2022 QCCQ 9850, 2022 QCCQ 9850

McDonald c.

Xydis 2022 QCCQ 9850 COURT OF QUEBEC “Small Claims Division” “Practice Court” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-716521-218 DATE: December 28, 2022 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ ARCHIE MCDONALD Plaintiff vs ANGELO XYDIS and 9255-1977 QUÉBEC INC. doing business under the name CENTRE D’AUTO ALLARD (XYDIS) Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In support of his claim, Plaintiff claims that on June 7, 2018, he had his car towed to Angelo Xydis’ garage by CAA because the transmission was broken.

He also claims that without any warning Angelo Xydis had the car towed away on the street.

Since the car had been parked for a few days in a non-parking zone, on August 27, 2018, the police had it towed to a pound. [ 2 ] On June 18, 2019, Remorquage Longueuil wrote to Plaintiff to inform him that he had to pay $8,991.04 if he wished to get his car back, or could decide to yield it to them (P-3). [ 3 ] Plaintiff was originally suing Angelo Xydis for the loss of his car, claiming $7,000.00 from him as compensation for the value of the car, pain, and suffering. [ 4 ] In the detailed annex attached to the claim, Plaintiff states the following: Sir on June 7 th 2018 I called your garage located at 2350 Allard Ave, I spoke to your mechanic Mr.

Neil. I told him I was having some problems with my vehicle and I will like to know if I can bring it in for repairs, he told that it will be ok. I then called CAA and my vehicle was deposited to your garage. On August 18 th 2018 I receive a call from a police officer Mr.Stelito asking me to come to the garage and move my car; he gave me no reason why. The conversation with the officer was very brief because he did not speak English and my French is limited. I must admit that I did not give much significance to the call because I was not given much information by Mr.

Stelito and plus I had the permission of your mechanic to place the vehicle on the premises. Some days went by and I received a second call, this time from a female officer telling me that my vehicle was being towed, and that a ticket was already placed on it. I can find out the location of my vehicle by calling station 15. […] ( Reproduction faithful to the original ) [ 5 ] In support of his request for Plaintiff’s claim to be dismissed, Defendant alleged that Plaintiff: 1. Never spoke to him and never gave him any instructions as to what work he wanted done on the car. 2.

Did not leave a phone number where he could be reached. 3. Did not leave the keys to his car.

4. Did not communicate with the garage for over 4 weeks. 5. Failed to contact the garage after two phone calls from the police. [ 6 ] Defendant also explained that he was not the one that took the decision to have the car towed, but the police.

The police did that because he, himself, did not know who the car belonged to, and his attempts to get the police to get the car owner to report to the garage proved unsuccessful. [ 7 ] In consideration of the above, Defendant claimed that there is no legal relationship between him and Plaintiff. [ 8 ] In reaction to Defendant Xydis’ testimony, Plaintiff indicated that he left his car with someone that he knows by the first name “Neil”, ignoring his surname. To support his claim, he gave the Court “Neil”’s business card. According to the card, “Neil” was the owner of P-B Transmission.

Again, according to the card, “Neil” appeared to have been exploiting his business at the same address as Defendant’s Xydis’, although under a different name, using a different telephone number than Defendant Xydis. [ 9 ] After the parties completed their representations, with permission of the Court, Plaintiff modified his claim to add 9255-1977 Québec inc. as a defendant, the company with which M. Xydis still exploits the garage Centre D’Auto Allard (Xydis). [ 10 ] The Defendant also alleged that Plaintiff claim is prescribed, that is that the time limit set by the law for anyone to file a claim was expired. 1.

Is Plaintiff’s recourse prescribed? [ 11 ] For the reasons set forth below, the Court answers the question in the negative. [ 12 ] The time limitation that applies in the present instance is that provided by

section 2925 of the Civil Code of Québec ( CCQ ), that reads as follows: An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 13 ] Although the delay is normally computed from the day the essential facts on which the right of action is based on are known to Plaintiff, the situation exceptionally changed between March 15, 2020, and September 1, 2020. [ 14 ] During that period, all legal delays were suspended in application of the ministerial decree 2020-4251 of the chief justice of Québec and the justice minister of Québec in the wake of the health emergency measures it imposed to contain the COVID-19 pandemic. [ 15 ] Since Plaintiff’s cause of action in relations to the loss of his car was born August 27, 2018, the 3-year limitation period provided for in

article 2925 CCQ, would normally have expired on August 27, 2021. As it was however interrupted between March 15 and September 1, 2020 (170 days or 5 months and 17 days), it was extended until February 13, 2022. He filed his claim on November 15, 2021. 2. Is Plaintiff’s claim against Angelo Xydis founded? [ 16 ] For the reasons set forth below, the Court answers the question by the negative. [ 17 ] The parties do not know each other. They had never met before the day of the hearing. [ 18 ] Plaintiff explained that he found Defendant’s name with the address of his business.

Yet, he indicated that it is with a certain “Neil” that he left his car, as he had done in previous occasions. [ 19 ] To prove his point, that is that Defendant’s business is at 2350 Allard in Ville-Émard – Montréal, Plaintiff exhibited “Neil”’s business card. The card indicates that “Neil” does business under the name P-B Transmission (P-4). [ 20 ] The information at the enterprise register of the Québec government confirms that Shenelle Byron-Barbour and Neil Byron have incorporated PB Transmission on April 13, 2022, (P-5) that Neil Byron was operating a garage under P.B. Transmission as of January 10, 2006.

The operation of the business was transferred to PB Transmission as of February 14, 2019, when he declared the use of the name to the government authorities (P-6). [ 21 ] Angelo Xydis has been the owner of Centre D’Auto Allard (Xydis) for at least 15 years. He has operated the business at the same address, 2350 rue Allard in Montréal, and has had the same phone number since. [ 22 ] Centre D’Auto Allard’s phone number is different than that of P-B Transmission as appears form the business cards (D-3).

Neil Byron had been an employee at Centre D’Auto Allard from April 23 to July 16, 2018, as appears form his record of employment (D-4). [ 23 ] M. Xydis explained that he did not have a phone number to reach the Plaintiff and did not have the key to the car. Plaintiff acknowledged that he had left the key to his car with “Neil”. [ 24 ] Plaintiff never called “Neil” nor Centre D’Auto Allard (Xydis) for almost 3 months, between June 7 and August 27, 2018, to find out what was happening with his car.

He was waiting for “Neil” to call him back. [ 25 ] Plaintiff confirms that when on August 18, 2018, he was asked by police officer Stelito to remove his car from Centre D’Auto

Allard’s premises, he did not go to the garage to discuss the situation with neither “Neil” (he did not know his last name before the hearing) or anyone else. He did not call M. Xydis, nor “Neil”. He was waiting for “Neil” to call him back. [ 26 ] Plaintiff also failed to go to the garage on August 27, 2018, when a police officer told him that his car was being towed away.

He decided to wait until after opening hours to go to the garage to check if the car was still where he had it towed by CAA on June 7, 2018. [ 27 ] He concluded that the car had been towed away when he did not see it where CAA had left it. [ 28 ] Defendant Xydis explained that since he did not know to whom Plaintiff’s car belonged, he asked the police to verify and provide him with the identity of its owner using the licence plate. [ 29 ] When Plaintiff did not come to the garage after being asked to do so by the police, he was issued a ticket in accordance with

section 58 of the Revised By-Laws of Ville de Montréal [1] (P-1), which reads as follows: 58. Il est interdit au conducteur d'un véhicule routier de le stationner sur un terrain privé s'il n'y est pas autorisé par le propriétaire ou l'occupant du terrain. Aux fins du présent article, les mots * terrain privé + signifient un emplacement ne faisant pas

partie du domaine public de la Ville. [TRANSLATION] The driver of a road vehicle is prohibited from parking it on private land unless authorized to do so by the owner or occupant of the land. For the purposes of this section, the words * private land + mean a site that is not part of the public domain of the City. [ 30 ] Plaintiff later contested the ticket, and the count was withdrawn. [ 31 ] On August 20, 2018, Plaintiff was also issued a ticket for having parked his car “where signs prohibit parking at the opposite of 6850 rue Hamilton” (P-1), in contravention of

article 30 par. 1 of the Revised By-laws of Ville de Montréal, that reads as follows: 30.

Il est interdit de stationner un véhicule routier : 1° en un endroit et aux heures où la signalisation interdit le stationnement; […] [ 32 ] It appears that Plaintiff’s car had been towed a first time from Centre D’Auto Allard (Xydis)’s property on to the street after he had failed to present himself at 2350 rue Allard to inform the owner of the garage of what he wanted to have done to his car. [ 33 ] Plaintiff also contested that ticket and was acquitted of the charge. [ 34 ] On August 27, 2018, Plaintiff was issued yet another ticket for having abandoned his car “on a public highway at the opposite of 6850 rue Hamilton” in contravention of

article 391 of the Highway safety Code [2] (P-1). The disposition reads as follows: 391. No person may abandon a road vehicle on a public highway, on a private road open to public vehicular traffic, as well as on land occupied by shopping centres and other land where public traffic is allowed. [ 35 ] This count was also withdrawn. [ 36 ] According to Plaintiff, he tried to contact the garage by calling “Neil” at the phone number that appears on the business card he gave him. He also tried to find his car after he was told it had been pounded but contended that the police would not tell him where it was. 3.

Is plaintiff’s claim against Centre D’Auto Allard (Xydis) founded? [ 37 ] During the hearing, after having examined information statements relating to the various companies registered with the Québec government, Plaintiff was offered the possibility to modify his claim to add a defendant. He chose to add Centre D’Auto Allard (Xydis) as a defendant. [ 38 ] Plaintiff however confirmed the following: 1. He did not know M. Xydis before meeting him at the hearing. 2. He was not aware that M. Xydis was exploiting a garage under the name Centre D’Auto Allard. 3. He left his car with “Neil” form P-B Transmission. 4.

He did not follow-up with the police request to take his car away from 2350 rue Allard. 5. He was informed that his car was being towed away and yet did not do anything to stop it. [ 39 ] In his claim, Plaintiff confirms that he was asked by the police to remove his car from 2350 rue Allard at the beginning of the month of August but chose to not follow up on the request. [ 40 ] He did not go to the garage and did not communicate with “Neil” waiting for him to call, even claims that he was not worried after more than two and a half months that “Neil” had not called him to tell him when his car would be ready.

The call of the police did

not worry him either. [ 41 ] Taking the alleged facts as true, the Tribunal concludes that Defendant Xydis was diligent in trying to identify the owner of the car, that Plaintiff lost his car because he was negligent by not reacting to the police requests, and by leaving his car with a garage for almost three months without ever inquiring about the reason for the delay. WHEREFORE, THE COURT: [ 42 ] DISMISSES Plaintiff’s claim against Angelo Xydis and Centre D’Auto Allard (Xydis). [ 43 ] CONDEMNS Plaintiff to pay $201 to Angelo Xydis as legal costs. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: November 22, 2022