2015 QCCQ 5621, 2015 QCCQ 5621

Shahid c. Gestion RSCN inc. 2015 QCCQ 5621 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139601-134 DATE: APRIL 24, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ ABDUL SHAHID […] St-Laurent, Quebec […] Plaintiff vs.

GESTION RSCN INC. 43 Samson Suite 354 Laval, Québec H7X 3R8 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $6,158.00 following the towing of his car by Defendant.

THE CONTEXT [ 2 ] On May 30 th , 2013, at approximately 12:40 p.m., Plaintiff parked his Honda Civic in the parking lot of a shopping center located at 1051 Decarie Boulevard in Ville St-Laurent. [ 3 ] He went to Pharmaprix and approximately twenty minutes later, he came out and noticed that his car was missing. He called Defendant, the towing company (which sign was hooked in the parking lot). It is only a couple of hours later that someone finally answered the phone at the towing company. [ 4 ] He then went to Defendant's pound, paid $125.00 for the towing and got his car back at 3:40 p.m. approximately.

At the time, Plaintiff realized that his car door was open and that his Sony digital camera, which was in the glove compartment, was missing. [ 5 ] Plaintiff explained that a few weeks prior to this incident, he had travelled to India where he took approximately 500 to 600 pictures, including the Taj Mahal. [ 6 ] He claimed the reimbursement of his Sony digital camera ($108.00), $125.00 paid to Defendant for the towing; the remaining of the amount claimed is related to moral damages following the loss of his pictures and memories. [ 7 ] Defendant is represented at the hearing by Mr.

Carperos who explained that the following employees were involved in the incident : - A spotter who informed Defendant that a car was illegaly parked in the shopping mall parking lot; - The towing truck driver who picked up the car and brought it to the pound; - The collector who waited for the car owner to recuperate his car. [ 8 ] The spotter did not testify but the towing truck driver who also acted as a collector on May 30, 2013, Mr. Toribio, testified at the

hearing. [ 9 ] Mr. Toribio explained that although his recollection of this incident is rather vague, it is usual that the spotter calls him to tow a car which is illegally parked in a shopping center parking lot. His job is to pick up the car and tow it to the pound which is located just a few minutes from the shopping center. He waits for the owner of the car to show up at the pound and fills in the documents related to the towing and release of the vehicle.

He and his colleagues never open or even touch the doors of towed cars as there is no need to open the doors of a car in order to tow it and drop it off at the pound. [ 10 ] When Plaintiff came to the pound, Mr. Toribio filled in the receipt. He has no recollection of any other incident. When a client complains of either missing objects in their car or damages to their car, Mr. Toribio always tells the client to call the police in order to have a report prepared. [ 11 ] In the present case, he has no recollection of Plaintiff complaining of anything and is convinced that the police was not called. ANALYSIS [ 12 ]

Section 1457 of Civil Code of Quebec reads as follows : 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act or fault of another person or by the act of things in his custody. [ 13 ] Plaintiff has the onus of demonstrating by preponderant proof that he suffered damages following Defendant's fault. [ 14 ] The Court finds that Plaintiff established that Defendant was wrong in towing his car considering that the sole proof administered in that respect relies on Plaintiff's testimony which can be summarized as follows : he parked in the shopping center parking lot, stayed approximately 20 minutes at Pharmaprix and then realized that his car was missing. [ 15 ] There is no proof offered by Defendant regarding the fact that Plaintiff's car was illegally parked as the spotter did not testify. [ 16 ] However, it is the Court's opinion that Defendant neglected to prove that he suffered damages following the towing of his car as his testimony was contradicted by Mr.

Toribio's testimony. In addition, Plaintiff explained that he did not get a police report prepared because the police refused to do so, which the Court finds most improbable. [ 17 ] In view of the foregoing, the Court must grant Plaintiff's claim only in part. FOR THESE REASONS, THE COURT: GRANTS in part Abdul Shahid's claim against Gestion RSCN Inc.; CONDEMNS Gestion RSCN Inc. to pay Abdul Shahid an amount of $125.00 plus interest at the legal rate together with the additional indemnity as per

Section 1619 C.C.Q. as of August 15, 2013; THE WHOLE , without costs. __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearings: September 2, 2014 April 9, 2015