2015 QCCQ 8170, 2015 QCCQ 8170

Fortin c. Lepack 2015 QCCQ 8170 COURT OF QUEBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF PONTIAC LOCALITÉ OF CAMPBELL’S BAY Civil Division N° : 555-32-000006-144 DATE : September 17, 2015 ______________________________________________________________________ PRESENT : THE HONOURABLE JEAN FAULLEM, J.C.Q. ______________________________________________________________________ ANGÈLE FORTIN Plaintiff c.

BEVERLY LEPACK Defendant ______________________________________________________________________ JF 1075 JUDGMENT ______________________________________________________________________ [ 1 ] Further to the resiliation of a sales contract for a business, which was binding the parties, Angèle Fortin is claiming from Beverly Lepack $3100, $2500 of which represent the reimbursement of the initial payment made under the sales contract, and $600 of which represent damages for the purchase of a laptop computer. [ 2 ] In contestation, Ms.

Lepack acknowledges that she accepted the resiliation of the contract and that the items sold have almost all been returned to her by Ms. Fortin. [ 3 ] However, Ms. Lepack alleges that several of the items that have been returned to her are broken or damaged and that they can no longer be used. She adds that a few items have not been returned to her. She estimates the cost to have the damaged or unreturned items repaired or replaced at more than $2500. I- QUESTIONS IN DISPUTE [ 4 ] The Court must answer the following questions for the purpose of the dispute: (

A) Can Ms. Fortin claim reimbursement for the computer she purchased to operate the business acquired from Ms. Lepack? (

B) Can Ms. Lepack prove that she sustained damages of more than $2500 further to the resiliation of the contract? II- CONTEXT [ 5 ] The relevant evidence accepted by the Court may be summarized as follows. [ 6 ] Prior to November 2013, Ms. Lepack was operating a business providing services for wedding celebrations, including decorative items. [ 7 ] In early November 2013, under an oral agreement, Ms. Fortin purchased all the equipment, furniture and items used by Ms. Lepack for operating her business. [ 8 ] The parties agreed that the selling price of the business was $15 000. [ 9 ] On November 14, 2013, Ms. Fortin purchased a laptop computer for the purpose of operating her new business.

[ 10 ] The oral agreement entered into between the parties provided that Ms. Lepack would transfer the items sold to Ms. Fortin as payments were received and in proportion to the value of the items transferred. [ 11 ] Ms. Lepack recognized that she received from Ms. Fortin $2500 in two instalments of $2000 and $500 paid on November 7 and December 19, 2013. [ 12 ] In consideration of the payments received, Ms. Lepack gave Ms.

Fortin all the items below: White baskets; Six (6) black pots; An assortment of Christmas bulbs; On hundred and sixty (160) pink flowers; One (1) green tree; One hundred and sixty (160) white flowers; Two (2) artificial ponds; One hundred and sixty (160) purple flowers; Two (2) winter lights; Four (4) steel columns/greenery on top; Two (2) black garden gates/flowers displays; Six (6) topiary trees; Eight (8) lighted columns; One set of black table and chairs; Four (4) silver stands; An assortment of Greenery for pots; One (1) large arch white; One (1) vine covered arch; Two (2) small arches: green and white arch and gold arch; One (1) 16 foot backdrop; Six (6) purple pot stands; An assortment of uplights; Three (3) pink trees; An assortment of burlap material; Four (4) purple pots stands; Two (2) white fences; Four (4) large bird cages; Two (2) white lamp posts; Three (3) small bird cages; One (1) large gazebo (for outside ceremonies); Two (2) antique mal boxes; One (1) wicker chair; One (1) wishing well; Eight (8) lighted columns; One (1) sleigh; An assortment of Flower balls; Eight (8) candelabras; Five (5) lime green pots; An assortment of Greenery/vines; One (1) lattice; [ sic ] [ 13 ] In early January 2014, Ms.

Fortin phoned Ms. Lepack to inform her that she no longer wanted to continue operating the business and that she wanted to put an end to the agreement that was binding them. [ 14 ] After discussion, Ms. Lepack consented to put an end to the agreement entered into and agreed to give back to Ms. Fortin the sum of $2500 she had received, provided all the items sold were returned to her. [ 15 ] On January 7, 2014, Ms. Fortin confirmed by email to Ms. Lepack that her children would return all the items on that same day. Ms.

Fortin indicated in her email that she was extremely sorry about the situation. [ 16 ] For all sorts of reasons that were explained to the Court, the items were returned to Ms. Lepack a few days later. [ 17 ] When the items were returned, Ms. Lepack was busy, and she did not check them immediately. She did so a few days later. [ 18 ] On February 17, 2014, in a letter prepared by her attorney, Ms. Lepack confirmed to Ms. Fortin that she had received most of the items that had been given to her under the agreement, but pointed out that a number of items were broken or damaged and could no longer be used.

The letter indicated that the cost to replace the broken or damaged items exceeded $2500. [ 19 ] Consequently, Ms. Lepack’s attorney confirmed that his client would not reimburse Ms. Fortin for the $2500 paid to purchase the items. III- ANALYSIS AND DECISION (

A) Reimbursement for the purchase of a laptop computer [ 20 ] The evidence shows that, in the course of their discussion in January 2014 regarding the possible resiliation of the sales contract for the business, Ms. Fortin did not at all invoke her desire to obtain compensation for the purchase of the laptop computer she used to operate her new business. The only agreement reached at the time was the reimbursement of the sum of $2500, which was conditional on all the sold items being returned.

[ 21 ] Moreover, during her testimony before the Court, Ms. Fortin acknowledged that she was still using the laptop computer for other purposes. [ 22 ] Under the circumstances, Ms. Fortin should not be awarded damages for the purchase of the laptop computer. (

B) Reimbursement of the sum of $2500 [ 23 ] As mentioned above, Ms. Lepack agreed to give back to Ms. Fortin the sum of $2500, which Ms. Fortin had paid her to obtain the items making up part of the business. However, the reimbursement agreement was conditional on all the sold goods being returned. [ 24 ] The photographs along with the invoices and estimates submitted by Ms. Lepack show that a number of the items returned were defective or damaged. [ 25 ] In addition, the January 13, 2014 email that Ms. Fortin sent Ms. Lepack also confirmed that certain items were not returned to her. [ 26 ] Ms.

Fortin was unable to show that the returned items were in that condition at the time she purchased them or that their deterioration was the result of Ms. Lepack’s delay in examining the returned items. Ms. Fortin did not submit any photograph of the items’ condition when they were received in the fall of 2013 or when they were returned in January 2014. The testimony of Ms. Fortin’s children can be used to show that they did not damage them when they returned them to Ms. Lepack, but it cannot confirm what happened with the items between the time they were purchased and the time they were returned.

Under the circumstances, the Court must presume that Ms. Fortin is responsible for the deterioration of the items sold. [ 27 ] However, it is up to Ms. Lepack to show preponderantly the value of the unreturned or damaged items, in accordance with articles 2803 and 2804 of the Civil Code of Québec (CCQ). [ 28 ] The evidence presented by Ms. Lepack shows the replacement cost of the items sold to be approximately $3000. [ 29 ] But, most of the items sold in 2013 were used, and the estimates submitted do not take their depreciation value into account. [ 30 ] For example, the gazebo sold to Ms.

Fortin was purchased in 2006 by Ms. Lepack and was therefore over six years old at the time it was sold. [ 31 ] It would be unjustified if Ms. Lepack were to obtain compensation equivalent to the value of new items when those damaged or missing items have been used for several years.

The Court must take the depreciation of the items into account when determining their value at the time they were sold. [ 32 ] Professor Patrice Deslauriers pointed out the following regarding compensation and prejudice suffered in civil liability matters: [TRANSLATION] One of the extremely important and inherent elements of the restitutio in integrum concept is that a creditor can never become enriched by means of damages.

That is why, in the case of property that was not intended for resale or speculation, a creditor is entitled to claim, in the case of total loss, the following amount: the replacement cost for the new property, from which depreciation is subtracted. . . . If the property has been only partially damaged, again, a sum will be awarded to have it restored, provided there is evidence in that regard. However, the portion representing the increase in value of the restored property will be subtracted. [1] [ 33 ] Thus, considering an average useful life of ten years for the items in dispute, Ms.

Lepack must pay 60% of the value of the cost to have them repaired or replaced. That 60% rate represents the increase in value of the restored items. [ 34 ] Thus, the Court concludes that Ms. Lepack is entitled to withhold $1200 from the sums she received from Ms. Fortin. [ 35 ] Consequently, given the agreement entered into with Ms. Fortin following the resiliation of the sales contract, Ms. Lepack must repay her $1300, with interest at the legal rate, plus the additional indemnity provided for in

article 1619 CCQ, from February 21, 2014, the date of Ms. Fortin’s formal notice. [ 36 ] THEREFORE, THE COURT: [ 37 ] CONDEMNS Beverly Lepack to pay Angèle Fortin $1300, with interest at the legal rate, and the additional indemnity provided for in

article 1619 CCQ, from February 21, 2014; [ 38 ] CONDEMNS Beverly Lepack to pay Angèle Fortin the court costs for the claim, set at $137.

__________________________________ JEAN FAULLEM J.C.Q. Date of hearing: July 6, 2015