2019 QCCQ 2877, 2019 QCCQ 2877

Lechter c. Westmount Moving and Warehousing Canada Inc. 2019 QCCQ 2877 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-156102-172 500-32-156103-170 DATE: May 10, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ 500-32-156103-170 JOHN LECHTER Plaintiff v. WESTMOUNT MOVING AND WAREHOUSING CANADA INC. Defendant 500-32-156102-172 JUDITH LECHTER Plaintiff v. WESTMOUNT MOVING AND WAREHOUSING CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] John Lechter claims $15,000 in damages from Westmount Moving and Warehousing Canada Inc. (“ Westmount Moving ”) (case # 500-32-156103-170). He alleges that he contracted with Westmount Moving for the packing, moving and storage of movable property from his residence, but that some of the property was returned damaged or was lost.

He adds that he paid for insurance to cover the damage he suffered, but his insurance claim has remained unanswered. [ 2 ] In case # 500-32-156102-172, his wife, Judith Lechter, also claims $15,000 from Westmount Moving. While she is not a party to the contract between Mr. Lechter and Westmount Moving, the latter also packed, moved and stored her property pursuant to the same contract. She alleges that Westmount Moving also lost and damaged her property, and that this constitutes an extracontractual fault. [ 3 ] John and Judith Lechter’s Applications were consolidated and a common trial was held.

This judgment disposes of both Applications. [ 4 ] Westmount Moving denies all liability. It argues that it did not damage or lose any of the Plaintiffs’ property. It admits that it issued insurance covering Mr. Lechter’s property, but ads that he failed to collaborate with the insurance adjustor and therefore he forfeited his claim under the policy. Finally, Westmount Moving alleges that the Plaintiffs have not quantified the damages which they allege to have suffered, and that this alone is a sufficient reason to dismiss their applications. Issues

a) Did Westmount Moving fail to deliver or damage property belonging to Mr. Lechter?

b) Has Mrs. Lechter proved that Westmount Moving committed an extracontractual fault?

c) Did Mr. Lechter breach his duty to collaborate with his insurer?

d) What are the damages suffered by Mr. Lechter? By Mrs. Lechter? Context [ 5 ] Mr. and Mrs. Lechter own a large home in the city of Westmount. They have lived there since 1971 and throughout the years have acquired a significant amount of personal property, including furniture, works of art and antiques, either through purchases or through inheritance. [ 6 ] In 2008, Mr. and Mrs. Lechter decide to renovate their home. To carry out the renovations, they must empty the home of their personal belongings and relocate temporarily in another residence.

[ 7 ] The lease of the property where they temporarily moved expired in July 2013. At that time, the renovations carried out at their home were not yet completed. Plaintiffs had to remove their movable property from the temporary home and store them for a short period until the renovations at their home were complete, and then move the property from storage into their home. [ 8 ] Accordingly, on July 4, 2013, Mr.

Lechter entered into a contract with Westmount Moving whereby the latter agreed to pack the contents of their home to deliver them to a storage facility, to store the property temporarily, and ultimately to return the property at Mr.

Lechter’s home once the renovations were complete (“ Contract ”). [1] [ 9 ] Beginning in November 2013, some of the Plaintiffs’ property that was being stored by Westmount Moving was delivered to their home as the renovations were moving ahead and their home could be lived in. [2] Between November 2013 and May 2014, Westmount Moving gradually delivered boxes of the Plaintiffs’ property to their home. [3] [ 10 ] In April 2014, Mr. and Mrs. Lechter discover that some of the property that was being delivered to their home was either missing or otherwise damaged.

On April 24, 2014, they write to Westmount Moving to complain about the lost or damaged property. [4] [ 11 ] Other correspondence ensued but on August 28, 2014, Mr. and Mrs. Lechter write to Westmount Moving and provided a detailed list of damaged furniture and missing property. [5] [ 12 ] By demand letter dated March 2, 2017, Mr. and Mrs. Lechter, through their lawyer, write again to Westmount Moving and claim $24,110 in damages, which includes $3,500 for trouble and inconvenience and the balance for the value of the lost or damaged property. [6] [ 13 ] On April 26, 2017, Mr.

Lechter files his Application in damages before the Court of Québec, Small Claims Division. He claims $15,000 which includes $1,800 for loss of enjoyment of the property, inconvenience and mental anguish, $9,900 for the value of the damaged property and $3,300 for the value of the missing property. [ 14 ] On the same day, Mrs.

Lechter also files an Application in damages against Westmount Moving and likewise claims $15,000 in damages, which includes $1,800 for inconvenience, mental anguish and loss of enjoyment of her property, $1,200 for the value of the lost property and $12,000 for the value of the damaged property. Analysis and Decision

a) Did Westmount Moving fail to deliver or damage property belonging to Mr. Lechter? [ 15 ] To answer the first question in issue, the Court must first properly characterize the contractual relationship between Mr. Lechter and Westmount Moving. [ 16 ] Indeed the characterization of the contract will notably determine the nature of the contract, each party’s burden of proof, the scope and the intensity of the obligations of the parties to the contract, as well as the available grounds of defense. [ 17 ] Mr.

Lechter characterizes the Contract he entered into with Westmount Moving as a contract of deposit. [ 18 ] The Contract may also be characterized as a contract of transport. [ 19 ] Whether the Court characterizes the Contract as a contract of deposit or a contract of transport is immaterial because in either case, Westmount Moving has an obligation of result towards Mr. Lechter in that it is bound to restore to him the property that it packed, transported and stored. [7] [ 20 ] Moreover, in either case, Westmount Moving’s obligation is the same: it is bound to make reparation to Mr.

Lechter for the injury resulting from the carriage or the custody of the property. In other words, Westmount Moving must restore or deliver to Mr. Lechter the property it moved or stored in the same state as it was when it was entrusted to it. [ 21 ] If Mr. Lechter proves that the property he entrusted to Westmount Moving for packing, storage and moving was lost or otherwise damaged, Westmount Moving is presumed liable unless it proves that the injury or loss was caused by superior force ( force majeure ). [8] [ 22 ] Westmount Moving packed all of the property that it was entrusted to move and store.

In total, the evidence shows that Westmount Moving packed over 250 cardboard boxes of property belonging either to Mr. Lechter or Mrs. Lechter, removed them from their home, stored them in its warehouse and redelivered them to Mr. and Mrs. Lechter. [ 23 ] The presumption of fault will be triggered if Mr. Lechter proves that Westmount Moving’s obligation of result, namely to restore or deliver undamaged property, was not achieved. [ 24 ] Mr. and Mrs. Lechter allege that 43 items which were entrusted to Westmount Moving for packing, moving and storage were either lost or damaged.

These items are listed in their demand letter dated March 2, 2017 [9] as well as in the List of Missing or Damaged Items [10] . [ 25 ] Of the 43 items of movable property on the List, 11 belong to Judith Lechter and 32 to John Lechter.

[ 26 ] The Plaintiffs did not adduce any evidence pertaining to the acquisition of this movable property, for example purchase invoices, receipts or proofs of inheritance. [ 27 ] The plaintiffs adduced photos of 10 of the 43 items on the List of Missing or Damaged Property. [11] [ 28 ] The Court is satisfied that some of the property that was entrusted to Westmount Moving was damaged or lost. [ 29 ] For example, as it appears from Westmount Moving’s work order # 2394L01306890 [12] , its employees write on the work order that a glass top of a curio table is broken. [13] [ 30 ] Westmount Moving argues that Mr. and Mrs.

Lechter’s claim that several items were damaged or missing is not credible and is precluded because Mr. Lechter signed the work orders when the cardboard boxes where delivered to his home where he acknowledges that “all goods received in order except as noted, time and charges are correct”. [14] [ 31 ] Mr. Lechter admits that he signed the receipts for goods. However, as he explains, he signed the receipts prior to the boxes being unpacked by Westmount Moving’s employees.

He could not attest that the contents of the items in the boxes were in satisfactory state since he signed the receipts while the boxes were being unpacked by Westmount Moving employees in different parts of the home. [ 32 ] The Court believes that his explanation is valid and concludes that the signed receipt for goods are not a bar to his claim that some of the items were damaged or missing. [ 33 ] In conclusion, Westmount Moving failed to deliver and damaged some of the property belonging to Mr.

Lechter, although the evidence is not probative enough to prove that all of the items included on the List of Missing or Damaged Property were damaged or lost.

b) Has Mrs. Lechter proved that Westmount Moving committed an extracontractual fault? [ 34 ] Mrs. Lechter is not a party to the moving and storage Contract. Her recourse against Westmount Moving can only be based on an extracontractual fault. [15] [ 35 ] She argues that Westmount Moving’s contractual fault with respect to Mr. Lechter constitutes an extracontractual fault towards her because Westmount Moving damaged or lost property which she owned. [ 36 ] It is true that in certain cases the non-performance of a contractual obligation may give rise to an extracontractual fault.

However, this is the case only where the third party proves that the contracting party breached a legal obligation independent of the contract between the contracting party and the third party. [16] [ 37 ] The Court is satisfied that Westmount Moving damaged some of the goods belonging to Mrs. Lechter. Her testimony and Mr. Lechter’s testimony in regards to the damaged whalebone structure [17] , the damaged antique Japanese screen [18] and the damaged antique with ancient painting [19] to name a few, all items which Mrs.

Lechter owned, is credible and reliable; there is no valid reason to set this evidence aside. [ 38 ] In doing so, Westmount Moving committed an extracontractual fault and is liable towards Mrs. Lechter for any injury she may have suffered. [20]

c) Did Mr. Lechter breach his duty to collaborate with his insurer? [ 39 ] The Contract between Mr. Lechter and Westmount Moving contains a clause entitled “Increased Carrier protection” (ICL). [21] [ 40 ] Mr. Lechter characterizes this clause as insurance. [ 41 ] Mr. Lechter did not adduce a separate stand-alone contract of insurance other than the Increased Carrier Protection clause which is contained in the Contract. [ 42 ] Westmount Moving argues that its obligation to pay under the Increased Carrier Protection clause is not triggered because Mr.

Lechter denied it the opportunity to visit his home and inspect the allegedly damaged property. [ 43 ] The Court agrees with Westmount Moving’s argument. [ 44 ] If the Increased Carrier Protection clause afforded Mr. Lechter [22] insurance coverage for the lost or damaged property, he nonetheless forfeited coverage because he did not afford the insurer the opportunity to come to his home to inspect the damaged items. [23] Mr.

Lechter only consented to allow the president of Westmount Moving to inspect the damaged items. [ 45 ] This is not reasonable as this person is not an expert in valuating damaged items. [ 46 ] In denying the insurer the opportunity to inspect the damaged items, Mr. Lechter breached his duty to collaborate (art. 2471 C.C.Q.) and forfeited coverage.

d) What are the damages suffered by Mr. Lechter? By Mrs. Lechter? [ 47 ] While Westmount Moving has not rebutted the presumption of fault applicable in regards to Mr. Lechter’s claim, and the evidence also establishes that it has committed an extracontractual fault towards Mrs. Lechter. That is not sufficient to trigger its liability. [ 48 ] Plaintiffs’ claim in damages can only succeed if they prove firstly, that each of them suffered an injury or a loss, and secondly, the quantum or amount of this injury. [24]

[ 49 ] Plaintiffs allege they suffered material injury resulting from Westmount Moving’s breach. [ 50 ] Material injury resulting from the interference or breach of a property right can give rise to two categories of damages: pecuniary damages and non-pecuniary damages. [25] [ 51 ] Mr. Lechter alleges the breach caused him non-pecuniary damages in the form of loss of enjoyment of the property, inconvenience, and mental anguish. He claims $1,800 under this head of damages. Mrs. Lechter claims to have suffered the same type of damages and claims the same amount. [ 52 ] Mr.

Lechter also alleges that Westmount Moving’s breach caused him to suffer pecuniary damages; he claims $3,300 for the value of the missing property and $9,900 for the value of the damaged property. [ 53 ] Likewise, Mrs.

Lechter alleges that Westmount Moving’s extracontractual fault caused her to suffer pecuniary damages; she claims $1,200 representing the value of the lost property property and $12,000 for the value of the damaged property. [ 54 ] Westmount Moving argues that the Court should dismiss the Application because Plaintiffs have failed to prove the amount of the damages they each claim. [ 55 ] The Court agrees with Westmount Moving as it pertains to the pecuniary damages portion of the claims. This is why.

Material Injury: Pecuniary Damages [ 56 ] Where material injury is alleged to have been sustained and the plaintiff claims pecuniary damages, the plaintiff must prove (

i) that material injury has been sustained and (ii) the value of the lost or damaged goods. In a claim for material injury, it is insufficient to merely prove that injury has been sustained. [26] [ 57 ] The Court is satisfied that Mr. and Mrs. Lechter suffered an injury in that Westmount Moving either lost or damaged some of the property it was entrusted to pack, move, store and return to them. [ 58 ] But the law requires more of a claimant than merely proof of injury or loss; it must also quantify this loss. As

article 1611 C.C.Q. clearly states, “damages due to the creditor compensate for the amount of the loss he has sustained …” [ 59 ] A court can only award pecuniary damages for material injury if it is able to assess the amount of the damages. [ 60 ] In a case such as the present one, a plaintiff therefore has the burden of proving through sufficiently clear, convincing and cogent evidence, the value of damaged goods, on the balance of probabilities. [27] [ 61 ] A court does not have judicial notice of the value of lost or damaged goods, much less when these goods are antique works of art or furniture, since the value of property is not a fact that is so generally known that it cannot reasonably be questioned. [28] [ 62 ] The value of lost or damaged goods is generally made through expert evidence offered by appraisers or persons skilled in the art of repairing property. [29] This value can also be made with an invoice establishing the acquisition cost of the good, to which depreciation may sometimes apply.At the beginning of the trial in this case, the Court pointed out to the Plaintiffs that there was a deficiency in their proof in that their list of exhibits and witnesses did not disclose that they intended to adduce any expert or appraiser’s report to establish the value or amount of the material damages they claim to have suffered. [30] Nor did the Plaintiffs include any invoices, receipts, contract of sale, etc… evidencing the acquisition cost of the property they allege was damaged or lost. [ 63 ] The Court offered to postpone the trial to allow Plaintiffs to obtain this evidence.

Notwithstanding the Court’s comments and explanation as to the consequences that this lack of evidence could have on their claims, the Plaintiffs insisted on proceeding. [31] [ 64 ] Mr. and Mrs.

Lechter’s evidence in support of the amount of the material injury they claim to have suffered consists of a “List of Missing or Damaged Items” which they prepared and which lists the 43 items that Westmount Moving lost or damaged and ascribes a dollar value for each of these items. [32] [ 65 ] The dollar values that appear on the List is based on the Plaintiffs’ personal experience as collectors and purchasers of art work. The Court ignores the breadth and extent of the Plaintiffs’ experience in this field. [ 66 ] The Plaintiffs adduced insufficient facts that could have led the Court to qualify Mr.

Lechter as an expert art or antique furniture appraiser.

Moreover, the Plaintiffs do not claim to have any experience in the field of furniture repair. [ 67 ] The Plaintiffs are not expert art or antique furniture appraisers, nor are they experts in the valuation of the cost of repairing damaged furniture or art works. [ 68 ] While the Plaintiffs did enter into evidence photos of some of the items on the list, photos of only 10 of the 43 items were filed. [33] For the other items for which a photo is not in evidence, the Court has no evidence whatsoever other than the List prepared by the Plaintiffs. [ 69 ] It is impossible for the Court to assess or quantify the material injury for these items, even using an approximate method. [ 70 ] In short, the court attributes no probative value to the List of Missing or Damaged Items insofar as it purports to prove the quantum.

It does not prove the value of the lost items or the cost of repairing the damaged items. [ 71 ] The Small Claims Division of the Court of Québec is not a court of equity. [34] Its mission is to adjudicate the disputes brought before it in accordance with the applicable rules of law, which includes the rules of evidence and the rules governing the assessment of damages. [35]

[ 72 ] In assessing the amount of pecuniary material injury, a court cannot award damages on an arbitrary basis.

While a judge may resort to approximation to assess damages [36] , there must nonetheless exist in the evidentiary record legally admissible and probative evidence to approximate a quantum and to support an award of damages. [ 73 ] While it is true that a judge has a duty to use the evidence adduced to fix the amount of the loss, this task is not possible in the present case given the total lack of evidence on quantum. [37] [ 74 ] Given the absence of such evidence in the present case, the Court will not award the Plaintiffs any pecuniary damages for the material injury they have suffered as a result of Westmount Moving’s breach.

Material Injury: Non-Pecuniary Damages [ 75 ] Plaintiffs each claim $1,800 for loss of enjoyment of the property, inconvenience, and mental anguish. The Court characterizes such damages as non-pecuniary damages. [ 76 ] This is a category of damages which can be awarded as a consequence of material injury. Indeed, in Cinar Corporation v.

Robinson [38] , the Supreme Court held that when a person suffers material injury as a result of a breach of his property rights, this can also have non-pecuniary consequences, i.e., the stress, emotional distress or, in other words, psychological injury that results from it. [ 77 ] Unlike the situation where pecuniary damages resulting from material injury are at issue, quantifying non-pecuniary damages flowing from material injury does not require expert evidence or documentary evidence ( i.e, invoices, receipts, bills of sale, etc…). [ 78 ] The assessment and quantification of non-pecuniary damages relies on one or all of the following three approaches – the conceptual, personal or functional approaches. [39] [ 79 ] The only rule in this respect is that the victim be compensated in a personalized manner for the loss suffered and the court must reach a reasonable and equitable result. [40] [ 80 ] The Plaintiffs have proven that each has suffered material injury resulting from Westmount Moving’s breach.

Some of their property has been either damaged or lost. [ 81 ] This loss of or damage to property is a violation of their right guaranteed by

section 6 of the Québec Charter of Human Rights and Freedoms (R.S.Q., c. C-12 ) and pursuant to paragraph 1 of

article 49 of the Charter , entitles them to receive compensation in the form of non-pecuniary damages. [ 82 ] The Court believes that an award of $500 to each of the Plaintiffs for non-pecuniary damages is fair and reasonable. FOR THESE REASONS, THE COURT: In case # 500-32-156103-170 [ 83 ] GRANTS in part John Lechter’s Application; [ 84 ] CONDEMNS Westmount Moving and Warehousing Canada Inc. to pay to John Lechter $500 with interest at the legal rate plus the additional indemnity provided for by

article 1619 Civil Code of Québec calculated from March 12, 2017; [ 85 ] WITH COSTS of $200 payable by Westmount Moving and Warehousing Canada Inc. to John Lechter; In case # 500-32-156102-172 [ 86 ] GRANTS in part Judith Lechter’s Application; [ 87 ] CONDEMNS Westmount Moving and Warehousing Canada Inc. to pay to Judith Lechter $500 with interest at the legal rate plus the additional indemnity provided for by

article 1619 Civil Code of Québec calculated from March 12, 2017; [ 88 ] WITHOUT COSTS . __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: December 11, 2018