2013 QCCQ 14016, 2013 QCCQ 14016

Cardi c. Notre-Dame-des-Neiges Cemetery 2013 QCCQ 14016 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-128412-113 DATE: November 8, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ DENIS CARDI […] , Montréal, Québec, […] v.

NOTRE-DAME-DES-NEIGES CEMETERY 4601, Côte des Neiges, Montréal, Québec, H3V 1E7 ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Denis Cardi, claims from the Defendant, Notre-Dame-des-Neiges Cemetery (« Cemetery »), the resolution of a contract he entered into with La Fabrique de Notre Dame de Montréal (“La Fabrique”), whereby the Fabrique promised to provide an annual flower arrangement for the plot where Mr Cardi’s father is interred. [ 2 ] The agreement was entered into with Mr Cardi’s mother on April 22, 1974.

For a capital amount of $ 880, the Cemetery was to provide, in perpetuity, a flower arrangement described in the agreement having an annual value of $ 44. [ 3 ] Mr Cardi is recognised by the Cemetery as the person now entitled to the benefits of this contract. Mr Cardi alleges that the Defendant provided the flower arrangement for 28 years satisfactorily, but since 2003, the Cemetery’s performance has been poor, and to the flower arrangement has only been acceptable in one year, namely 2005. The arrangement that was provided in 2005 was proposed by Sylvia Ceacero, who was then the Director Customer Services.

Mr Cardi alleges that from 2006, however, the flower arrangement became of a much inferior quality, of which he continuously complained to the customer services department. [ 4 ] The Cemetery admitted its fault from time to time, beginning in 2006, and most recently, in 2010, when the Cemetery’s is representative, Mr. Searles stated that the Cemetery had no intention of providing neither the 1974 flower arrangement, nor that provided by Mrs Ceacero in 2005.

In 2011, another representative of the Cemetery, Mr Tremblay, made a new proposal for a flower arrangement, but it was declined by Mr Cardi as being both too small, only three feet instead of five feet, and lacking in one important flower that was provided in both the original arrangement and the Ceacero arrangement . [ 5 ] At one point in the discussions, the Cemetery offered to reimburse part of the contract amount in proportion to the remaining capital left in the contract, i.e. $ 616 being 70 % of the 1974 capital of $ 880. [ 6 ] The offer was clearly insufficient because it was based on 1974 currency values, and failed to take into account inflation of the Canadian dollar since that time. [ 7 ] The Court takes judicial notice that the Statistics Canada figures for inflation since 1974, amount to approximatively 460%.

At that rate, 70% of the initial capital would now be equal to $ 2,833.60. [ 8 ] However, Mr Yoland Tremblay; who represented the Fabrique at the hearing, admitted that to provide a flower arrangement comparable to the one designed by Mrs Ceacero in 2005, it would cost approximately $ 260 per year. This figure was provided by Pépinière Pierrefonds Jardin St-Laurent to Mr Cardi in 2011.

This represents an increase of 600 % since the stated cost of the arrangement at $ 44 in 1974. [ 9 ] According to Mr Tremblay, the cost of the arrangement that the Cemetery currently provides for plots of this size is around $ 90, only about one third of the estimated cost to provide the equivalent to the original arrangement.

Restoring the remaining capital to Mr Cardi would not be a fair result because it would not fund the cost of the flower arrangement for even ten years. [ 10 ] After discussing the matter with the parties, the Court came to the conclusion that the only way of resolving this dispute, given the Cemetery’s position, would be to resolve the contract and have the Fabrique restitute to Mr Cardi an amount sufficient to fund him for the remaining years of the contract, which are approximatively 70 % of the 100 years anticipated.

[ 11 ] It is difficult for the Court to establish the present the value of the funds sufficient to provide an appropriate flower arrangement for the balance of the contract, but even on the basis of a simple multiplication, $ 7,000 is less than the amount required. Mr Cardi is aware that the jurisdiction of the Small Claims Division is limited to monetary awards of $ 7,000, and he would accept the reduction of his claim to that amount. [ 12 ] Mr Searles informed the Court that the Cemetery has cut back on expenses and no longer has the production facilities it once had to grow the plants it needed on site.

This goes a long way to explaining why it has trouble meeting the standards it set for itself at an earlier time. [ 13 ] It is understandable that the Cemetery meets new challenges, both logistically and financially, that were not anticipated in 1974, but Mr Cardi is however entitled to satisfaction for his claim.

FOR THESE REASONS, THE COURT: PRONONCES the resolution of the contract between the parties; and CONDEMNS the Fabrique de la Paroisse Notre Dame de Montréal, operating a Cemetery under the name Notre-Dame-des-Neiges Cemetery, to pay the Plaintiff the sum of $ 7,000, 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 the date of the institution of the proceeding. CONDEMNS the Defendants to pay to the Plaintiff’s judicial fees of $ 159. __________________________________ DAVID L. CAMERON, J.C.Q . Date of hearing: August 27, 2013