2015 QCCQ 1398, 2015 QCCQ 1398

Madlenkosi c. Public Mobile Retail Inc. 2015 QCCQ 1398 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-137969-137 DATE: January 27, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ SIBANDA MADLENKOSI Plaintiff v. PUBLIC MOBILE RETAIL INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Sibanda Madlenkosi sues Public Mobile Retail Inc. (“ Public Mobile ”) for unlawfully stopping service on his cell phone in February 2013 despite his payment in full for that month. [ 2 ] Despite being duly notified of the hearing and several calls by the Court clerk on the date of the hearing, no representative of Public Mobile appeared at the hearing. [ 3 ] Mr.

Madlenkosi files a receipt (Exhibit P-1) which shows that he paid for the cell phone service for the month of February 2013. The Exhibit shows that some money was returned to him and this supports his position that the service for the month of February 2013 was paid in full. [ 4 ] On February 7, 2013, Mr. Madlenkosi tried to use his cell phone and Public Mobile had shut it down. He says that it was very important for him to make business and personal calls and he was unable to do so. [ 5 ] As he needed a telephone, Mr.

Madlenkosi called immediately Public Mobile. [ 6 ] Public Mobile’s representatives told him that he had not paid in full for the month, which was not the case. He responded that they were wrong and asked that they reinstate his service. They refused. The Court considers that that constituted a default by the sole operation of law as a result of the repudiation by Public Mobile of its service obligation and that it made clear its intention not to perform such obligation. [ 7 ] Mr. Madlenkosi then went to another mobile telephone company and obtained a new mobile phone.

The service charge for the month of February 2013 was $50. [ 8 ] CONSIDERING Articles 1590 and 1597 of the Civil Code of Quebec ; [ 9 ] CONSIDERING that Plaintiff was forced to pay twice for cell phone service for the month of February 2013 and paid an extra $50 in that regard after the default of Public Mobile.

FOR THESE REASONS, THE COURT : GRANTS in part Sibanda Madlenkosi’s motion; CONDEMNS Defendant Public Mobile Retail Inc. to pay Sibanda Madlenkosi $50, with legal interest of 5% per annum plus the additional indemnity provided by law from February 7, 2013; WITH JUDICIAL COSTS of $167 in favour of Plaintiff. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: January 27, 2015