2016 QCCQ 9746, 2016 QCCQ 9746

Juarrero c. Air Transat AT inc. 2016 QCCQ 9746 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148744-156 DATE: August 22, 2016 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ FRANCISCO JUARRERO Plaintiff v. AIR TRANSAT A.T. INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, in damages, as his suitcase was damaged on a return flight, from Cancun to Montreal, on July 12, 2015. The latches on both ends of the zipper were bent when the lock was forced open, and, according to plaintiff, several threads in the fabric on the front of the suitcase were pulled. [ 2 ] The Samsonite suitcase was purchased, in December, 2012.

Plaintiff did not have an invoice, and alleges he paid "one hundred and something" dollars for it. [ 3 ] Defendant referred plaintiff to a specialist in suitcase repairs. The specialist offered to replace the latches and burn the pulled threads, so they would no longer show.

Plaintiff refused, and demanded that his suitcase be replaced with a new one, that which defendant refused to do; hence, the present claim for the replacement cost of the suitcase ($260.00, according to plaintiff) and other assorted damages, including "$37.62 for the two trips that (he) made to defendant's repair facility". [ 4 ] The amount claimed by plaintiff is excessive. [ 5 ] Although defendant has an obligation to indemnify plaintiff for his loss, plaintiff cannot enrich himself through his claim. [ 6 ] WHEREAS plaintiff was unable to establish the original cost of the suitcase;

[ 7 ] GIVEN his declaration to the effect that he paid "one hundred and something dollars" for the suitcase; [ 8 ] WHEREAS the suitcase was approximately 2½ years old; [ 9 ] WHEREAS the suitcase, which the Court visualized up close, definitely showed signs of wear and tear; [ 10 ] WHEREAS , although the twisted zipper latches and some of the pulled threads are not due to normal wear and tear, plaintiff is not entitled to a new suitcase or the replacement cost thereof, given its depreciation; [ 11 ] GIVEN articles 1458 and 1611 of the Civil Code of Quebec ; [ 12 ] WHEREAS plaintiff did not present any expert evidence with respect to the depreciated value of the suitcase; [ 13 ] WHEREAS , in refusing to accept the conservative yet reasonable measures of repair offered by the specialist, plaintiff did not mitigate his damages (art. 1479 C.C.Q .); [ 14 ] WHEREAS the Court, in its discretion, evaluates the loss at $50.00; [ 15 ] WHEREAS plaintiff is also entitled to $11.50 for the cost of registered mail; [ 16 ] WHEREAS , however, his claim for $37.62 is unsubstantiated; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's motion, in part; SENTENCES defendant to pay plaintiff the sum of $61.50, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , from August 4, 2015. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: June 28, 2016