2014 QCCQ 4245, 2014 QCCQ 4245

Échafaudages Fast (Montréal) inc. c. Snap Hoek Staffing Inc. 2014 QCCQ 4245 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N°: 500-22-202754-134 DATE: MAY 30, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ ÉCHAFAUDAGES FAST (MONTRÉAL) INC. Plaintiff v.

SNAP HOEK STAFFING INC. and UNIT 11 CUSTOM STAGING LTD Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants, solidarily, $12,790.97 representing the value of 89 counterweights that he rented to Defendants and $2,046.56 as a rental fee. [ 2 ] Defendant Snap Hoek Staffing Inc. (“ Snap Hoek ”) pleads that it never had a contract with Plaintiff. [ 3 ] Unit 11 Custom Staging Ltd (“ Unit 11 ”) admits to having rented the counterweights, but pleads that the contract is one of service, and that Plaintiff has to bear the loss resulting from the disappearance of the counterweights since it failed to pick them up at the agreed time and date.

QUESTIONS IN DISPUTE 1. Is there a contract between Plaintiff and Snap Hoek? 2. Which party, Plaintiff or Unit 11, has to bear the loss of the counterweights? 3. Did Plaintiff abuse the judicial process and can it therefore be condemned to pay Defendants’ extrajudicial costs? RELEVANT FACTS [ 4 ] Unit 11 makes sets and stages.

At all times relevant hereto, Unit 11 had a contract with Heineken for the construction and installation of a marketing tool, namely a stage allowing pedestrians to interact with the displayed publicity, using their body movements to light up beer bottles. [ 5 ] On February 28, 2013, Unit 11 rented 140 counterweights of 55 pounds each from Plaintiff [1] , to be used at two locations in Montreal (the “ Contract ”).

The Contract included the transportation of the counterweights from Plaintiff’s premises to the first location, on March 4, 2013; between the two locations; and, finally, back to Plaintiff’s premises, on March 18, 2013. [ 6 ] The Contract also stated that Plaintiff was to pick up the counterweights at 9:00 a.m. on March 18, 2013, at the last location. [ 7 ] On March 5, 2013, Unit 11 wrote Plaintiff [2] : Can you please confirm what time on Monday, March 18, you will be picking up the weights from the Bell Centre.

I will be coordinating with the Security staff and they will need to know what time to expect you. [ 8 ] On March 7, 2013, Plaintiff and Unit 11 exchanged the following emails [3] : [ 9 ] At 7:53 a.m., Plaintiff wrote: LET ME KNOW WHATS ( sic ) THE MOST CONVENIENT TIME FOR YOU, AND I WILL ARRANGE FOR THE TRANSPORT. [ 10 ] At 10:43 a.m., Unit 11 replied: Can you pick them up first thing in the morning please.

Whatever time that is for your shop – and if you can let me know what time that is, it would be great. [ 11 ] At 11:28 a.m., Plaintiff answered: 7:30 AM WOULD BE PERFECT FOR US. [ 12 ] At 11:44 a.m., Unit 11 sent the following: Please be aware that the client may want to rent the weights for an additional weekend after March 18th. We are awaiting their decision and will let you know as soon as we can. I could possibly be ( sic ) for the weekend of March 30th.

If you have any conflicts – can you please let me know. [ 13 ] At 12:19 p.m., Plaintiff answered: We have no conflict with keeping weights in rental, as long as we bill only your company. [ 14 ] At trial, Plaintiff’s representative, Mr. Anton Doubinets (“ Mr. Doubinets ”) admitted that the last two emails did not confirm an extension of the rental period to March 30, 2013. [ 15 ] At some point between March 7 and March 12, 2013, Unit 11 decided to move the second location of the display from the Bell Centre to the parking lot on the corner of Saint-Laurent Boulevard and Viger Avenue (the “ Parking Lot ”).

As a result of a lack of communication between the parties, Plaintiff’s truck had to wait at Bell Centre before being re-routed to the Parking Lot where the 140 counterweights were delivered in the morning of March 12, 2013. Unit 11 agreed to pay an extra amount to Plaintiff for the waiting time. [ 16 ] On Sunday, March 17, 2013, from 8:00 a.m. until noon, Unit 11’s employees, including a lighting technician, Mr. Ilvars Soukse (“ Mr. Soukse ”), dismantled the stage. Molson’s truck came to pickup the display’s components.

The counterweights were left there for Plaintiff to pick-up. [ 17 ] Unit 11 had arranged for security guards to be present on site on March 17, 2013, from midnight until 10:00 a.m., and from 2:00 p.m. until midnight and, on March 18, 2013, from midnight until 7:30 a.m. [4] . [ 18 ] Mr. Soukse testified that when he arrived at the Parking Lot, on March 17, security guards were present and there was no snow on the ground. He does not recall if security guards were there when he left, shortly after noon.

He claims that all the counterweights were placed on the grass area between the street and the Parking Lot, about four feet from the sidewalk and thirteen feet from the wall of the building, to the north. [ 19 ] On March 19, 2013, 25.9 cm of snow fell on Montréal [5] . Unit 11 requested that Mr. Soukse go back to the Parking Lot, but the bad weather was one of the reasons preventing him to attend that day. He went on March 20, 2013, at 8:30 a.m., and met Plaintiff’s employees.

He took photos [6] establishing the amount of snow on the ground and of the snow mechanically pushed from the Parking Lot along the wall of the building to its north side. [ 20 ] On March 20, 2013, after some snow shovelling, Plaintiff was able to recover 51 of the 140 counterweights. [ 21 ] On March 21, 2013, when Mr. Doubinets went to the site with additional employees of Plaintiff, in order to probe the snow banks in the hope of locating additional counterweights, they found nothing.

The snow had then been totally removed from the Parking Lot and there were no counterweight to be seen. [ 22 ] On April 25, 2013, Plaintiff sent a letter demanding $2,046.56 for the rental of 140 counterweights and $12,790.97, being the value of the 89 counterweights that were never returned to Plaintiff. [ 23 ] On May 6, 2014, Unit 11 offered and tendered $2,336.40, detailed as $2,046.56 in payment of the capital amount of the rent, $126.16 in legal and additional interest calculated on the said capital amount from April 25, 2013 to May 7, 2014 and $163.00, in costs. ANALYSIS 1.

Is there a contract between Plaintiff and Snap Hoek? [ 24 ] Plaintiff claims that the contract was with both Defendants and not only Unit 11. [ 25 ] The fact that Snap Hoek was the tenant of the location where the counterweights were delivered does not create a contractual relationship with Plaintiff. [ 26 ] A press release [7] predating the contract by more than six months and announcing the creation of Snap Hoek, even if posted on Plaintiff’s website, is also irrelevant to determine with whom Plaintiff contracted. [ 27 ] The Contract was clear; the exchange of emails confirmed it: the Contract was only with Unit 11 and not with Snap Hoek. 2.

Which party, Plaintiff or Unit 11, has to bear the loss of the counterweights?

[ 28 ] Plaintiff claims that the Contract was a lease agreement [8] . [ 29 ] Its claim for the lost counterweights relies on the law [9] and the mention, on the accepted quote [10] , that “ customer is responsible for the rented material. If weights are lost or damaged, the replacement cost is $125 each weight ” and, on clause 4, on the back of the Contract signed upon delivery of the counterweights, by Unit 11, which reads: 4.

The leased equipment shall be at the sole risk of LESSEE and in case it or any part thereof be destroyed, damaged, lost or stolen, whether with or without fault on the part of LESSEE, LEESEE ( sic ) shall be responsible to and shall pay to the COMPANY a sum equal to the COMPANY’S retail selling price for the same or similar equipment. [ 30 ] Unit 11 pleads that the Contract was one of service [11] and that Plaintiff should bear the loss of the counterweights given that it failed to pick them up at the agreed upon time and date. [ 31 ] The Court concludes from the evidence that Plaintiff’s employees did not show up at the Parking Lot to pick up the counterweights prior to March 19, 2013, when Unit 11 was called and informed that the counterweights were apparently buried in snow.

Unit 11 then called Mr. Soukse. [ 32 ] Indeed, the Court is of the opinion that Plaintiff’s truck driver confused the dates of March 18 and March 19.

Considering that the author of the worksheet [12] did not testify and, in any event, was not one of Plaintiff’s employees who shovelled the snow, his written statement that they worked on March 18 and 19 can be ignored. [ 33 ] But Plaintiff’s failure to pick up the counterweights on March 18, 2013, at 7:30 a.m. was not the only cause of the loss. [ 34 ] It is also in evidence that Unit 11 did not ensure the safekeeping of the counterweights until their removal from the Parking Lot. The security guards left at 7:30 a.m. on March 18, 2013.

Either the counterweights were still there, and one has to wonder why Plaintiff was not called, or the counterweights were already gone, having been picked up on March 17, between shortly after noon and 2:00 p.m. Unit 11 was ensuring the coordination between the various intervenants and it was therefore part of its obligations to ascertain that the counterweights would be safely returned. [ 35 ] The victim’s fault mitigates the liability of the offender [13] .

The Court therefore concludes that the liability for the loss has to be shared equally between Plaintiff and Unit 11 [14] . [ 36 ] The Court is satisfied that the amount of $125 claimed for each disappeared weight has been validly established [15] . 3.

Did Plaintiff abuse the judicial process and can it therefore be condemned to pay Defendants’ extrajudicial costs? [ 37 ] For obvious reasons, Unit 11 cannot plead that the action instituted against it was an abuse of the judicial process. [ 38 ] There was no contractual relationship between Plaintiff and Snap Hoek, but considering that the case proceeded swiftly and that Snap Hoek’s defence was basically assumed by Unit 11, the legal requirements to allow Defendants’ request to condemn Plaintiff to pay Snap Hoek’s extrajudicial fees are not met.

FOR THESE REASONS, THE COURT: [ 39 ] GRANTS, in part, Plaintiff’s action; [ 40 ] DISMISSES Plaintiff’s action against Snap Hoek Staffing Inc., with costs, but without entitlement to recover the legal stamp on the appearance, since it was never paid, or the cost on the motion for revocation of judgment; [ 41 ] PRAYS ACT of the offer and tender of $2,336.40, made on May 6, 2014; [ 42 ] CONDEMNS Unit 11 Custom Staging Ltd. to pay Plaintiff the sum of $8,442.05, together with interest at the legal rate and the additional indemnity provided for in virtue of

Article 1619 C.C.Q ., calculated on $6,395.49, from April 25, 2013 and calculated on $2,046.56, from April 25, 2013 until May 6, 2014; [ 43 ] ALLOWS Plaintiff to keep the sum of $2,336.40 as partial payment of this judgment; [ 44 ] CONDEMNS Unit 11 Custom Staging Ltd. to pay costs to Plaintiff, including the costs on the motion for revocation. ____________________________ MARTINE L. TREMBLAY, J.C.Q. Me Elaine Bissonnette Plaintiff’s attorney

Me Ryan Allen Defendant’s attorney Hearing dates: April 17 and May 7, 2014