2012 QCCQ 8422, 2012 QCCQ 8422

Javadov c. Euro-Transport Canada Moving Company 2012 QCCQ 8422 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-121228-102 DATE: December 21 , 2012 ______________________________________________________________________ BY THE HONORABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Sabzali JAVADOV Plaintiff c.

Euro-Transport Canada Moving Company Defendant ______________________________________________________________________ CORRECTED JUDGEMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Sabzali JAVADOV, sues the Defendant, Euro-Transport Canada Moving Company (Euro-Transport) claiming $7,000, the limit permitted in Small Claims Division. [ 2 ] The Plaintiff hired the Defendant to move his furniture from London, Ontario to San Juan, Puerto Rico in the summer of 2009. [ 3 ] When his goods arrived in Puerto Rico, the Defendant refused to deliver them to his new address unless he paid extra charges beyond the 9,720 USD contemplated in the moving proposal (P1).

He claims 3,724.81 USD, he paid to the Defendant's subcontractors who insisted on receiving this payment to store and deliver the goods. [ 4 ] He also claims $3,200 relating to alleged breakage of fragile items such as vases and plates. [ 5 ] The balance of the claim is made up of moral damages for stress and anxiety alleged to result from the breach of contract. [ 6 ] Euro-Transport defends the claim asserting that it was entitled to extra charges approximately equal to the amount Mr JAVADOV paid to its subcontractors.

These extra charges are alleged to be due because of the actual load being higher in volume and in weight than the load contemplated in the moving proposal (P1). [ 7 ] As well, Euro-Transport denies that it is responsible for any breakage of valuable items and challenges the Plaintiff to prove the cause and the extent of the damage. I - ISSUES : The Court must determine:

a) Whether Euro-Transport is responsible to reimburse Mr JAVADOV the extra fees he paid to its subcontractors in order to obtain the release of the goods;

b) The amount of damages that Mr JAVADOV can claim for breakage of items;

c) The amount of moral damages for stress and anxiety. II - FACTS : [ 8 ] The moving proposal (P-1) dated May 5, 2009, is based on an estimated weight of 5,500 lbs having an estimated volume of 24.6 CBM. One important component of the total price is related directly to weight, the basis being $0.26 per pound. Euro-Transport issued an invoice to Mr JAVADOV for a total amount of $13,040.24. The increase of $3,320.24 results in an increase to several of the anticipated components of the price.

The invoice contains the text: " Estimated volume 24 cbm container is full with 35 cbm of hlds ". [ 9 ] Mr Jacques MONIER, the Director of Euro-Transport explained that he obtained information from the subcontractor BEST BOYS MOVING AND STORAGE that the container was completely full, therefore representing a volume of 35 CBM. Based on a

calculation involving conversion of CBM to lbs, he takes the position that the load consisted of 960 lbs rather than 5 500 lbs on the basis that a cubic foot weighs 7 lbs. [ 10 ] He also attempted to justify the extra charges on the basis that his subcontractor BEST BOYS MOVING AND STORAGE charged him more than he had contemplated because they carried out a complete packing whereas the moving proposal called for only a partial packing.

He asserts that the fine print of the contract permits him to pass on any extra charge with a 30% mark-up so long as the third party charge is not a part of total estimated-cost contract.

The extra amount he charged is in fact approximately a 20% mark-up from the invoice of BEST BOYS MOVING AND STORAGE. [ 11 ] In a letter (P7) sent to the Montreal business bureau in response to Mr JAVADOV's complaint, he asserts extra charge both on the basis of extra weight and also on the basis of the extra charges received from his subcontractor marked-up by 30%. [ 12 ] When Mr JAVADOV received the bill he took the position that the contract was for a fixed price and refused to pay it.

He also made allegations about breakage. [ 13 ] In the emails sent September 10, 2009 (P5) he asserts "a lot of damaged and broken items in boxes #6, 14, 15, 17, 20, 23, 24 with glassware". [ 14 ] In another email to the insurer he takes the position that several items including furniture and glasses were found to be damaged when the boxes were unpacked. [ 15 ] At trial Mr Elchin JAVADOV, son and mandatory of the Plaintiff, referred to photographs (P-3) and asserted that there were six vases, several plates, pictures, tea pots (Iran) and a tea set that were broken. He asserts the damages have a value of $3,200.

No estimate or proof of replacement is provided. [ 16 ] Finally, the son of Mr JAVADOV said his father suffered a heart attack and relates this episode to the stress associated with the conflict with Euro-Transport. III - ANALYSIS

a) Extra charges [ 17 ] The Court agrees with Euro-Transport that the contract is based on an estimate. [ 18 ] In the case where a unit cost is quoted in reference to weight it would be possible for Euro-Transport to claim an extra cost if it could prove there is an extra weight. [ 19 ] The evidence in the case however is insufficient to establish such a claim. [ 20 ] There is no reliable business record establishing volume or weight and the evidence proposed, the statements of Euro- Transport's subcontractors, was not proved. [ 21 ] Euro-Transport asserts that the container was never weighed.

It bases its allegation of extra weight on a theoretical calculation, made on the premise that there is a reliable relationship between volume and weight and on the unproved premise that the container was more full that had been anticipated. [ 22 ] Euro-Transport is therefore not justified in claiming an extra cost based on weight. [ 23 ] As to its assertion that its subcontractor claimed extra costs, the invoice seems to establish that Euro-Transport paid BEST BOYS MOVING AND STORAGE $2,631.96 for their part of the process.

But, there is no way of determining from the moving proposal what Euro-Transport could consider to be its original cost with subcontractor and how the work of the subcontractor is different. The moving proposal contains the vague description "Partial packing and loading" whereas the invoice speaks of the men having "fully packed" the three-bedroom house. The moving proposal is too vague to know what packing would be considered partial and it is therefore not possible to determine a charge of a specific amount for a full packing as opposed a partial packing.

A claim based on an extra charge from the subcontractor is therefore too uncertain to be recoverable. [ 24 ] Euro-Transport not being in position to justify its extra charges, it is responsible for the extra charges Mr JAVADOV was compelled to pay the Porto Rican subcontractors in order to obtain the release of the goods. [ 25 ] In total, Mr JAVADOV paid 3,440.01 USD (P8). At the time of the drafting of the judgement, the conversion rate between USD and CAD was extremely close to par and the judgement will be calculated on that basis.

b) Breakage The Court has no reason to doubt the authenticity of the pictures presented by the Plaintiff to establish there were some breakage of materials in some boxes that were unpacked. There was however no basis on which a substantial amount of damages could be established and Mr JAVADOV's son referred mainly to sentimental value because these were objects in family's position for a long time. Having no proper basis on which to assess a substantial amount of damages such as the amount claimed the Court will arbitrate what it feels reasonable amount of $250.

This amount is arrived at arbitrarily there being no attempt by the Plaintiff to establish with accuracy any particular value. The subcontractors acting for Euro-Transport packed and unpacked the boxes and there is no defence advanced by Euro-Transport based on a limitation of liability or the occurrence of an event beyond its control or the fault of the customer.

c) Moral damages

It may well be that Mr JAVADOV had serious health problems and that he suffered from stress but there is no evidence that would make a probable causal connection between these problems and the breach of contract by Euro-Transport. Therefore there will be no award of moral damages. WHEREFORE, THE COURT: GRANTS the Plaintiff's action in part; CONDEMNS the Defendant to pay to the Plaintiff the sum of THREE THOUSAND SIX HUNDRED AND NINETY DOLLARS AND ONE CENT ($3,690.01), with interest at the legal rate of 5% per annum and additional indemnity according to

section 1619 of the civil code of Quebec calculated from October 24, 2009; CONDEMNS the Defendant to pay to the Plaintiff , judicial costs in the amount of $157. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 4, 2012