2017 QCCQ 14962, 2017 QCCQ 14962

Kwitko c. Maritime Estrella Atlantis inc. 2017 QCCQ 14962 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-153685-161 DATE: November 13, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ERIC DUFOUR, J.C.Q. ______________________________________________________________________ LARA KWITKO Plaintiff vs. Maritime Estrella atlantis inc.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Me Lara Kwitko claims $ 1 883.22 from Maritime Estrella Atlantis inc. (Atlantis) alleging that it damaged high-fashioned pants of an ensemble which she intrusted to it for cleaning. [ 2 ] Atlantis denies all liability, alleging that the default may have been caused by the fabric of the pants itself. QUESTIONS IN ISSUES

A) Has Plaintiff prove the fault of Atlantis in the execution of the services contract of dry-cleaning?

B) Has Plaintiff prove her damages? CONTEXT [ 3 ] On May 9, 2014, Plaintiff drops off several items at the premises of the Defendant to have them dry-cleaned [1] . [ 4 ] On May 12, 2014, Plaintiff picks-up her clothes, notably an ensemble composed of a jacket and a pair of pants, both Navy blue color. She pays $ 77 [2] and gets back home. The next day, she dresses up with the ensemble. As she walks down the corridor of her building, she notices that something is wrong with the pants, which are longer than what they were before being dry-cleaned.

Plaintiff returns inside her apartment and sees that the color of the pants and of the jacket are different. In fact, the pants are black. Clearly, a mistake has been done by the dry-cleaner store. [ 5 ] Plaintiff returns to the Defendant’s premises and speaks with an employee, a certain Anabella. She explains the problem and leaves the entire ensemble, hoping the Defendant will find the matching parts. [ 6 ] On an unknown date, she speaks with Mr. Micheal Kutchok, from the Defendant company. She wants to have her pants back. But Mr.

Kutchok’s response is that the Defendant never damaged any cloth, that the operation of their type of dry cleaning is properly functioning. He ascertains that the fabric of the cloths itself may be involved in the color fading of the pants and in the length problem as well. [ 7 ] Plaintiff insists that she had her suit dry-cleaned before and that the color always stayed the same. Besides, the length of the pants is obviously showing that there has been a mix-up with another suit. [ 8 ] As she is speaking with Mr.

Kutchok on the phone some days later, to find a solution, the later becomes rude and pronounces vulgar words. She hangs up and has a bailiff serve a Demand letter to the Defendant on July 17, 2014. [3] ANALYSIS

A) Has Petitionner prove the fault of Atlantis in the execution of the services contract of dry-cleaning? [ 9 ] The contract P-3 is a contract for services which rules are settled in sections 2098 and 2100 of the Civil Code of Québec . These provisions are as follows: 2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him.

2098. Le contrat d’entreprise ou de service est celui par lequel une personne, selon le cas l’entrepreneur ou le prestataire de services, s’engage envers une autre personne, le client, à réaliser un ouvrage matériel ou intellectuel ou à fournir un service moyennant un prix que le client s’oblige à lui payer. 2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence.

Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract. Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. 2100. L’entrepreneur et le prestataire de services sont tenus d’agir au mieux des intérêts de leur client, avec prudence et diligence.

Ils sont aussi tenus, suivant la nature de l’ouvrage à réaliser ou du service à fournir, d’agir conformément aux usages et règles de leur art, et de s’assurer, le cas échéant, que l’ouvrage réalisé ou le service fourni est conforme au contrat. Lorsqu’ils sont tenus au résultat, ils ne peuvent se dégager de leur responsabilité qu’en prouvant la force majeure. [ 10 ] It stems from these articles that Defendant has the obligation to clean the suit of Plaintiff without damaging it, for a dry-cleaner store has an obligation of result towards its clients. So decided the tribunals [4] . In Goldberg c.

Sparkle Cleaners , Hon. Forlini made a complete review of the case law on that point. As he points out, ( t)he distinction between an obligation of result as opposed to an obligation of means is important for two reasons. Firstly, it determines the burden that the plaintiff must meet in order to establish the defendant’s liability. Secondly, it dictates what grounds of defense are available to the defendant to exonerate himself from liability. (…) In the present case, (defendant) had an obligation of result to the extend that it had an obligation not to damage (plaintiff’

s) suit. [5] [ 11 ] Those words apply directly to the case at bar. Insofar as Plaintiff brings her clothes to Defendant to have them dry-cleaned, it has the obligation to clean them without damaging them. Other judgments of the Court conclude the same [6] . Here, Defendant failed to meet its obligation as set forth in the above mentioned sections. [ 12 ] In order to escape liability, Defendant must establish that the damage was caused by a superior force.

A superior force is an unforeseeable and irresistible event, including external causes with the same characteristics [7] . [ 13 ] Defendant pleads that the fabric of the clothes itself may be involved in the color fading problem and in the length as well. But, besides the testimony of Mr. Kutchkok, Defendant brings no evidence of this assertion. No expert evidence has been produced.

At the hearing, the Tribunal has been produced with the clothes by Plaintiff and noticed by itself the defects she is complaining about. [ 14 ] The defense of Atlantis is based on no more than pure speculations put forward by its owner in hope to convince the Court to exonerate the Defendant. Nothing on the evidence adduced by Defendant explains why the pants and de jacket are not of the same color after they have been cleaned.

The same goes with the problem of the length of the pants. [ 15 ] In other words, Atlantis has not shown any evidence to rebut the presumption of liability resulting from its obligation of result.

B) Has the Plaintiff prove her damages? [ 16 ] Plaintiff paid $ 1 100 for her suit [8] . An amount will be awarded, for even though the jacket is still in good condition, the jacket and the pants were meant to be worn together. However, considering that the suit has been bought in 2011 and worn several times, the Court uses its discretion to deduct a 10% depreciation of the purchase value. $ 990 will thus be granted to Plaintiff on that item. [ 17 ] Plaintiff also asks $ 84.79 for the bailiff’s service of the Demand letter [9] .

That too will be awarded to Plaintiff. [ 18 ] She finally asks $ 500 for moral damages. That part of her claim refers to the alleged rudeness of Mr. Kutchok. Not much has been discussed on that item, but for the few words spoken on the telephone conversation that have been reported to the Court. [ 19 ] Despite the un-appropriate attitude of the Defendant’s owner towards a client, the Court will dismiss that part of the claim. As unpleasant as they were, those few words have been pronounce only once, over the phone.

Indeed, Plaintiff was insulted, but under the present circumstances, that does not call for compensation, for no proof of damage has been established. For these reasons, the Court: [ 20 ] GRANTS in part Plaintiff’s action; [ 21 ] CONDEMNS the Defendant to pay to Plaintiff $ 1 074.79 with interests at legal rate and the additional indemnity provided for in

article 1619 of the Q.c.c., from July 17 2014, with costs in the amount of $ 100 representing the fees payed on the Application. __________________________________ ERIC DUFOUR, J.C.Q. Date of hearing: October 24, 2017