2010 QCCQ 4177, 2010 QCCQ 4177

Cité Courrier c. Guru Travel 2010 QCCQ 4177 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115131-098 DATE: May 3, 2010 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ CITÉ COURRIER 80, Lakeshore #1202 Pointe-Claire Québec H9S 4H6 Plaintiff v.

GURU TRAVEL 5329 Décarie #100 Montréal Québec H3W 3C4 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Cité Courrier, is suing Defendant, Guru Travel, for $331, claiming the cost of its services plus damages. Defendant claims the goods were not delivered and presented a counter claim for $5,683.71, for loss of business, revenue and loss of credibility. The principal action: [ 2 ] On December 22, 2008, Defendant's owner, Mr. Ramash Sawhney (“Mr.

Ram”), needed to have Christmas presents delivered. His son, Rohit Sawhney (“Robbie”), contacted Plaintiff, who operates a delivery service. [ 3 ] Plaintiff's owner, Thomas Klein, first advised Robbie that he was too busy but then agreed, as a favour, to deliver wine to Defendant's clients. [ 4 ] Mr. Klein testified that given the short delay and the Christmas rush, he insisted that waybills not be used and that recipients' signatures not be obtained. He was only prepared to have the goods picked up and delivered to the destinations shown on the cards attached to each package. According to Mr.

Klein, Robbie had agreed to this arrangement; Robbie disputed this fact. [ 5 ] Mr. Klein claimed he and two employees made twelve deliveries (of thirteen bottles) on December 23, 2008. Mr. Zemel, who picked up the packages, states in his written testimony that Mr. Ram told him that no waybills or signatures upon delivery were necessary; Robbie and Mr. Klein had made the arrangements. [ 6 ] A week later, Defendant advised Mr. Klein that two customers had not received their gifts. Plaintiff attempted to verify both deliveries. The driver responsible returned to each address.

In one case, a note was left for the recipient but he or she did not call back; in the case of a bank, the receptionist was absent.

Analysis: [ 7 ] Plaintiff claims it carried out the deliveries requested, as a favour for Defendant, explaining that it undertook to do the work only if it did not have to deal with any paperwork, given the short amount of time in which to do the deliveries. [ 8 ] Robbie was not present when Mr. Zelman, an employee of Plaintiff, came to pick up the packages. Mr. Zelman confirms that he was told no waybills would be provided and Mr.

Ram, who was present, did not contradict this testimony. [ 9 ] Plaintiff contended that not all customers use waybills; some simply provide a list of recipients and request that each one sign to show receipt of the goods. In this case, it was unable to determine why certain deliveries were not received. [ 10 ] Defendant contests Plaintiff's invoice and claims that, in the absence of waybills or signatures, there is no evidence any deliveries were made. It had initially advised Plaintiff that two deliveries were not made. Defendant then wrote to Plaintiff claiming no deliveries were made.

At the hearing, Defendant testified that three packages were not delivered. Defendant's claims vary, which affect its credibility. [ 11 ] It is difficult to understand how an operation can be carried out without a paper trace.

However, whether or not Defendant agreed beforehand to proceed in this way, it accepted to have the packages delivered, without any written documentation. [ 12 ] While the proof is contradictory as to the number of deliveries made, The Court is unable to conclude that three people delivered packages on the same day and not one of the packages reached its destination. [ 13 ] Based on the evidence, the Court considers that ten of the twelve foreseen deliveries took place.

Plaintiff is therefore entitled to be paid these delivery charge at $12 per delivery ($15 for one delivery to the South Shore), for a total of $123, less the cost of three packages that were not delivered. [ 14 ] Given the lack of evidence as to which bottles were not successfully delivered, the Court, in its discretion, has taken the price of $15 per bottle to represent Defendant's loss. Accordingly the amount payable to Plaintiff is $78 ($123 less $45). [ 15 ] Plaintiff's claim for damages for the loss of time to come to Court is not accepted. No compensation is payable to institute or defend an action.

The cross demand: [ 16 ] Defendant is requesting $5,683.71 for loss of revenue and business, but presented no evidence in this regard. [ 17 ] As for its claim of damages for loss of credibility, the e-mails presented to the Court do not substantiate Defendant's allegations. None of the e-mails reproaches Defendant for the lack of a Christmas present. Moreover, one of the e-mails is supportive and suggests that Defendant not pay the delivery company. Given the lack of evidence as to the damages suffered, no compensation is granted.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Cité Courrier vs. Guru Travel to pay Cité Courrier the sum of $78 plus tax, plus interest at the legal rate and the additionnel indemnity foreseen by

section 1619 of the Civil code of Quebec since January 1, 2009, plus the judicial fees of $68. DISMISSES Defendant's cross demand, with costs.

__________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: April 6, 2010