2014 QCCQ 6532, 2014 QCCQ 6532

Verrillo c. Remorquage Québécois à vos frais inc. 2014 QCCQ 6532 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-129501-112 DATE: July 16, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ NICK VERRILLO […] Dorval (Québec) […] and VALÉRIE PROULX […] Dorval (Québec) […] Plaintiffs v.

REMORQUAGE QUÉBÉCOIS À VOS FRAIS INC. 18 Cassis Street Laval (Québec) H7N 1A7 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Nick Verrillo and Valérie Proulx, a couple who resided, at the time of the events, at a condominium building on 1 st Avenue in Lachine, sue the Defendant Remorquage Québécois Inc., the company who towed their vehicle, a white Mazda 3, on Saturday January 7, 2011, from the their parking spot on the condominium premises. [ 2 ] They allege fault on the part of Remorquage Québécois à vos frais Inc. in the following particulars: 1) The towing was illegal because the car was parked legally in its assigned spot; 2) Remorquage Québécois à vos frais Inc. did not have the necessary regulatory approvals to tow vehicles in that neighbourhood; 3) The Plaintiffs were compelled to pay the towing fee in order to obtain details as to the car’s whereabouts;

4) They were dealt with in a manner that was insulting by an employee of Remorquage Québécois Inc. à vos frais Inc. who refused to reply promptly and courteously to their requests for information. [ 3 ] They sue for the reimbursement of the towing fee, the cost of a taxi to get to the car, and moral damages for the trouble, inconvenience, indignation and frustration because of the vexatious nature of the conduct of Remorquage Québécois à vos frais Inc. [ 4 ] The action was taken for $ 7,000.00, the maximum permitted in the Small Claims Division but, at the hearing, Mr Verrillo mentioned that his intention had been to quantify his claim at $ 4,500.00. [ 5 ] Remorquage Québécois à vos frais Inc. contests on the ground that it carried out its work “ selon les règles de l’art ”. [ 6 ] At the hearing, its representative, Mrs Ginette Bourget, answered each aspect of the claim.

On the issue of the authorisation to tow vehicles, she stated that the contract between Remorquage Québécois à vos frais Inc. and the Syndicate of co-owners stipulated that they should tow any vehicle not having displayed visibly in the car the “ Permis maison ” meaning the permit issued by the Syndicate of co-owners to the holder of the parking space. [ 7 ] Her allegation is that her company towed the vehicle because this permit was not displayed visibly. [ 8 ] She maintains that the company did have the required permits to tow in this vicinity, that it did not require payment before giving information about the vehicle, and she further denies that her staff, at that time, committed any fault in the manner in which they dealt with the Plaintiffs. [ 9 ] Initially at the hearing, Mrs Bourget requested a postponement so that she could obtain an order to require the current owner of the business to provide the name of the person who was driving the vehicle.

This request was not timely given that no request had been made to the Clerk’s office to subpoena any witness whether the employee or the owner of the business or any attempt to require the witness to bring any business records concerning the case. [ 10 ] At the end of the hearing, however, Mrs Bourget was satisfied that she did not require the presence of a witness, and the case was taken under advisement. FACTS [ 11 ] Mrs Proulx and Mr Verrillo were living at the time in a condominium known as “ Les Lofts du 795 ”, where they were perfectly entitled to park the vehicle in parking spot number 83.

Mr Verrillo testifies that the permit issued by the condominium syndicate, was placed on the dashboard, because it did not readily hang well from the mirror. His allegation, then, is that the parking pass was visible so long as the snow was wiped from the windshield. [ 12 ] On January 7, 2011, the couple were on their way to the hospital to visit a sick relative, when they realised that the car had been towed. A sign giving the phone number associated with the towing company was visible in the parking area.

Mr Verrillo complains that when he called the number, the dispatcher would only tell him where the car was located after he made full payment over the phone by credit card. He also complains that when he asked for a receipt, he was told that he would have to go to the Laval address of the company, and that his request to have it emailed to him was also refused. [ 13 ] After paying, he took a cab to the location where the car had been towed. It was parked on a residential street, 15 to 20 minutes away. A Google map printed provided by the Defendant (D-4) shows a location at 950 12 th Avenue.

According to the Google map, this is a four-minute itinerary of 1.5 kilometres. [ 14 ] Mr Verrillo was incensed that his car would be towed when in fact, he has every right to park in the spot from which the car was towed, but he admitted to the Court that if he had received a straight answer to his question, and had been told that Gestion F.R.S.Q. Inc.

(Remorquage Québécois à vos frais Inc.), did not have access to the information about the ownership of the vehicle permitted in his spot and had to rely upon a visible permit, he would perhaps not have been so angry. [ 15 ] It appears that the reception he received through the phone call was really the trigger for the conflict that occurred leading to this lawsuit. [ 16 ] His outrage was increased when he learned from Mr Guy Milmore, who investigated the matter on behalf of the S.P.V.M., that this company apparently did not have the authorisation to operate in the neighbourhood. [ 17 ] The Court heard from Mr Milmore, Inspector since 2003 for the Bureau de taxi et du remorquage de Montréal , an institution responsible for the enforcement of bylaws concerning the operation of tow-trucks and taxis on the Island of Montreal.

The complaint form he filed (P -11) is entitled “ Bureau du taxi et du remorquage formulaire de plainte ”, and shows the logo of the City of Montreal and of the Montreal Police. [ 18 ] There are a number of licensing regulations applicable to tow-trucks operating under this jurisdiction.

When the vehicle operates within the Island of Montreal, it has to be registered and display its permit, and drivers must be licensed under the regulation. [ 19 ] But, when a vehicle operates from another locality and comes on to the Island of Montreal, it can be licensed elsewhere but the driver must nevertheless be the holder of the required permit. [ 20 ] For those vehicles that operate within the Island of Montreal, they must have a “ Permis d’exploitation ”. [ 21 ] After the complaint was made by the Plaintiffs, Mr Milmore inquired with Remorquage Québécois à vos frais Inc., to determine whether the driver was properly licensed and whether the vehicle had its permit. [ 22 ] He determined that Remorquage Québécois à vos frais Inc. had no permit to work on the Island of Montreal.

This is explained by the fact that for the last few years, the company was no longer located in Montreal, having its headquarters in Laval. [ 23 ] Despite his inquiries, he was unable to obtain any information from Remorquage Québécois à vos frais Inc. [ 24 ] Mr Milmore issued a Notice of infraction among other things for failing to provide information to an inspector for permitting the operation of a tow-truck without the necessary registration. [ 25 ] Mr Milmore informed the Court that the Notices of infraction were not successfully served and Mr Milmore always stated that after the business was sold, the new owner registered with the Bureau. [ 26 ] Mrs Ginette Bourget refutes this testimony, stating that the owner of the vehicle was Gestion F.S.R.Q.

Inc. and that it held all the necessary permits with the Bureau. She stated that the business held approximately 1,300 contracts with clients on the Island of Montreal and collaborated with the Montreal Police on a daily basis. [ 27 ] Mr Milmore pointed out that the company who issued the bill located at Laval, was in no way registered for a towing while Mrs Bourget pointed out that the employees who drive the vehicles owned by Gestion F.S.R.Q. Inc., are employed by Remorquage Québécois à vos frais Inc. According to her, Gestion F.S.R.Q.

Inc. is the holding company. [ 28 ] Mr Milmore believes that Remorquage Québécois à vos frais Inc. was the company that managed Gestion F.S.R.Q. Inc., but he does not have any direct knowledge nor does he recall how many towing trucks Gestion F.S.R.Q. Inc. had registered for the Island of Montreal.

[ 29 ] Mr Milmore deplores the fact that the registration numbers of the vehicle and the driver are not indicated on the bill. [ 30 ] Mr. Robert Salois, the Principal of Remorquage Québécois à vos frais Inc. and of Gestion F.S.R.Q. Inc., explained that the drivers of the vehicles are independent and that, as individuals, they hold the necessary licence or work permit. Gestion F.S.R.Q.

Inc. owns the vehicles and has the necessary registrations but the billing for towing and the payments being made to the drivers was handled through Remorquage Québécois à vos frais Inc., because of the desire of the drivers and presumably also of Gestion F.S.R.Q.

Inc. to be immune from lawsuits from disgruntled car owners who wish to sue the company who tow them. [ 31 ] Despite the strategic nature of this corporate set-up, Mr Salois is convinced that his companies were operating legally because they were under no regulatory sanction from the City of Montreal and operated the business without receiving any notices of infraction. [ 32 ] Mr Salois also confirmed that the practice at the time of the drivers was to tow any vehicle where the vignette was not attached to the rear-view mirror, which leaves open the possibility that the vignette was situated on the dash-board, as Mr Verrillo testified, but that the car was towed because the vignette was not visible, because it was not attached to the rear-view mirror. [ 33 ] Mrs Bourget also explained the standard practice of the dispatcher who receives phone calls from persons whose cars have been towed.

The standard procedure is to require payment before giving the information as to the location of the vehicle, and if the owner will not pay, to offer terms of payment (une entente de paiement) and even to offer that an agent attend at the place from which the car was towed, in order to obtain from the individual his name and address so that a bill can be sent. [ 34 ] Her position is very subtle she denies that payment is extracted before the information is given yet, according to her testimony, at the very least, a person must agree to pay and in so doing, meet with a representative of the company and to sign a promise to make the necessary payments. [ 35 ] For the system to work, of course, a requirement is that the police agree not to interfere with this process which, according to Mrs Bourget, they do not. [ 36 ] Effectively then, unless a person is willing to wait to meet with a representative, to identify himself to that person and to sign a promise to pay or, more easily, simply make the payment, he will not obtain the information as to where the car is located. [ 37 ] Essentially then, Mr Verrillo’s testimony is confirmed although, technically speaking, Mrs Bourget can maintain that he was not required to pay before finding out the location of the car.

In fact, he chose the path of least resistance which was to make the payment, as a practical matter, in order to obtain the information. [ 38 ] Mrs Bourget’s testimony shows the curious interaction of the criminal law and the civil law to provide the necessary mechanism to obtain payment in such circumstances.

While, according to Mrs Bourget, it would be a criminal offence to refuse to give back possession of the car to the owner because of his refusal to pay, the police will not interfere if the towing company offers terms of payment and nevertheless requires an admission of owing the money and a commitment to pay.

In her view, the practice of insisting on an in-person meeting or a payment is considered to be legitimate. [ 39 ] On the other hand, it is easy to understand how difficult it would be to get payment if the information about where the cars have been moved to is given without insisting first on payment or signature of a promise to pay. [ 40 ] It is also understandable that towing companies, who want to attract condominium buildings as customers, will prefer to collect the towing fee directly from the owner of the car rather than to bill a condominium syndicate who would then have the trouble of administering the collection of the funds from the very co-owners who elected them. [ 41 ] Therefore, through a subtle interaction of a number of contractual and extra-contractual measures, the whole system is in place whereby cars are towed at the owners’ expense and the towing companies stay in business.

[ 42 ] Returning to the gist of the present file, the Court is of the view that the Plaintiffs have not established, on the balance of probabilities that the car was illegally towed by the owner of the tow-truck, but they have proved that it was illegally towed by Remorquage Québécois à vos frais Inc. [ 43 ] In fact, although the owner of tow-truck, Gestion F.S.R.Q.

Inc., may have had the necessary regulatory approval for the presence of its vehicles on the Island of Montreal, Remorquage Québécois à vos frais Inc., who actually operated the trucks in the hands of self- employed drivers whom it remunerated, did not have such authorisation. [ 44 ] While the City seems to tolerate this division of the business into the ownership of the rolling stock and the management of the day-to-day operations and the remuneration of the drivers from a regulatory point of view, for the car owner whose vehicle is towed, it appears that a scheme was put in place so that he would not be able to detect the owners of the vehicles and the drivers, only the corporate entity to whom his fee is paid. [ 45 ] Mr Salois readily told the Court, with no suggestion on the Court’s part, that this was a mechanism put in place to protect the drivers from litigation.

What he did not say, but which is also quite obvious, is that it was a measure designed to protect the owner of the tow-trucks and the business entity authorised by the City to operate the vehicles from the burdens related to litigation from angry car owners. [ 46 ] Remorquage Québécois à vos frais Inc. cannot have it both ways : it cannot claim that it is not operating a towing business yet at the same time, exact payment from a car owner for having towed the vehicle, before agreeing to disclose the information about the whereabouts of the vehicle. [ 47 ] The Court has no reason to doubt the testimony of Mr Verrillo when he states that the permit proving his right to park was in the vehicle, but he readily admitted it was not on the rear-view mirror where it would normally be found, but on the dash. [ 48 ] All of his correspondence and his testimony was to the effect that the driver must not have cleared snow from the car, but this does not make much sense.

A tow-truck operator would not fail to clear snow from a windshield before surmising that there was no vignette on the dashboard visible through the windshield. [ 49 ] He is performing much more demanding tasks of raising the vehicle on the tow-truck platform and securing it, and the simply task of wiping away snow from the windshield is so easy that it is hard to believe that it is likely that he would not do that. [ 50 ] What is more likely is that the vignette was in the car but not visible through the windshield. [ 51 ] Therefore, while the operations of the driver were probably well-intentioned and justified by the contract with the Syndicate permitting the towing of the vehicle, the customer should not be put to the expense of paying a towing fee to a business entity that is not identified publically toward the City authorities nor toward vehicle owners as the party who has legitimately done the towing. [ 52 ] The Plaintiffs are therefore entitled to reclaim the amount that they paid, $ 95.00 and the taxi fee of $ 9.80, for a total of $ 104.80. [ 53 ] The Court however does not feel that the Plaintiffs are entitled to moral damages: the fact that they were to visit a sick relative and suffered a delay in the planning of the day’s events is a damage that is indirect and the alleged moral damages that are associated with the matter in which they were dealt with, suffers from a certain amount of exaggeration.

[ 54 ] The fact that they were not given the information over the phone and that the request for sending a receipt was not immediately complied with, is not so shocking as to compel the Court to award damages.

Their correspondence was answered and they did receive the receipt. [ 55 ] The inconvenience and trouble of making a phone call, taking a cab and returning home with the car which would have taken less than an hour, is not significant enough to warrant a monetary compensation. [ 56 ] The true source of the Plaintiff’s inconvenience is that their condominium Syndicate set up a system to provide towing vehicles without giving the towing company the task of checking licence-plate numbers.

That was a decision that the condominium Syndicate made for reasons that may not be apparent but it is a matter that should have been addressed between the Plaintiffs and the condominium Syndicate. [ 57 ] The name of the Defendant on the proceedings should be amended to correspond to the actual name of the company Remorquage Québécois à vos frais Inc. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiffs the sum of $ 104.80 with interest at the annual rate of 5% per annum and the additional indemnity provided for by

Article 1619 of the Civil Code of Québec , as of July 20, 2011; CONDEMNS the Defendant to pay the Plaintiffs judicial fees of $ 159.00. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 14, 2014