2010 QCCQ 12075, 2010 QCCQ 12075

Hewadmal c. Compagnie mutuelle d'assurances Wawanesa 2010 QCCQ 12075 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-119814-095 DATE: February 22, 2011 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX, Q.C.J. ______________________________________________________________________ SABIR HEWADMAL Plaintiff v.

LA COMPAGNIE MUTUELLE D’ASSURANCE WAWANESA Defendant ______________________________________________________________________ RECTIFIED JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $1,128.00 from Defendant, his insurer, following a claim filed with respect to a car accident which occurred on May 15, 2009. CONTEXT [ 2 ] At the relevant time, Plaintiff was the owner of a Volkswagen Golf 2000, insured by Defendant.

The insurance policy in force at the time of the accident contained the endorsement Q.E.F. 20 which refers to the loss of use of the car insured. According to said endorsement, the insured can benefit from the following guarantee up to a maximum amount of $1,500.00: Q.E.F. 20 LOSS OF USE EXTENSION ENDORSEMENT In consideration of the additional premium stated, additional agreement (B), loss of use by theft, of

Section B is deleted and replaced by the following additional agreement, but in no event shall the amounts stated in this endorsement be less than those stated in additional agreement (B): In the event of loss or damage to the automobile for which indemnity is provided by

Section B, the insurer agrees to pay for the loss of use of such automobile up to the maximum limit indicated in the declarations per automobile per occurrence . Regardless of the expiration of the contract, payment is limited to such expense incurred commencing: (

A) In the case of theft of the entire automobile, at 12:01 A.M. the date following the report of such theft to the insurer or to the police; (

B) At the time the loss or damage occurs if the automobile cannot be operated under its own power or in other cases, at the time the automobile is delivered for repair due to the loss or damage; and terminating upon the date of the completion of repairs or of the replacement of the automobile lost or damaged, or upon such earlier date as a settlement agreement is reached for such loss or damage. This coverage applies only if receipts are provided for the rental of a substitute automobile or for taxicab or public transportation fares.

No indemnity is provided by this endorsement unless the loss or damage to the automobile exceeds any applicable deductible amount specified in the policy for such loss or damage. If more than one automobile is insured under this contract, this endorsement shall apply only to the automobile(

s) described in the declarations and against which QEF20 is designated. All other terms and conditions of the contract remain the same.

(our underlines) [ 3 ] According to Plaintiff, although the accident occurred on May 15, 2009, the insurer provided him with an offer with respect to the assessment of the damages to his car only on June 5, 2009, approximately three weeks after the accident. During that period of time, Plaintiff had to attend his usual activities, namely visit his grandmother who was hospitalized. Considering his transport needs, Plaintiff decided not to rent a car but to rather use taxis to get around town and to avoid paying expensive parking fees at the hospital.

From Plaintiff’s standpoint, he had the loss of use endorsement in his policy and had the right to claim for the reimbursement of the taxi expenses incurred during the period of time when he could have decided to rent a car. To support his claim to the insurer, Plaintiff filed taxi bills from different companies for the time period elapsed between May 15, 2009 and June 3, 2009, said receipts totalling $1,182.86. [ 4 ] Defendant, represented at the hearing by Mr.

Mathieu-Philippe Bouliane, explained that the taxi bills provided by Plaintiff are not reliable considering that they do not show the number of the work permit of the drivers nor do they show the sticker number. In addition, one of the car numbers (284) which appears on one of the bills from Atlas, does not exist. [ 5 ] Defendant’s employee, Mrs. Dramfield, explained that when she received the taxi bills, she made a few verifications with respect to the amount charged and the distance involved. According to Mrs.

Dramfield, the amounts that figure on some of the bills are exaggerated considering the distance covered. [ 6 ] In addition, Mrs. Dramfield testified that according to Defendant’s file, Plaintiff mentioned that he had not rented a car because he did not have a credit card. According to Mrs. Dramfield, it was clearly explained to Plaintiff that an arrangement could be made with a leasing company regardless of the fact that he didn’t have a credit card. [ 7 ] Plaintiff’s girlfriend, Ms.

Morshedi, explained that she helped him pay for his taxis during the time he was waiting for an offer from Defendant with respect to the loss of his car. She lent him money from time to time in order for Plaintiff to get around town by taxi. ANALYSIS [ 8 ] Plaintiff demonstrated by preponderant proof that on May 15, 2009, he was involved in a car accident and that at the time, he was insured by Defendant with policy number 8953289. Said policy contained the loss of use endorsement for a maximum amount of $1,500.00.

Approximately three weeks elapsed between the accident and Defendant’s offer to compensate Plaintiff’s loss. Ms. Morshedi’s testimony confirms that Plaintiff used taxis during that specific period of time. Her testimony is convincing. [ 9 ] Defendant, who refused to indemnify Plaintiff with respect to said loss of use, had the burden of establishing that Plaintiff made deceitful representations as per

section 2472 C.c.Q. : 2472. Any deceitful representation entails the loss of the right of the person making it to any indemnity in respect of the risk to which the representation relates. However, if the occurrence of the event insured against entails the loss of both movable and immovable property or of both property for occupational use and personal property, forfeiture is incurred only with respect to the class of property to which the representation relates. [ 10 ] In the present matter, the proof offered by Defendant in that respect is that the taxi bills provided by Plaintiff lacked information.

Only one out of the 29 taxi bills referred to an Atlas car number that doesn’t exist. [ 11 ] The Court finds that Defendant has neglected to prove by preponderant proof deceitful representations on the part of Plaintiff. The wording of the Q.E.F. 20 granted Plaintiff coverage for loss of use of his car up to a maximum of $1,500.00, and the claim filed by Plaintiff against Defendant is below said amount. [ 12 ] The facts of the present case must be distinguished from the proof offered to Mr. Justice Michel A.

Pinsonnault in the Lorigène Elusmé [1] case, namely because, in the present case, there was no representative of a taxi company to explain the extent of the irregularities of the bills. FOR THESE REASONS, THE COURT: GRANTS Sabir Hewadmal’s claim against La Compagnie mutuelle d’assurance Wawanesa; CONDEMNS La Compagnie mutuelle d’assurance Wawanesa to pay to Sabir Hewadmal an amount of $1,128.00 plus interest at the annual rate of 5% and the additional indemnity as per

section 1619 of the Civil Code of Quebec from the date of application, October 26, 2009 , the whole with costs ($99.00). __________________________________ JULIE VEILLEUX, Q.C.J.

Date of hearing: November 29, 2010