2012 QCCQ 8794, 2012 QCCQ 8794

BFI Canada inc. c. Groupe Montcom ltée 2012 QCCQ 8794 COURT OF QUEBEC "Small Claims Division" CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL "Civil Division" No: 500-32-121088-100 DATE: October 11, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ BFI CANADA Inc. 4141, Grande Allée Boisbriand, Quebec J7H 1M7 Plaintiff v.

LE GROUPE MONTCOM LTÉE 255 rue Ernest Dollard-des-Ormaux, Québec, H9A 3G6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff, BFI Canada Inc. (BFI) claims from the defendant Le Groupe Montcalm Ltée, (Montcalm) $1,663.83 for unpaid amounts billed for garbage collection from a building in Dorval known as Place Sims, as well as a penalty of $3,256.20 based on nine months of services, because of the unilateral resiliation of the contract for services (P-1, D-1). [ 2 ] Montcalm denies having any contractual relationship, alleging that it was acting merely as a mandatory of the owner of Place Sims, that it was tricked into signing the contract having been led to believe that it was a price quotation.

As well, Montcalm asserts that the contract was fraudulent because there was no need for a private garbage collection service in this neighbourhood, which is covered by the garbage collection of Dorval.

When Montcalm realised this was the case, the contract was terminated. [ 3 ] Finally, Montcalm contests the accuracy of the amounts claimed and seeks the return of a total of $2,450.29. [ 4 ] BFI did not attend the trial. [ 5 ] Based on the testimony of Montcalm's president, Norm Gordon, the Court concludes that Montcalm did not deal with BFI for it's own interests, but for those of the owner of Place Sims. [ 6 ] The intention expressed to BFI's representative, Anne-Marie Legault was to have Montcalm considered as the mailing address, because it was performing bookkeeping and payment functions for this owner.

The cheques made to pay BFI's bills show this, through the expression "On behalf of". Despite this, Ms Legault presented a contract form which Mr Gordon did not read.

He testifies that the print was too small for him to read and that he simply relied upon Ms Legault's good faith. [ 7 ] The Court also accepts Montcalm's argument that the contract was entered into under the mistaken belief that it was necessary, when in fact, Ms Legault failed to inform Montcalm that the city took care of garbage collection for these apartments. [ 8 ] The contract should therefore be annulled because of the defect of consent, if in fact there is a contract.

It goes without saying that the amounts claimed for a premature termination of the contract are not recoverable, the contract being annulled. [ 9 ] Because of the dishonest nature of BFI's dealing, and the fact that the collection was not necessary, all amounts should be

reimbursed. The Court has evidence of a total of $2,333.24 paid. [ 10 ] It is not necessary to deal with the argument concerning the accuracy of the amounts billed, but, for the sake of deciding all issues, the Court would have concluded that the extra fuel charges claimed were not proved. WHEREFORE, THE COURT: DISMISSES the Plaintiff's action; CONDEMMS the Plaintiff to pay the Defendant the amount of $2 333,24; CONDEMNS the Plaintiff to pay the Defendant, judicial costs in the amount of $239. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: October 1 st , 2012