2011 QCCQ 8385, 2011 QCCQ 8385

Rooney c. Iacovodonato 2011 QCCQ 8385 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-123078-109 DATE: July 14, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JOHN ROONEY [...], St-Léonard, Qc. [...] Plaintiff v.

JOSÉPHINA IACOVODONATO [...], St-Léonard, Qc. [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] John Rooney is suing Joséphina Iacovodonato for the amended amount of $1,654.34, alleging Ms. Iacovodonato failed to pay for her use of a cell phone Mr. Rooney had given her, contrary to their agreement, and as a result Mr. Rooney incurred expenses. Mr. Rooney is also claiming damages for false accusations Ms. Iacovodonato allegedly made. Ms. Iacovodonato denies the claim. The evidence: [ 2 ] Mr.

Rooney testified that Ms. Iacovodonato asked him to sign a contract in August 2009, in order for Ms. Iacovodonato to obtain a cell phone. She had agreed to pay the monthly charges. [ 3 ] Ms. Iacovodonato maintains Mr. Rooney offered to put her on his account since she had no telephone and the additional person on the account would reduce the applicable fees. [ 4 ] Ms. Iacovodonato testified she never saw a bill and wanted proof of the charges that Mr. Rooney was asking her to pay. Mr. Rooney claimed Ms. Iacovodonato was not interested in receiving the bills. [ 5 ] Ms.

Iacovodonato paid the monthly invoices until November 2009. She then provided two cheques that were returned for insufficient funds. Ms. Iacovodonato testified that she stopped paying her account since she was being charged for long distance calls she did not make. Mr. Rooney also claimed these calls were not made by him. [ 6 ] Mr. Rooney subsequently obtained a separate account, which would contain only the charges related to the cell phone Ms. Iacovodonato used. Given that the bills were not being paid, he cancelled the account. In doing so, Bell charged a cancellation fee of $451.50.

This amount plus the outstanding balance comes to $654.34. [ 7 ] Mr. Rooney also testified that Ms. Iacovodonato had made threats against him. Ms. Iacovodonato maintained that Mr. Rooney made threats against her. The parties filed complaints with the police and, during the hearing, each one stated the other lied. Analysis: [ 8 ] The parties disagreed on many aspects of the case including the circumstances leading to Ms. Iacovodonato obtaining a cell phone and what transpired thereafter.

[ 9 ] However, the parties signed an agreement in virtue of which Mr. Rooney would provide Ms. Iacovodonato with the use of a cell phone and Ms. Iacovodonato would assume the monthly payments. [ 10 ] Ms. Iacovodonato stopped making payments for all charges, including the monthly fee, in November 2009. Because of the outstanding charges, Mr. Rooney cancelled the cell phone account, which had been set up solely for Ms. Iacovodonato’s use. [ 11 ] Given Ms. Iacovodonato's failure to honour her commitment to pay the monthly bills, Mr. Rooney was entitled to end the contract in order to minimize his damages.

However, in doing so, he incurred a cancellation charge of $451.50, as indicated in the bill from Bell. His final bill, which includes the termination liability charge, comes to $654.34. [ 12 ] Ms. Iacovodonato is responsible for the cancellation charge and the unpaid balance amounting to $654.34; this cost is a direct damage, which results from Ms. Iacovodonato failure to execute her obligations in virtue of her contract. [ 13 ] Mr. Rooney is also claiming $1,000 in damages, alleging Ms. Iacovodonato spread false stories about him. However, Mr.

Rooney has the burden of proof and since both parties have claimed that the other had lied, Mr. Rooney has not satisfied the Court by preponderant evidence that his claim in this regard is well founded. [ 14 ] Furthermore, the essence of this aspect of Mr. Rooney's claim is that Ms. Iacovodonato's alleged stories about him affected his reputation. However, this Court does not have jurisdiction over such a matter. FOR THESE REASONS, THE COURT: GRANTS , in part, Mr.

Rooney's action; CONDEMNS Joséphina Iacovodonato to pay John Rooney the sum of $654.34 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since March 25, 2010. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: June 6, 2011