2011 QCCQ 6823, 2011 QCCQ 6823

Adler c. 3960285 Canada inc. (Payless Car Rental) 2011 QCCQ 6823 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-120476-090 DATE: June 16, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ BARRY ADLER […], Hampstead, Québec, […] Plaintiff v. 3960285 CANADA INC., doing business under the name PAYLESS CAR RENTAL 635 Marshall avenue, Dorval, Québec H9P 1 E 1 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Barry Adler, is claiming $1,900 from Defendant, 3960285 Canada inc. doing business as Payless Car Rental, alleging that he was overcharged by Defendant for a car rental.

Defendant denies the action and submits that Plaintiff did not return the car within the delays foreseen in his contract. The evidence: [ 2 ] Plaintiff reserved and rented a vehicle from Defendant from April 28, 2009 until May 2, 2009. The price foreseen by the contract was $14 per day plus additional charges for various items, including the cost for an extra driver. [ 3 ] Plaintiff failed to return the car on the date foreseen in the contract.

Defendant then charged Plaintiff $30 per day, based on the terms of the contract, which stipulate that such an amount is payable for every extra day, after the due date. [ 4 ] Plaintiff declared he advised Defendant by telephone that he required an extension of the lease and a person called Mohamed confirmed he could continue to rent the car, at the same rate of $14.00 per day; his wife, who was with Plaintiff in the car during the conversation, corroborated his testimony.

Despite this assurance, Plaintiff submitted he had been overcharged $900, based on the rate of $30 a day. [ 5 ] Defendant claimed one of the persons working as a car “jockey” in its employment may be named Mohamed but he has nothing to do with rentals; no one in the office has that name. Defendant's representative, Mr. Hassane, concluded the contract and he had not authorized the lease extension.

Furthermore, Defendant contended the rate applicable is always that stipulated in the contract and although Defendant posts its rates on its website, the rates vary from day to day. [ 6 ] Plaintiff also claims that an additional sum of $1,000 had been charged to his credit card. Defendant maintains only $1,724.99 was removed but this amount corresponds to the contract; two amounts for the sum of $500 each were marked “authorization” and “pre-authorization” but these sums had not been charged. Analysis: [ 7 ] Plaintiff claims he was overcharged by $1,000 and presented five (5) credit card receipts.

However, two of them, as

indicated above, contain the mentions “authorization” and “pre-authorization”. Plaintiff did not provide his credit card statements and there is no evidence that an extra amount of $1,000 was removed from Plaintiff's account. Therefore, this aspect of the claim is denied. [ 8 ] There remains the question as to the amount charged by Defendant for the delayed return. [ 9 ] Plaintiff submits one of Defendant's employees had authorized him to keep the car at the rate of $14 per day.

Defendant denied knowledge of this conversation. [ 10 ] The contract clearly stipulates that the charge for every day of late car return is $30 per day. Plaintiff and his wife claim they were told they could maintain their original rental rate, despite the terms of the contract. [ 11 ] Defendant denies it allows a contract to be modified in such a manner or that it had agreed to the change in the present case. Defendant maintains it charges the amount stipulated in its contract. [ 12 ] The Consumer Protection Act [1] allows a consumer to make proof by testimony to contradict a writing.

Plaintiff nevertheless has to establish, by preponderant proof the allegations of his claim, namely that during their telephone conversation, Defendant agreed to terms that are different from his contract. [ 13 ] Plaintiff submitted his telephone bill, which shows that on May 1, 2009, he had, in fact, called Defendant before he was to return the car and that the conversation lasted a few minutes.

Both Plaintiff and his wife contend that they were given permission to keep the car for an additional period at the same rate. [ 14 ] The Court finds Plaintiff to be credible and considers it unlikely he would have kept the vehicle for an extended period at a rate which is double that of the original daily rental cost, instead of returning the vehicle and concluding a new contract. [ 15 ] Given the corroborative documentary evidence, the Court concludes that Plaintiff kept the car, with the understanding that the rate would be maintained at $14 per day, based on information provided by an employee of Defendant [2] .

Plaintiff is therefore entitled to be reimbursed the amount representing the difference between $14 per day and $30 per day, for 24 days, namely $384.48 plus the cost of an additional driver ($278.60) for a total of $748.55 (including tax). FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Defendant, 3960285 Canada inc. doing business as Payless Car Rental, to pay Plaintiff, Barry Adler, the sum of $748.55 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec , since July 22, 2009, plus judicial fees of $99. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: May 3, 2011