2015 QCCQ 12018, 2015 QCCQ 12018

Rif c. Tulchinski 2015 QCCQ 12018 JV0516 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-135971-127 DATE: November 25, 2015 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE SUZANNE VADBONCOEUR, J.C.Q. ______________________________________________________________________ ELENA RIF Plaintiff v.

VITALI TULCHINSKI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Elena Rif sues the Defendant Vitali Tulchinski for the amount of $8,074.48 representing the damages suffered by her following the preparation of her computer by the Defendant which, she alleges, was not done properly. [ 2 ] This amount was reduced to $7,000, the maximum claim permitted within the jurisdiction of the Small Claim Court. [ 3 ] The damages claimed are as follows : • Amount paid to the Defendant : $480 • Amount paid to the second technician : $149.47 • Loss of productivity : $4,400 • Price paid for a new computer : $1,034.76 • Postal fees : $10.25 • Trouble and inconvenience : $2,000 [ 4 ] Mr Tulchinski denies owing these amounts, saying that the amount claimed is unreasonable since the Plaintiff paid only $480 for her computer, adding that he is not responsible for the problems related to her computer since he did not have any obligation towards her. [ 5 ] In his counter-claim, Mr Tulchinski claims $9,852 from Mrs Rif, reduced to $7,000, representing the damages suffered by him : she allegedly harassed him, slandered him, making false accusations to his employer, and attempted a few times to extort sums of money from him. [ 6 ] He adds that her refusal to settle this matter out of Court caused him a great loss of time, inconvenience and unnecessary lawyer fees.

Questions in litigation [ 7 ] The Court has to decide the following questions : • Is Mr Tulchinski in some way responsible for the problems relating to the Plaintiff's computer? • Did Mrs Rif have a faulty conduct towards Mr Tulchinski? • If the answer to either one of these questions is yes, what is the value of the damages so caused?

Context [ 8 ] Mrs Rif is a certified translator (English/Russian). She usually works from home and uses a computer. [ 9 ] In March 2012, she decides to obtain a new computer. She contacts Mr Tulchinski who was referred to her by a friend and asks him if he could build a new computer for her. [ 10 ] She insists that it should be composed with new parts. The Defendant disagrees on that point. [ 11 ] The price would be around 450$. [ 12 ] He takes her old computer in order to transfer its data onto the new one. [ 13 ] A few days later, Mr Tulchinski delivers the « new » computer to Mrs Rif's home office.

She pays 480$ in cash. [ 14 ] He explains to her how to operate it and advises her not to install any Windows updates. He keeps without any charge her old computer for the software that can still be used. [ 15 ] Upon her request Mr Tulchinski sends her a receipt for the full amount (P-1). [ 16 ] Mrs Rif has a few problems with her computer; Mr Tuchinski comes to her place and fixes it. This occurs a few times, some features disappear. [ 17 ] It happens again in April and Mrs Rif tries to solve the problem with the solutions given by Microsoft.

She then realises that there is no serial number. [ 18 ] Mrs Rif leaves for vacation in May. Upon her return in June, the computer does not start up at first. When it finally starts up, she receives a message from Microsoft saying that she might be or have been victim of software piracy. [ 19 ] Mr Tulchinski tells her that she has to buy a licence in order to use Windows 7. [ 20 ] On June 23 rd , the computer stops functioning. Mrs Rif cannot reach Mr Tulchinski so she gets in touch with Nikolaï Panteleev and asks him to examine her computer.

He discovers that the computer is made with old parts, namely the motherboard and the processor, that her Windows 7 is not genuine and that anti-virus is not working. [ 21 ] That examination of the computer, the installation of a licensed copy of Windows, the restoration of her data and the replacement of the software costs her $149.47 (P-2). [ 22 ] On July the 4 th 2012, Mrs Rif sends a letter to Mr Tulchinski (P-3) claiming the sum of $629.47, namely the cost of her new computer and that of the expert's work. [ 23 ] On the following days, Mrs Rif contacts Mr Tulchinski's employer (the vice-president) and tells him that the software of her computer was licensed with the Defendant's office. [ 24 ] On July 16, 2012, Mr Tulchinski responds to her letter of demand (P-4) and makes an offer to settle that matter.

He also asks her to stop harassing him and making false accusations against him. [ 25 ] The two lawyers engage in settlement offers by e-mail, from August to October (P-7 en liasse).

Mr Tulchinski continuously refuses to give her back her old computer. [ 26 ] A settlement is finally reached on August 7 as appears from the e-mail sent on that date (« Monsieur Tulchinski m'avise qu'il accepte cette offre, soit il paie à Mme Rif 900.00$ et en échange elle lui retourne l'ordinateur et signe une quittance finale. ») but it does not work out. [ 27 ] Mrs Rif buys a new computer on August 21, 2012 for which she pays $1,072.17, as shown on the invoice produced as exhibit P- 6. [ 28 ] On August 28, Mrs Rif's lawyer, Me Lev Alexeev, sends an e-mail to Me Novikov saying that her offer included the remittance by Mr Tulchinski to Mrs Rif of her old computer, which is denied by Me Novikov the day after, adding that the old computer does not exist any more. [ 29 ] According to the e-mail sent on October 2, 2012, Mrs Rif is very surprised to learn that Mr Tulchinski got rid of her old computer.

Therefore she asks for another $400 if the Defendant wants to get back the new computer (the one he built for Mrs Rif). He refuses. Analysis and Decision [ 30 ] According to Articles 2803 and 2804 of the Civil Code of Québec , any Plaintiff has to demonstrate to the Court, with proof on the balance of probabilities, that his or her claim is well-founded. This rule also applies to a Plaintiff in a cross-demand. These articles read as follows : « 2803. A person seeking to assert a right shall prove the facts on which his claim is based.

A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim.

2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. » 1. The principal demand [ 31 ] According to the evidence, particularly to Mr Panteleev's testimony, the Defendant did not comply with what was agreed upon by both parties concerning her new computer : she asked that the new computer be built with new parts, which it was not. [ 32 ] Mr Panteleev said that the product key is a blacklisted number (P-5A) indicating that the computer is counterfeited.

There is another sign of counterfeiting : the serial number that we see on P-5E is made of eight zeros. [ 33 ] The release date of that computer was August 1, 2008 as shown on Exhibit P-5E and Mrs Rif bought it from Mr Tulchinski in March 2012, supposedly with new parts.

The computer looked new because the computer casing (the tower) was new. [ 34 ] Mr Panteleev also discovered that the motherboard had been altered, that the CPU (see P-5D) is no longer in production since 2008, and the DDR2 667/CL5 is an outdated type of memory. [ 35 ] Mrs Rif is not an expert in computer matters; therefore she relied on Mr Tulchinski to assist her but he deceived her. [ 36 ] He never gave to her the invoices of the new parts put in the new computer despite many requests on her part.

He says she never asked him, but the Court does not accept this testimony as credible. [ 37 ] Mr Tulchinski denies having sold to Mrs Rif Windows 7. Again, the Court does not believe this is true. His own invoice (P-1) indicates the contrary. [ 38 ] Furthermore, Windows 7 could not have been already in the old computer as mentioned by Mr Tulchinski because it was bought in 2007 (D-8) with Windows Vista installed in it.

Windows 7 did not exist in 2007. [ 39 ] In addition, the evidence shows that Mr Tulchinski changed his mind during the summer of 2012 : according to his exhibit Annex B (voice recording July 6, 2012), he accepted to take back the new computer and to give back the old one to Mrs Rif. In August (see e-mail dated August 29, 2012), his attorney wrote that his client had no intention to give her back her old computer since she asked him to transfer her data onto the new one and to get rid of it.

Of course, Mrs Rif denied that assertion vigorously. [ 40 ] Mr Tulchinski sold to Mrs Rif what he said was a newly built computer. Mrs Rif expected reasonably, even if there was no warranty, that it would work properly during many months if not many years. But it did not. [ 41 ] So, the Court concludes that Mrs Rif is justified in claiming damages from the Defendant.

But the amount claimed is much too high; the damages were not proven as being sustained up to that level. [ 42 ] The Plaintiff is justified to ask for a reimbursement of what she paid to the Defendant for her computer ($480) – and since she cannot have her old computer back, she is entitled to keep the new one – but it is not the case for the loss of her work ($4,400) : there is no evidence that she lost that much.

The Court gives her $1,000 as a compensation for time wasted. [ 43 ] As for inconvenience and trouble, the Court acknowledges that she deserves a certain amount of money but not $2,000. $800 would seem reasonable. [ 44 ] The amounts claimed to compensate what Mrs Rif paid to the technician and what she paid to buy a new computer are not granted because those amounts would have been paid in any event : on one hand to the Defendant if he had been there to repair the computer and on the other hand to a computer store if she had decided to buy a real new computer in the first place. [ 45 ] According to the evidence, the Plaintiff's claim is granted for the amount of $2,290.25. 2.

The counter-claim [ 46 ] The Defendant claims $7,000 from the Plaintiff, alleging harassment on her part. He also alleges that she slandered him, making false accusations to his employer, and attempted a few times to extort sums of money from him. [ 47 ] The evidence to that effect is not conclusive : first, the Court has no proof that Mrs Rif made false accusations to Mr Tulchinski's employer.

Nobody from his employer's office came to testify on that point. [ 48 ] The Defendant himself produced as exhibit Annex G a letter sent by email on July 12, 2012 from Mrs Rif to Mr Isaac Bettan, executive vice-president of I.G.S. Security inc., Tulchinski's employer, to let him know that Mr Tulchinski installed a copy of Windows 7 in her computer which was connected to this employer's license and that the latter could be sued by Microsoft for that. [ 49 ] According to the evidence, this was not a false accusation. [ 50 ] Secondly, the Court has no proof that Mrs Rif tried to extort sums of money from him.

She just sent him a letter of demand at the beginning of July 2012, when she discovered that her new computer was not made out of new parts. [ 51 ] Thirdly, the Small Claim Court has no jurisdiction on actions based on defamation of character as provided in

article 954 of the Code of civil procedure which reads as follows : « 954. This Book does not apply to actions arising from the lease of a dwelling or land referred to in

article 1892 of the Civil Code , to actions for the payment of support or to class actions. Nor does it apply to suits for slander or to actions for the recovery of a claim instituted by a person, partnership or association to whom the claim was assigned in return for payment. »

[ 52 ] Finally, the time spent in writing a procedure or preparing a hearing in Court cannot be considered as damages. As far as moral damages are concerned, and their impact on Mr Tulchinski's health, the Court has no medical evidence of that alleged impact. Furthermore, the Defendant responded « No » to the question put to him by the Court « Did you receive any medical aid? » [ 53 ] The Defendant, having not met his burden of proof, the Court has to dismiss his cross-demand.

FOR THESE REASONS, THE COURT : GRANTS in part the Plaintiff's claim; CONDEMNS the Defendant to pay to the Plaintiff the sum of $2,290.25 plus interests at the legal rate of 5% per year and the additional indemnity provided for in

article 1619 of the Civil Code as of July 4, 2012, and the judicial disbursement of $163.00; DISMISSES the Defendant's counter-claim. __________________________________ SUZANNE VADBONCOEUR, J.C.Q. Dates of hearing: December 23, 2014 and June 16, 2015