2020 QCCQ 5, 2020 QCCQ 5

Perlinger c. 9118-5108 Québec inc. 2020 QCCQ 5 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF IBERVILLE TOWN OF SAINT-JEAN SUR-RICHELIEU Civil Division No: 755-32-008687-164 DATE: January 3, 2020 ______________________________________________________________________ BY THE HONOURABLE LUC HERVÉ THIBAUDEAU, J.C.Q. ______________________________________________________________________ HANS PERLINGER Plaintiff v. 9118-5108 QUEBEC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I- OVERVIEW: [ 1 ] Plaintiff Hans Perlinger (Mr. Perlinger) claims $15,000.00 against defendant 9118-5108 Quebec inc. (9118), representing the loss of a headboard stored in 9118’s premises and damaged by water. Defendant denies the claim and pleads that Mr. Perlinger damages the headboard by attempting to clean it with a corrosive product.

II- QUESTIONS AT ISSUE: [ 2 ] Is Defendant responsible for the damaged headboard? [ 3 ] If yes, how much must Defendant pay to Mr. Perlinger? [ 4 ] Did Mr. Perlinger fail to mitigate his damages by attempting to clean the headboard with a corrosive product? [ 5 ] The Court is off the opinion that Mr. Perlinger’s claim must fail. Here is why. III- THE FACTS: [ 6 ] Mr Perlinger concludes a storage contract with 9118 on May 7 th , 2012. He uses the space to store personal furniture and namely two headboards that are of a great value to him.

He paid $26,000.00 for each of the headboards, twenty years ago. [ 7 ] In May 2015, Mr. Perlinger discovers the headboards are damaged by water. He reports the incident to 9118. 9118 sends a cleaner to Mr. Perlinger’s residence. The cleaner successfully restores one of the headboards. He notices that Mr. Perlinger attempted to clean the other one with a corrosive product. The fabric is burned. He cannot restore it. [ 8 ] After sending to Defendant a letter of demand on May 27, 2015, Mr. Perlinger institutes his claim in an amount of $15,000.00 on February 1 st , 2016.

IV- ANALYSIS: [ 9 ] According to articles 2803 and 2804 of the Civil Code of Quebec [1] ( C.C.Q. ) , Mr. Perlinger has the burden to demonstrate the facts that give rise to his claim. 9118 has the burden to demonstrate that the right alleged by Mr. Perlinger does not exist. [ 10 ] The contract between the parties is a lease as per

article 1851 C.C.Q.: 1851. Lease is a contract by which a person, the lessor, undertakes to provide another person, the lessee, in return for a rent, with the enjoyment of movable or immovable property for a certain time. The term of a lease is fixed or indeterminate.

[ 11 ] The obligations of a lessor are stated at

article 1856 C.C.Q.: 1854. The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease. He is also bound to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease. [ 12 ] 9118 failed to deliver the storage space in good condition. The water leak damaged Mr. Perlinger’s headboards.

Article 1458 C.C.Q. states : 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. [ 13 ] Even though 9118 has failed to honour its obligations, it demonstrated a clear intention to repair the damage caused. It acted diligently by sending a professional cleaner to Mr.

Perlinger’s residence, who succeeded in cleaning one of the headboards. [ 14 ] The second headboard cannot be cleaned. The cleaner sent by 9118 notes that the product used by Mr. Perlinger has burned the fabric [2] . The damage is irreversible. Articles 1479 and 1607 C.C.Q. state : 1479. A person who is bound to make reparation for an injury is not liable for any aggravation of the injury that the victim could have avoided. 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. [ 15 ] Mr.

Perlinger admitted at the hearing that he attempted to clean the headboard himself. By doing so, Mr. Perlinger aggravated the situation and created a new material injury that is not an immediate consequence of the water leak, that has no relation with it, and that cannot be repaired by 9118. 9118 cannot be held responsible for this. V- CONCLUSION [ 16 ] 9118 is not responsible for the damages sustained by Mr. Perlinger. Considering the particular facts submitted, namely that 9118 failed to abide by its obligations under

article 1854 C.C.Q., no costs are awarded. [ 17 ] FOR THESE MOTIVES, THE COURT: [ 18 ] DISMISSES without costs Plaintiff’s demand. __________________________________ LUC HERVÉ THIBAUDEAU, J.C.Q. Date of hearing: December 3 rd , 2019.