2018 QCCQ 4784, 2018 QCCQ 4784

Kennedy c. Telenuage inc. 2018 QCCQ 4784 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155885-173 DATE: June 12, 2018 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ SAMUEL MICHEAL KENNEDY Plaintiff v. TELENUAGE INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff seeks from Defendant the sum of $4,767.73 in compensation for the damages he alleges to have sustained as a result of the faulty execution by Defendant of a service contract concluded between the parties on or about January 10, 2014. [ 2 ] The contract concluded between the parties is described in a quotation dated December 16, 2013 (Exhibit P-1) and in the revised quotation dated January 10, 2014 (Exhibit P-2). [ 3 ] The damages claimed by Plaintiff are detailed in the letter of demand dated October 31, 2014 (Exhibit P-26). [ 4 ] More particularly, Plaintiff claims an amount of $2,267.73 in expenses and charges he alleges to have incurred as a result of Defendant’s failure to execute with diligence and in a timely fashion, the contract of services binding the parties. [ 5 ] Plaintiff also claims an additional amount of $2,500.00 in damages for loss of time, troubles and inconveniences resulting from the alleged faulty execution of the contract by Defendant. [ 6 ] More particularly, in the demand filed by Plaintiff into the Court record, he details his claim as follows : 1.

The plaintiff claims from Defendant Telenuage Inc. the sum of four thousand seven hundred sixty seven dollars and 73 cents ($4,767.73), representing unwarranted additional charges from Bell Canada and damages resulting from the delayed cancelling and porting of existing Bell land lines to Telenuage’s VOIP (voice over internet protocol) as per the defendant’s contractual agreement, as detailed hereinbelow; 2. The Plaintiff is in business and has telephone lines; 3. On or about December 13, 2013, a meeting of Leslie Greenberg, Ben Benyamin, Jim Britton and Dr.

Kennedy took place to discuss the feasibility of having the existing telephone lines functioning over the internet, the costs, the time schedule, and the phases of execution resulted in an Quotation dated December 16, 2013, and produced herewith as Exhibit P-1 to avail as if herein recited at length; 4. In an e-mail dated Jan. 10, 2014, 2:08 p.m. from Mr. Leslie Greenberg, he states that line (414) […] will be cancelled ASAP. Lines (514) […], (514) […], (514) […]will be cancelled immediately after the lines are ported to the Defendant’s SIP Channels.

He also revises the quotation, as more fully appears from a copy of the e-mail and revised quotation produced en liasse herewith as Exhibit P-2 to avail as if herein recited at length; 5. The Defendant actually attended at Plaintiff’s office on several occasions to set up the VOIP lines, which were working on January 24, 2014, at which time the Defendant billed the Plaintiff, as more fully appears from an invoice from the Defendant to the Plaintiff dated January 24, 2014 produced as Exhibit P-3 to avail as if herein recited at length; 6.

Al that remained to be done was to port the Plaintiff’s telephone lines and numbers from Bell to the VOIP; 7. The defendant took over six (6) months to port and cancel the Bell telephone lines despite ongoing, repeated promises to do so during the entire period;

8. In addition, the Defendant billed the Plaintiff every month and the Plaintiff paid for the SIP channels; 9. The Plaintiff attempted to facilitate the matter but only the communication company can port telephone lines; 10. Communicating with Bell, paying their monthly bill, communicating with the Defendant and paying their bills as well, the Plaintiff wasted hours of his time and hereby claims two thousand five hundred dollars ($2,500.00) from the Defendant; 11. Finally the Defendant ported Plaintiff’s lines in July 2014; 12.

As appears from Exhibit P-2, the Defendant was to cancel immediately Plaintiff’s number 514 […]but never did so, despite repeated promises; 13.

The Plaintiff claims from the Defendant the overpayment to bell of two thousand two hundred sixty seven dollars and seventy-three cent ($2,267,73), representing unwarranted additional charges from Bell Canada as well as damages for wasting the Plaintiff’s time and causing great consternation resulting from the delayed cancelling and porting of existing Bell land lines to Telenuage’s VOIP (voice over internet protocol) as per the defendant’s contractual agreement, as detailed hereinbelow; [ 7 ] Defendant contest Plaintiff’s demand and in its contestation filed into the Court record, he alleges the following: 2.

Defendant submits that Plaintiff is the sole person responsible for all costs he incurred, as will be further evidence at the trial hereof; 3. Defendant further submits that Plaintiff is the author of his own misfortune and that it is no way liable for any damages that Plaintiff suffered by reason of his own turpitude; 4. Defendant further submits that it advised Plaintiff that it was not able to cancel the lines before Plaintiff concluded its arrangements with its third party internet service provider Acanac, which Plaintiff failed to do; 5.

Defendant further submits that Plaintiff’s current telephone service provider at the time, Bell Canada, refused to release said telephone lines to Defendant as Plaintiff has not yet paid several outstanding invoices; 6. By not paying his outstanding invoices to Bell Canada, Plaintiff incurred extra costs that Defendant is in no way responsible for; 7. In addition, by not paying his outstanding invoices to Bell Canada, Bell Canada refused to release the lines to Defendant, who as a result was inhibited from being able to execute its services; 8. Moreover, Defendant submits that, Mr.

Jim Britton, acting on behalf of Plaintiff, even expressly told defendant that he would cancel the lines with Belle Canada himself; [ 8 ] At trial, in support of his demand, Plaintiff testified as did Mr. James Britton, a friend of his as well as Mr. Jérémie Pottin-Claude, a representative of Bell Canada. [ 9 ] As for Defendant, Mr. Leslie Greenberg and Mr.

Neil Trevick testified. [ 10 ] The evidence adduced at trial has revealed that Plaintiff has retained the service of Defendant in order to transfer his office and telephone lines, provided by Bell Canada, to a VOIP service supplied by or managed by Defendant. [ 11 ] According to the preponderance of the evidence, testimonial and documentary, pursuant to the discussions held between Plaintiff and Mr.

Leslie Greenberg and pursuant to the quotes issued, it was understood by Plaintiff that he was to arrange for a “dry loop” telephone line, activated by an internet service provider with an internet service carrying the VOIP traffic.

On this issue, Plaintiff retained the services of Acanac Inc. [ 12 ] As concerns Defendant, it was to issue a work order to Bell Canada to cancel the use of the four lines as well as an issue work order to have Bell Canada port the exiting voice lines to a VOIP service. [ 13 ] Defendant also was to install the VOIP hardware and associated services in order to provide continued phone office. [ 14 ] As to the specific timeframe within which Defendant was to perform its different obligations, the evidence is contradictory.

However, the evidence clearly reveals that Defendant did not provide Plaintiff with clear instructions and information as to who was to do what and as to what was the precise time framework for the activation of the requested change of telephone lines and internet service. [ 15 ] In this regard, the Court is of the opinion that, Defendant, as the provider of services, had an obligation to be clear on these particular issues when it contracted with Plaintiff.

This was not the case. [ 16 ] The uncertainty as to how and when the new telephone services would be activated, did, according to the testimony of Plaintiff and to the documentary evidence filed by him, cause the Plaintiff to pay additional fees for services that continued to be unnecessarily provided and billed by Bell Canada at a superior cost than those that were to be paid under the agreement concluded between the parties (Exhibits P-1 and P-2). [ 17 ] In this regard, although Plaintiff was unable to establish the exact amounts that he had to pay in excess as a result of the untimely execution of the contract by Defendant, there is no doubt that he has established that he had to pay amounts in excess to those that he would have paid if the new telephone services had been installed diligently by Defendant and if the correct information had been given to Plaintiff by said Defendant. [ 18 ] Consequently, as for this part of Plaintiff’s claim, arbitrarily, the Court grants him an amount of $1,000.00 as compensation for the excess amounts paid by him [1] .

[ 19 ] As concerns the amounts claimed by Plaintiff for general damages (time loss, troubles and inconvenience), such claim is dismissed as the said damages were not an immediate and direct consequence of Defendant’s partial non-performance of the contract [2] . WHEREFORE, FOR THE FOREGOING REASONS, THE COURT : MAINTAINS Plaintiff’s demand, in part, for an amount of $1,000.00 ; CONDEMNS Defendant to pay to Plaintiff the sum of $1,000.00 with interest at the rate of 5% per annum plus the additional indemnity provided by

article 1619 C.C.Q. as of December 21, 2016 plus the judicial costs in the amount of $170.00. __________________________________ ARMANDO AZNAR, J.C.Q. Date of hearing: April 10, 2018 [1] Jacob Pollack c. The Canadian Imperial Bank of Commerce C/A Montreal 500-09-000208-777 , 20 mai 1981 , J.J. Kaufman, L’Heureux, Dubé, Laflamme, pp. 4-5.