2013 QCCQ 5649, 2013 QCCQ 5649

Ultramar Ltd. c. Hamilton 2013 QCCQ 5649 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-127059-113 DATE: May 1, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ ULTRAMAR LTD 2200 McGill College, 6th floor, Montréal (QC) H3A 3L3 Plaintiff v.

RICHARD HAMILTON ESTHER SYDNEY […] , Pincourt (QC) […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ultramar is claiming $759 from Richard Hamilton and Esther Sydney for home heating oil delivery. Defendants claim they suffered a leakage and Ultramar failed to send a technician to deal with their problem. They presented a cross demand of $4,760, representing the cost to convert to electricity.

The evidence: [ 2 ] Ultramar concluded a contract with Defendants for home heating oil delivery on March 8, 2010 and a Protection Agreement for the furnace’s maintenance and repair. [ 3 ] On May 21, 2010, Ultramar delivered oil to Defendants’ home. The following day Defendants noted leakage on the linoleum floor. They contacted Ultramar for a repair. It failed to send a technician. [ 4 ] Ultramar sent its invoice for the oil delivery. Defendants did not pay because of the lack of repair.

On August 26, 2010, Ultramar advised Defendants it intended to cancel both the home oil delivery contract and the Protection Agreement. [ 5 ] Defendants again contacted Ultramar. A technician was finally scheduled to go to their home on September 3, 2010. Mr. Hamilton specified the repair must take place after 3:00 p.m.. When he arrived home, he found the technician had already come to his home at lunch time and left a bill for his service charge. [ 6 ] Mr. Hamilton testified that he spoke to an Ultramar representative, Caroline Roucero, who told him some one would return for the repair. No one came.

The following week, Mr. Hamilton asked and was assured that he would be credited $224 towards Ultramar’s bill since he had paid for his service contract but had not received any service. However, he never received the promised credit. [ 7 ] On October 26 th , Ultramar contacted Mr. Hamilton for payment. He explained the reason he had not paid. Ultramar offered to send someone to fix the furnace but Mr. Hamilton was no longer interested. He had never received the promised credit and since other companies did not want to service his furnace, he decided to change to electricity.

Ultramar is claiming the cost of the oil it delivered, plus interest at 18% in accordance with the terms of its contract. [ 8 ] Mr. Hamilton, having converted his heating system to electricity and is claiming $4,760 he paid for the conversion.

Analysis: [ 9 ] Ultramar delivered heating oil to Defendants in accordance with its home heating oil contract. The amount charged came to $759. [ 10 ] Defendants claim they were entitled to a $224 credit since they had not received the house call from an Ultramar technician, as promised.

Ultramar invokes the Protection Agreement which stipulates that fees paid to Ultramar are not reimbursable if the agreement is terminated, unless Ultramar terminates the agreement within 45 days of its receipt of a duly signed copy of the agreement. [ 11 ] However, a client has the right to obtain the services foreseen by the contract he concluded. Defendants paid $224 in order to be covered for repairs when they arose, pursuant to the Protection Agreement they signed in March 2010. [ 12 ] Defendants requested a repair but it was never done. Ultramar failed to respect its undertakings.

Since Defendants did not receive the repair they required, although they paid for the service, and given that they were advised they would receive a credit amounting to the cost of the Protection Agreement, the Court considers it appropriate that they be reimbursed the $224 fee. [ 13 ] However, Defendants have not paid for their home heating oil and are required to honour their contractual obligations.

They are responsible for the payment of $759, less the reduction of $224 granted to them, by the Court, for the lack of service. [ 14 ] As for their cross demand, Ultramar is not responsible for Defendants’ decision to convert to electricity. The conversion to electricity is not a direct consequence of Ultramar’s fault. The claim of $4,760 is therefore denied. FOR THESE REASONS, THE COURT: GRANTS , in part, the action; CONDEMNS Defendants, Richard Hamilton and Esther Sydney, to pay Ultramar Ltd. $535 plus interest of 18% per annum from September 24, 2010 and judicial fees of $69.

DISMISSES the cross demand, with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: March 26, 2013