2015 QCCQ 9566, 2015 QCCQ 9566

Floyd c. Monkland Community Centre 2015 QCCQ 9566 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-144118-140 DATE: September 25, 2015 ______________________________________________________________________ BY THE HONOURABLE DAVID CAMERON, J.C.Q. ______________________________________________________________________ GLADSTONE FLOYD […] Montreal, Quebec, […] Plaintiff v.

MONKLAND COMMUNITY CENTRE 4410 West Hill Avenue Montreal, Quebec, H4B 2S9 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Gladstone Floyd, sues the Monkland Community Centre (the "Centre") for $660.00 representing the value of exercise equipment stored at the Monkland Community Centre. Mr.

Floyd alleges that he stored the equipment at the Centre for several years while he was an employee of the Centre with the permission of the persons in charge of the Centre. [ 2 ] He left the equipment there and his employment was terminated in November 2011. He began requesting the return of the equipment in January 2014. [ 3 ] The Centre takes the position that it has some of the pieces of equipment that the Plaintiff claims, but that it has no knowledge of any other items. [ 4 ] Defendant also denies that Mr.

Floyd was authorized to leave his equipment at the Centre and denies knowledge of its presence there. [ 5 ] Finally, at the hearing, Carl Harris, Coordinator of the Centre, advised the Court that the Centre would be happy to allow Mr. Floyd to pick up the equipment that it has identified as being his. [ 6 ] Mr.

Floyd responded that he refuses to take the partial set of equipment that the Centre claims to have preferring to claim the monetary value of the equipment as a whole, since he cannot recover the entire set. [ 7 ] The claim also mentioned $100.00 per day for the loss of use of the equipment from December 27 th , 2013. [ 8 ] According to Mr. Floyd's testimony the equipment consists of the following items: - Two (2) 50-pound (lb) weights - Two (2) 25-pound (lb) weights - Four (4) 10-pound (lb) weights - Four (4) 5-pound (lb) weights - Two (2) polls - One (1) bench

- Six (6) clips - Two (2) dumbbells [ 9 ] Mr. Harris describes the equipment that he found on the premises as follows: - One (1) bar - Two (2) 50-pound (lb) weights - Two (2) 10-pound (lb) weights - One (1) 2.5-pound (lb) weight [ 10 ] Mr. Floyd informs the Court that he acquired the equipment brand new in 1999 and in 2002. The fact that he acquired this equipment is corroborated by written statements in lieu of testimony of his brother Dion Floyd, his mother Phyllis Christie and a friend of the family Christine Gibson. [ 11 ] Mr. Floyd has not used the equipment for several years.

He moved it to the Centre at some point several years ago and kept it there continuously with the permission the Assistant Manager Michael Dulude. [ 12 ] When he was dismissed from his employment in 2011, he had no communication directly or indirectly with the Centre about the equipment until January 2014. [ 13 ] He informs the Court that he simply had forgotten about the equipment and he eventually brought it up with his attorney, but did not receive any concrete results. [ 14 ] He maintains that the other staff working at the Centre must have been aware that his equipment was stored there, because they regularly carried out inventories of the Centre's property which involved moving things in and out of storage places so that it could be counted. [ 15 ] Mr.

Harris denies that he and other members of the staff were specifically aware of the equipment stating that it was in an area out of view. [ 16 ] Mr. Harris states that he was Manager of the Centre since 1996. When Mr. Floyd was fired he instructed him to remove all his personal effects. He was unaware that Mr. Floyd had left any other property until the first communications requesting the return of the property began in January 2014. [ 17 ] In January 2014, it was arranged that a third person, Margaret Ford, would be available for the pick-up at the Centre.

The equipment was then moved to a storage room, near the front door, close to the place where it would be picked up. [ 18 ] Nothing further took place and there were no communications between the parties until September 2 nd , 2014 when the Plaintiff sent his formal request. [ 19 ] Mr. Floyd states in the letter that his last attempts to resolve the matter with Mr. Harris dated from May 5 th , 2013.

He goes on to state that the failure of the Centre to contact him would be taken as an intention on the Centre's part to not resolve the matter. [ 20 ] His claim in the Small Claims Division was instituted on September 22 nd , 2014. ANALYSIS [ 21 ] The legal relations between Mr. Floyd and the Centre are governed by the articles of the Civil Code of Quebec dealing with the contract of deposit. [ 22 ] By allowing Mr.

Floyd to store his property at the premises, the Centre became the depositary of the equipment with the obligation to act with prudence and diligence in the safeguarding of this property. [ 23 ] Since it was a gratuitous deposit, the depositary is liable for the loss of the property deposited if caused by his fault. [ 24 ] Mr. Floyd has two difficulties in the present case.

The first is to establish accurately, with sufficient proof, that all of the items that he is claiming were in fact deposited at the Centre. [ 25 ] The second is to establish fault on the part of the Centre if some of the property is now missing. [ 26 ] No one is able to refute Mr. Floyd's testimony as to the exact items he deposited. Mr.

Harris is himself unaware of what constituted this property and the statements in lieu of testimony made by several individuals connected with the Centre, simply state that the witnesses are unaware or have to recollection of the exact items. [ 27 ] There is one exception and that is the testimony of Michael Dulude, the person whom Mr. Floyd alleges was agreeable to him leaving his property at the Centre. Mr.

Dulude recalls seeing two (2) 25-pound weights; two (2) small weights, possibly 10 pounds; one (1) work bench and one (1) weight bench bar. [ 28 ] He also states that the equipment was not new, a direct contradiction of Mr. Floyd's testimony that it was as good as new, having not really been used much since it was first acquired new.

[ 29 ] On the whole, the Plaintiff's evidence is insufficient to establish, on the balance of probabilities, that all of the items that he claims were left at the Centre and were in almost new condition. [ 30 ] Secondly, the possibility exists that some of the items he left at the Centre were taken either by employees or by visitors to the Centre.

Over the years many different organizations used the Centre for a variety of activities. [ 31 ] In the period between his dismissal as an employee and the moment and time when he first remembered that he had left the equipment there and started to claim it, a sufficient period had gone by for any number of people, in a variety of circumstances, to have had access to the place where it was stored and to have taken it. [ 32 ] Is it possible to attach liability to the Centre for a possible theft in circumstances that are entirely unknown? [ 33 ] Mr.

Floyd himself was negligent in simply abandoning the property where it was when he was dismissed and not insisting upon recovering it immediately. [ 34 ] In the Court's view, therefore, there is no arguable case to make that the Centre is at fault for the missing elements, if any. [ 35 ] Finally, it is regrettable that Mr. Floyd refuses to take possession of that part of the property that is now, in fact, available to him. At the hearing, Mr. Harris reiterated the Centre's willingness to allow him to take possession of the property it has on hand and he would be well advised to take them up on their offer.

Should he fail to do so within a reasonable time, say 60 days, the Centre would be well-founded to simply dispose of the property which could be considered to be abandoned. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff's demand; CONDEMNS the Plaintiff to pay the defendant's judicial disbursement of $112.00; GIVES EFFECT to the parties of the offer of the Monkland Community Centre to permit Mr. Floyd to take possession of the equipment it has on hand within sixty (60) days following the date of the present judgment provided that Mr.

Floyd gives five (5) business days notice of the time when he will attend to receive the property during business hours. REMAINS SEIZED of the matter should any difficulty arise in connection with the transfer of possession of the equipment referred to above, permitting either party to bring the matter before the Court by notice of presentation. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 15, 2015