2012 QCCQ 14930, 2012 QCCQ 14930

Malik c. 9192-1783 Québec inc. (Metro Caisses enregistreuses PDV et équipements d'hôtellerie) 2012 QCCQ 14930 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-122442-108 DATE: December 18, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ KASHIF ALI MALIK -and- H67 DONAIR EAST LTD [...], Saskatoon, Sk. [...] Plaintiffs v. 9192-1783 QUÉBEC INC., doing business under the name METRO CAISSES ENREGISTREUSES PVD ET ÉQUIPEMENTS D’HÔTELLERIE 9505 ave.

Papineau, Montréal, Qc., H2M 2E4 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] H67 Donar East Ltd., situated in Saskatchewan, sued Defendant Metro Caisses Enregistreuses P.V.D. et Équipements d’Hôtellerie for $7,000. Defendant contested the claim and presented a cross demand for $3,500. [ 2 ] Defendant was duly convened to the hearing and called but no representative appeared at trial. [ 3 ] At the hearing, Kashif Ali Malik requested that the procedures be amended to add his name as Plaintiff.

The Court granted his request. [ 4 ] The evidence established that Defendant is incorporated under the name of 9192-1783 Québec inc.. Mr. Malik and H 67 Donar East Ltd. asked that Defendant’s name be amended in order for it to correspond with the name indicated in the registry of Quebec enterprises. [ 5 ] The Court granted this request. The amendment raises no doubt as to the Defendant's identity and the interests of justice militate in favour of the amendment [1] . The evidence and discussion: The principal action [ 6 ] On November 13, 2009, Mr.

Malik purchased restaurant equipment from Defendant for $8,348. $3,597.25 worth of

merchandise was not delivered and/or was not in an acceptable state. [ 7 ] Mr. Malik is entitled to obtain all the merchandise he purchased, in working order and in proper condition. [ 8 ] Defendant failed to deliver all the goods listed in its contract and failed to deliver all the merchandise in good condition. Defendant is responsible for the defective and missing equipment sold. Mr. Malik is entitled to recover the amount of his claim, namely $3,597.25. [ 9 ] Mr. Malik’s company H 67 Donar East Ltd. had originally paid $2,065.70 to CN to ship the purchased goods from Defendant’s premises to Mr.

Malik in Saskatoon, Saskatchewan. After Mr. Malik found the goods unsatisfactory, H 67 Donar East Ltd. returned these goods to Defendant. The freight charges amounted to $582.44. [ 10 ] Although Defendant had promised to pay the freight charges related to the return of the merchandise, it refused to accept delivery of the returned goods.

As a result, H 67 Donar East Ltd. was required to have the goods delivered again, at its own cost. [ 11 ] The Court considers Defendant liable for the damages and for the necessary costs to return the defective equipment. [ 12 ] H 67 Donar Ltd. is claiming $500 for its legal costs to have a demand letter sent to Defendant. However, legal fees are not granted unless there is an abuse of procedures, which is not the case in this instance. [ 13 ] Mr. Malik is claiming $663.45 and $927.39 for his plane fare for two return flights to Montreal from Saskatoon to file proceedings and to attend the hearing.

However, transportation costs are not awarded for parties to institute proceedings or attend trial. [ 14 ] Mr. Malik is also claiming damages for his trouble and inconvenience, namely his stress, waste of time, 73 telephone charges, loss of rent because of the missing and damaged goods, etc.. [ 15 ] Considering that the evidence establishes that Mr. Malik suffered considerable trouble, stress and inconvenience in attempting to resolve the issue of the missing and damaged equipment; [ 16 ] Considering the false promises presented by Defendant, the numerous telephone calls made by Mr. Malik to Defendant, Mr.

Malik’s return to Montreal in an attempt to obtain payment and the related stress and costs involved; [ 17 ] In light of the evidence, the Court considers that Mr. Malik is entitled to an award of damages of $900. [ 18 ] In sum, Defendant is liable to Mr. Malik for the sum of $4,497 and is liable to H 67 Donar East Ltd. [2] for the amount of $582; The cross demand: [ 19 ] Defendant presented a cross demand, claiming $3,500. However, Defendant failed to present any evidence to substantiate its claim and accordingly its claim is not granted.

FOR THESE REASONS, THE COURT: GRANTS, in part, the motion to institute proceedings presented by Kashif Ali Malik; CONDEMNS 9192-1783 Québec inc. doing business under the name of Metro Caisses enregistreuses P.V.D. et Équipements d’Hôtellerie to pay Kashif Ali Malik $4, 497 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since January 19, 2010; GRANTS , in part, the motion to institute proceedings presented H 67 Donar East Ltd.; CONDEMNS 9192-1783 Québec inc. doing business under the name of Metro Caisses enregistreuses P.V.D. et Équipements d’Hôtellerie to pay H 67 Donar Ltd. $582 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since January 19, 2010 and judicial fees of $204; DISMISSES the cross demand of 9192-1783 Québec inc. doing business under the name of Metro Caisses enregistreuses P.V.D. et Équipements d’Hôtellerie;

THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: November 12, 2012 [2] It may be noted that H 67 Donar East Ltd. filed for dissolution and was dissolved on April 27, 2012. Under the Business Corporations Act of Saskatchewan c. b-10 of the Revised Statutes of Saskatchewan, article 219(2) of the Act stipulates that notwithstanding the dissolution of a corporation under that Act, a civil action commenced by a corporation before its dissolution may be continued as if the corporation had not been dissolved.

The provisions of articles 221(1) and 221(2) of the Act deal with the return of property to a corporation that had been dissolved ; see Chalazan and Chalazan vs Urban Oasis Homes inc. , 2012 SKQB 338 .