2023 QCCQ 7691, 2023 QCCQ 7691

Kaulbach c. Chapeau Agriculture Society 2023 QCCQ 7691 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY “Civil Division” No.: 555-32-000054-219 DATE: October 31 st , 2023 ______________________________________________________________________ PRESIDED BY THE HONORABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ RON KAULBACH Plaintiff v.

CHAPEAU AGRICULTURE SOCIETY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Ron Kaulbach is the owner of a 28-foot Hacker-Craft boat made of Honduran Mahogany. He bought such for a sum of 76 000$. [ 2 ] Mr.

Kaulbach states that the boat was, at all times relevant, in perfect shape. [ 3 ] The boat has been stored, for approximately 15 winters, in a barn owned by the Chapeau Agriculture Society (hereinafter referred to as The Society ). [ 4 ] The Society, a non-for-profit organization, is duly represented at Trial, by its President, Mrs. Geneviève O’Brien. [ 5 ] More precisely, the parties enter into a Boat storage Agreement on October 9 th , 2018.

Said Agreement reads as follows: I, the undersigned agree to store my 28-foot boat in the storage facilities as provided by the Chapeau Agricultural Society at a cost of 15$ per linear foot. The storage period covers October 1 to June 1. It is agreed by both The Agricultural Society and the lesser that no insurance coverage of any kind is provided, as such, the owner of the boat must provide his or her own boat insurance. [ 6 ] Mr. Kaulbach duly paid an amount of 420$ for the storage of his boat for that 2018-2019 winter season. [ 7 ] Mr.

Kaulbach’s boat is indeed insured, but with a 5 000$ insurance deductible. [ 8 ] The boat is stored – by a volunteer mandated by the Society - “dead center” of the barn. “ I was the last in to be the first out ”. [ 9 ] The evidence establishes that the barn – sadly - collapsed on February 10 th , 2019. [ 10 ] Mr. Kaulbach’s boat is damaged by portions of the barn’s structure collapsing on top of it. Windshields are damaged, holes and scratches are now present from the top to the back of the boat. Mr. Kaulbach produces various photos [1] . [ 11 ] Mr.

Kaulbach is only informed, by one of his friends, of the situation in late April 2019. Once on the premises, he notices the state of the boat while discussing with some of the Society’s representatives. [ 12 ] The repairs are eventually done by Miller-Potter Boat Restoration Ltd . for a total amount of 5 140,54$ [2] . The Society does not contest that the repairs were made and that the costs for such are reasonable in the circumstances. [ 13 ] The Society denies being responsible for such damages caused by the collapsing of its barn. Mrs.

O’Brien refers the Court to the second paragraph of the Agreement which provides that the Society is not insured for potential damages. [ 14 ] Mr. Kaulbach does acknowledge the existence of such a paragraph in the Agreement. However, he argues that such a

section cannot be construed as limiting the Society’s normal obligations under the Agreement, notably to furnish a solid barn that will not collapse on itself.

ANALYSIS [ 15 ] To be successful, M. Kaulbach needed to establish that his claim is well-founded through preponderant evidence. [ 16 ] Evidence, to qualify as being preponderant, must be clear and convincing [3] . [ 17 ] The potential liability of the Society is contractual by nature [4] . [ 18 ] It is obvious that the Agreement between the parties is quite succinct.

Section 1434 of the Civil Code of Québec does state however that a contract validly formed binds the parties who have entered into it not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law. [ 19 ] Furthermore, the Boat storage Agreement concluded between the parties qualifies as being a deposit contract, as defined in

section 2280 of the Civil Code of Québec . [ 20 ] The Civil Code of Québec ( C.c.Q. ) provides the normal obligations included in such a deposit contract. The relevant sections read as follows: 2280. Deposit is a contract by which a person, the depositor, hands over movable property to another person, the depositary, who undertakes to keep custody of it for a certain time and to restore it to him . Deposit is by gratuitous title but may be by onerous title where permitted by usage or an agreement. § 2. — Obligations of the depositary 2283.

The depositary shall act with prudence and diligence in his custody of the property ; he may not use the property without the permission of the depositor. 2286. The depositary shall return the same property he received on deposit . Where the depositary has received something to replace property that had perished by superior force, he shall return what he has so received to the depositor. 2289.

Where a deposit is by gratuitous title, the depositary is liable for the loss of the property deposited, if caused by his fault; where a deposit is by onerous title or where it was required by the depositary, he is liable for the loss of the property, unless he proves superior force. [The Court’s emphasis] [ 21 ] The Agreement qualifies, in the current instance, as being onerous [5] . Indeed, both parties have specific obligations, Mr. Kaulbach’s main obligation being paying to the Society an amount of 420$. [ 22 ] Mrs. O’Brien confirms that the Society was the owner of two barns.

The most expensive boats, as the one owned by Mr. Kaulbach, were placed in this cement floor barn. This barn is the one that eventually collapsed in February 2019 [6] . [ 23 ] Consequently, and as per

section 2289 C.c.Q. , the Society is liable for the loss or damages to the boat unless it proves superior force. The Society’s main obligation under the Agreement does indeed qualify as being an obligation of result [7] . [ 24 ] Superior force is defined in

section 1470 C.c.Q. : 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. [ 25 ] The courts have established that the evidence needed to demonstrate the existence of such a superior force must be detailed and convincing [8] . [ 26 ] In the current instance, no specific evidence is provided to the Court that could support the assertion of the existence of a superior force. The evidence provided is limited to Mrs.

O’Brien’s testimony to the effect that intense winds would have damaged the barn’s structure which would have then collapsed. [ 27 ] No detail is given regarding the approximate strength of such winds. [ 28 ] The evidence provided does not demonstrate the existence of a superior force in the current instance. [ 29 ] Consequently, and as per

section 2289 C.c.Q. , the Society – as the depositary of the boat – is liable for damages caused by the collapsing of the barn. [ 30 ] What about the Society’s argument as to the existence of a clause that would exclude, or limit, its potential liability? [ 31 ] Indeed, what about the wording found in the second paragraph of the Agreement? For an easier reference, said paragraph states as follows:

It is agreed by both The Agricultural Society and the lesser that no insurance coverage of any kind is provided, as such, the owner of the boat must provide his or her own boat insurance. [ 32 ] The Society, in its Defence produced in the Court file, argues as follows: Nous avons toujours été clairs avec les propriétaires de bateaux sur le fait que nous ne fournissons aucune assurance et que nous ne sommes pas responsables des dommages pouvant survenir pendant l’entreposage .

Par conséquent, nous exigeons que les propriétaires s’assurent d’avoir une assurance et qu’ils signent un accord. [ 33 ] Respectfully, paragraph 2 of the Agreement only states that the Society does not insure its own potential liability in case of damages to the boat. That paragraph, however, does not state that the Society is not liable or that it cannot be held liable for damages that would normally be of its responsibility. Simply said, that paragraph cannot be construed as being a liability exclusion clause. [ 34 ] Mr.

Kaulbach’s testimony is clear to the effect that it was never understood between the parties that the normal contractual obligation to provide a safe building for his boat was excluded, limited or erased by the wording of the Agreement [9] .

Furthermore, he confirms that he specifically chose the cement-floor barn because he wanted his boat to be duly protected during the execution of the deposit contract. [ 35 ] The Society’s written Contestation tries, by adding to it, to unilaterally modify the Agreement entered upon between the parties. [ 36 ] The courts have reminded, on numerous occasions, that liability exclusion clauses – when they indeed are stipulated – must be restrictively interpreted [10] .

Such clauses must be clear, expressly stipulated and normally deprived of ambiguity [11] . [ 37 ] In the current instance, the second paragraph of the Agreement cannot be construed, in the opinion of the Court, as being a liability exclusion clause. That paragraph only states the following:

i) The Society is not insured for the boat; ii) The boat owner must be insured. [ 38 ] Nothing more, nothing less. [ 39 ] The evidence does not demonstrate the existence of a liability exclusion clause, either express, tacit or implied. [ 40 ] In those circumstances, the Society is liable for the damages caused to Mr. Kaulbach’s boat. [ 41 ] The fact that the Society is a non-for-profit organization, managed by dedicated and competent volunteers, cannot – in itself – modify the contractual obligations applicable to the Agreement concluded between the parties. [ 42 ] Furthermore, it cannot be construed that Mr.

Kaulbach did not mitigate his own damages by not claiming an indemnity from his insurance. [ 43 ] On such topic,

section 1479 C.c.Q. states: 1479. A person who is bound to make reparation for an injury is not liable for any aggravation of the injury that the victim could have avoided. [ 44 ] The obligation to mitigate one’s damage is an obligation of means [12] and not an obligation of result. [ 45 ] Consequently, Mr. Kaulbach had to proceed the same way that a reasonably prudent and diligent person would have acted. [ 46 ] The Court is of the opinion that it would not have been reasonable for Mr.

Kaulbach to claim an indemnity from his insurer considering the existence of a 5 000$ deductible. [ 47 ] As already stated, the amount claimed by Mr. Kaulbach is not contested, the Society’s main contention being as to its potential liability. [ 48 ] In those circumstances, the Society must be condemned to reimburse Mr. Kaulbach the costs rendered necessary for the repairs. [ 49 ] The Court understands that the Society’s budget and cash flow appear to be limited.

The Judgment rendered will obviously have a severe adverse effect [13] . [ 50 ] A Judgment condemning a party to pay an amount of money is normally executory 30 days after it is rendered. [ 51 ] However, section 565 (1) of the Code of civil procedure , applicable at the Small Claims division, does provide the following: 565.

The court may order a different time limit for the execution of a judgment than those prescribed by Book VIII and, for instance, authorize earlier execution of the judgment if the creditor establishes, in an affidavit, a fact that justifies a seizure before judgment. [The Court’s emphasis] [ 52 ] In the circumstances of the current instance, the Court deems it reasonable and appropriate to grant a longer delay to the Society to reimburse the amount granted to Mr. Kaulbach.

[ 53 ] Consequently, a delay of 90 days – if necessary – is granted to the Society [14] . FOR THOSE REASONS, THE COURT: GRANTS the Claim; CONDEMNS the Defendant to pay to the Plaintiff, in a delay of 90 days from the date of the Judgment, an amount of 5 140,54$, with the legal interests and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from December 18 th , 2021 [15] ; THE WHOLE , with the legal costs in favor of the Plaintiff [16] . __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: October 5th, 2023