2020 QCCQ 5902, 2020 QCCQ 5902

Galko Électrique inc. c. Elmosaly 2020 QCCQ 5902 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-707358-182 DATE : November 3, 2020 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS J.C.Q. ______________________________________________________________________ GALKO ELECTRIQUE INC. Plaintiff c.

REFAAT ELMOSALY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On or around November 30, 2017, Mr. Elmosaly requested a price quote from Galko Electrique inc. (Galko) for the installation of an electric car charger at his residence. [ 2 ] Galko sent him a written price quote dated November 30, 2017, which indicated the price for the installation ($425) and the equipment ($878).

The quote mentioned that the price was valid for a period of 30 days. [ 3 ] Clients do not have to purchase the charging station from Galko and can install their own after the necessary breaker has been installed by a certified electrician. [ 4 ] Mr. Elmosaly did not follow through with Galko’s quote right away, but only 10 months later, in September 2018, requesting Galko to proceed with the electrical work and provide the charging station. Although the initial price quote had expired, Galko agreed to honour the proposed price.

When he contacted Galko, Natalie Franko, co-owner and president of the company, informed him that the services and charger were payable after the installation and confirmed to him that the total price was $1,498.12. [ 5 ] On September 18, 2018, Galko sent two employees to Mr. Elmosaly’s residence to proceed with the installation of the car charger which consisted in setting up an electric outlet in the garage, and placing an electrical outlet box and a hook to connect to the vehicle. [ 6 ] Galko’s invoice being payable upon completion of the installation, the employees asked Mr.

Elmosaly for payment once they finished installing the charger. At that point, Mr. Elmosaly indicated to the employees that he did not have checks with him and that he would pay the invoice in full with a bank draft. Galko’s employees left invoice no 5171 with him which he signed, indicating that the job had been carried out and that the amount due was $1,498.12. [ 7 ] The invoice clearly indicates that a monthly 2% administration fee is due on past due invoices, 26.82% per annum. [ 8 ] Galko attempted in vain to retrieve a check from Mr.

Elmosaly a few times as of October 1, 2018: he did not answer the door when an employee presented at his home as agreed and did not answer Galko’s calls. [ 9 ] On October 17, 2018, Mr. Elmosaly contacted Galko to ask it to remove the charging station alleging that he did not like it. [ 10 ] After Natalie Franko told him that there was a service charge of $125 plus taxes for Galko to come to remove the equipment, he changed the reason for asking the charger to be removed and claimed that it did not work.

When Natalie Franko reminded him that if the charging station was defective it could be replaced as it is under warranty, Mr. Elmosaly declined the offer. [ 11 ] Galko agreed to remove the equipment and modify its invoice to charge Mr. Elmosaly the installation fee of $425 and $79 for the box and outlet that would be left in his garage at his request, for a total of $579.47. [ 12 ] Again, Galko asked Mr. Elmosaly to pay its invoice to the employee that would show up to remove the charging station. Further to a long discussion with Mr.

Elmosaly about the removal fee, Natalie Franko also informed him that if he paid the invoice as requested, Galko would waive the removing fee $125 plus taxes.

[ 13 ] On October 23, 2018, Galko’s employee went to Mr. Elmosaly’s residence to retrieve the equipment. When he asked for payment of invoice no 5197 Mr. Elmosaly presented him a bank draft for $488.64, offering to pay only the installation fee, but not the equipment that he asked to keep. The employee offered to remove the equipment and take the check, but Mr. Elmosaly denied him access to his garage to do so. [ 14 ] The employee refused to take a partial payment and left Mr. Elmosaly’s residence. [ 15 ] On October 24, 2018, Galko sent a formal notice to Mr.

Elmosaly, demanding full payment of its invoice plus – since he had not paid the invoice in full as requested and agreed –, the taxable amount of $125 for administration fees, for a total of $723.19, to be paid within 7 business days of receipt. He received the notice on November 13, 2018. [ 16 ] On November 16, 2018, Mr. Elmosaly sent the October 22, 2018, bank draft that he had attempted to give to Galko’s employee of $488.64, which the company returned to him as it did not include the amount for the equipment that he kept from the original installation. [ 17 ] Galko returned the draft to Mr.

Elmosaly on November 20, 2018, and filed its claim with the Court on November 22, 2018. [ 18 ] On December 17, 2018, Mr. Elmosaly had another bank draft made out to Galko for $579.47 which it refused because it did not cover the total amount requested in its October 24, 2018, notice. [ 19 ] Mr. Elmosaly filed and paid his contestation to the claim on February 7, 2019. Judgment was rendered by default against him on August 9, 2019, without a hearing. Rightfully, he applied for revocation of judgment that was granted at the onset of the hearing, and proceeded to hear the case. [ 20 ] Mr.

Elmosaly does not contest owing $579.47 but contests the fee for the removal of the charging station, claiming that it was defective.

ANALYSIS AND DECISION [ 21 ] A person making a claim must provide the Court https://soquij.qc.ca/portail/recherchejuridique/Selection/3958705 - critereTI9 with clear and convincing evidence to support the facts that have given rise to the claim, and convince the Court that the occurrence of the events is more likely than not [1] https://soquij.qc.ca/portail/recherchejuridique/Selection/3958705 - _ftn7 , to satisfy the test of balance of probabilities [2] . [ 22 ] The technician who retrieved the charger indicated that he tested the equipment before unplugging it and that it was working. Mr.

Elmosaly does not give any details as to how the station was defective and, for the reasons that follow the Court does not uphold its contention that the equipment was not working. [ 23 ]

Article 2125 of the Civil Code of Québec ( CCQ ) allows a client to unilaterally resiliate a service contract at any given time. If the client chooses to do so,

article 2129 CCQ bounds him to pay “the provider of services in proportion to the agreed price, the actual costs and expenses performed […] before the notice of resiliation and, as the case may be, the value of the property supplied.” [ 24 ] Natalie Franko explained that she was the one that spoke to Mr. Elmosaly to determine the cost of Galko removing the equipment it had installed a few days prior from his home. She agreed to retrieve the charger and waive the $125 administration fee as long as Mr.

Elmosaly paid for the installation fee ($425) and the electrical outlet box ($79) on the day the equipment would be removed. [ 25 ] Galko’s employee testified that when he was presented with a bank draft in the wrong amount he asked to retrieve the electrical outlet and box from Mr. Elmosaly’s garage, the latter reacted in a heated manner and denied him access to his property. [ 26 ] Mr. Elmosaly reject that claim arguing that he did not interfere with the employee’s job but that the employee could have entered his garage and retrieve the box because the door was open.

In response to Galko’s additional testimony about his demeanour, shortly before the end of the hearing Mr. Elmosaly became agitated, implied that the employee had hit him, only to recant himself when prompted for details, claiming instead that the employee had gestured as if he was about to hit him. [ 27 ] Considering Mr. Elmosaly’s demeanour during the hearing, the Court accepts the evidence presented by Galko in relation to Mr. Elmosaly’s behaviour. [ 28 ] Galko’s October 18, 2018, invoice is a clear indication that the parties had come to an agreement on the amount Mr. Elmosaly had to pay.

Yet, he failed to honour the agreement for the second time, having failed to pay Galko’s original invoice upon the installation of the equipment, offering only partial payment. [ 29 ] When questioned by the Court, Mr. Elmosaly failed to provide a sensible valid explanation as to why he only offered partial payment to Galko on three occasions, and the Court refutes his contention that it may have been because his English is not so good. [ 30 ] As for the amount Galko charged him for going to his home to remove the equipment just because he did not like it, Mr.

Elmosaly was aware of it and was informed as to the condition he had to respect for it to be waved. Galko had no obligation to go to Mr. Elmosaly’s residence to remove the equipment without being paid. It appears that Mr. Elmosaly delayed paying for Galko’s work and the station to have leverage to negotiate the cost of the work and equipment. [ 31 ] Since however, Galko refused Mr. Elmosaly’s partial payment of $488.64 and $579.47, interests on the cost for services and equipment will only accrue as per the date of the present judgment. Legal fees.

[ 32 ]

Article 340 of the Code of Civil Procedure provides that the losing party is entitled to legal costs, which are comprised in the present instance of $151 Galko to file its claim and the cost for registered mail of $23. WHEREFORE, THE COURT [ 33 ] REVOKES the judgement rendered on August 9, 2019; [ 34 ] GRANTS Plaintiff’s claim; [ 35 ] CONDEMNS Refaat Elmosaly to pay $723.19 to the Galko Electrique in plus interest at the rate of 26.82% per annum since the date of the judgment on the amount of $579.47 and since November 13, 2018, on the amount of $143.72, plus $174 as legal costs. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing : September 29, 2020