2017 QCCQ 3272, 2017 QCCQ 3272

9311-5400 Québec inc. c. Acn All Communications Network of Canada 2017 QCCQ 3272 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151765-163 DATE: April 11, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ 9311-5400 QUÉBEC INC. Plaintiff v.

ACN ALL COMMUNICATIONS NETWORK OF CANADA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] GIVEN the telephone services agreement which intervened between the parties (exhibit D-1), and, more particularly, par. 12 thereof, which states: “ 12.

DISPUTE RESOLUTION AND ARBITRATION To the extent permitted by applicable law and unless otherwise agreed, any dispute or claim (whether based on statute, regulation, contract, tort, or otherwise), present and future, arising from or relating to the Agreement ("Dispute") shall be determined by final and binding arbitration. The arbitration will be conducted by a single arbitrator to the exclusion of the courts in the province or territory of your billing address as provided to ACN, in accordance with ACN's Dispute Resolution and Arbitration policy ("Arbitration Policy") as described in this

Section 12, and the applicable arbitration legislation in effect in the province or territory of your Canadian billing address as provided to ACN. You and ACN both agree that arbitration is mandatory in order to resolve any and all Disputes. If you have a Dispute arising from or relating to your Service, Device or invoice, or otherwise arising from or relating to the Agreement, please first call ACN Customer Service at the number listed in

Section 15 below. This Arbitration Policy applies to any arbitration between a customer and ACN or any of its subsidiaries or affiliates (collectively "ACN"). Either party to this Agreement has the right to initiate arbitration in order to reach the final resolution of a Dispute ("Claimant"). Upon receiving a written notice of arbitration ("Notice") from a Claimant, or upon issuing a Notice to a Claimant, ACN will ensure that the Claimant is provided with a copy of this Policy. Any Dispute must be brought within two (2) years after the date on which the basis for the Dispute first arises. A.

Notice of Arbitration: i. All customer Claimants must send their Notice to the following addresses: ACN Canada ATTN: Arbitration Notice PO Box 720, Station B Montreal, Quebec H3B 3K3 ii. ACN will send its Notice to your billing address, as provided to ACN.

[…]” [ 3 ] GIVEN art. 622 of the Code of Civil Procedure ; [ 4 ] WHEREAS , however, defendant did not apply for referral to arbitration within 45 days after the originating demand, which was filed on March 30, 2016; [ 5 ] WHEREAS defendant only invoked this issue in its amended contestation, which was filed on February 17, 2017; [ 6 ] WHEREAS plaintiff had the burden of proof (arts. 2803 and 2804 Civil Code of Quebec ); [ 7 ] WHEREAS plaintiff is suing defendant, in damages, for “order(

s) lost: 7000$” and “customers lost: 8000$”, after the suspension of its services for non-payment; [ 8 ] WHEREAS , firstly, plaintiff did not show that defendant failed to respect the contract or acted in a negligent fashion; [ 9 ] WHEREAS defendant advised plaintiff repeatedly, both in writing and by phone, as required by the contract, that it would suspend telephone services, if the account was not settled; [ 10 ] GIVEN , moreover, par. 10C of the agreement, which states: “ 10. LIMITATION OF LIABILITY, INDEMNIFICATION AND NO WARRANTY […] C.

To the fullest extent allowed by provincial law, ACN will not be liable to you for any direct, indirect, special, incidental, consequential, exemplary, or punitive loss or damage of any kind, or for lost profits or revenues, by reason of any act or omission in ACN's performance under this Agreement.

This provision shall survive the termination of this Agreement. […]” [ 11 ] WHEREAS there is no evidence that defendant failed to respect the agreement which binds the parties; [ 12 ] And, finally, GIVEN that, in any case, plaintiff failed to prove the alleged losses, according to a preponderance of evidence; [ 13 ] Au contraire , GIVEN that plaintiff’s representative, Hoang Anh Tran, explained that customers continued to call once phone service was re-established; as well, all allegations regarding potential 9-1-1 calls, are purely hypothetical; WHEREAS plaintiff failed to prove its allegations; WHEREFORE THE COURT HEREBY: DISMISSES the application; without costs. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: March 14, 2017