2014 QCCQ 11636, 2014 QCCQ 11636

Tandel c. Rogers Communications inc. 2014 QCCQ 11636 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-130419-114 DATE: NOVEMBER 19, 2014 PRESIDED BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ ROSE TANDEL Plaintiff v. ROGERS COMMUNICATIONS INC. Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs. Rose Tandel (“ Mrs.

Tandel ”) alleges that she terminated her contract with Rogers Communications inc. (“ Rogers ”) on October 20, 2010. She is claiming a refund of $572.67, as an overpayment, as well as $3,000 in damages for the trouble and inconvenience she suffered from Rogers. [ 2 ] Rogers pleads that upon cancellation of the contract on April 13, 2011, Mrs. Tandel owed $572.67. QUESTIONS IN DISPUTE 1. When was the Service Plan cancelled? 2. What amount is owed by Rogers, if any? THE RELEVANT FACTS [ 3 ] On June 9, 2010, Mrs.

Tandel entered into a 24-month contract with Rogers, for Internet access on her laptop computer via a USB key (the “ Service Plan ”). The Service Plan gave Mrs. Tandel the right to use up to 500 megabytes (“ MB ”) for $36.64 per month. As a welcome bonus, Rogers gave Mrs. Tandel unlimited data usage, until August 9, 2010. During this period, Mrs. Tandel used almost 4 gigabytes (“ GB ”) [1] . [ 4 ] On October 20, 2010, Mrs. Tandel called Rogers to complain about a charge for data usage in excess of the 500 MB. There are two versions as to what was said during that conversation. [ 5 ] According to Mrs.

Tandel, she cancelled the Service Plan and was expecting to receive a last bill, including a fee for early termination. According to Rogers, Mrs. Tandel modified her plan to a 24-month service plan allowing her to use up to 5 GB for $76.29 per month and, as a good faith gesture, Rogers gave Mrs. Tandel a credit of $207.58 on her October 2010 statement [2] . [ 6 ] Mrs. Tandel did not pay Rogers’ bills for November and December 2010 [3] . Therefore, on January 17, 2011, Rogers sent a letter demanding a payment of $278.26 [4] . [ 7 ] On January 27, 2011, Mrs.

Tandel called Rogers to complain about the automated calls she received, asking her to pay her outstanding invoices of November 2010, December 2010 and January 2011. Again, the parties gave two versions as to what was said but Rogers admits that, on that date, Mrs. Tandel clearly expressed her desire to terminate the Service Plan.

The only reason her request was not processed that same day, is that she did not wait long enough on the line to speak with an account representative to confirm her decision. [ 8 ] On February 15, 2011, Rogers sent another letter demanding $360.12 in arrears [5] . [ 9 ] On February 21, 2011, Rogers’ records show that Mrs. Tandel called to advise that she had requested the cancellation of the Service Plan in October 2010. [ 10 ] On March 24, 2011, Mrs. Tandel called Rogers. Again, versions differ but Rogers’ records [6] show that they discussed the Service Plan cancellation date. Mrs.

Tandel claimed the cancellation date was October 20, 2010, and Rogers’ representative alluded to the possibility of considering January 27, 2011, as the cancellation date. [ 11 ] On April 13, 2011, Rogers terminated the Service Plan for non-payment and billed the contractual cancellation fee of

$353.17 [7] . [ 12 ] Mrs. Tandel claims that after she received Rogers’ bill for April 2011, she called once again to complain and was told to write a cheque for $247.22 and to indicate at the bottom that it was a final payment. She did so [8] . According to Mrs. Tandel, this amount included a 30% discount on the early termination fee of $353.17, calculated as of October 20, 2010, to compensate her for the trouble and inconvenience, which resulted from Rogers’ failure to cancel the contract, as requested at that time. [ 13 ] There is no record of this conversation in Rogers’ files.

In fact, Rogers’ record [9] indicates that on March 24, 2011, this 30% discount was discussed with Mrs. Tandel, who declined it. [ 14 ] On May 31, 2011, Rogers cashed Mrs. Tandel cheque of $247.22 [10] . [ 15 ] On June 5, 2011, a collection agency retained by Rogers demanded a payment of $572.67 [11] . [ 16 ] On July 15, 2011, in order to avoid further damages to her credit rating, Mrs. Tandel paid $572.67 [12] . She formally requested Rogers to refund that amount on September 12, 2011 [13] . ANALYSIS 1.

When was the Service Plan cancelled? [ 17 ] A person who claims that a right is extinguished has to prove the facts supporting his or her position [14] . Evidence is sufficient if it renders the existence of a fact more probable than its non-existence [15] . [ 18 ] Rogers’ bills [16] indicate that Mrs. Tandel’s USB key was used to access the Internet between October 20, 2010, and January 27, 2011. Mrs. Tandel admits that she kept the key and Rogers admits that they do not force the client to return it. The key may have been used by a third party without Mrs.

Tandel’s knowledge but she is still responsible to pay for its use. [ 19 ] Furthermore, despite her unsuccessful telephone attempts, Mrs. Tandel did not complain in writing to Rogers when she received what she claims was wrongful billing. [ 20 ] Therefore, the Court concludes that Mrs. Tandel offered no convincing evidence that the Service Plan was cancelled prior to January 27, 2011. 2. What amount is owed by Rogers, if any? [ 21 ] As of February 11, 2011, Mrs. Tandel owes Rogers $360.12.

The Court deducts $38.14 from that amount, representing an adjustment for the period of January 27 th to February 11, 2011. [ 22 ] Rogers admits that the early termination fee, calculated as of January 27, 2011, amounts to $421.52, tax included. Therefore, as of January 27, 2011, Mrs. Tandel’s total indebtedness towards Rogers is $743.50. [ 23 ] After that date, Mrs. Tandel paid $819.89 to Rogers [17] . Therefore, Mrs. Tandel overpaid $76.49 and Rogers has to refund that amount. [ 24 ] The Court dismisses Mrs. Tandel’s claim of $3,000 for trouble and inconvenience. There was miscommunication on both sides.

The Court cannot conclude that the trouble and inconvenience sustained by Mrs. Tandel in this matter were more than what can be expected when one proceeds to an early termination of a contract, in similar circumstances. FOR THOSE REASONS, THE COURT: [ 25 ] CONDEMNS Rogers Communications inc. to pay to Mrs. Rose Tandel the sum of $76.49, with interest at the legal rate and the additional indemnity provided for by

Section 1619 C.C.Q ., calculated from the date of the demand, namely September 12, 2011; [ 26 ] CONDEMNS Rogers Communications inc. to pay to Mrs. Rose Tandel the judicial fees of $70. ________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: September 16, 2014