2015 QCCQ 5456, 2015 QCCQ 5456

Déménagement Montréal Express inc. c. Sabito Machinery inc. 2015 QCCQ 5456 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-141605-149 DATE: June 11, 2015 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ DÉMÉNAGEMENT MONTRÉAL EXPRESS INC. Plaintiff vs. SABITO MACHINERY INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Sabito Machinery inc., (the Defendant ) is asking that the judgment rendered in its absence on March 10, 2015, condemning it to pay $3,129.59 to Plaintiff be revoked. [ 2 ] In support of its motion Defendant explains that its representative, David Slimowitz ( Slimowitz ), who does not speak nor read French, misinterpreted the mention “14.06” that appeared on the notice of hearing which referred to the room the hearing was going to take place in as referring to the time of the hearing.

Coming from Toronto, he showed up for the hearing at 2:06 p.m. after judgement had been rendered in the morning, the parties having been called at 9:30 a.m. [ 3 ] In support of its contestation of Plaintiff’s claim for loading fees, the Defendant contends that Plaintiff had agreed to provide loading services free of charge. ON THE MOTION FOR REVOCATION OF JUDGMENT [ 4 ] The Defendant was served with Plaintiff’s claim on November 12, 2013.

On November 29, 2013, it requested and obtained the transfer of the claim to the Small Claims Division of the Court of Québec. [ 5 ] The Notice of transfer of the file was signed on December 18, 2013, and sent to the Parties by mail on February 20, 2014. The Defendant filed it’s contestation on March 12, 2014. [ 6 ] The case was originally scheduled to be heard on September 22, 2014, the notice of hearing sent to the parties on July 24, 2014.

On August 12, 2014, Defendant’s attorneys notified the Court via email that the date was not convenient for its client due to a religious Holliday. [ 7 ] With Plaintiff’s consent, the Defendant obtained that the hearing be postponed and the case was rescheduled to proceed on March 10, 2015. [ 8 ] Slimowitz, the owner of the Defendant, does not speak nor read French.

He submitted the notice of hearing to his attorneys who told him in English what the notice said. [ 9 ] Slimowitz testified that, having been told by his attorneys that the hearing of the case was to take place on March 10, 2015, he left Toronto in the morning and arrived at Court at 2:00 p.m., having erroneously interpreted the number of the room that appeared on the Notice of hearing to indicate the time the parties were convened at. [ 10 ] When he arrived at Court he was told that the hearing had taken place at 9:30 a.m. that same day. [ 11 ] Slimowitz mandated his attorneys to enquire about the situation, which they did on March 10, 2015.

The Defendant filed a Motion for Revocation of judgment on March 19, 2015.

The Law [ 12 ] A balance must be maintained between the irrevocability and stability of judgments on one hand, and the right of a party to be heard and present a full answer and defence, on the other [1] . [ 13 ] Revocation of judgment is an exceptional remedy.

A party condemned by default may request that the judgment be revoked and that the action be dismissed in circumstances where he or she was prevented from filing or presenting his defence by surprise, by fraud or by any other reason considered sufficient. [ 14 ] The party seeking revocation must demonstrate diligent conduct in the follow-up of his file; his default must not result from his own negligence [2] . [ 15 ] Where a party acted diligently to make it known that it intendes to contest the claim filed against it like the Defendant did up until March 10, 2015, hiring a French speaking attorney to be translated the communications it received from the Court in order to protect its interests and act accordingly, misreading the notice of hearing as to the time it indicated due to the French reading difficulties has been considered a valid reason to revoke a judgment [3] . [ 16 ] After having heard Defendant’s motives for having missed the March 10, 2015 hearing, the Court reserved its decision on the rescinding and heard the merits of the case, in order to evaluate the seriousness of its mean of defense in light of the teaching of the Court of Appeal. [ 17 ] The Court of Appeal has indeed recently established that, the more serious the means of defense are, the more likely the means invoked in support of the request for revocation are admissible to explain the default [4] . [ 18 ] The Court concludes that Defendant’s reason for having missed the original hearing of the case is acceptable and sufficient to grant its Motion for revocation of judgment. [ 19 ] Let us now analyse the merit of the case and determine if Plaintiff has proven the essential elements of its claim and if the Defendant’s ground of contestation is well founded.

QUESTION AT ISSUE ON THE MERIT OF THE CASE [ 20 ] The Court will determine whether the Defendant is liable to pay Plaintiff’s loading fees for services rendered on September 27, 2012. In order to do that, the Court will answer the following question:

a) Did the parties enter into a loading contract? CONTEXT [ 21 ] Plaintiff is a truck moving company that also operates a warehouse for its clientele. [ 22 ] The Defendant is located in Toronto, Ontario.

In October of 2009, it purchased heavy machinery from a company located in the Province of Québec, for the sole purpose of reselling it. [ 23 ] Not wanting to transport the newly acquired machinery to Toronto, the Defendant hired Blow Moulding Part & System’s ( BMPS ), to arrange trucking and storage of said machinery in the province of Québec. [ 24 ] BMPS entered into a storage contract with Plaintiff regarding Defendant’s machinery. [ 25 ] On August 16, 2012, the Defendant sold the machinery warehoused at Plaintiff’s facilities to Steere Enterprises (Steere), a company located in Ohio, USA.

The selling contract indicated that the sale was made FOB ex location via Steere’s trucks [5] . [ 26 ] On August 21, 2012, Plaintiff emailed the Defendant to confirm the amount owing on the storage fees: $15,925.11 [6] . In that email, Plaintiff confirmed that it could arrange rigging to load the machine on trailers. [ 27 ] Until then, the Defendant did not know that storage fees for its machinery had not been paid to Plaintiff as Plaintiff was invoicing BMPS and never notified the Defendant that storage fees were not paid.

The parties had never been in contact prior to the Defendant selling its machinery to Steere and wanting to assist its client in arranging for loading and transport [7] . [ 28 ] The Defendant asked Plaintiff if its employees would load the machinery and whether there would be a charge for the loading. [ 29 ] Plaintiff filed an August 29, 2012, email from Steere to the Defendant where it asked the Defendant to enquire with Plaintiff about rigging and transport costs separately [8] .

This email seems to imply that Steere was to pay for loading. [ 30 ] Yet, on September 5, 2012, Slimowitz wrote to Plaintiff’s president, Kevin Geraghty ( Geraghty ): We need your assistance with this machine in order to get it loaded and dispatched to Steere [9] .

It is not clear from that email which of the Defendant or Steere was to pay for loading. [ 31 ] On September 12, 2012, the Defendant issues a check to pay for the arrears for storage [10] , understanding that it would not be able to deliver the machinery to its client otherwise as Plaintiff would hold on to the machinery until it got paid for storage. [ 32 ] Slimowitz was not contradicted when he stated that the Defendant did not enter into a contract for storage of its machinery with Plaintiff but that BMPS did. [ 33 ] The storage fees were never invoiced to the Defendant but rather to BMPS, this contention being supported by the statement of

account addressed to BMPS dated August 21, 2012 [11] . [ 34 ] On September 24 th , 2012, answering Steere’s request, Plaintiff quoted its price to move and load the machinery on Steere’s trailers [12] . The quotation provided that payment was to be made at the end of the day. Space was reserved at the end of the document for Steere’s signature to indicate it’s acceptation of the quotation. Steere did not reply to Plaintiff’s quote. [ 35 ] Geraghty testified that he addressed the same quote to the Defendant [13] .

Slimowitz denied having ever received a quote addressed to his company. [ 36 ] Interestingly enough, Plaintiff had not announced that quotation as an exhibit and at the hearing only filed page 1 of the document, omitting to file page 2 which indicated the terms of payment and requested a signature as confirmation of acceptance.

Slimowitz having obtained a copy of the quotation addressed to Steere’s filed the full document [14] . [ 37 ] Time was of the essence for all the parties involved, including Steere, to get the machinery out of Plaintiff’s warehouse. [ 38 ] Even though Steere had not confirmed that it accepted Plaintiff’s loading fee, it sent its trucks to Plaintiff’s warehouse to be loaded.

Steere had not arranged for the necessary manpower and equipment to load the machinery it had purchased from the Defendant, weighing several thousands pounds. [ 39 ] Plaintiff was ready when Steere’s trucks arrived and in good faith, had its employees load the machinery on September 27, 2012. [ 40 ] Although its quote to Steere specifically provided that payment was to be made at the end of the day, meaning after loading was completed, Plaintiff did not ask for Steere’s confirmation that it accepted Plaintiff’s loading rate, it did not ask for payment after loading was completed and did not ask for a signature on a purchase order confirming that payment would be made on presentation of an invoice. [ 41 ] Geraghty explained that invoice was not ready at the end of the day on September 27, 2012, it needed to be prepared.

Yet he did not ask for a deposit of an amount of the initial quote of $1,860 counting on everyone’s good faith. [ 42 ] As to why Plaintiff agreed to load the machinery on Steere’s trucks prior to getting a written or even verbal confirmation from the seller or the buyer of the machinery as to who would pay the loading fees, Geraghty declared that he acted in good faith wanting to assist in the removal of the merchandise. [ 43 ] Plaintiff issued and invoice in the amount of $3,029.59 representing the loading charge [15] which interestingly enough it did not file in support of its claim, Defendant filed it.

The invoice dated September 30, 2012, refers to “Steere Enterprises” as customer purchase order and “Demenagement commerciale” as the client the services were sold to. [ 44 ] It is not clear if and when the invoice was sent to the Defendant. Geraghty however testified that Plaintiff sent its invoice to Steere and was told that the Defendant was to pay for it.

Defendant declined the request for payment when it received it. [ 45 ] On July 26, 2013, Plaintiff addressed a demand letter to the Defendant, requesting payment of the amount of $3,129.59 [16] , to which Slimowitz answered that the Defendant did not owe anything. [ 46 ] The Defendant contends that when it learned about the arrears on storage fees, it reached and agreement with Plaintiff whereby it agreed to pay the arrears for storage fee due to Plaintiff because Plaintiff had agreed to load the machinery free of charge.

Defendant adds that it did not benefit from Plaintiff loading the machinery on Steere’s trucks. [ 47 ] Plaintiff denied the existence of such an agreement, adding that it had no interest in renouncing to its loading fees as it could have simply hold on to the machinery, not release it to Steere and sell it to pay its fees. ANALYSIS [ 48 ] Anyone who wants to assert a right shall prove, according to the balance of probabilities, the facts that sustain his claim.

Safe exception, the clear and convincing evidence that makes the existence of a fact more probable than its nonexistence is sufficient [17] to satisfy the test [18] . [ 49 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical. It needs to make probable the disputed fact [19] . If however it is not compelling enough, or if it is contradictory and the judge is unable to determine where the truth lies, the one upon whom falls the burden of persuading the Court of the merits of the claim loses [20] .

a) Did the Parties enter into a loading contract? [ 50 ] The relevant provisions of the Civil Code of Québec are the following: 1378. A contract is an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation. (…) 1381. A contract is onerous when each party obtains an advantage in return for his obligation. When one party obligates himself to the other for the benefit of the latter without obtaining any advantage in return, the contract is gratuitous. 1385. A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law

requires a particular form to be respected as a necessary condition of its formation, or unless the parties subject the formation of the contract to a solemn form. It is also of the essence of a contract that it have a cause and an object. 1386. The exchange of consents is accomplished by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person. 1387.

A contract is formed when and where acceptance is received by the offeror , regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to secondary elements. 1394. Silence does not imply acceptance of an offer , unless the contrary results from the will of the parties, the law or special circumstances, such as usage or a prior business relationship. 1412. The object of a contract is the juridical operation envisaged by the parties at the time of its formation, as it emerges from all the rights and obligations created by the contract. 1592 .

A party who, with the consent of the other party, has detention of property belonging to the latter has a right to retain it pending full payment of his claim against him, if the claim is exigible and is closely related to the property of which he has detention. 1722. Delivery expenses are assumed by the seller and removal expenses, by the buyer. (Underscore added) [ 51 ] According to the uncontradicted evidence, the Defendant did not contract with Plaintiff regarding the storage of the machinery it acquired in October of 2008, BMPS did.

Defendant paid Plaintiff the arrears of storage fees in September 2012, when it was made aware that BMPS had failed to pay the fees to Plaintiff, in order for Plaintiff to release its machinery to Steere. [ 52 ] Although Plaintiff alleged that Slimowitz was partner in BMPS, it did not provide any evidence to establish that fact.

Whatever the case, the Defendant and BMPS being two different entities, one could not be responsible for the obligations of the other, accept if the legal personality of BMPS was used to hide fraud, abuse of right or contravention of a rule of public order [21] , which was not alleged nor proven in the present instance. [ 53 ] Once the storage fees were paid, it was in Plaintiff’s interest that Steere take possession of the machinery and free its warehouse rapidly.

Nothing in the evidence allows the Court to retain Defendant’s defense that Plaintiff had renounced to its loading fees in order to get payment of the arrears on the storage fees. [ 54 ] However, Plaintiff has not established according to the balance of probabilities that a contract for the loading costs was reached with the Defendant. [ 55 ] The Defendant acted as intermediary between Plaintiff and Steere asking Plaintiff to quote its price for loading. Plaintiff loaded the machinery for Steere, on Steere’s trucks.

It invoiced Steere for the services. [ 56 ] If indeed the Defendant had received the quote, which it denies, it did not follow up to confirm that it agreed to pay the asking price. As provided by

Article 1381 C.C.Q., silence does not imply consent. [ 57 ] In the absence of a contract between the parties, Plaintiff’s claim must fail. [ 58 ] WHEREFORE, THE COURT: [ 59 ] REVOKES the judgment of March 10, 2015; [ 60 ] DISMISSES the claim; [ 61 ] CONDEMNS Plaintiff to pay to the Defendant the judicial costs of $175. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: June 2, 2015 [3] Quinonez v. SS Auto 2000 , 2012 QCCQ 5494 . In Alexandris v. Express Finance Investissement Inc . , 2012 QCCA 1955 , the Court of Appeal dismissed a request to set aside a judgment that dismissed a Motion in Revocation of a Judgment where the party that did not

speak French failed to seek counsel in order to put her in a position to act accordingly. In addition, the court considered that the grounds raised in the plea did not appear serious.