2015 QCCQ 4794, 2015 QCCQ 4794

Fournillier c. Public Storage Canadian Properties 2015 QCCQ 4794 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-142629-148 DATE: June 3, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ STEWART FOURNILLIER […] Montréal (Québec) […] Plaintiff v.

PUBLIC STORAGE CANADIAN PROPERTIES 5605, Cote de Liesse, St-Laurent (Québec) H4M 1V2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $ 7,000 from Public Storage Canadian Properties ( “Public Storage”) for damages caused to his property by rodents. Public Storage pleads that it met all its obligations under its agreement with Plaintiff and that, in any event, it is contractually exempted from liability. ISSUES 1. Did Public Storage commit a fault? 2.

In the affirmative, is Public Storage contractually exempted from liability? 3. If not, what is the amount of the damages sustained by Plaintiff? THE RELEVANT FACTS [ 2 ] On January 16, 2012, Plaintiff and Public Storage signed an Agreement [1] and an Addendum [2] (collectively the “Contract” ) whereby Plaintiff “ leased ” a 70 sq. ft. storage locker ( the “Locker” ) on a month-to-month basis. [ 3 ] On January 5, 2014, Plaintiff entered the Locker and found 2 dead rodents. A sofa, a chair, a bed, a stove and other personal belongings were soiled with excrement [3] .

He complained to Public Storage’s employee on duty, who accompanied him to the Locker. [ 4 ] On January 14, 2014, he sent a letter of demand [4] claiming $ 20,000 for the damages caused to his property, to his health, stress and inconveniences. However, in order to avail himself of the provisions governing the recovery of small claims he accepted to reduce his claim to $7,000. ANALYSIS 1. Did Public Storage commit a fault? [ 5 ] The Agreement [5] is the English version of the one that was analysed by Madame Justice Vézina in Dalmacy v. Public Storage Canadian Properties [6] .

The Court concurs with Justice Vézina’s analysis and concludes that despite stipulations in the agreement that it is a “ lease ” and that “ no deposit of goods for safekeeping is intended or created ” by it, the Contract is nonetheless one of deposit by onerous title [7] . [ 6 ] As such, the Contract is governed by

article 2283 and 2289 CCQ which read: 2283. The depositary shall act with prudence and diligence in the safekeeping of the property; he may not use the property without the permission of the depositor.

2289. Where a deposit is by gratuitous title, the depositary is liable for the loss of the property deposited, if caused by his fault; where a deposit is by onerous title or where it was required by the depositary, he is liable for the loss of the property, unless he proves superior force. [ 7 ] The “ loss ” in

section 2289 CCQ may be partial, that is to say that the property may have been damaged without having been destroyed or stolen. [8] It is the case in this instance. Therefore, Public Storage, as a depositary, is liable for the loss unless it proves “ superior force ” [ 8 ]

Article 1470, al. 2 CCQ defines “superior force” as follows: Superior force is an unforeseeable and irresistible event, including external causes with the same characteristics. [ 9 ] Public Storage knew of the possibility of damages by rodents. It was not unforeseeable or irresistible. In fact, it was so foreseeable and resistible that Public Storage had a contract with Orkin Canada for the control and prevention of rodents [9] .

Furthermore, Public Storage’s District Director explained that on occasions where rodents are involved, Public Storage offers to move the property of its client from the infested locker to a clean one, at Public Storage costs. [ 10 ] The fact that there was an Orkin’s box right beside outside the Locker does not allow Public Storage to invoke “superior force”. In fact, it confirms that something happened to prevent or diminish the effectiveness of the protection.

It was most probably for a limited period of time since Public Storage’s District Director testified that when they learned of the Locker’s infestation, they made some verifications with clients renting neighbouring lockers who did not complain. [ 11 ] Therefore, the Court concludes that Public Storage breached its obligation of result under

article 2289 CCQ, did not provide for adequate safekeeping of Plaintiff’s property and, as a result, committed a fault. 2.

In the affirmative, is Public Storage contractually exempted from liability? [ 12 ] Public Storage alleges that clauses 5, 6 and 7 of the Agreement [10] , all of which are initialled by Plaintiff, limit its liability and that by signing and initialling the Addendum [11] , Plaintiff refused to purchase the insurance offered by Public Storage and agreed to “ personally assume all risk of loss ”. [ 13 ] The Contract is not only of adhesion [12] , it is also a consumer contract [13] , governed by the Consumer Protection Act [14] (the “Act” ) [15] , which stipulates: 10.

Any stipulation whereby a merchant is liberated from the consequences of his own act or the act of his representative is prohibited. 17. In case of doubt or ambiguity, the contract must be interpreted in favour of the consumer. 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. [ 14 ] Therefore, clauses of the Agreement liberating, in whole or in part, Public Storage from liability for the damage caused to Plaintiff’s property by rodents is of no legal value. 3.

If not, what is the amount of the damages sustained by Plaintiff? [ 15 ] Public Storage’s violation of its contractual obligations entitles Plaintiff [16] to be compensated for the damage which is a direct, immediate and foreseeable consequence of that violation [17] . [ 16 ] Plaintiff had the burden to prove [18] his entitlement to the amount claimed. [ 17 ] In determining fair compensation for Plaintiff’s damages, the Court must ensure to restore Plaintiff in the situation he would have found himself if Public Storage had fulfilled its obligations towards him.

The Court cannot, by awarding damages, allow the enrichment of Plaintiff. [19] [ 18 ] Photos, taken by Public Storage [20] shortly prior to the trial, show that the Locker has been cleaned. Plaintiff denies that it was by him, at his request or at his costs. [ 19 ] There was no evidence of damages to Plaintiff’s health. It is not as if he had been in contact or attacked by one of the rodents.

The hazard was rapidly discovered and Plaintiff was able to protect himself. [ 20 ] There was also a lack of evidence as to the exact age of the appliances and furniture as well as the possibility of disinfecting them and/or, as the case may be, repairing the damages caused to them and at what costs. [ 21 ] Yet, there was clearly a fault on the part of Public Storage. Photos taken by Plaintiff in January 2014 show excrements over the appliances and furniture and dead rodents were close to the insulation of the stove that looked like it may have been chewed.

Public Storage’s employee, who accompanied Plaintiff to the Locker when he complained initially, did not testify to contradict Plaintiff’s evidence. [ 22 ] Therefore, the Court uses its discretionary power [21] and determines the value of these damages to $ 1,000. FOR THOSE REASONS, THE COURT: CONDEMNS Public Storage Canadian Properties to pay to Stewart Fournillier $ 1,000.00 with interest at the annual rate of 5%

and the additional indemnity provided for under

Article 1619 C.C.Q ., calculated from April 30, 2014. CONDEMNS Public Storage Canadian Properties to pay to Stewart Fournillier the Court fees of $ 169.00 ________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: February 3, 2015 [15] Promutuel du Litoral c. Camping Alouette inc. , 2011 QCCS 4670 .