaners to complain about the damaged Suit and to claim damages. On September 30, 2015, Mr. Goldberg filed his application with the Court of Québec, Small Claims Division. Analysis and Decision

a) Has Sparkle Cleaners committed a fault in the execution of the dry cleaning services contract? [ 7 ] The contract entered into between Mr. Goldberg and Sparkle Cleaners is a contract for services governed by articles 2098 and 2100 of the Civil Code of Québec (CCQ): 2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. 2100.

The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage

and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract. Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. [ 8 ] Under the dry cleaning services contract, Sparkle Cleaners has the obligation to clean the suit and not to damage it. [ 9 ] Under Québec civil law, these obligations are qualified as obligations of result as opposed to obligations of means.

Indeed, the courts of the province of Québec have consistently held that a dry cleaner owes an obligation of result towards its customers. [3] [ 10 ] The distinction between an obligation of result as opposed to an obligation of means is important for two reasons. Firstly, it determines the burden that the plaintiff must meet in order to establish the defendant’s liability. Secondly, it dictates what grounds of defense are available to the defendant to exonerate himself from liability.

This is clearly explained in Les obligations where the authors Jean-Louis Baudouin and Pierre-Gabriel Jobin write: « Dans le cas d’une obligation de moyens, le créancier a le fardeau de prouver, pour faire tenir le débiteur responsable, que celui-ci n’a pas exercé une diligence et une prudence raisonnables dans la poursuite du but fixé. Le créancier, pour établir la faute du débiteur, doit démontrer que l’inexécution de contrat est due au fait que le débiteur n’a pas utilisé tous les moyens raisonnables dans les circonstances pour tenter d’obtenir le résultat escompté.

Le débiteur peut tenter de s’exonérer soit en démontrant absence de faute, soit en prouvant une force majeure ou encore le fait de la victime elle-même ». « Au contraire, dans le cas d’une obligation de résultat, la simple preuve par le créancier de l’absence du résultat suffit à fait présumer la responsabilité du débiteur. Dès lors, le débiteur, pour dégager sa responsabilité, doit aller au-delà d’une preuve de simple absence de faute.

Du point de vue probatoire, l’absence de résultat fait donc présumer la responsabilité du débiteur et place sur ses épaules le fardeau de démontrer que l’inexécution provient d’une cause qui ne lui est pas imputable. Le débiteur n’a pas la possibilité de tenter de prouver absence de faute de sa part; il doit identifier, par prépondérance de la preuve, une force majeure ou encore le fait de la victime, qui a empêché l’exécution de l’obligation.

À défaut de décharger ce fardeau, le débiteur est tenu responsable de l’inexécution ». [4] [ 11 ] In the present case, Sparkle Cleaners had an obligation of result to the extent that it had an obligation not to damage Mr. Goldberg’s suit. [5] [ 12 ] According to the expert report of Mr. Pierre Benoit Duhamel [6] , who examined the Suit: After inspection, thes suit fabric has bled and the underlying canvas has ripped.

This is not normal wear, samuelsohn canvasses should not be ripped as it contains a high amount of horse hair…..The pant being the original color. and smooth texture whereas the colors have bled in the jacket and the texture is rough. ( sic ) [ 13 ] The Court also had the opportunity to examine the Suit. Mr. Goldberg explained that the Suit which the Court examined was in the same condition as it was when he received it from Sparkle Cleaners. There is no evidence to suggest otherwise.

The Court agrees with the findings of the expert Pierre-Benoit Duhamel as outlined in his report. [ 14 ] Based on the Court’s examination and Mr. Duhamel’s expert report, the Court concludes that the Suit was damaged while in Sparkle Cleaner’s possession. [ 15 ] Since Mr. Goldberg has established that the Suit was damaged, and considering that Sparkle Cleaners owes an obligation of result not to damage the Suit, Mr.

Goldberg has met his burden and established Sparkle Cleaner’s liability. [ 16 ] Accordingly, to exonerate itself, Sparkle Cleaners must prove that the damage to the Suit was caused either by superior force ( force majeure ), the fault of a third party or Mr. Goldberg’s own fault. [ 17 ] Superior force or force majeure is defined at

article 1470 CCQ as follows: 1470. A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it. Superior force is an unforeseeable and irresistible event, including external causes with the same characteristics. [ 18 ] Sparkle Cleaners argues that it rained during the days following August 11 when Mr. Goldberg retrieved the Suit from its premises, and that the rain possibly damaged the fabric of the suit jacket.

Rain in itself does not constitute force majeure and therefore this grounds of defense fails. [ 19 ] Sparkle Cleaners also argues that it is impossible that it caused the damages to the Suit jacket since it used the same chemical to dry clean the jacket as it has used for many other items of clothing that it dry cleans yet these other items of clothing have not suffered damage. This evidence is not sufficient to exonerate Sparkle Cleaners as it does not established the fault of a third party (the supplier of the chemical), the fault of Mr.

Goldberg nor does it establish force majeure. [ 20 ] In conclusion, Sparkle Cleaners has not adduced evidence to rebut the presumption of liability resulting from its obligation of result.

b) Is the limitation of liability clause in the contract applicable? [ 21 ] Sparkle Cleaners argues that if it is found liable, its liability should be limited to $52 pursuant to the limitation of liability clause contained in the receipt it issues to clients. [7] [ 22 ] The dry cleaning services contract between Mr. Goldberg and Sparkle Cleaners is a consumer contract governed by the Québec Consumer Protection Act . [8] Under

section 10 of the Québec Consumer Protection Act , a merchant such as Sparkle Cleaners cannot

contractually limit its liability vis-à-vis a consumer. Therefore, the limitation of liability clause in Sparkle Cleaners’ receipt issued to consumers is not enforceable under the laws of the province of Québec.

c) What is the amount of damages to be awarded to Mr. Goldberg? [ 23 ] Mr. Goldberg claims from Sparkle Cleaners $1,959.60, which corresponds to the price he paid for the Suit in March 2014. [9] [ 24 ] Although only the suit jacket is damaged (the pants are in good condition), Mr. Goldberg testifies that he is unable to have a new jacket made since the fabric used to make the Suit is no longer available. Sparkle Cleaners offered no evidence to contradict this fact. [ 25 ] Mr. Goldberg wore the suit during the Summer 2014 and part of the Summer 2015, that is, until mid-August.

He adds that he keeps his suits on average 8 to 10 years. [ 26 ] Accordingly, the Court will use its discretion and deduct a depreciation of 10 % ($195.96) from the purchase price. Therefore, the Court will award damages of $1,763.64 to Mr. Goldberg. FOR THESE REASONS, THE COURT: [ 27 ] GRANTS Sheldon Goldberg’s action in part; [ 28 ] CONDEMNS 9094-2772 Québec Inc., doing business as Sparkle Cleaners, to pay to Sheldon Goldberg $1,763.64 with interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , from September 3, 2015; [ 29 ] WITH COSTS in the amount of $107 representing the fees payed on the Application. __________________________________ ENRICO FORLINI J.C.Q. Date of hearing: February 21, 2017