2016 QCCQ 14137, 2016 QCCQ 14137

3220257 Canada inc. (Camions CB) c. Moore 2016 QCCQ 14137 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF CHÂTEAUGUAY Civil Division No: 760-32-016858-153 DATE: October 19, 2016 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ 3220257 CANADA INC., doing business under the name of CAMIONS C.B. Plaintiff v.

Mike MOORE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In the present file, Camions C.B. was originally claiming $ 5518.80 from Mr. Mike Moore, representing the cost of repairs that were done on Mr. Moore’s car. The Demand also stated that Camions C.B. would also claim a daily amount of $ 10 for the storage of the car, since Mr.

Moore did not go back at Camions C.B. to take possession of his car. [ 2 ] At the hearing, Camions C.B. declared that the amount of storage fees that were paid by Camions C.B. amounted to $ 15 000 plus taxes ($ 15 828.55). [ 3 ] The Court asked the representative of Camions C.B. if he wished to transfer his claim at the Civil Division of the Court of Quebec, since the total amount claimed was $ 21 346.55, or if he wished to reduce his claim to $ 15 000 so the file may be heard by the Small Claims Division.

Camions C.B. accepted the latter option. [ 4 ] The Court also noted that Camions C.B. was the business name of 3220257 Canada inc., and suggested that an amendment be done to reflect the legal name of the company, which was agreed by all the parties. The facts: [ 5 ] On November 2014, Mr. Moore brought to 3220257 Canada inc. (Camions C.B.) an Acura Integra 1998 that he just bought from his wife’s aunt, and that was damaged. Mr. Moore asked Camions C.B. to repair the frame and to repaint it mat black. According to Mr.

Moore, it was then agreed between himself and Camions C.B. that the repairs and the painting would be done for an amount of $ 3200. [ 6 ] According to Camions C.B., the amount of $ 3200 was to repair the car only. Another amount of $ 1600 was to be added for the painting of the car, which agreement intervened after the one regarding repairs. [ 7 ] Camions C.B. informed Mr. Moore that his car was ready in early December. It is not clear from the testimonies of both parties when Mr. Moore went to the garage to see his car (nor Mr. Borsellino, owner of Camions C.B., or Mr.

Desjardins, who did the work, having seen Mr. Moore). [ 8 ] Mr. Moore says that he was not satisfied with the look of his car, and asked that the work be redone, as he says the car looked like “camouflage”. [ 9 ] A letter was sent to Mr. Moore by Camions C.B. on February 25, 2015 sending him the invoice for the repairs of the car ($ 4800 plus taxes = $ 5518.80), saying that the car was completely repaired and repainted since December 19, 2014. [ 10 ] Mr. Moore answers by a letter dated March 30, 2015, informing Camions C.B. he contested the invoice and asking to cease and

desist from any further work on the car. [ 11 ] He said that the total amount of the invoice represented more than the actual value of the car, saying that there were large spots all over the car, and that the paint was not matching. [ 12 ] Mr. Moore added that he received a quote from another body shop stating that the car would need to be resanded and repainted entirely, which would cost him $ 2644.42. He then offered to pay Camions C.B. $ 555.58. [ 13 ] Camions C.B. answered by a Letter of Demand dated April 2, 2015, indicating that if Mr.

Moore wanted to pick-up his car, he should report at the garage with a certified cheque in the amount of $ 5518.80. He also informed Mr. Moore that the building owner was claiming $ 20 per day for storage. [ 14 ] In his Contestation, Mr. Moore pleads that contrary to the Consumer Protection Act , he was not provided with a written estimate, adding that he was willing to pay the agreed amount of $ 3200, which he reiterated at the hearing. ANALYSIS AND DECISION: [ 15 ] The Consumer Protection Act states the following: [1] 168. Before carrying out any repairs, the merchant must give the consumer a written estimate.

The merchant cannot be released from this obligation without a waiver written in its entirety by and signed by the consumer. No estimate is required where the repairs are to be made free of charge to the consumer. A merchant cannot charge a price for making an estimate unless he advises the consumer of the price before undertaking to make the estimate. 170. The estimate must indicate: (

a) the name and address of the consumer and of the merchant; (

b) the make, the model and the registration number of the automobile; (

c) the nature and total price of the repairs to be made; (

d) the part to be installed, specifying whether it is a new, used, re-tooled or reconditioned part; and (

e) the date and duration of that estimate. [ 16 ] Camions C.B. clearly acted in violation of the Consumer Protection Act by doing the repairs without giving Mr. Moore the written evaluation provided for by

Section 168 of the Act. [ 17 ] According to the authors [2] , the consequences of not giving such an estimate may vary, but under the present circumstances, the Court finds that the appropriate remedy is to declare that the repairs done were worth $ 3200 plus taxes, as Mr. Moore acknowledges. [ 18 ] At the hearing, Mr. Moore made no proof of his allegations that the work was poorly done, so no other reduction of the bill may be granted. Mr.

Moore will then have to pay to Camions C.B. the following amount: $ 3200 for the repairs plus G.S.T. of 5% ($ 160) plus Q.S.T. of 9.975% ($ 319.20), for a total of $ 3679.20. [ 19 ] As for the storage fees, they cannot be granted. Camions C.B. has proven that he paid to 9051-4686 Quebec inc. a bill of $ 12 000 dated May 17, 2016, representing the storage fees at a daily rate of $ 22.45 for 2015, and $ 3828.55 for 2016 at a daily rate of $ 23.45. [ 20 ] It shall be noted that 9051-4686 Quebec inc. is the company that owns the building where Camions C.B. is located, and that Mr.

Borsellino, owner of 3220257 Canada inc. is also one of the shareholder and vice-president of 9051-4686 Quebec inc. [ 21 ] No agreement has intervened between Camions C.B. and Mr. Moore for the amount that was charged. Also, it is not proportionate to claim $ 15 000 of storage fees for a car that is hardly worth $ 5000. [ 22 ] Sections 944 and 945 of the Quebec Civil Code could have represented a solution so Camions C.B. would not have been obliged to keep a vehicle on its premises for over two years. Sections 944 and 945 reads as follows: 944.

Where a thing that has been entrusted for safekeeping, work or processing is not claimed within 90 days from completion of the work or the agreed time, it is considered to be forgotten and the holder, after having given notice of the same length of time to the person who entrusted him with the thing, may dispose of it. 945. The holder of a thing entrusted but forgotten disposes of it by auction sale as in the case of a found thing, or by agreement. He may also give a thing that cannot be sold to a charitable institution or, if that is not possible, dispose of it as he sees fit.

[ 23 ] At the end of the hearing, the Court discussed with the parties the procedure to be followed so Mr. Moore could take possession of his car, upon payment of the judgment. As Mr. Moore works at a truck driver, he asked for a sufficient delay to give him the necessary time to go back to Camions C.B. [ 24 ] According to

Section 656 of the Code of Civil Procedure , Mr. Moore has a delay of 30 days to pay the judgment to Camions C.B. The Court will grant another delay of 30 days to Mr. Moore to take possession of his car, at his own expenses, which means that he should have taken possession of his car after a maximum delay of 60 days from the date of reception of the present judgment. [ 25 ] If Mr. Moore does not take back his car after that delay, Camions C.B. will be able to dispose of it as they think fit.

FOR ALL THESE MOTIVES, THE COURT: GRANTS in part the Demand; CONDEMNS Defendant, Mike MOORE, to pay to Plaintiff, 3220257 CANADA INC. doing business under the name of Camions C.B., the amount of $ 3679.20 with interest at the legal rate of 5% plus the additional indemnity provided for by

Section 1619 Q.C.C., since December 22, 2015, date of the receipt of the Demand; DECLARES that if after a delay of 60 days from the date of reception of this judgment Defendant Mike Moore has not taken possession of his car, 3220257 Canada inc . can dispose of it; the whole with legal costs of $ 222. __________________________________ CÉLINE GERVAIS, J.Q.C.