2022 QCCQ 4223, 2022 QCCQ 4223

Énergir c. Shaffer 2022 QCCQ 4223 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF Montreal TOWN OF Montreal Civil Division No: 500-32-160478-196 DATE: June 14, 2022 ______________________________________________________________________ BY THE HONOURABLE STÉPHANE DAVIGNON, J.C.Q. ______________________________________________________________________ ÉNERGIR, S.E.C. Plaintiff v.

IAN MICHAEL SHAFFER and HAYLEY BABOUSHKIN Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Energir, s.e.c. (“ Energir ”) is claiming from Mr. Ian Michael Shaffer and Ms. Hayley Baboushkin an amount of $3,751.31 for an unpaid account for natural gas consumption, as well as associated collection fees and penalties for their residence in Hampstead. [ 2 ] Mr. Shaffer and Ms. Boushkin dispute the claim.

While they acknowledge that since October 20, 2017 they are the owners of the property to which the gas account claimed from them is associated, they maintain that they did not live in it for several months because renovations were underway and, consequently, that they did not consume gas during the period corresponding to the invoices forming the account claimed by Energir. ISSUE IN DISPUTE [ 3 ] The only issue raised by Energir's claim is whether it proves that an unpaid account is owed by Mr. Shaffer and Ms. Baboushkin. ANALYSIS [ 4 ]

Article 1458 of the Civil Code of Québec (" C.C.Q . ") provides that every person has a duty to honour his contractual undertakings. Therefore, where the debtor of an obligation fails to perform his obligation without justification, the creditor may force him to perform it [1] . [ 5 ] The evidence reveals that Mr. Shaffer and his wife, Mrs. Baboushkin, acquired their residence on Kilburn Crescent in Hampstead on October 20, 2017 [2] . Several months later, on March 21, 2018, telephone contact was made between Energir and Mr. Shaffer, who agreed to take over the natural gas account as of November 3, 2017.

Prior to this date, Energir does not know who the new owner of the residence is or his contact information. [ 6 ] Thereafter, bills are issued for gas consumption for the period beginning November 3, 2017. Four of these bills for the period beginning on that date and extending to May 29, 2018 are disputed by the defendants.

They argue that their residence was uninhabited and that they therefore did not consume any gas and further allege that the meter was likely defective. [ 7 ] The Court does not agree with their grounds of defence. [ 8 ] Originally, the bills issued by Energir were based on estimated consumption according to the previous owners' living habits. However, when Mr. Shaffer and Ms. Baboushkin acquired their residence, disputed having to pay them and raised a possible meter problem, Energir dispatched one of its technicians on the premises on March 27, 2018. [ 9 ] On site, he considers replacing the meter since Mr.

Shaffer maintains that it must obviously not be working properly. However, he noticed that only a battery powering a remote reading transmitter had to be changed, but that the meter was working perfectly [3] . It was not replaced and in fact, it is still the same device that is installed at the defendants' residence and used to measure their gas consumption. They never questioned its operation for the period after the one in question.

[ 10 ] On the same day, an actual reading of the meter was taken. The total consumption on that date is then taken and the last previous actual reading, when the former owners left, is then subtracted to obtain the consumption since November 3, 2017 [4] . The result is then subdivided into monthly billing periods and new bills that reflect the actual consumption are then issued. It is these invoices that are claimed by Energir and that form its claim in court.

They show actual consumption. [ 11 ] In this context, the Court concludes that Energir has discharged its burden of proving by a preponderance of the evidence that it is owed.

The defendants' sole allegation that they were not living in their home during the period in question and that the gas meter must have been defective cannot be accepted when the evidence shows, on the contrary, that the meter has been inspected, that it has always worked and that it’s the same device that is still in operation at their home. [ 12 ] Furthermore, when the Energir inspector visited the premises on March 27, 2018, he noted the presence of a 130,000 BTU furnace that was operating and that the thermostat indicated 18 degrees Celcius as the ambient temperature. [ 13 ] Mr.

Shaffer argues that the heat pump was defective and needed to be changed. In support of his allegation, he files an excerpt from the promise to purchase the house, signed on July 20, 2017, as well as a copy of the deed of sale and an adjustment sheet showing a credit of $3,500 granted by the seller to cover the replacement or repair of the heat pump. [ 14 ] Nevertheless, in the face of the evidence presented by Energir, the sole testimony of Mr. Shaffer as evidence that no gas-fired furnace was operational between November 2017 and March 2018 cannot be accepted.

Knowing that Quebec winters are as harsh as they are known to be, the Tribunal cannot accept that the house, although uninhabited during that period, was not heated. FOR THESE REASONS, THE COURT : [ 15 ] GRANTS Energir s.e.c.'s claim ; [ 16 ] CONDEMNS Mr. Ian Michael Shaffer and Ms. Hayley Baboushkin jointly and severally to pay $3,751.31 to Énergir s.e.c., with interest at the legal rate as well as the additional indemnity provided for in

article 1619 of the Civil Code of Québec , as of the summons on February 22, 2019 ; [ 17 ] THE WHOLE , with legal fees. __________________________________ STÉPHANE DAVIGNON, J.C.Q. Date of hearing: January 24, 2022 Date of taking under advisement: February 22, 2022