2011 QCCQ 4312, 2011 QCCQ 4312

Zand c. Hôtel de Paris 2011 QCCQ 4312 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-120377-090 DATE: April 28, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ KARAN ZAND -and- NEGAR SALEHI […] Richmond Hill, Ontario […] Plaintiffs vs.

HÔTEL DE PARIS 901 Sherbrooke East Street Montreal, Quebec H2P 1P9 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ CLAIM [ 1 ] The Plaintiffs, Karan Zand and Negar Salehi, guests at the Hotel De Paris ("the Hotel") on Sherbrooke Street East claim damages of $1,705.65 resulting from a break in to their car that was parked on Sherbrooke Street in the early hours of the morning, August 25, 2009. [ 2 ] They suffered the theft of a GPS, a Handy cam recording device and plastic cards (not being credit cards).

They incurred the costs of repairing the broken window that had been smashed by the thieves. They also claim a refund of the Hotel fee of $126.72. [ 3 ] The Hotel denies any liability for the loss. FACTS [ 4 ] Mr Zand and Mrs Salehi were guests from out of town; the reservation was made on the Internet.

The website as it existed in 2009 shows the essential attributes of the Hotel, including the following representation: "Have a spot for your car with indoor and outdoor parking" [ 5 ] In fact, the guests staying at the Hotel can readily park their cars on Sherbrooke Street East in an area where there are no parking meters. [ 6 ] There are also six indoor parking spots available for $10 a day, as well as three spots in an alley own by the Hotel.

[ 7 ] The person making a reservation on the Internet cannot reserve a parking spot, although it is possible to request one. [ 8 ] In arriving late in the evening of the 24 th , the Plaintiffs did not insist upon having an indoor parking spot none was offered.

There was simply public it park on the street and did so. [ 9 ] Mr Zand's GPS was under the front seat of the car but it was attached with a wire that was visible. [ 10 ] It was a simple case of smash and grab in the middle of the night, a petty crime that occurs in Montreal and in other cities on a regular basis. - Allegation of fault [ 11 ] Mr Zand complains that no warnings about possible thefts were posted in the Hotel and no admonition to customers to make sure that cars are locked and that nothing is visible.

He also deplores the fact that when he discovered the break-in early in the morning, the Hotel was not able to supply him with any assistance to clean up the broken glass and when he asked the desk clerk to call 911, he was told to simply go to the nearness police station to make a complaint. - The Hotel's defence [ 12 ] The Court heard from Mr Pierre Barnere, the general director of the Hotel.

He explained that the indoor parking spots are available on a first-come, first-serve basis but that the majority of guests park on the street because there are no parking meters and parking is permitted without restriction during the night. [ 13 ] The Hotel is not aware of any particular frequency of theft on Sherbrooke Street East. It should be noted that this is a major street in the city and an area of heavy pedestrian and automobile traffic.

ANALYSIS [ 14 ] The Court can sympathise with the Plaintiffs misfortune but this misfortune is not related in any way to any fault on the part of the Hotel. [ 15 ] The Plaintiff did not insist on indoor parking and accepted the risk of parking on the city street making no further inquiries as to the availability of private indoor parking facilities in the neighbourhood. [ 16 ] While it might be good policy on the part of the Hotel to warn customers about the risks of theft on the city street, these are obvious risks and it is simply common sense to not leave any valuable items in plain view. [ 17 ] It only takes a few seconds for a thief to smash a car window and make off with whatever valuables, cameras, computers, electronic devices, wallets, purses, etc, without detection. [ 18 ] To avoid theft, an owner should simply not leave anything valuable in a parked car overnight on a major city street. [ 19 ] The Court therefore finds no fault on the part of the Hotel and no connection between any action or omission of the Hotel and the unfortunate theft that occurred to the Plaintiffs' detriment. [ 20 ] The Plaintiff was put to be expense of traveling to Montreal for the hearing and it appears to the Court that this is a case where its discretion should be exercised to not award costs.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiffs' action, without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 20, 2011