2018 QCCQ 88, 2018 QCCQ 88

Shi c. Jet Set Sports Holdings (Jet Set Sport & CoSport) 2018 QCCQ 88 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-154856-167 DATE: January 16 th , 2018 ______________________________________________________________________ BY THE HONOURABLE FRANÇOIS BOUSQUET, J.C.Q. ______________________________________________________________________ HAISHA SHI ; […] . Montreal, Quebec […] Plaintiff vs. JET SET SPORTS HOLDINGS, LP (doing business under the name of “ Jet Set Sport & CoSport ” ); 196, Road 202 North. P.O. Box 366.

Far Hills, New Jersey 07931 United States Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Defendant sells tickets for sport events on the Internet and has its head office in New Jersey. [ 2 ] In spring 2016, Defendant sold the Plaintiff 4 tickets for 2 matches at the Rio Olympic games. [ 3 ] There were 2 tickets for a soccer match scheduled on August 20 th , 2016 and 2 tickets for a volleyball match scheduled later the same day. [ 4 ] On August 17 th 2016, Plaintiff and her husband flew to Rio. [ 5 ] On August 20 th 2016, they attended, without any problems, the soccer match. [ 6 ] Later, in the evening, they were told that their tickets for the volleyball match were invalid and they could not enter the stadium. [ 7 ] It was late in the evening, and Defendant’s office was closed, so they could do nothing but miss the game and go back to the hotel. [ 8 ] Plaintiff and her husband both say that they were very disappointed because attending the volleyball match was their first, if not their only reason, for going to Brazil. [ 9 ] On August 21 th , 2016, they flew, as previously planned, to Curitiba and the day after they went to Iguazu where they stayed until August 24 th , 2016. [ 10 ] On August 24 th , 2016, Plaintiff and her husband took their return flight from Brazil to Montreal. [ 11 ] Defendant has recognized its error and refunded the tickets, but it refused to pay any other compensation. [ 12 ] On November 9 th , 2016, Plaintiff introduces her legal claim which reads as follows: « 1.

The Plaintiff is suing the Defendant for the following reasons: See annex. 2. The facts occurred on or around May 28, 2016, at Montreal (Quebec) & Rio Brazil. 3. The amount of the claim is $15,000.00. 4. The total amount claimed by the Plaintiff is broken down as follows: See annex. 5. The Plaintiff makes the following clarifications to the facts set out above: The defendant paid an amount of 868.08$ to the plaintiff. The Defendant said that their liability shall be no more than this amount. 6. Although payment has been duly requested by means of a formal notice, the Defendant has refused or failed to pay.

ANNEX I’m writing to inform you that I am claiming the sum of CAD$15,000.00 from you for the following reasons. On May 28, we booked two tickets from you for the women's final volleyball match in Rio Olympic Games (Order #168597). Then on August, my husband and l, we went to Rio as scheduled. But at the game day, your tickets were judged invalid and we were refused to enter by the stuff. Nonetheless, we were told that you've canceled these tickets and sold them to someone else. And we were not the only two who had this terrible experience in Rio. They had found many other examples of this.

And the stuff also said that your company is suspected of fraud. There's evidence to prove it. Furthermore, there's a company's name "The Dow Chemical Company" shown on our tickets. You are deliberately deceiving us. Although you've refund the two tickets fare to us, but it's can't be all, We've expressed our request to you by email, but you are blind to this. It's unfair. We booked the tickets long time before, and we went to Rio with great passion. Finally we got greatly disappointed and suffered a lot! We have suffered heavy blows and losses, not only material, but also spiritual.

It's totally your fault, your mistake and your responsibility. You must make compensation to us. See the followings: 1. Reimbursement of two flight tickets CAD$2,137.90 2. Reimbursement of accommodation CAD$429.00 3. Reimbursement of city transportation fee CAD$200.00 4.

Mental damage compensation CAD$12233.10 » (Sic) [ 13 ] Defendant’s contestation reads as follows: «1.The Defendant contests the following facts: Terms & Conditions of Sale that the client agreed that they read, understand and accept the Terms by scrolling to the bottom to activate the accept/decline button clearly points out that the maximum liability of "THE COMPANY" and the Customer's sole and exclusive remedy for all damages, losses suffered by Customer and causes of action, whether in contract, tort (including but not limited to negligence), or otherwise, shall be the total amount paid by the customer to "THE COMPANY".

We have therefore already refunded the amount that the customer paid to the Company for the administrative error that occurred with the bar codes on the tickets. 2. The Defendant contests the amount of the claim for the following reasons: Customer is claiming the cost of their airfare, hotel room, ground transportation in Rio and mental damage compensation of which is exaggerated and extravagant over what funds were paid to the Company for the tickets.

We have issued the refund due to the customer and have sincerely apologized for the administrative error/bar code invalidation for the tickets that the customer received. 3. The Defendant contests the claim for the following additionnal reasons: The Ticket Resolution Office at each venue typically assisted clients that may have had this error occur and the venue managers could call us to get a valid bar code.

Each venue manager also kept a contingency of tickets available to help out in these extreme cases. » (Sic) [ 14 ] Defendant did not offer any evidence in support of its last argument concerning the « Ticket Resolution Office » or the possibility « to call us to get a valid bar code » or the availability of tickets « to help out in these extreme cases ». [ 15 ] However, Defendant emphasized on its first argument based on the following clause of the sale’s contract: «… the maximum liability of "THE COMPANY" and the Customer's sole and exclusive remedy for all damages, losses suffered by Customer and causes of action, whether in contract, tort (including but not limited to negligence), or otherwise, shall be the total amount paid by the customer to "THE COMPANY" .» [1] [ 16 ] This argument is not founded and must fail. [ 17 ] Indeed, even if Defendant’s head office is in New Jersey, the litigation is governed by the laws of the Province of Québec according to

article 3149 of Civil Code of Québec which provides as follows: 3149. Québec authorities also have jurisdiction to hear an action based on a consumer contract or a contract of employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him. [ 18 ] The Consumer Protection Act “ applies to every contract for goods or services entered into between a consumer and a merchant in the course of his business” [2] and its

article 10 reads as follows: 10. Any stipulation whereby a merchant is liberated from the consequences of his own act or the act of his representative is prohibited. [ 19 ] Consequently, the clause invoked by Defendant is prohibited and may not be set up against any consumer. [ 20 ] Defendant failed to perform its result obligation and

article 1458 of Civil Code of Québec stipulates the followings: «1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party

may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. » [ 21 ] Consequently, the refund sent by Defendant was not its sole obligation as it must compensate all immediate and direct consequences of its default. [ 22 ] The Court will now determine the amount of that compensation. [ 23 ] At trial, Plaintiff’s testimony together with exhibits made the evidence of the following expenses : Flight tickets: $2,137.90 Accommodation and meals for three days in Rio: $ 429.00 Transportation in Rio: $ 200.00 [ 24 ] In the assessment of damages, the Court must consider the following factors: It was a huge deception and Plaintiff says that she would not have gone to Brazil if she had known that it would be impossible for her to attend the volleyball match because it was the main, if not the only, reason why she decided to travel there.

However, she attended, with her husband, to the soccer match and they both enjoy a vacation in Brazil including a stay in Rio, Curitiba and Iguazu. [ 25 ] Given these particular facts, circumstances and arguments, the Court decides that damages in the amount of $1,500 is adequate and fair compensation. [ 26 ] FOR THESE REASONS, THE COURT: [ 27 ] CONDEMNS Defendant to pay to Plaintiff an amount of $1,500 [3] with interest at the legal rate of 5% per annum plus the additional indemnity provided for in

article 1619 of Civil Code of Québec from October 3 rd , 2016 [4] and the legal fees of $ 200 [5] . __________________________________ FRANÇOIS BOUSQUET, J.C.Q. Date of hearing: December 18 th , 2017