2017 QCCQ 8379, 2017 QCCQ 8379

Groupe Qualinet inc. c. Lot 2017 QCCQ 8379 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-152780-161 DATE: July 28, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GROUPE QUALINET INC., Plaintiff v.

CRYSTAL RENNE CARMELA LOT, and DANIEL HÉROUX, Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Groupe Qualinet Inc. (“Qualinet”) , an enterprise specializing in emergency clean-ups claims an unpaid account of $6,749.89 from its customers, Crystal Renne Carmela Lot and Daniel Héroux, residents of a home in LaSalle, Québec. [ 2 ] Qualinet was called to the scene by the Defendants on December 24, 2014.

The LaSalle domestic sewer system was backing up into the Defendants’ home resulting in an accumulation of approximately eight inches of water and filth. [ 3 ] Qualinet’s invoice covers their immediate intervention on December 24, 2014 and subsequent visits on December 29, 2014, January 7, 2015 and January 22, 2015. [ 4 ] The Defendants, Ms. Lot and Mr. Héroux, contest the invoice in the following terms, “We were extremely and unfairly overcharged”. [ 5 ] Mr. Héroux is a self-employed building contractor and Ms.

Lot is a real estate broker. [ 6 ] While the contestation does not state what the appropriate charges would have been, at the hearing, the Defendants produced their own calculation of the labor and use of equipment they would be prepared to pay (D-2). Their total, tax included, comes to $3,573.42, a little more than half the amount charged by Qualinet. ISSUES [ 7 ] To resolve this conflict, the Court must decide whether Qualinet’s invoice is accurate and fair based on the contract between the parties and either confirm it or reduce it along the lines proposed by the Defendants.

And, did the Defendants agree to interest at a rate of 24%? FACTS [ 8 ] The city’s sewage system was backing up in a number of homes in the area and Mr. Héroux, who is himself a competent worker, tried to rent a pump to evacuate the water and the solids suspended in it that were backing up into the basement.

Because it was Christmas Eve, he was not successful in finding a rental pump. [ 9 ] Qualinet was called by the Defendants and dispatched a project manager who took stock of the situation and called onto the scene technicians, a pumping truck and various equipment. [ 10 ] Qualinet’s contract (P-1) signed by Daniel Héroux is really intended to be a document assigning the customer’s insurance proceeds to Qualinet.

It reads: […] j’autorise Groupe Qualinet inc. à exécuter les travaux de nettoyage du bâtiment, de mes meubles, des vêtements et effets personnels suite à un refoulement d’égout survenu le 24/12/14 de même, si nécessaire, j’autorise Groupe Qualinet inc. à faire l’emballage de mon

contenu, le sortir et l’entreposer. Je cède et transporte, jusqu’à concurrence du montant des travaux effectués par Groupe Qualinet inc., tous mes droit dans une police d’assurance émise par la compagnie TD Assurance portant le numéro 89346522 et, j’autorise mes assureurs à payer directement à Groupe Qualinet inc. sur présentation de sa facture.

Je demeure responsable du montant de la franchise et des taxes provinciale et fédérale prévues au contrat d’assurance s’il y a lieu. [ 11 ] Another document signed by Daniel Héroux (P-2) is a price list giving the hourly rate of technicians and a list of unitary rates for the use of various types of equipment such as dryers, dehumidifiers and the like. [ 12 ] The Defendants both state that very little explanation was given to them. There is no rate given for the main piece of equipment that was provided: the pump.

They feel that they were under pressure and had no choice but to sign without really knowing what they were getting into. [ 13 ] Qualinet’s representative sets out the business records that show the time and materials recorded by the persons on site. These documents are countersigned by Mr. Héroux. [ 14 ] Mr. Héroux challenges the use of as many as three pumps rather than two and although he admits that it was necessary to use a system of confinement and negative pressure, he believes that only one HEPA 500 particle remover needed to be used, not two.

The Defendants also complain that they were charged for pick-ups of material rather than being given the option of dropping them off themselves. [ 15 ] A rather extraordinary allegation is made by Mr. Héroux.

He claims that the water, at all times, was as much as eight inches above the floor and despite the pumping, the backup continued throughout the whole period until, finally after several weeks, the City of LaSalle got the problem under control. [ 16 ] Qualinet claims that, after the initial pumping on the December 24, 2014, the pumping continued from the sump pit and that the use of the HEPA filters and the creation of a space for negative pressure was used to filter out bacteria and other microorganisms that are known to develop because of a constant high humidity.

This related to the fact that water was continually entering the basement through the sewer system but Qualinet maintains that the water level was kept down so that it was useful to vacuum the floor on December 24, 2014 using their “ camion-usine” . [ 17 ] While, normally, Qualinet’s services would be paid for by the home insurers, in this case, the claim was covered, but with a limit of $30,000. Because the Defendants’ damages exceeded $30,000, they settled for that amount and assumed themselves the task of repairing the basement and settling with Qualinet. Mr.

Héroux did the reconstruction work himself. [ 18 ] Thus, the normal process of Qualinet’s services being evaluated by an adjuster did not take place in this case. ANALYSIS [ 19 ] The contract documents, P-1 and P-2, lack precision and they are essentially a sort of authorization that the customer gives which is open-ended. [ 20 ] This is, to a certain extent, understandable because when an emergency situation is occurring, it may not be possible to evaluate the eventual costs of the clean-up.

It is also possible that insurance companies will intervene, make their own deal with Qualinet, and the client will have very little to do with the contractual situation. [ 21 ] Be this as it may, this is a consumer situation and it would be better for Qualinet to spell out in more detail in their contractual documents how the billing will proceed. [ 22 ] This does not mean that in the present case the bill is unfair. [ 23 ] In the Court’s view, it was a fairly simple and straightforward case of pumping water, filtering air and vacuuming the floor.

The cost was fairly high because equipment had to be left in place for an extended period of time because of the humidity continuing to affect the premises over a fairly long period of time until the city could solve its backup problem. [ 24 ] The bill is actually for significantly less than what Qualinet could have billed according to its price list. For example, the first HEPA particular remover was only charged for 12 days and not the 24 days used. The submersible pumps were billed fewer days than they were actually on site.

Although the price of the pumps is not mentioned in their price list, Qualinet’s witness explained that the price had been mentioned in a telephone call. [ 25 ] The charge of $632.50 for 5.75 hours use of the camion-usine seems somewhat excessive. It would not have been necessary to vacuum the floors for 5.75 hours once the water level was lowered. It appears that Qualinet simply brought the truck and it was there for the entire time that the technicians were present. [ 26 ] A price of $75 per day for the long-term use of a pump also seems rather excessive.

Qualinet effectively admits this because it reduces the price not by lowering the daily rate but by charging for only a fraction of the days that the pumps were actually used. [ 27 ] For example, one submersible pump that was used for five days between December 24 and December 29, 2014 was only billed for four days and a second pump that was used for 29 days was billed for 12 days.

The first particle filter was on the site for 14 days and only billed for four days and the second one was on the site for 24 days and only billed for 12 days. [ 28 ] The Defendants criticize the billing of the technician’s time to come to recover equipment but, given the distance between Qualinet’s headquarters on Bombardier Street and the Defendants’ home in LaSalle, 1.75 hours does not seem to be excessive.

[ 29 ] If Qualinet had charged fully for the use of its pumps and its HEPA machines, the Court may have intervened to reduce these charges as the rates, $75 per hour, seem excessive for anything but a short-term rental but since Qualinet has exercised self-restraint in reducing these charges considerably, the Court will not intervene. [ 30 ] The Court will, however, reduce the use of the “camion-usine” from 5.75 hours to three hours, resulting in a reduction of the bill of $302.50, plus taxes, for a total reduction of $347.79. [ 31 ] As well, the use of a second HEPA filter is inadequately explained by Qualinet.

The Court understands, and the Defendants accept, that one such machine was useful in filtering the air and providing a negative pressure so that air from the basement would not go into the upper floors but the use of a second filter within the basement seems redundant. [ 32 ] Qualinet’s representative seemed to say that this machine was on the upper floor of the house and was used to filter the air. The Court finds this to be not very plausible because the sound of such a machine would not be easy to tolerate for the inhabitants of the house.

It would also not seem to be necessary if the negative pressure system set up to evacuate the air from the basement and to prevent air from infiltrating from the basement to the upper floors was effective. The installation, rental and return of the second HEPA is hard to compute from the bill.

The Court estimates, including the cost of filters, an amount of $750, plus taxes, for a total of $862.31. [ 33 ] The Court will also reduce the cost of one carbon filter and one HEPA filter for the first HEPA machine, because the Defendants were charged for two of each, for a total of $290, plus taxes, for a total of $333.42. [ 34 ] The total reduction the Court awards is therefore $1,543.52. [ 35 ] Given that the parties were both successful to a certain extent in their claims, there will be no award as to costs. [ 36 ] The Qualinet Tarification has a clause, buried within it, expressing an interest rate of 2% per month, 24% per annum. [ 37 ] The Defendants contest this interest rate as being unreasonable.

At present, given the time it has taken to get to this adjudication, the bill would be increased by a factor of around 80%. [ 38 ] In matters of consumer credit, 24% is not per se unreasonable but in consumer contracts, the Court must be convinced that the parties actually consented. Even when contracts are in writing, the Court can accept testimonial evidence as to the extent of the consumer’s consent. [ 39 ]

Article 9 of the Consumer Protection Act [1] reads: 9. Where the court must determine whether a consumer consented to a contract, it shall consider the condition of the parties, the circumstances in which the contract was entered into and the benefits arising from the contract for the consumer. [ 40 ] In this case, given the pressure the Defendants were under with water flooding into their basement on December 24, 2014 and the way in which the interest clause is tucked away in the price list, which is a document separate from the contract, the Court considers that they did not consent to this interest rate.

If the representative had asked them clearly whether they would agree to pay 24% interest, it is unlikely that they would have accepted. [ 41 ] The Court accepts the Defendants’ testimony that no one informed them of this unusual interest clause in the documentation. Therefore, interest will only run at the legal rate of 5% per annum, plus the additional indemnity. FOR THESE REASONS, THE COURT: CONDEMNS the Defendants to pay, to the Plaintiff the sum of $5,206.37, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from February 13, 2015; WITH EACH PARTY paying its own costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: June 27, 2017