2011 QCCQ 10485, 2011 QCCQ 10485

Action Montreal Printing c. Admaco Business Machines Ltd. 2011 QCCQ 10485 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-116852-098 DATE: September 7, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ ACTION MONTREAL PRINTING 4180, De Courtrai, Suite 135 Montréal (Québec) H3S 1C3 Plaintiff v.

ADMACO BUSINESS MACHINES LTD. 5525, rue Paré Montréal (Québec) H4P 1P7 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from defendant the sum of 7 000 $ details as followed: a) $946.80 in reimbursement of the insurance premiums paid by it and illegally cashed; b) $4,100.00 in partial restitution of the leasing charges paid; c) $2,500.00 in reimbursement of outstanding costs incurred; d) $400.00 for repair costs incurred; Total: $7,946,80. [ 2 ] To avail itself of the right to introduce the action before de Small Claims Division of the Court of Quebec, Plaintiff has reduced the claim to the amount of $7,000.00. [ 3 ] Defendant contests Plaintiff's action. [ 4 ] The evidence adduced at trial has revealed that Plaintiff is a company that does business in the field of printing.

As concerns Defendant, it is a company specialised in the sale and maintenance of business machines. [ 5 ] By a leasing agreement intervened to on August 31, 2005 (exhibit P-1), Plaintiff leased from Defendant a photocopy machine and accessories. The lease agreement was for a term of 66 months at the monthly rent of $327.00. [ 6 ] The lease agreement concluded between the parties contains de following clauses: « Customer acknowledges having read the terms and conditions of this agreement, which are set forth on this page and the following page.

Such acknowledgement is conclusively evidenced by the signature below and the initials, placed as indicated, on the following page. Lessor hereby sells, assigns and transfers all of its right, title and interest in this agreement and the equipment to the assignee named below and customer hereby consents to such assignment.

Customer agrees to remit all rentals and other amounts owing under this agreement to the assignee upon receipt of invoice, which receipt shall constitute notice to the customer of such assignment. » [ 7 ] It appears from the lease agreement that once concluded, it was assigned and transferred to C.I.T. Financial Ltd.

[ 8 ] Regarding Plaintiff's claim in reimbursement of the sum of $946.80 for the insurance premiums paid by it and illegally cashed, the evidence has revealed that the insurance premiums were paid by Plaintiff to C.I.T. Financial Ltd. and not to Defendant. [ 9 ] Consequently, for the purpose of discussion, even if Plaintiff's position that the premiums were illegally billed and cashed was to be well founded in fact and in law, the action should have been instituted against C.I.T. Financial Ltd. as assignee of the lease agreement and not against Defendant.

Consequently, this part of Plaintiff's action is dismissed. [ 10 ] As concerns Plaintiff's claim in partial restitution of the rent paid to C.I.T. Financial Ltd., said claim is based on Plaintiff's allegation that the photocopy machine leased to it encountered numerous problems over a period of 40 months. [ 11 ] In Court, Mr. Suissa, representative of Plaintiff, declared that on many occasions, the quality of the printing performed by the photocopy machine was unacceptable and that furthermore, Defendant was unable to correct the problem when requested to do so. [ 12 ] According to Mr.

Suissa, over a period of 40 months, he called Defendant 15 to 20 times to perform maintenance service calls. Notwithstanding this, Plaintiff continued to pay the rent to C.I.T. Financial Ltd. and never complained in writing to Defendant or to C.I.T. Financial Ltd. Furthermore, Plaintiff never advised them that falling the appropriate repair, it would outsource its work to third parties and hold them liable for any damages sustained. [ 13 ] Mr. Peter Sas, president of Defendant, acknowledges that Plaintiff encountered various problems with the leased photocopy machine.

However, according to him, these problems were caused by the fact that Plaintiff used paper that was too heavy for the capacity of the said machine. [ 14 ] According to Mr. Sas, although Mr. Suissa was advised of this, Plaintiff continued to use heavy paper for certain jobs thereby creating problems with the use of the leased photocopy machine. [ 15 ] Mr. Sas's testimony was corroborated by that of Mr.

Hicham Elhaous and Pierre Audet, respectively sales man and service manager of Defendant. [ 16 ] In order to be successful in its claim, Plaintiff, having the burden of proof, must establish that the leased photocopy machine did not function properly as a result of a defect in the said machine. [ 17 ] Aside Mr. Suissa's testimony on this issue, Plaintiff did not file any other evidence in support of his allegations.

Although the machine was in his possession, he never had it examined by a third party in order to determine the cause of the problems encountered in the use of the said machine. [ 18 ] The evidence adduced at trial does not allow the Court to conclude that the leased photocopy machine was defective. In fact, the evidence has revealed that the problems encountered by Plaintiff can also be explained by the improper use of the machine. [ 19 ] Consequently, the Court concludes that Plaintiff action is ill founded in fact and in law and must be dismissed.

However, in view of the particular circumstances of the present case, the action will be dismissed without costs. FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff's action, without costs. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: June 29, 2011.