2019 QCCQ 2133, 2019 QCCQ 2133

Chettiar c. Primus Management 2019 QCCQ 2133 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-703813-172 DATE: April 1, 2019 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ DANASEKARAN SUBBAN CHETTIAR Plaintiff v.

PRIMUS MANAGEMENT ULC Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff had a contract with Defendant for Internet and telephone services. Plaintiff claims damages in the amount of $3,500 as a result of breaches by Defendant of the contract. [ 2 ] Defendant did not appear at the hearing. On four (4) occasions, the Court Clerk called on the Courthouse intercom system for the presence of a representative of Defendant, without avail.

The Court will proceed by default in the circumstances. [ 3 ] At the time of the events, Plaintiff had been a customer of Defendant for approximately six (6) years. On June 10, 2016, he agreed to purchase, on a monthly basis, a new bundle of services including high speed Internet, local telephone service and unlimited international long-distance calls. [ 4 ] The total cost was $95.83 per month. The difference for the high speed was $7 per month (before taxes). The amount for unlimited long-distance telephone calls was $19 per month (before taxes).

Plaintiff paid all amounts charged by Defendant through an automatic payment authorization on his credit card. [ 5 ] According to the evidence including the exhibits and Plaintiff’s testimony, despite the terms of the contract and the price increase, Defendant failed to provide the promised high speed Internet service.

For sixteen (16) months, Plaintiff called almost every weekend and spent a great deal of time working with Defendant’s representatives over the telephone who assured him that the problem would be fixed shortly. [ 6 ] Finally, after seventeen (17) months and after a site visit by a technician of the Defendant, the latter acknowledged that it did not have the technical ability to provide high speed service to Plaintiff as a result of the location of Plaintiff’s residence. [ 7 ] Regarding the promised long-distance telephone service, it was also not provided by Defendant.

According to Plaintiff’s testimony, under the service, the voices at the other end of the line were not audible, the calls were regularly cut off without notice, and there was a great amount of static constantly on the line. [ 8 ] Plaintiff’s position is that the lack of a working long-distance telephone service was a major breach of contract of the promised service. Plaintiff states that the long-distance service provided was so inadequate that it had no value.

[ 9 ] Again, Plaintiff regularly called Defendant’s local telephone support line to try to resolve the problem, without avail. [ 10 ] Furthermore, Plaintiff states that the lack of service and effective support caused significant loss of time and great inconvenience to himself and to his family.

He testified that he tried to work the problems out with Defendant’s representatives on a regular basis but they were not responsive and in fact did not correct the problem, despite many promises to do so. [ 11 ] Plaintiff testified that he and his family needed high speed Internet during this time period and that their normal activities were disturbed.

He also states that the lack of a normal operating long-distance service over the long period of 17 months was personally embarrassing for him with relatives and friends. [ 12 ] The Defendant has already acknowledged the breach of contract and its inability to provide high speed Internet service to Plaintiff. In that regard, Defendant has refunded to Plaintiff the amount of $119 for the failure to provide the high speed Internet service for which Plaintiff paid. [ 13 ] With respect to the long-distance telephone service, Defendant denies that the level of service provided constitutes a breach of contract.

However, the preponderance of the evidence [1] supports the position of a breach, in particular the inability of Plaintiff to use the service in a normal manner. [ 14 ] Plaintiff claims $1,770.89 for loss of time, inconvenience, frustration, embarrassment and related moral damages resulting from the absence of high speed Internet service and the non-functional long-distance telephone service. [ 15 ] In its contestation, Defendant states that the clauses in its agreement prohibit and prevent a claim for damages for inconvenience and loss of time resulting from breaches or failure to provide promised services.

However, under the Quebec Consumer Protection Act , exclusions of liability clauses such as these are not valid or enforceable. [ 16 ] The following provisions are relevant under the Quebec Consumer Protection Act : 10. Any stipulation whereby a merchant is liberated from the consequences of his own act or the act of his representative is prohibited. 40. The goods or services provided must conform to the description made of them in the contract. 41. The goods or services provided must conform to the statements or advertisements regarding them made by the merchant or the manufacturer.

The statements or advertisements are binding on that merchant or that manufacturer. 42. A written or verbal statement by the representative of a merchant or of a manufacturer respecting goods or services is binding on that merchant or manufacturer. 261. No person may derogate from this Act by private agreement. 262. No consumer may waive the rights granted to him by this Act unless otherwise provided herein. 272. If the merchant or the manufacturer fails to fulfil an obligation imposed on him by this Act, […] , the consumer may demand, […] […]

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c) that his obligations be reduced; […] without prejudice to his claim in damages, in all cases. He may also claim punitive damages. [ 17 ] Based on the evidence before the Court and the applicable law, the Court will grant Plaintiff the following compensation: [ 18 ] - $371.77 for the inadequacy and, in practice, the absence of a functional long-distance telephone service ($19 x 17 months ($323, plus taxes)); [ 19 ] - $850.00 for loss of time, inconvenience, frustration and aggravation over a period of 17 months.

FOR THESE REASONS, THE COURT: CONDEMNS Primus Management ULC to pay Danasekaran Subban Chettiar $1,221.70, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the Demand Letter (Exhibit E-3) dated October 26, 2017; CONDEMNS Primus Management ULC to pay Danasekaran Subban Chettiar legal costs of $100 (Court Stamp Fee). __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: April 1, 2019