2017 QCCQ 2223, 2017 QCCQ 2223

Davis c. Diodati 2017 QCCQ 2223 COUR DU QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL (Civil Division) N° : 500-32-145336-154 DATE : January 23, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ kenneth m. davis Plaintiff v. TERESA (TERRY) DIODATI -and- ACTION MOVING AND STORAGE INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants an amount of $2,447.23 following the transportation of two sofas and other items from Florida to Montréal.

He claims that Defendants overcharged him for the transportation ($187.23) and that he is entitled to compensation because the sofas were damaged during transportation ($2,260). [ 2 ] Defendants contest the claim. [ 3 ] Action Moving and Storage Inc. (the “ Company ”) claims that the overcharge was justified by the actual transportation conditions and that the sofas were already damaged when they were picked up in Florida. As for Teresa (Terry) Diodati, an employee of the Company, she denies any personal liability towards Plaintiff.

She also submits that Plaintiff suing her personally was a source of stress and seeks damages of $1,500 by way of a cross-demand. FACTUAL CONTEXT [ 4 ] In June 2014, Plaintiff needed to have certain items, including two sofas, moved from his condominium in Bar Harbour, Florida to his son’s apartment on Claremont Avenue in Montréal.

He obtained from the Company an estimate of $897.50, if paid in cash or cheque, or $919.93 if paid by credit card (the “ Estimate ”). [1] Plaintiff accepted the Estimate and made a deposit of $150.00. [ 5 ] The items were picked up at Plaintiff’s condominium in Florida on August 14, 2014. The sofas were in storage and were picked up from the loading dock of the condominium complex.

Plaintiff was not on site at the time and a representative of the condominium administration signed a copy of the Estimate, [2] as well as a descriptive inventory attesting to the condition of the goods picked up (the “ Inventory ”). [3] [ 6 ] On August 22, 2014, Plaintiff received an invoice of $1,057.50, if paid in cash or cheque, or $1,084.73 if paid by credit card (the “ Invoice ”). [4] The invoice included extra charges of $150.00 for “stairs/long carry” and $10.00 for packing tape. [ 7 ] The items were delivered to the destination address in Montréal on September 4, 2014.

Plaintiff claims that his son attempted to pay the balance of the transportation costs in cash on delivery, but the driver refused. Rather, the balance due on the Invoice (in case of payment by credit card), namely $934.73, was charged to Plaintiff’s credit card. [5] [ 8 ] On September 18, 2014, Plaintiff advised the Company in writing that:

a) he intended to pay the balance due in cash upon delivery, but the driver refused, stating that everything was paid in full;

b) the extra charge of $150.00 for “stairs/long carry” at delivery was unjustified; and

c) both sofas had tears which were not present at the time of pick up. [6] [ 9 ] Plaintiff also asked that the charge on his credit card be reversed and that he be allowed to pay the balance in cash to avoid the extra amount due for the use of a credit card. Despite exchanges between the parties, the matter was not resolved. [ 10 ] On December 19, 2014, Plaintiff demanded payment of $2,447.23 from the Company within 10 days. [7] He filed his claim on January 5, 2015. QUESTIONS IN ISSUE [ 11 ] Given these facts and the position of the parties, the case calls for the resolution of the following questions:

a) Was the Company entitled to charge extra amounts as compared to the Estimate?

b) Is the Company responsible for the tears in the sofas?

c) Is Ms. Diodati personally liable towards Plaintiff and, if not, is she entitled to the damages claimed by way of her cross- demand? ANALYSIS

a) Was the Company entitled to charge extra amounts as compared to the Estimate? [ 12 ] The Estimate prepared by the Company in June 2014 took into consideration all details of the transportation services required. The addresses were set out; the items to be shipped were identified. None of these elements changed based on the evidence provided to the Court. [ 13 ] At trial, Ms.

Diodati testified that the $150.00 extra charged for the “stairs/long carry” resulted from the fact that the driver of the moving truck was unable to park in front of the Claremont Avenue delivery address and, consequently, the sofas had to be carried over a longer distance than expected. [ 14 ] Ms. Diodati’s testimony, however, is contradictory to the Invoice sent to Plaintiff on August 22, 2014, as it included the extra charge of $150.00 before delivery.

Under the circumstances, the Court concludes that there is no justification for this extra charge, which must be reimbursed to Plaintiff. [ 15 ] As for the extra cost relating to the payment by way of credit card, the testimony of Plaintiff and Ms. Diodati are in direct contradiction. Ms. Diodati claims that Plaintiff called her prior to the delivery and that it was agreed with him that the balance would be paid off by credit card. Plaintiff denies this vigorously.

He is adamant that it was clear at all times that he intended to pay the balance in cash. [ 16 ] The Court prefers the testimony of Plaintiff in this respect and concludes that the Company could only charge Plaintiff the amount provided in the Estimate for a cash payment. The Company must therefore reimburse to Plaintiff the extra cost of $187.23.

b) Is the Company responsible for the tears in the sofas? [ 17 ] To succeed on this aspect of his claim, Plaintiff must establish on a balance of probabilities [8] that the sofas arrived in damaged condition, as compared to the condition they were in when they were picked up by the Company in Florida. [ 18 ] To meet this burden, the evidence offered must be clear and convincing [9] and the alleged facts must not only be possible, but probable. [10] The Court must determine liability on the basis of the most probable facts. [11] [ 19 ] Plaintiff adduced into evidence photographs of the sofas taken upon delivery. [12] These show clear tears on the back and sides of the sofas, which he affirms were not there when he saw the sofas a few weeks before they were picked up in Florida. [ 20 ] The Company responds that the Inventory signed by a representative of Plaintiff upon pickup in Florida demonstrates that the sofas were already worn and damaged. [ 21 ] The Court notes, however, that the Inventory does not state that the sofas were torn, although there is a specific abbreviation provided to indicate tears on moved items.

While the Company representative indicated on the Inventory that the sofas were scratched (SC), chipped (CH), soiled (SO) and that the right arm was badly worn (W), no mention is made that they were torn (T). [13] [ 22 ] Under the circumstances, the Court concludes, on a balance of probabilities, that the sofas were torn during transportation. [ 23 ] As a carrier, the Company is therefore presumed responsible for the tears and is bound to compensate the client for such damage, unless it can establish on a balance of probabilities that the damage was caused by superior force or a defect in the property. [14] The Company has not done so and the Court therefore concludes that it must compensate Plaintiff for the tears to the sofas. [ 24 ] Plaintiff claims that the sofas, which were purchased in 2009, are worth approximately $4,500 and claims 50% of that amount as compensation. [ 25 ] The Court considers the amount claimed by Plaintiff to be exaggerated, more particularly in light of the age of the sodas and the Inventory, which establishes that although they were quite torn, they were already quite worn.

The Court considers that an amount of $400.00 is reasonable compensation for the tears to the sofas.

c) Is Ms. Diodati personally liable towards Plaintiff and, if not, is she entitled to the damages claimed by way of her cross- demand? [ 26 ] Plaintiff’s action against Ms. Diodati personally is clearly ill-founded. She is not a party to the transportation contract and there is no evidence to support her personal liability towards Plaintiff on an extra-contractual basis. The action against her must therefore be dismissed. [ 27 ] Her cross-demand against Plaintiff must also be dismissed. The filing of the claim against Ms. Diodati does not automatically give rise to liability even if it is dismissed. Ms.

Diodati has not established that Plaintiff intended to harm her by doing so, nor that the filing of the claim against her caused the damages claimed. FOR THESE REASONS, THE COURT:

GRANTS the action in part; CONDEMNS Action Moving and Storage Inc. to pay to Kenneth M. Davis an amount of $587.23, together with interest at the annual rate of 5% plus the additional indemnity stipulated in

Article 1619 of the Civil Code of Québec as of December 30, 2014; DISMISSES the action against Teresa (Terry) Diodati; DISMISSES the cross-demand of Teresa (Terry) Diodati against Plaintiff; THE WHOLE WITH LEGAL COSTS of $107 representing the judicial fees paid on the Application. __________________________________ DOMINIQUE GIBBENS Date of hearing: December 12, 2016