2017 QCCQ 3297, 2017 QCCQ 3297

Sitton c. Six Flags Park Montréal inc. 2017 QCCQ 3297 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151859-164 DATE: April 6, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI J.C.Q. ______________________________________________________________________ RENATO SITTON Plaintiff v. SIX FLAGS PARK MONTRÉAL INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Renato Sitton claims $5,651.87 from Six Flags Park Montréal Inc. (Six Flags). He argues that Six Flags is liable for the theft of his bicycle from his car which he had parked in the parking lot operated by Six Flags adjacent to the La Ronde amusement park. [ 2 ] Six Flags denies all liability. It argues that Mr. Sitton’s vehicle was never within its care, custody and control and that it committed no fault. Questions in Issue

a) What is the nature of the contract between Mr. Sitton and Six Flags? Is it a contract of deposit or a contract for the lease of a parking spot?

b) Did Six Flags commit a contractual fault which caused the theft of the bicycle?

c) What are the damages suffered by Mr. Sitton? Discussion [ 3 ] On August 25, 2015, Mr. Sitton visits La Ronde amusement park operated by Six Flags. He arrives by car, pays the parking fee and parks his vehicle in a parking lot operated by Six Flags and adjacent to La Ronde (Parking Lot). When he returns to his car at the end of the day after spending the day with his family at La Ronde, he discovers that his bicycle, which had been installed on a bicycle rack mounted to his car and secured to the rack by a cable lock, is missing. The thieves cut the cable lock and absconded with the bicycle.

a) What is the nature of the contract between Mr. Sitton and Six Flags? Is it a contract of deposit or a contract for the lease of a parking spot? [ 4 ] The determination of the nature of the contract between Mr. Sitton and Six Flags is important in that it determines the rights and obligations of the parties to the contract. [ 5 ] If the Court concludes that the contract between Mr. Sitton and Six Flags is a contract of deposit governed by articles 2280 to 2311 of the Civil Code of Québec (CCQ), then Six Flags is liable for the loss suffered by Mr.

Sitton, unless it proves superior force ( force majeure ). [1] [ 6 ] On the other hand, if the Court concludes that the contract between Mr. Sitton and Six Flags is a contract for the lease of a parking spot, then there is no presumption of liability bearing on Six Flags and as a result Mr. Sitton must prove that Six Flags or its employees committed a fault for his claim to succeed. [2] [ 7 ] Mr. Sitton testifies that at the entrance to the Parking Lot, there are between three and four parking booths, each staffed by a parking lot attendant.

He approaches one of the booths, pays the $20 parking fee, and the attendant issues a receipt. [3] He enters the Parking Lot, and is directed towards available parking spots by a parking attendant.

[ 8 ] He is free to park his vehicle anywhere within the Parking Lot. He chooses a parking spot approximately 50 meters from the ticket booths because he is concerned of the potential theft of his bicycle. He believes that his car will be safer if it is parked closer to the ticket booths. [4] [ 9 ] The front side of the receipt contains the following information: the price ($20), the date and the GST and QST numbers of Six Flags. and the statement “Ceci est votre reçu” (this is your receipt).

The backside of the receipt does not contain language that is relevant to the parking of vehicles, other than to state that it is non-refundable, non-exchangeable and that resale his prohibited. Finally the backside also contains this statement “Politiques et réglements complets: laronde.com”. [ 10 ] The Parking Lot is not for the exclusive use of persons who visit and pay admission to the La Ronde amusement park.

Anyone who visits Île Sainte-Hélène and pays the $20 parking fee may park his or her vehicle in the Parking Lot. [ 11 ] The courts of the province of Québec have consistently held that in the circumstances as described by Mr.

Sitton, the contract between the vehicle owner and the parking lot operator is a contract for lease of a parking space and not a contract of deposit. [ 12 ] Where the operator or owner of a vehicle pays the parking fee at a ticket booth, keeps the vehicle keys, is free to park his vehicle in any available parking spot and actually parks the vehicle himself or herself, our courts have held that this gives rise to a contract for lease of a parking space and not a contract of deposit. [5] [ 13 ] A contract for the use of a parking spot will only give rise to a contract of deposit where the owner of the vehicle remits the keys to the parking lot attendant or operator, or leaves the keys in the ignition at his request, or where the parking lot operator takes possession of the vehicle and parks it, or where the customer is given a composite ticket which is specific to his vehicle and which the parking lot operator must validate before returning the car to its owner. [6] In these circumstances, our courts have held that custody or control of the vehicle has been transferred to the parking lot operator, thereby giving rise to a contract of deposit. [7] [ 14 ] In Pigeon Hole Parking (Eastern Canada) Inc. v.

Dale & Co Ltd. [8] , the Québec Court of Appeal held that the contract was a contract for lease of a space and not a contract of deposit: L’automobiliste se présente à la barrière du ter​rain de stationnement; un appareil automatique lui présente un billet qu’il est obligé de prendre pour faire lever la barrière.

Le billet n’est pas un billet composite; un de ces billets a été produit comme pièce D-1: c’est un billet simple qui ne contient aucune identification de l’automobile et qui, par conséquent, n’est relié à aucun véhicule en particulier, contrairement au billet tripartite que l’opérateur doit comparer avant la remise de la voiture. Outre l’inscription que «les charges ne s’appli​quent qu’à l’usage du terrain de stationnement» le billet contient une indication de l’heure d’arrivée d’une voiture.

L’automobiliste stationne lui-même sa voiture à l’endroit de son choix, barre les portes de son auto, conserve les clefs et va prendre son avion. À son retour, qui peut être plusieurs jours plus tard, il reprend lui-même son automobile à l’en​droit où il l’a laissée et se présente au guichet de sortie où, grâce à l’inscription de l’heure et de la date de son arrivée sur le billet, l’on calcule le loyer, qu’il paye et s’en va. Il est physiquement impossible pour le préposé à la barrière de sortie de vérifier si la voiture en question correspond au billet qu’on lui présente.

Mais c'est là les conditions du contrat que l’auto​mobiliste a acceptées dès son entrée au terrain de stationnement.

En aucun moment l’opérateur du terrain n’a-t-il fait un geste qui puisse être interprété comme étant une prise de possession, une prise de contrô​le, une prise de garde. […] Dans ces circonstances et en toute déférence pour l’opinion contraire, je suis d’avis que le contrat intervenu entre les parties est un contrat de louage d’espace et non un contrat de dépôt et que, par conséquent l’opérateur du terrain de stationnement n’a pas à indemniser le propriétaire de l’automobile pour le vol se sa voiture. [ 15 ] Given that the circumstances in which the vehicle was parked in Pigeon Hole Parking are very similar to facts in the present case, the Court is bound to follow this precedent and concludes that the contract between Mr.

Sitton and Six Flags is a contract for lease of a parking space. Therefore, Mr. Sitton must prove that Six Flags committed a fault which caused the theft of his bicycle.

b) Did Six Flags commit a contractual fault which caused the theft of the bicycle? [ 16 ] The rights of the parties to contract of lease are governed, in the absence of specific conditions contained in a written lease, by articles 1851 and following of the Civil Code of Québec (CCQ). [ 17 ] Specifically,

article 1854 CCQ provides that the lessor (Six Flags) is bound to provide to the lessee (Mr. Sitton) the peaceful enjoyment of the leased parking space throughout the term of the lease. This obligation to provide peaceful enjoyment includes an implicit obligation of safety or security of the leased premises. In other words the lessee must be able to enjoy the leased premises “avec confiance, tranquilité d’esprit, sans crainte de risque d’accident ou d’intrusion”. [9] [ 18 ] In order to succeed in his claim against Six Flags, Mr.

Sitton has the onus of proving, on a balance of probabilities [10] , that Six Flags breached its obligation of security thereby committing a fault. In other words, Mr. Sitton must prove that Six Flags did not act with prudence and diligence in satisfying the obligation of security which it owes to him under the contract of lease of a parking space. [ 19 ] Mr. Sitton argues that Six Flags breached its obligation in that it did not provide adequate security measures or personnel in the Parking Lot.

He adds that there could have been more staff patrolling the lot throughout the day, that the perimeter of the parking lot

should be fenced, and that the video cameras installed on the lampposts throughout the Parking Lot should be functioning whereas they were not. [ 20 ] On the morning of August 25, Mr. Sitton parks his car in the Parking Lot. He returns to his car at approximately 9:45 PM when he discovers that his bicycle is missing from the bike rack on his car. [ 21 ] The Parking Lot has 3,182 parking spots. On the day of the theft, 3,106 vehicles parked in the lot.

The lot is approximately 700 meters in length, from its entrance and the entrance to La Ronde amusement park. [11] The lot is not for the exclusive use of La Ronde customers; it is used by persons who visit La Ronde or anyone else who visits Île Sainte-Hélène. [ 22 ] On August 25, La Ronde amusement park is open from 10:30 AM to 9:00 PM. The Parking Lot itself is open from 8:30 AM and remains open until the last car leaves the lot. The Parking Lot ticket booths are staffed with attendants from 8:30 AM to 7:00 PM. [ 23 ] The Parking Lot is open between 100 and 110 days per year, depending on the weather. Ms.

Lounas, a Six Flags employee, testifies that there are on average 3 incidences of theft of vehicles or of the content of vehicles reported per year. [ 24 ] Ms. Lounas also testifies that on August 25, 2015, there are parking lot attendants throughout the lot. Their role is to direct traffic and to steer vehicle towards available parking spaces. [ 25 ] There are lamp posts throughout the Parking Lot. Cameras are installed on some of the lamp posts. [12] However, the cameras have not been in working order since 2011. They are nonetheless left on the lamp posts to act as a deterrent. [ 26 ] Mr.

Manshad, a Six Flags employee, also testified at the trial. He explains that on the day of the theft, two safety patrol officers patrol the lot and the perimeter of the amusement park on bicycles. Their role is to ensure the safety of the customers of the Parking Lot and La Ronde park. Both bicycle safety patrol agents were on duty from 10:30 AM to 11:00 PM on August 25. [ 27 ] In addition, the Parking Lot is manned by a security officer patrolling in a marked safety car 24 hours per day. [ 28 ] Based on the facts described above, Mr.

Sitton has not met his burden of proof of establishing that Six Flags breached its obligation of safety which it owed him under the contract for lease of a parking space. Mr. Sitton has failed to prove that Six Flags failed to act prudently and diligently and omitted to take reasonable measures to ensure his safety and that of his vehicle. [ 29 ] The law does not require an operator of a parking lot to foresee all that is possible. [13] Its obligation is to guard against a danger provided that it is reasonably probable, that it does fall within the category of normally foreseeable events.

It would be unreasonable to require a parking lot operator to adopt measures to prevent all incidences of theft. [ 30 ] Given the size of the Parking Lot, the level of staff on hand, and the relatively few incidences of theft which have occurred, the Court concludes that Six Flags acted prudently and diligently and did not breach its contract with Mr. Sitton. Mr. Sitton has not established that the presence of more security officers would have prevented the theft. [14] [ 31 ] Moreover, Mr.

Sitton has not proven that if the video cameras installed on the lamp posts had been in working order, this would have prevented the theft. In other words, the fact that the video cameras were not functioning on August 25 does not in of itself establish that this caused the theft of the bicycle. [ 32 ] Similarly, Mr. Sitton has not proven that the lack of a fence around the perimeter of the lot caused the theft of his bicycle. [ 33 ] Given that the Court concludes that Mr.

Sitton has not established that Six Flags committed a fault, it need not address the issue of the quantification of the damages suffered by Mr. Sitton. FOR THESE REASONS, THE COURT: [ 34 ] DISMISSES the action; [ 35 ] Without costs. __________________________________ ENRICO FORLINI J.C.Q. Date of hearing: March 21, 2017