American Road Service Inc. c. Déménagemente et entreposage Action inc. 2015 QCCQ 5457 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-143528-141 DATE: June 22, 2015 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ AMERICAN ROAD SERVICE INC. Plaintiff vs. DÉMÉNAGEMENTE ET ENTREPOSAGE ACTION INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $5,880.40 from the Defendant, for repairs it did on two of Defendant’s moving trucks. [ 2 ] In its contestation of the claim, Defendant alleged that the services for which Plaintiff is claiming payment were not rendered as per the service contract. QUESTIONS AT ISSUE [ 3 ] The Court will answer the following questions:

a) Did Plaintiff provide the services for which it is claiming payment?

b) Are Defendants’ grounds of defence valid? CONTEXT [ 4 ] Plaintiff is a truck service center; the Defendant is a moving company. [ 5 ] On May 27, 2011, the Defendant took one of its trucks to Plaintiff’s place of business to have a box transferred onto it and for repairs [1] . On September 19, 2011, Plaintiff issued invoice INS004029 in the amount of $7,694.96 [2] . [ 6 ] On September 14, 2011, the Defendant took another of its trucks to Plaintiff’s place of business for repairs [3] .

On September 26, 2011, Plaintiff issued invoice INS004069 in the amount of $1,186.29 relating to the repairs it did to Defendant’s truck [4] . [ 7 ] On November 21, 2011, Robert Cox ( Cox ), president of Defendant, returned to Plaintiff the two invoices with a note stating that, with respect to invoice INS4029, Plaintiff had quoted $1,500 for the box transfer on the new truck and $3000 max for repairs and transfer of the older box and that with respect to invoice INS4069, Plaintiff had quoted its services at $750-800 plus taxes for the repair of the roof of one of its trucks.

The Defendant thus requested that Plaintiff reviewed [5] the two invoices accordingly. [ 8 ] Cary Émard ( Émard ), president of Plaintiff, testified that at the time he did not remember having quoted lower amounts for the repairs done to Defendant’s trucks than what had been charged. Giving Cox the benefit of the doubt however, he credited $2,260 on invoice INS004029 and $350 on invoice INS004069, for a total credit of $3,000.85 [6] with taxes. [ 9 ] The parties exchanged a few times on the subject of the outstanding invoices, the Defendant never saying that it would not pay them.

[ 10 ] On April 16, 2013, Émard wrote to Cox about the two outstanding invoices, sending him the two original invoices and the credit note, asking that they be processed as soon as possible.

On April 17, 2013, Cox answered that he would pass by Plaintiff’s office the following week to talk about the invoices [7] ; which he did not do. [ 11 ] On October 11, 2013, Cox wrote to Émard: I need to know exactly how much I owe you as the invoices are a little confusing, just tell me what I owe minus the credit you gave me and lets clear this up and be friends again …hahaha [8] [ 12 ] On April 15, 2014, Defendant received a demand letter pertaining to the two invoices that remained unpaid. [ 13 ] Below is what Cox wrote to Émard further to having received the demand letter: April 15, 2014 I received a Baliff (sic) letter this morning demand that I pay $5,880 in 5 days I seem to recall that I tried to work out something with you last October and you wanted nothing to do with my plan, it would have been taken care of by now.

Also I guess you forget that you guys screwed up big time making my moving box 2 feet longer than the legal limit and never rectified the error. I have been paying for special permits and getting fines and truck was reclassified from a class 3 truck to a class 1 truck, meaning only class 1 drivers or I risk a fine. I asked you repeatedly to look after this error and fix the truck reducing it back to legal length but you refused to do so.

I have no choice but to have it done by a competitor and charge it to you If you want to go back and forth and then end up in court by sending a baliff (sic) then so be it, I’ll be there. Regards, Robert Cox April 29, 2014 I want to solve this so please read I will send a check for inv# ins004069 for $1186.29 The other ones I will will (sic) give post dated checks and you need to fix the box that you screwed up on Deal? Robert (Underscore added) [ 14 ] The Parties continued to do business together until after Plaintiff filed its lawsuit against the Defendant.

The Defendant paid all of Plaintiff’s other invoices but invoices INS004029 and 4069. [ 15 ] Cox’s testimony in support of Defendant’s contestation is that he did not sign the work orders related to the invoices for which Plaintiff is claiming payment. [ 16 ] According to him, Plaintiff charged him double the amount that he was quoted and he is not willing to pay anymore than what he was quoted. [ 17 ] Teresa Diodati ( Diodati ), office manager and wife of Cox, brings a completely different, unannounced defence when she testifies. [ 18 ] She explained that the Defendant is justified to contest Plaintiff’s claim because Plaintiff owes the Defendant $7,990 according to an invoice dated March 10, 2011 [9] . [ 19 ] Diodati declared that the Defendant invoiced Plaintiff claiming reimbursement of various amounts it paid between 2005 and 2011: a fine, special permits expenses ($270/year), and an amount relating to a notice sent to the government. [ 20 ] She claims the Defendant incurred those expenses because in 2005 Plaintiff built a truck box for one of Defendant’s trucks the length of which was 6 inches longer than what had been ordered, making the box illegal as per SAAQ’s regulation. [ 21 ] According to Diodati, the Defendant paid $6,265.88 ($5,550 plus taxes) to have the oversized box cut [10] in 2011. [ 22 ] Émard denied having ever seen Defendant’s invoice dated March 10, 2011, and the Defendant had no proof that it was ever sent to Plaintiff.

ANALYSIS

a) Did Plaintiff provide the services for which it is claiming payment? [ 23 ] An affirmative answer to this first question does not require any analysis as it stems from Defendant’s own admission that it required the work, that the work was done and that it is willing to pay the amount Plaintiff quoted for the work that appears on its fax to Plaintiff dated November 21, 2011.

b) Are Defendants’ grounds of defence valid? [ 24 ] A few preliminary remarks on the evidence presented by the Defendant need to be made. [ 25 ] Cox wrote to Émard in April of 2014 that Defendant will pay invoice INS004069 at the condition that Plaintiff fixes the box of the truck.

One has to conclude that, according to Cox, in April 2014, the oversized box had not been fixed. [ 26 ] Yet Diodati filed at the hearing an undated invoice and copy of a check to support her contention that the Defendant paid $5,500 plus taxes in April of 2011 to have the same box cut. [ 27 ] Who should the Court believe? [ 28 ] The March 10, 2011 invoice indicate an amount of $5,500 that the Defendant allegedly paid to government regulations in relation to the oversized truck box, the same amount that the Defendant allegedly paid to have the box cut at about the same period of time. [ 29 ] Except for one amount of $270 paid in 2008 [11] , Defendant did not file any proof that any of the other amounts mentioned on the March 10, 2011 invoice for which it claims reimbursement from Plaintiff was paid. [ 30 ] On November 21, 2011, the Defendant confirmed to Plaintiff that it would pay for the services rendered up to the amount it was quoted by Émard prior to doing the work, statement that Cox reiterated at the hearing. [ 31 ] Diodati declared that when her husband wrote his note to Plaintiff on November 21, 2011, that he would pay the invoice, he did not know that the issue with the oversized box Plaintiff built in 2005 was not settled. [ 32 ] The Court cannot accept that declaration.

If, as Cox wrote in April of 2014, the box had still not been cut, he could not ignore that the truck on which the oversized box was installed could not ride on certain day or at certain times, nor that it could only be driven by a driver holding a special permit. Those restrictions impact on the day to day operations of his business. [ 33 ] If the box had been fixed since March or April of 2011, as per Diodati’s testimony, the Defendant renounced to take action against Plaintiff to claim damages or allowed its right of action to be prescribed,

article 2925 of the Civil Code of Québec ( C.C.Q. ) providing that the prescriptive period is three (3) years. [ 34 ] Defendant never sued Plaintiff to claim compensation for damages or inconveniences it claims it suffered because Plaintiff built to long a box for one its trucks in 2005. It did not file a counterclaim against Plaintiff in response to its action on accounts receivable and did not announce that defence until the hearing. [ 35 ] Defendant was aware of the situation regarding the oversized box at least back from December 2005.

If the Court was to accept Defendant’s contention that it had the box of the truck cut by some time in March or April of 2011, any and all recourse it had against Plaintiff in relation to the oversized box would have been prescribed by April 2014. [ 36 ] The Defendant’s evidence about its claim for damages is not convincing. As to Plaintiff it denied any responsibility about the situation.

Since the fact at the origin of Defendant’s allegation date back to 2005 and no legal action was ever taken against Plaintiff in relation to the alleged situation, Plaintiff did not have the relevant documentation to respond to Defendant’s allegation at the hearing and confirmed to the Court after the hearing that it had not kept the ten year old relating purchase order. [ 37 ] Plaintiff answered Defendant’s November 2011 complaint about the amount it was charged via invoices INS004029 and 4069, by giving it a credit of $3,000.85: invoice 004069 was reduced to $4,494.35 plus taxes and invoice 004029 to $691.28 plus taxes. [ 38 ] With the credit granted, the prices charged by Plaintiff for the work done in 2011 corresponds to what Cox alleged he was quoted by Émard and he has recognised that he should pay the amount. [ 39 ] At the hearing Diodati presented a completely new ground of defence, asking the Court to declare that Plaintiff owes the Defendant $7,990 in damages from unrelated events dating back to 2005 and operate compensation between the amounts each party owes to the other. [ 40 ] The Court cannot grant Defendant’s request for the following reason. [ 41 ]

Article 2882 C.C.Q., provides the following: 2882. A ground of defence that may be raised to defeat an action may still be invoked, even if the time for using it by way of a direct action has expired, provided such ground could have constituted a valid defence to an action at the time when it could have served as the basis of a direct action. (Underscore added) [ 42 ] The authors Baudouin and Jobin summarise as follows the applicable principle in the matter of judicial compensation:

1083 (…) il est aujourd'hui possible au défendeur de faire valoir dans sa défense (donc dans une seule et même procédure) à la fois les moyens d'opposition à la demande et les moyens de demande reconventionnelle. Il faut toutefois, pour cela, que les moyens opposés par le défendeur – en l'occurrence l'existence d'une obligation qui permette l'extinction par compensation – résultent de la même source ou d'une source « connexe » à la demande principale .

D'un point de vue procédural, la réciprocité des obligations ne suffit donc pas en soi pour justifier une demande reconventionnelle et, en l'absence de source commune ou d'un lien de connexité suffisant entre les deux créances, le défendeur devra se pourvoir par un recours distinct . [12] (Underscore added - references omitted) [ 43 ] There is absolutely no relation between Plaintiff’s valid claim for services rendered in 2011 and Defendant’s claim for damages in relation to services Plaintiff provided in 2005. [ 44 ] Consequently, even if Defendant’s claim for damages against Plaintiff would have been valid, conclusion that the evidence presented does not allow to make, this mean of defence invoked against Plaintiff’s claim for the first time at the hearing is not receivable. [ 45 ] As for Plaintiff’s claim, it is well founded. [ 46 ] WHEREFORE, THE COURT: [ 47 ] GRANTS the claim; [ 48 ] CONDEMNS the Defendant to pay to Plaintiff $5,880.40 with the legal interest and the additional indemnity provided for by

article 1619 of the Civil Code of Québec from April 15, 2014, with the judicial costs of $143. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: June1st, 2015; taken under advisement on June 10, 2015