2021 QCCQ 6125, 2021 QCCQ 6125

Kosmidis c. Déménagement La Capitale 2021 QCCQ 6125 COUR OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-159027-186 DATE : June 30, 2021 ______________________________________________________________________ PRESIDED BY THE HONORABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Helen KOSMIDIS Plaintiff v.

DÉMÉNAGEMENT LA CAPITALE Defendant ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ Parties and proceedings [ 1 ] The Plaintiff, Helen Kosmidis, claims damages in the amount of $13,617.00 from the Defendant, 8003149 Canada Inc. doing business under the name Déménagement La Capitale (“La Capitale”), in connection with her residential move from TMR to Outremont carried out by La Capitale on July 27, 2018. [ 2 ] She alleges that during the move damage was caused to both the residence to which the property was moved as well as to property transported, namely, damage to walls, furniture, rugs and runners. [ 3 ] She complains as well of irresponsible storage of the property moved into the new location and errors on the part of the workers as to the placement of the moved property within the house. [ 4 ] She asserts that she was overcharged for the service, both in terms of the time spent and the number of blankets used, at a price of $5 each. [ 5 ] La Capitale defends its price as being fair for the quality and quantity of work performed including the number of blankets used.

It denies having caused damage to the interior of the house and to movable property. [ 6 ] Without admitting that its workers caused the damage sustained by he armoire during the move, it agreed to have it repaired by a skilled worker. [ 7 ] Ms. Kosmidis states in her letter of September 11, 2018 (P-3) that the repairman inspected the damages meticulously and took measurements for a wooden leg that required replacement but that he did not return to perform the work. [ 8 ] Mr.

Frederik Girard, director of operations, who represented La Capitale at the hearing, testified that he evaluated, based on his experience, the cost of repairs at $400 to $500. When the worker was ready to do the work, after returning from vacation, the letter of demand had been issued and relations broken down between the parties. The Court’s analysis Quantification of the price [ 9 ] The contractual price for the services is based on an hourly rate and the rental cost for the use of quality blankets. The price of the move, before taxes, is calculated on the contract, which Ms.

Kosmidis signed after the work was completed, at $1,417.50 to which is added rental of 68 blankets at a rate of $5, for $340, giving a total for the move of $1,757.50 plus taxes: $2,020.62. [ 10 ] The Plaintiff asserts that this was a move where the property was essentially put into storage at the new address. The beds were not assembled, the rugs and runners not rolled out and installed.

Most of the materials are still boxed and wrapped and much of the material is stored in the basement. [ 11 ] Her testimony about the lack of effectiveness of the movers and mistakes in the placement of the movable property is not credible. She complains chiefly about the poor quality of their French and the fact that they lacked experience, being “fresh from Mexico”. She alleges that they could not adequately understand her instructions. The Court accepts Mr. Girard’s explanation about the degree of skill and experience of the workers.

The two most experienced of the three spoke French fluently and the third, a recent immigrant, had a working knowledge of French and substantial experience. The Court notes that no protest was written on the contract

about the calculations of labour and transport time showing on it before the Plaintiff signed it and made the payment. [ 12 ] The Plaintiff makes a claim for either a reduction of the price or damages calculated by the costs of relocating the materials within the building.

In the Court’s view this lacks substance because she was present at the time of the move and gave instructions about how the moved materials should be stored in the premises. [ 13 ] The complaint that the Plaintiff makes about the non-return of the deposit for the blankets of $10 each is really a request for a confirmation of the number of blankets and adjustment of the price if applicable.

The contract is made in such a way that the $5 rental of a blanket is good for one year and the deposit of $10 per blanket is returned when the blankets are no longer required after short periods of storage and are returned in good condition. Because Ms. Kosmidis has continued to store most of the goods in the basement of the premises, she has not returned the blankets. An action for the return of the deposit is premature. Given the time elapsed, it can be presumed that the blankets will not be returned and that the deposit of $80 will be forfeited.

La Capitale decided to waive any additional rental. [ 14 ] The Court will make no award in respect of the amount paid for the services and deposit given and no damages in relation to the quality and effectiveness of the move. Establishment of the costs of repairs to the armoire. [ 15 ] The photos show rather minor damages, essentially the replacement of a wooden foot (“patte”).

The claim is for $3,449, the price of a new armoire of similar dimensions, based on the assertion that the item cannot be replaced. [ 16 ] In the Court’s appreciation, it is much more probable that the piece of furniture can be repaired and the amount suggested by Mr. Girard is reasonable. The Court arbitrates $450 plus taxes for this claim: $517.39. Damages to the interior [ 17 ] There was no mention of this made on the contract when the Plaintiff signed it and made her payment.

She did however mention the damage to the armoire, and the document contains a manuscript note: “Envoyer ebeniste pour verifier”. (P-1) [ 18 ] The photos (P-2) show minor chips and flaking of paint which could well be due to aging and ordinary wear and tear of painted surfaces. The evidence is not probative of any damage caused by the workers. The claim for $1,000, based on a budget for materials to repaint is not reasonable. The Court will not allow any part of this claim. Damages to other items of movable property [ 19 ] The Plaintiff has the burden of proof.

Generally, her proof was insufficient, because of a lack of details, insufficient photographic evidence and lack of any description of any specific incidents of damage occurring during the move. The Court asked the Plaintiff if she wished to provide additional photographic evidence and she declined the offer. (Numerical recording in room 13.06 on May 3, 2021 noted in the minutes at 15h44). Rugs [ 20 ] The Plaintiff asserts stains but was unable to provide any photographic evidence.

In her letter of demand (P-3) she states: “*the rolled-up area rugs and runners were placed flat in our storage area with heavy objects placed on them. $5,000.” [ 21 ] The rugs are still stored in the basement and still wrapped in the mover’s blankets. Failing any elements of probative value, the Court rejects this part of the claim A photo frame with glass [ 22 ] The Plaintiff only provided a photo of one picture frame with broken glass. She claims $1,000 for four such frames, but the Defendant points out that she only gives evidence of one.

The Court arbitrates $250 for this matter Plants [ 23 ] Food and plants are part of what is excluded under the contract for damage, because they are perishable materials. This is written clearly in the contractual modalities written on the contract form under the heading “ 5. Restricted Liabilities” . The printing is very legible and the language makes it clear that there is no claim for such items. [ 24 ] The Plaintiff had a preliminary version of the contract as a quote before the move and signed it as confirmation after the move was complete.

Since the clause is an exclusion of liability, there could be a claim if the harm resulted from a wrongful act of the workers. [ 25 ] The claim includes four plants at $200 each that “did not survive the move”. This suggests that there was not any wrongful act on the part of the workers causing harm to the plants, just the effects of a move. This part of the claim is refused. The sectional sofa [ 26 ] The Plaintiff says she purchased this sectional sofa in 2013. She had removed the legs and “bagged” the sofa before the move. She states that the cushions are now crumbled, and have a texture like cottage cheese.

It would have been easy to provide evidence of this, but even then, a sofa of that period may well have simply have become worn. How would a move effect the foam in the cushion of such a piece of furniture? This item of the claim is not proved on the balance of probabilities. The air conditioner

[ 27 ] A claim is made for broken plastic and buttons on the control panel of an air conditioner unit. The Plaintiff states that she noticed the damaged when she tried to replace a plug that was broken. She then realised that the plug was not broken, but the buttons were. [ 28 ] She states that it is a $900 unit that was five years old at the time of the move. There is no photographic evidence.

The Plaintiff put it out on the curb and it was picked up by a passer-by before the garbage collectors came. [ 29 ] It the Court’s view there is not proper evidence that this unit was in good condition before the move, that it was in working order and that it was damaged by the move. There is not even a photo to illustrate its condition before it was disposed of. A five-year old portable air conditioner unit, if it was that old, has very little residual value.

If it were replaced, for which there is no proof, the major part of the cost would be added value, to replace a unit that is close to the end of its useful life. [ 30 ] This part of the claim is not received. Conclusions [ 31 ] The claim is well founded only in respect of the specific items mentioned above under the headings referring to the armoire and the photo frame with glass. The amount awarded is very small in relation to the amount claimed, and there will be no award as to costs.

BY THESE REASONS, THE COURT: GRANTS the claim in part, CONDEMNS the Defendant to pay the Plaintiff $ 767.39, together with in interest at the legal rate of 5% and the additional indemnity provided at

article 1619 of the Civil Code of Québec , calculated from October 3, 2018, Without legal costs. __________________________________ David L. Cameron, J.C.Q. Date of hearing: May 3, 2021