2016 QCCQ 20563, 2016 QCCQ 20563

Director for Public Prosecution c. Keeler (Vente Waterworld) 2016 QCCQ 20563 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU « Criminal and Penal Division »

N° : 550-61-043387-154 DATE : Novembre 21st 2016 ______________________________________________________________________ PRESIDED BY MADAM CHRISTINE AUGER, JUGE DE PAIX MAGISTRAT ______________________________________________________________________ THE DIRECTOR FOR PUBLIC PROSECUTION Prosecution Vs MAHLON KEELER (Vente Waterworld) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is accused of having committed an infraction on February 1 2012 at 71 Renards-Blancs, in Ange-Gardien in virtue of

article 46 of the Building Act [1] , which states as follows : « DIVISION II LICENCES General 46 . No person may act as a building contractor, hold himself out to be such or give cause to believe that he is a building contractor, unless he holds a current licence for that purpose.

No contractor may use, for the carrying out of construction work, the services of another contractor who does not hold a licence for that purpose. » a s well the Regulation respecting the professional qualification of contractors and owner-builders [2] [ 2 ] The Prosecution submits that the Defendant sold and installed the system at 71 Renards-Blancs, in contravention of the Building Act . [ 3 ] The Registraire des entreprises [3] for Vente Waterworld is corrolated to the Defendant’s name and the registered address of the business is at his personal residence.

The principal type of activity of the business is door to door sales. [ 4 ] On or about December 16th 2013, Martin Laflèche, investigator for the Régie du bâtiment forwarded a letter to the Defendant advising him of an alledged infraction at 71 Renards-Blancs in Ange-Gardien. [ 5 ] Defendant’s client, Mr. Jean Laniel, testifies that he attended at the Vente Waterworld store and spoke to the Defendant about problems with his water. After a water analysis, it was agreed that he needed a water treatment unit . He purchased the unit from the Defendant who installed it at 71 Renards-Blancs.

The only reason the address of Chemin Vol à Voile is written is because he was in the process of moving into 71 Renards-Blancs but is he was still residing at that address at the time of purchase. [ 6 ] The water treatment unit was purchased in January 2012 from Waterworld. The price included the « installation ». At the end of January, both the Defendant and Mr. Boileau came to do the installation as expected. [ 7 ] Mr. Laniel testifies that he paid 4 500$ for the cost of the unit and labour.

He paid an additional 69$ to Waterworld for after sale service. [ 8 ] After the purchase and installation of the unit, he had several issues with the unit and made many calls to the Defendant, without any successful communication from him. In December, the Defendant finally attended at his residence with an iron based product. If was further agreed that if the issues with the quality of his water were not resolved, he would return free of charge. [ 9 ] The thought never occured to Mr. Laniel that the Defendant was not a plumber although he knew that Boileau was not.

[ 10 ] He never called any other plumber to install the unit nor was there any discussion concerning the necessity of another plumber being required for the installation. He bought the unit with installation included. The transaction was simple and uncomplicated. [ 11 ] The Defendant admitted having sold the unit to Mr. Laniel but denies that he installed the unit at 71 Renards-Blancs. He indicates that he did so for follow-up service calls to that residence. [ 12 ] Mr.

Boileau is an independant sub-contractor for Vente Waterworld and it was his sale, for which he received a commission, as he does for every unit that he sells. ANALYSE [ 13 ] This infraction is one of strict liability which provides a legal framework within which the Defendant can lead a defense of reasonable diligence if the infraction is proven beyond a reasonable doubt. As with all criminal and penal infractions, the burden of proof lies with the Prosecution to prove all of the essential elements of the infraction as charged beyond a reasonable doubt.

To be acquitted, the Defendant needs to raise a reasonable doubt. [ 14 ] In this matter, the Defendant denies having committed the infraction. Does the evidence presented as a whole raise a doubt with the Court? [ 15 ] The Credit contract [4] dated February 8, 2012 shows a transaction for a Simplesoft + 4800 product for a total amount of 3 791.88$ between Jean Laniel and Vente Waterworld having a place of business at 141 Joseph, Gatineau.

A detailed look at the contract is required in order to assess the credibillity of the various assertions in Defendant’s testimony. [ 16 ] The Defendant rests his case on the legal pretention that the contract is valid only for 31 Ch Du Vol A Voile and that he is not tied to any binding contract for 71 Renards-Blancs. [ 17 ] The contract states : 1. « Adresse à laquelle le contrat a été signé : 31 Ch Du Vol A Voile, L’Ange Gardien. » 2. «Représentant du Commerçant : Phil Boileau, 141 rue Joseph, Gatineau, Qc. J8L1G3. » « Courriel : ventewaterworld@gmail.com » 3.

« Date à laquelle la livraison ou la prestation doit être achevée : Fev 15 2012. » [ 18 ] The Court noticed during the analysis of this contract that it is not signed by Jean Laniel and for the « Commerçant » it is written : « Vente Waterworld, nom : Mel Keeler. ».

The Feuille du consommateur [5] is also not signed by the parties nor is the Demande de financement [6] . [ 19 ] What is the probative value of this contract as well as the other documents collected relating to this transaction? [ 20 ] The Service Order [7] dated October 25 2012 between Jean Laniel residing at 71 Renards-Blancs, L’Ange Gardien and Vente Waterworld has the following comments : « Note : water is yellow. Iron Treatment. Oct 31 12.

Needs Rescare. » for a total of 132.16$. [ 21 ] It is very interesting to note that the Service Order refers to the « D.O.P : 8 feb 2012 » which for all intents and purposes is the date of purchase. Mr.

Laniel at 71 Renards-Blancs also purchased a « Rescare 1 Gallon » on November 2, 2012 [8] . [ 22 ] The investigator for the Régie du bâtiment produced pictures [9] while he attended at 71 Renards-Blancs of the equipment sold by Vente Waterworld to Jean Laniel. [ 23 ] The client’s evidence on the date of purchase conflits with the version of the Defendant and all the paperwork that suggest that the unit was purchased in early February of 2012. whereas Mr. Laniel states it was in late January 2012.

The probative value of the unsigned documents relating to the sale of the unit is questionnable and the Court cannot conclude without any certainty the exact date of the transaction. [ 24 ] That being said, the Court is convinced on the evidence that includes an admission of the Defendant that he did sell the unit to Mr.

Laniel. [ 25 ] The question is whether the documentary and testimonial evidence produced before the Court shows beyond a reasonable doubt that Vente Waterworld installed the unit. [ 26 ] The Defendant is a very savy businessman who was aware that a plumbing licence was required to install the unit he sold to Mr. Laniel.

In fact, he did attempt to obtain the appropriate license in 2010 but was unsuccessful. [ 27 ] Upon analysis of all of the evidence, the Court concludes without a doubt that the Defendant installed the unit at 71 Renards- Blancs, L’Ange Gardien, without having the required plumbing licence from the Régie du bâtiment, in contravention of the Building Act . [ 28 ] All of the evidence submitted to the Court validates this conclusion. There is no true and valid paper trail. There is no final receipt for this transaction. None of the documents relating to the sale are signed.

Moreover, there is conflicting evidence on the amount paid to Vente Waterworld . The Defendant reiterates the price in the unsigned contract of 3 791.88 by credit application while Jean Laniel stated that he had paid 4 500$ and recalled paying in cash, without being completely sure. [ 29 ] The Court has no reason to doubt Mr. Laniel’s testimony as he would have no underlying motivation to mislead the Court on the amount paid nor the method of payment. [ 30 ] The evidence lead would tend toward a cash payment otherwise the monthly payment of 54.18$ as stated in the credit

application would still be in force until February 15, 2022. [ 31 ] In addition, the difference in price between the sale of the unit at 3 791.88$ and the amount paid by Mr. Laniel of 4 500$ is a little under 1 000$, which could very well represent the amount paid in cash to Vente Waterworld for the « installation ». [ 32 ] As for the sub-contracting by Mr. Phil Boileau, other than the assertion of this fact, no evidence is provided as to the amounts of his commission nor any documentary evidence of his contractual relationship with the Defendant.

No issue was ever brought up during the trial as to testimony that could have been brought by Mr. Boileau on a variety of issues still unresolved. [ 33 ] One of those questions is the necessity of a plumber to install the unit. Inevitably, Mr. Laniel would have questions on how to install the equipment he has recently purchased and if Mr. Boileau can be of any assistance to him, by suggesting a list, for example. [ 34 ] This « list » of available plumbers seems to be regular practice for the Defendant but no list was filed, nor was any evidence lead as to any inquiries the Defendant would have made to Mr.

Laniel as to who did the installation. [ 35 ] Moreover, this issue becomes very pertinent when considered that Mr. Laniel was still experiencing various difficulties with the water softener unit that the Defendant had to service. Would it not be logical that the Defendant inquire at the least, as to who did the installation and whether or not he was unsatisfied with the plumber’s installation that he was now required to service? [ 36 ] Defendant’s only response to this issue is that he did not think of asking Mr.

Laniel which plumber he used. [ 37 ] The analysis of the evidence does not permit the Court to conclude otherwise than the fact that the Defendant did install at 71 Renards-Blancs, the unit sold to Mr.

Jean Laniel. [ 38 ] The evidence does not raise a reasonable doubt and the Court concludes of the same evidence that the Prosecution has proven beyond a reasonable doubt all of the essential elements of the infraction FOR THESE REASONS, THE COURT : Declares the Defendant guilty of the infraction as charged. __________________________________ JUDGE CHRISTINE AUGER, JPM M e Marie-Ève Laflamme Prosecutor for the Crowne Mister Mahlon e Keeler Self represented Date of hearing : August 30, 2016 May 3, 2016