2017 QCCQ 1821, 2017 QCCQ 1821

Auto Fix RDP inc. c. Hermann Isaac 2017 QCCQ 1821 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151158-161 DATE: February 7, 2017 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ AUTO FIX RDP INC. Plaintiff vs.

DIAN HERMANN ISAAC Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] WHEREAS that Plaintiff is claiming $14,000 from the Defendant, detailed as follows: a) $4,9010 for repairs done to his car that he had paid by credit card alleging that the payment had been reversed by the credit card company; b) $2,000 for storage fee of $25 per day between November 24, 2015 until March 9, 2016; c) $7,090 for stress, inconvenience and loss of income because the Defendant threatened him. [ 2 ] WHEREAS that the Defendant did not attend the hearing although he had been duly notified and Plaintiff insisted in proceeding in his absence. [ 3 ] WHEREAS that in regards to the claim relating to the payment for its services Plaintiff admitted at the hearing that the Defendant has paid him the full amount that he owed him in three installments, two of $2,000 and one of $1,000, the last payment having been made on May 25, 2015; [ 4 ] WHEREAS in relation to the claim for loss of income that Plaintiff admitted not having closed his garage due to stress of its owner Ali Mohamad Matout and did not establish having lost any income due to stress; [ 5 ] WHEREAS in relation to the claim for storage fee that Plaintiff has not established why he retained Defendant’s car since November 24, 2015 alleging that the credit card company cancelled the payments it had first approved, as the evidence revealed the following:

a) The first time one of Defendant’s credit card payments made to Plaintiff appears to have been questioned by the credit card company seems to have been on December 7, 2015 when a payment of $1,690 was debited from Plaintiff’s bank account (P-7), but the amount was credited back to Plaintiff’s bank account on December 11, 2015;

b) Same thing happened with the November 15, 2015 $1,600 credit card payment the Defendant made in favour of Plaintiff: it was withdrawn from Plaintiff’s bank account of January 18, 2016 to be credited back to its account on January 20, 2016;

c) Plaintiff claims to have paid back the moneys to the credit card company on February 18, 2016 by money order in the amount of $2,740 and has not established to the Court’s satisfaction why the numbers do not add up. [ 6 ] WHEREAS that Plaintiff has admitted that the Defendant paid it $2,000 on December 18, 2015 in relations to the repairs to his car and that he later refused to accept payment that the Defendant attempted to make by bailiff, it has failed to establish that it had a right to retain Defendant’s car and to charge him for storage.

[ 7 ] WHEREAS in relation to the claim for damages that Plaintiff has not established by preponderance of evidence that the Defendant physically attacked Ali Mohamad Matout on December 19, 2015, fact that he did not allege in support of his claimed filed on February 11, 2016; [ 8 ] WHEREAS that the Defendant sent written messages of threats to Ali Mohamad Matout, owner of Plaintiff, but that said Ali Mohamad Matout is not a Plaintiff in the present case; [ 9 ] WHEREAS that Plaintiff could not have amended his claim at the hearing in the absence of the Defendant to add a Plaintiff to the claim, that the amended claim would have needed to be notified to the Defendant for the Court to proceed on it; [ 10 ] WHEREAS the circumstances of the case, the Defendant should not be entitled to reimbursement of the judicial fee he paid to his contestation of the claim. [ 11 ] WHEREFORE, THE COURT: [ 12 ] REJECTS Plaintiff’s claim. __________________________________ MAGALI LEWIS, J.C.Q.

Date of hearing: February 6, 2017