2014 QCCQ 460, 2014 QCCQ 460

Campeau c. Bell Mobility 2014 QCCQ 460 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-127706-119 DATE: January 13, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JUDY CAMPEAU […], London, Ontario […] Plaintiff v.

BELL MOBILITY 1 Carrefour Alexander G-Bell, tour A-7, Verdun, Québec, H3E 3B3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Judy Campeau, sues Bell Mobility, in connection with the purchase of an internet “Turbo Stick” and with mobile telephone services. [ 2 ] Her claim includes the following items: - reimbursement of an overpayment of $ 525.62 - “interest” for overpayment and services not received: $ 443.57 - damages for harassment, loss of enjoyment of life, inconvenience due to threats, insulting and foul language: $ 6,000. [ 3 ] Bell Mobility takes the position that it terminated the service on the Turbo Stick (clé Turbo) because of non payment, but, in an attempt to settle the matter, decided to reimburse the Plaintiff for charges she paid for this service, in the amount of $246.40. [ 4 ] Ms Campeau wrote to Bell Mobility, refusing to cash the cheque, dated April 21, 2011, because she felt she was owed approximately $ 600 including a cancellation fee for a service she did not cancel, but was cut off by Bell Mobility.

FACTS [ 5 ] The problems began when Ms Capeau purchased a Turbo Stick at Bell World in Lasalle in January 2010. A Turbo Stick is a device that fits into the USB port of the user's computer, connecting it to the internet through a wireless signal.

Ms Capeau was unable to get hers to work. [ 6 ] Then, problems arose on her billings: Bell Mobility claimed it did not receive a payment of $ 125.68 paid in February, according to Ms Campeau’s bank statements. [ 7 ] Ms Campeau called many times to try to get a solution to the non functionality of the Turbo Stick, and to correct the account statements, which did not account for the payment she had made. [ 8 ] In March, she had a telephone conversation with a person working for Bell Mobility, a Mr Moisa (phonetic) .

She complains that he was impolite, used foul language and slammed down the phone. [ 9 ] It would seem that this conversation was an isolated incident. [ 10 ] A supervisor to whom she spoke later assured her that a payment that had been received by Bell Canada, rather than Bell Mobility, would be transferred, solving the billing problem. [ 11 ] Ms Campeau asserts having paid all amounts billed to her by Bell Canada and Bell Mobility. [ 12 ] She speaks of an amount of $ 146.25 she paid in April, though it was not due, and, in May, she paid $ 112.56. She received a bill

of $ 387.45, which she refused to pay, because, Bell Mobility had not recognized previous payments. [ 13 ] Eventually, a collection agency began frequent calls to collect certain payments. The written notice (P-10) mentions an outstanding balance of $ 387.45. [ 14 ] She had many discussions with the collection agency and with the Bell companies. [ 15 ] In May, she sent a copy of her billing and banking documents to the collection agency, who ceased calling. The discussions resumed with a person at Bell Canada, concerning the state of accounts. [ 16 ] In April, Bell Canada sent a cheque for $ 246.40.

She refused to cash it. [ 17 ] In the meantime, Bell Mobility issued a terminal bill when it cut off the services. [ 18 ] A termination fee of $ 400 was paid, but is contested by Ms Campeau, because she was never able to get the turbo stick to function and did not request the cancellation of her cell phone. [ 19 ] Ms Campeau moved to Ontario, and has Bell Canada service there now. [ 20 ] Part of the problem is that, for several months, an initial amount of $ 100 that she paid when she purchased the Turbo Stick was not credited to her account. [ 21 ] Bell Mobility produced two witnesses, one who represents Bell Canada, the other Bell Mobility. [ 22 ] The cell phone bill was part of the Bell Canada bill that pertains to the land line, but the Turbo Stick was billed separately by Bell Mobility. [ 23 ] The amounts of $ 146.25 and 100 paid on this account were reimbursed to Mrs Campeau, based on her assertion that she never received the service by way of a cheque for $ 246.25 which Mrs Campeau never cashed. [ 24 ] The problem of payments results from the surplus paid on the Bell Canada account, and a corresponding deficit on the Bell mobility account. [ 25 ] The $ 400 cancellation concerning the Turbo stick fee was reversed on the account, but not the cancellation of the cell phone. [ 26 ] An additional credit of $ 91.72 that was owed to Ms Campeau was mentioned by Normand Giguère.

He undertook to verify whether this amount had been reimbursed, and to issue a cheque if it had not. Ms Campeau does not recall receiving such a cheque. [ 27 ] A final Bell Mobility account shows adjustments in the form of credits totalling $ 633.85 applied against the current balance leaving a credit balance of $ 246.40. These adjustments include the cancellation fee of $ 400 and the monthly charges, both of which were for the Turbo Stick. [ 28 ] Bell Mobility would accept a judgment of $ 246.40, the amount it admits owing, adding that interest should not be awarded because it tendered this amount in April 2011.

ANALYSIS [ 29 ] On the whole of the evidence, the Court concludes that the credits necessary to establish the proper account between Bell Mobility and Ms Campeau have been made, subject to the obligation of Bell Mobility to make the payment of $ 246.40 tendered in April 2011 and the problem of the cancellation [ 30 ] The charge of $ 400 for the termination of the Turbo-Stick service has been credited. But and additional charge of $ 400 for the termination of the mobile phone service has not been established except through a note in the file.

Ms Campeau insists that she did not ask for the termination of this service. [ 31 ] Rachel Mobio, representing Bell Mobility, explained that she did not enquire as to the $ 400 charge for the cancellation of the mobile phone service, because the dispute between the parties did not mention this charge. [ 32 ] In the Court’s estimation, it was probably a misunderstanding, because Ms Campeau had no complaint about the cellular phone service, only about the Turbo Stick service, which never functioned.

The note in the file is consistent with the hypothesis that Bell mobility misunderstood her, and cancelled the service without her request. [ 33 ] At the hearing, Bell Mobility offered to reimburse the amount, without admitting any error on its part, with a view to setting this part of the matter. [ 34 ] Even without this offer, the Court would have awarded this amount, accepting the sincerity of Ms Campeau’s testimony, while at the same time finding that Bell Mobility made the honest mistake of cancelling her service. [ 35 ] As for the claim in damages, there is no evidence that Ms Campeau’s credit standing was negatively affected by the dispute over the small amounts in issue.

The calls from the collection agency were a bother, but the evidence does not show a degree of repetition that would constitute harassment. When Ms Campeau sent along the documentary file showing the payments she had made, the calls ceased. [ 36 ] As for the general aggravation relating to the difficulties encountered in her dealings with the Bell companies, the Court is convinced that Ms Campeau was aggravated, but is unconvinced that any employee of Bell was at fault in the various misunderstandings

and errors that occurred. There is however the incident when and employee was impolite with Ms Campeau and used profanities during a phone call that was abruptly interrupted. [ 37 ] There does not seem to be any true moral damage associated with this event. The testimony of Ms Campeau’s sister demonstrates that Ms Campeau was surprised and not impressed by the lack of professionalism on the employee’s part, and felt that she was owed an apology; there is no real prejudice in the form of suffering or nervous shock that the Court would consider to be actionable.

Certainly the Court would not condone rude or impolite conduct on the part of any person providing services to a consumer, but, to establish a claim in damages, a real harm must be established. While not correct, the conduct complained of here was an isolated incident, not a form of harassment and had no real consequence other than to discredit the speaker's employer. FOR THESE REASONS, THE COURT: GIVES ACT to the parties of the undertaking of Bell Canada to ascertain whether the Plaintiff received a reimbursement of $ 91.72 and, as the case may be, to remit the amount of to the Plaintiff.

CONDEMNS the Defendant Bell Mobility to pay to the Plaintiff the amount of $ 646.40, without interest. CONDEMNS the Defendant Bell Mobility to pay the Plaintiff’s judicial disbursement of $ 159. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 17, 2013