2014 QCCQ 7274, 2014 QCCQ 7274

Ekewa c. Garage Auto Ryders inc. 2014 QCCQ 7274 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-131321-111 DATE: July 11, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ KEMI EKEWA Plaintiff v. GARAGE AUTO RYDERS INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Kemi Ekewa left her car with Defendant, a garage mechanic, while it was undertaking repairs on the car. There were valuables left in the car glove compartment, namely cash. When she came to pick up the car, the car had disappeared. When she recovered the car, the cash left in the glove compartment was gone. Kemi Ekewa claims against Defendant for the loss of the cash and other damages. The Defendant did not appear at Court at the hearing.

Plaintiff’s Position and the Proof [ 2 ] Ms. Ekewa lives in Montreal, Quebec. She emigrated from Nigeria several years ago. In May 2011, she was asked by her family in Nigeria if she could purchase a car for them, namely a Honda Accord. Ms. Ekewa filed as an exhibit her bank statement showing that she received a wire transfer in the amount of $5,737.22 on May 24, 2011 (Exhibit P-7). Her bank statement also shows that she withdrew the total amount of $5,730 on May 26, 2011. She testified that she had negotiated an agreement with a dealership who had requested payment by cash.

On July 7, 2011, she set up an appointment with the salesman at the car dealership who requested that she bring her cash down payment for the car. She put the money in an envelope and then in the glove compartment of her car. After having dropped off her children at their Summer camp, she experienced car trouble and the brakes failed. She called her normal garage mechanic, the Defendant, who came to tow her car to its garage. She was first told that the repair would be brief and she waited at the garage.

She left the envelope of cash in the glove compartment as she remained on site. [ 3 ] But the repair dragged on until later in the day and in the late afternoon she had to pick up her children from Summer camp. She was told that the repair would be completed soon and in the meantime the Defendant garage loaned to her a courtesy car to pick up the children and return to the garage. However, while driving the courtesy car she was called by the garage and told that the job could not be completed the same day and she was told to return the following morning to pick up the car.

She testifies that she was specifically told by the representative/owner of Defendant “Mr. Massoud” that the car would be kept safe overnight. [ 4 ] When she came back the next morning, the car was gone and it could not be located by the Defendant.

[ 5 ] Ms. Ekewa called the police and they managed to track that the car was towed away and was in the municipal pound. It appears that her car was parked outside the garage on the street in an area where parking was not allowed at the relevant time. Ms. Ekewa went to the City pound and had to pay to have the car discharged, including the towing charge ($136.71) and the ticket of violation for parking illegally ($156). When she was given access to the car, the doors were unlocked and her keys were inside the ignition. [ 6 ] But the cash envelope in the glove compartment containing $5,700 was gone. [ 7 ] Ms.

Ekewa explained everything to the Defendant garage mechanic, who denied any liability. After sending a demand letter (Exhibit P-1), she filed the present legal proceeding. Defendant did not appear at the hearing despite being duly notified. However, there is a contestation filed by Defendant containing a very general denial of responsibility. However, Defendant alleges in such contestation that the car was parked legally. Analysis and Decision [ 8 ] In light of the proof of Ms.

Ekewa and the supporting exhibits, including a detailed police report (Exhibit P-2) on the date of the incident (July 7, 2011) and the fact that such proof is uncontested and uncontradicted by Defendant, the Court find that the facts occurred as presented by Ms. Ekewa. The sole ground of contestation mentioned in the defence of Defendant that the car was parked legally appears unfounded in fact and in law. The ticket of the police (Exhibit P-3) and the towing charges (Exhibit P-6) prove the contrary. [ 9 ] Therefore, it appears that the Defendant who had custody and control of Ms.

Ekewa’s vehicle, and despite its general duty of care of property in its custody and specific assurances by Defendant’s representative to Ms. Ekewa that the car would be kept safe overnight, Defendant left the Plaintiff’s car unlocked, with the keys inside on a public street at a place and a time when parking was not legal. This ultimately led to the theft of the cash that Ms. Ekewa had left in the glove compartment and the various other charges incurred and damages suffered by Ms.

Ekewa. [ 10 ] Certain authorities consider that the garage mechanic and the owner of a vehicle enter into a contract of deposit when the garage mechanic retains possession of the vehicle in order to effect repairs [1] . [ 11 ] Other authorities consider that the principal contract in such a case is that of enterprise with an accessory contract of deposit [2] . [ 12 ] The clearest legislative guidance in such a case is the articles found in the Civil Code of Quebec with respect to the contract of deposit ( Articles 2280 CCQ et s.).

In either case, it is clear that the garage has an obligation of deposit and safekeeping of the vehicle and it is equally clear, in light of the facts of the present matter, that Defendant committed a contractual fault when it failed to perform its obligations to safeguard the Plaintiff’s vehicle and its contents. [ 13 ] In particular, the Court is satisfied that Defendant breached its obligation of safe guardianship of Ms. Ekewa’s car under the contract of deposit during repairs (Article 2280 CCQ).

In particular, Defendant was obliged to act with prudence and diligence in the safekeeping of the property (Article 2283 CCQ) and failed to do so. The Defendant was contractually obliged to return to Ms. Ekewa the identical property that was held in deposit (Article 2286 CCQ) which it obviously did not do. Defendant was not only negligent in such safekeeping but grossly negligent (Article 1613 CCQ). [ 14 ] However, it is important to note, and Ms.

Ekewa acknowledges this in her testimony, that before the incident, she never notified or declared to Defendant that there was an envelope containing a large amount of cash in the glove compartment. For the Court, it appears clear that this attenuates substantially the extent of damages for which Defendant can be held responsible. Had Defendant been made aware of that fact, it appears highly probable that Defendant would have acted differently and appropriate safeguard measures would have been taken by Defendant. The legislator at

Article 2290 CCQ specifically authorizes the Court to reduce the damages in the absence of notice to the depository, as follows:

“The court may reduce the damages payable by the depositary where the deposit is by gratuitous title or where the depositary received documents, money or other valuables for deposit, without their nature or value having been declared by the depositor.” [ 15 ] Despite the gross fault shown by Defendant, the Court also is of the view that the foreseeable nature of the damages suffered should be considered. Although a garage mechanic should expect that a car owner will or could keep certain valuables in his or her car, it is not normal or foreseeable that there be a cash envelope containing $5,700.

Pursuant to the authority given to the Court by the legislator, the Court considers that it would be appropriate to reduce the amount of damages regarding the loss of cash to $2,000. [ 16 ] Ms. Ekewa has also proven damages for towing charges ($136.71) and the parking ticket ($156). [ 17 ] Furthermore, Ms. Ekewa is also entitled to compensation of $500 for trouble and inconvenience.

The Court acknowledges that her damages in that regard are higher but the court reduces them to that amount since she is in part a victim of her own conduct (Article 1479 CCQ) [3] . [ 18 ] The Court will therefore condemn Defendant to pay the total of those amounts ($2,000+ $136.71+$156+$500), namely $2,792.71. FOR THESE REASONS, THE COURT: GRANTS in part Kemi Ekewa’s Motion; CONDEMNS Defendant Garage Auto RydersInc. to pay Kemi Ekewa $2,792.71, plus legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 CCQ commencing from the date of the demand letter (Exhibit P-1), being July 18, 2011; WITH JUDICIAL COSTS of $159 in favour of Ms. Kemi Ekewa. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: June 5, 2014