2015 QCCQ 13523, 2015 QCCQ 13523

Best Buy Canada Ltd. c. Tulloch 2015 QCCQ 13523 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146161-155 DATE: November 27, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ BEST BUY CANADA LTD 8800, Glenlyon Parkway Burnaby, BC V5J 5K3 Plaintiff v.

LAWRENCE TULLOCH 750, Montpellier, app. #102 Ville Saint-Laurent, Qc H4L 5A7 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Best Buy Canada Ltd. ("Best Buy"), a retailer of electronic consumer products, sues the Defendant, Mr Lawrence Tulloch for the value of a television that it alleges was delivered to him by mistake and that Mr Tulloch refuses to pay for or to return. [ 2 ] More particularly, Best Buy, in its written demand, alleges that Mr Tulloch purchased a Sharp 70 inch LED television and a Toshiba 39 inch LED television, both of which were delivered to his home on July 20, 2013, but that a second Sharp 70 inch set, identical to the first, was also delivered to him by mistake by the same carrier, the same day. [ 3 ] Best Buy asserts a monetary claim of $ 2,224.67 based on the retail price of the set or, in the alternative, seeks an order to Mr Tulloch to return the TV. [ 4 ] Mr Tulloch denies having received the extra television.

He suggests, in effect, that the mistake on the part of Best Buy is not to have delivered an extra TV to him, but rather to have the mistaken belief that it delivered an extra set to him. The issue [ 5 ] The Court must decide whether Best Buy has fulfilled its burden of proving the delivery to Mr Tulluch of a television that he did not buy. The burden of proof of the delivery lies on the Plaintiff.

Factual Background [ 6 ] Mr Tulloch went to a Future Shop (a retail outlet owned by Best Buy) on 6877 Newman Avenue in LaSalle, Quebec, on July 2, 2013 and purchased two television sets, a Sharp 70 inch LED television and a Toshiba 39 inch LED television as well as a GE kitchen stove. The price included the delivery of these three products and the removal of his old kitchen stove. [ 7 ] These purchases appear on the printed cash register tape in Mr Tulloch's possession and on a copy of the electronic invoice data produced by Best Buy (D-4, P-1).

[ 8 ] Pierre-André Houde represented Best Buy at the hearing. He testified that the Future Shop store in LaSalle did not have a Sharp 70 inch corresponding to Mr Tulloch's purchase at the time and so it asked the Vaudreuil Future Shop store to send it one. The delivery was to go to the LaSalle location, not directly to Mr Tulloch's home.

It would then be delivered to Mr Tulloch along with the rest of his order. [ 9 ] Mr Houde was not able to produce written proof of this internal request. [ 10 ] Be that as it may, Mr Houde believes that the Vaudreuil store sent its Sharp 70 inch screen directly to Mr Tulloch's home. [ 11 ] Meanwhile, a Sharp 70 inch screen came into the LaSalle stores inventory and was, according to Mr Houde, included in the shipment to Mr Tulloch on July 20 th . [ 12 ] Mr Houde produces two shipment documents. The first (P-2) is a photocopy of the recto-verso of a form of bill of lading with delivery ID 689880.

The recto shows the Shipper as Future Shop Lasalle, the consignee as Lawrence Tulloch and the transporter as "Laval" on 2920 J.A. Bombardier. It mentions two items, described by SKU number and model number: 10244683 SHARP LC70LE65OU 10244033 TOSHIBA 39L135OUC [ 13 ] The verso is an acceptance form to be signed by the customer. The customer signs in acknowledgment that he has inspected the purchase and confirms that the "Product is Damage Free". [ 14 ] There are two identical inscriptions with boxes to tick off.

Each is ticked off to acknowledge the receipt in good order of the Sharp and the Toshiba. [ 15 ] The other shipment document that Best Buy produces (P-3) is the same form, with delivery ID 689879. As in P-2, the consignee is Lawrence Tulloch and the transporter is "Laval".

The document mentions a single product, a Sharp, having the same SKU number and the same and product description as the one mentioned on P-2. [ 16 ] Like P-2, there are two boxes ticked off, as though there were two products accepted, which is strange. [ 17 ] Mr Tulloch admits his signature on P-2, and acknowledges in his testimony having received the Sharp and the Toshiba. [ 18 ] He denies however his signature on P-3.

This could not be his signature, he asserts, because he did not receive a second delivery that day of a Sharp television identical to the one he admits having received. [ 19 ] Mr Tolloch did not avail himself of the opportunity to have a handwriting analysis of the signatures; an expense that he did not think was proportionate in a case where such a small amount is in issue. [ 20 ] There are two additional delivery documents (D-2) and (D-3) One, number 689881, It is for the GE Kitchen stove delivered and the other 68978 is for the pickup of Mr Tulloch's old stove.

The shipper is Future Shop DC and the transporter is, for the delivery, Distribution Nordix Inc.-Montreal, and, for the pick up, "Laval". Both of these transporters are at the same address. Mr Houde informed the Court that this is really the same transporter operating under two names. [ 21 ] On D-2, curiously, there is no tick-off for the product and no signature, but these are copies retained by Mr Tulloch. [ 22 ] Mr Tulloch asserts that there was one delivery of all of the products together, not several deliveries. [ 23 ] There are discrepancies in the way the case is presented by the Plaintiff.

In the Motion to institute proceedings, the allegation is that the LaSalle store, because it did not have a Sharp 70 inch TV in its inventory, "arranged to have a Sharp TV delivered to the Defendant's home from the Vaudreuil Future Shop". [ 24 ] This version attributes the mistake of the redundant delivery of the Sharp screen from the LaSalle location to a miscommunication between the two stores. [ 25 ] Mr Houde's version is that the LaSalle store intended to receive the Sharp screen from Vaudreuil and to include it in the delivery.

Instead, it delivered a screen from its inventory and Vaudreuil delivered one to Mr Tulloch as well. [ 26 ] The letter of demand of October 21 signed by a Paralegal (P-4) suggests that it is the screen from Vaudreuil that is the extra one that Mr Tulloch should return, whereas the letter from an attorney, dated March 7, 2014, speaks of one screen purchased and a second one delivered as well, as if this happened at two separate times.

Analysis [ 27 ] Apart from Mr Houde's understanding of the problem, which is based on internal records that Best Buy did not produce, the only evidence of the delivery of the so-called second Sharp television is the delivery document allegedly signed by Mr Tulloch. [ 28 ] Best Buy had the burden of proving the authenticity of this document. [ 29 ] In cases that proceed according in the regular Civil Division of the Court of Quebec, as in Superior Court, the rule of evidence commonly referred to as the "aveu sanction" works against a party that wishes to deny his signature on a written instrument.

Article 89 of the Code of Civil Procedure provides that the denial of a signature or other material part of any private writing must be expressly alleged and supported by an affidavit.

[ 30 ] This would mean that, in the ordinary procedure, Mr Tulloch's lawyer would have drafted for him a defence specifically mentioning that the signature is denied, with the details of why this is the case. Then, the Plaintiff, who relies upon the document, would have the burden of establishing the signature, either through a witness who was present when the document was signed, or by producing an expert witness to establish that Mr Tulloch is indeed the author of the signature. [ 31 ] In our case, the lawyer wrote a letter denying the signature and asked to have access to the originals.

Mr Tulloch decided not to incur an expense, and the Plaintiff makes much of the fact that Mr Tulloch did not carry out an expertise. [ 32 ] In fact, by the logic of

article 89 CCP the onus, in a case where the signature is clearly denied, is on the party who wishes to prove the signature. The "aveu sanction", a sort of deemed proof of the signature, only applies against a party who has neglected the form and substance of the specific denial required by the CCP. [ 33 ] In the small-claims venue, it is inappropriate to impose a formal process such as the one provided for at

article 89 CCP [1] . It is sufficient that the party relying on the document is aware of the other party's non acceptance of the signature through the simple written proceedings that are used in the process. [ 34 ] In a case such as this one, even if the rules of evidence were applied according to this formal procedure, Best Buy would also be bound by the rule that states that the rules of evidence, except those that are of public order, are only applied by the judge when a party makes an objection. The rule in the Civil Cope of Quebec reads as follows: 2859. The court may not of its own motion invoke grounds of inadmissibility under this

chapter which a party who is present or represented has failed to invoke. [ 35 ] So in this case, even if the “aveu-sanction” were applied to generate an admission of the authenticity of the acknowledgement of the so-called second delivery, the failure on the part of the Plaintiff to object would make it such that the testimony of the Defendant to contradict the delivery document would not be excluded as inadmissible under

article 2863 CCQ. [ 36 ] Therefore, even if

article 89 CCP did apply in small-claims matters, which it does not the failure of the Plaintiff to raise the rules that flow from it causes the testimonial evidence to be admissible. [ 37 ] Best Buy's documentation records the delivery of two identical 70 inch television sets to the same person on the same day. Mr Tulloch points out that he had no need of a second 70 inch TV and did not receive it. [ 38 ] Beside the technical problem of the proof of Mr Tulloch's signature, there is an inherent weakness in Best Buy's position.

The Court is being asked to accept the idea that Best Buy's administration made a mistake at two levels: the administration of the LaSalle store and the administration of the Vaudreuil store. How a problem like this could occur is hard to fathom, given the accuracy of computerized accounting and inventory systems. Perhaps there was human error: the Plaintiff's varying versions of its allegations refer to a “miscommunication”. [ 39 ] Mr Tulloch suggests that someone forged his signature in order to cover up an error.

This is possible, though it would be a fraud and ordinary people don't commit frauds that often: good faith is presumed. [ 40 ] It would also be a fraud for Mr Tulloch to sign off on two television sets knowing he had only paid for one, though it is also possible that he absent-mindedly signed all the delivery papers without reading them and without noticing the duplication of the paperwork for the delivery of the Sharp TV. [ 41 ] Best Buy says that the mistake was to have delivered two sets when only one was purchased.

It is also possible that the mistake was to create two sets of paperwork for a single delivery.

This could also be the result of a "miscommunication" between the people entering data into a computer at LaSalle and those making accounting entries at Vaudreuil. [ 42 ] It is impossible to know how the mistake occurred and the true nature of the mistake in the generation of delivery papers when Best Buy did not show its entire back up of all data, including inventory records, delivery documents, billing from transporters, inter- store transactions etc. [ 43 ] Should a presumably innocent consumer be held liable for what may well be the second type of administrative error as opposed to the first?

Should the Court presume Mr Tulloch to be dishonest and all of the people involved at Best Buy to be honest rather than the inverse situation where Mr Tulloch is honest and the Best Buy people took the step of forging his signature? [ 44 ] Is it the case that a consumer signed off on papers presented to him to accept the delivery of the products he ordered without noticing that there were two delivery documents that mention the same thing? [ 45 ] In the Court's view, Best Buy has not fulfilled the duty of proving on the balance of probability the redundant delivery because its documents do not generate a probative value higher than Mr Tulloch's testimony, which the Court found to be reliable, both objectively and subjectively.

The objective reliability is the idea that a normal person of means, such as Mr Tulloch, will not be so dishonest as to defraud a merchant for a few thousand dollars, and, if he does so, will not deliberately sign the paperwork to create a paper trail by which his fraud can be proved. [ 46 ] The subjective reliability is that Mr Tulloch testified with moderation, without exaggeration and in a manner that the Court found to be sincere.

His testimony was not objected to and not contradicted by the Plaintiff. [ 47 ] For these reasons, Best Buy's action fails: there was a mistake on its part, but it was not successful in establishing which of two possible mistakes it was: a redundant delivery or inaccurate paperwork. The possibility of a forgery exists, but it is inherently less likely than the tender by the delivery team of paperwork showing a redundant second Sharp TV that neither the carrier's employee nor Mr Tulloch noticed was inaccurate.

[ 48 ] In any event, Best Buy did not fulfill its burden of proof. For these reasons, the Court: Dismisses the Plaintiff’s action; Condemns the Plaintiff to pay the Defendant's judicial disbursement of $ 95.50. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: October 13, 2015