2023 QCCQ 3406, 2023 QCCQ 3406

Succession de Izydorczyk c. Montreal Memorial Park Inc. 2023 QCCQ 3406 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL « Civil division » N° : 500-32-714416-213 DATE : June 1, 2023 ______________________________________________________________________ SOUS LA PRÉSIDENCE DE L’HONORABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ WALDEMAR GOLESZNY in his capacity as liquidator of the estate of Zofia Izydorczyk -and- WALDEMAR GOLESZNY Plaintiffs c. MONTREAL MEMORIAL PARK INC. -and- FERON FUNERAL HOMES INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Waldemar Goleszny, in his capacity as liquidator of the estate of Zofia Izydorczky and on his own behalf, is claiming $8,800 from Montreal Memorial Park Inc. ("Memorial Park") and Feron Funeral Homes Inc. ("Feron") for failing to provide the casket described in the pre-arranged funeral services contract (the "Contract") signed by his mother in May 2008. [ 2 ] The amount claimed is as follows: • $5,800 in reimbursement for the cost of the coffin; and • $3,000 for pain and suffering. [ 3 ] Memorial Park and Feron dispute the claim.

They explain that the casket chosen by the deceased Zofia Izydorczky in May 2008 was no longer available in November 2020, so they had to provide another one. They assure that the new coffin was of equivalent if not superior quality. They plead that they provided all the services required by the Contract in a professional manner and consider the damages unfounded. ISSUES [ 4 ] The Tribunal must answer the following questions:

a) Are the defendants in default of their contractual obligations, and if so, which ones?

b) Is the plaintiff, personally, entitled to the damages he or she claims? BACKGROUND [ 5 ] On May 23, 2008, Mrs. Izydorczky signed a Contract (Exhibit P-1, page 4) with Feron providing for all the funeral goods and services that she wanted and that Feron would be required to provide at the time of her death. [ 6 ] Under the terms of the Contract (Exhibit P-1, page 4), the casket is identified with number 13527 which corresponds to the Demi- Sofa casket manufactured by Batesville known as Sacramant Maple at a cost of $5,800.

[ 7 ] Mrs. Izydorczky also provides for the purchase of flowers in the amount of $300. [ 8 ] On November 3, 2020, Mrs. Izydorczky died (Exhibit P-4, page 2). [ 9 ] According to her will (Exhibit P-7), the plaintiff was appointed her executor. [ 10 ] On November 12, 2020, the plaintiff goes to Feron to agree on the execution of the Contract. [ 11 ] In memory of the plaintiff, Mrs. Nicole Legault of Feron showed him a picture of the coffin chosen by his mother.

He was also informed that he had to choose flowers, which he did, specifying that they should not be red (Exhibit D-4). [ 12 ] On the day of the exhibition, he was disappointed. [ 13 ] The plaintiff noticed that the coffin was not the one his mother had chosen. In particular, he could not find the MemorySafe drawer in which he had wanted to place personal items. He was also dissatisfied with the floral arrangement, as red predominated.

He asked that changes be made to the flowers, which was done the next day, but without giving him full satisfaction. [ 14 ] By letter dated January 28, 2021, the plaintiff's lawyer ordered the defendants to pay him the sum of $8,800 (Exhibit P-1, page 1). [ 15 ] When the defendants failed to comply with his request, the claim was instituted on February 25, 2021, in the Small Claims Division of the Court of Québec. DECISION Applicable law [ 16 ] First, it is appropriate to recall the civil law rules of evidence. [ 17 ] In civil matters, the burden of proof lies with the plaintiff under the principle set out in

article 2803 of the Civil Code of Québec (“ C.C.Q. ”) [1] , which states that “a person seeking to assert a right shall prove the facts on which his claim is based.” [ 18 ] The Court renders its decision in accordance with the balance of probabilities, as stipulated in

article 2804, C.C.Q., which states that “evidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 19 ] If the evidence is not sufficiently convincing or if it is contradictory and the judge cannot determine where the truth lies, the party that has the obligation to convince the Court of the merits of his or her claim will lose, in whole or in part. [ 20 ] On the merits, the Contract of May 23, 2008 (P-1, page 4), 2008 is a contract governed by the Act respecting arrangements for funeral services and sepultures [2] , the Consumer Protection Act [3] (« C.P.A. ») and the Civil Code . [ 21 ]

Section 2 of the Act respecting arrangements for funeral services and sepultures defines a pre-arranged funeral contract as follows: (…) a contract entered with a living person whereby funeral services are provided to that person upon or in connection with his death, in consideration of partial or total payment before the death. [ 22 ] Since this is also a contract between a consumer and a commercial enterprise, it is subject to the rules governing consumer contracts (article 1384 C.C.Q. and

article 2 C.P.A.). [ 23 ] The merchant's principal obligation is to provide the service provided for in the contract (article 16 C.P.A.), which must conform to the description given (article 40 C.P.A.). In case of doubt or ambiguity, the contract must be interpreted in favor of the consumer (article 17 C.P.A.). [ 24 ] Notwithstanding

article 2863 of the Civil Code , the purchaser may, if he exercises a right provided for in the Act respecting funeral services and sepultures or if he wishes to prove that the said Act has not been complied with, administer testimonial evidence, even to contradict or change the terms of a writing (article 48 of the Act respecting funeral services and sepultures). [ 25 ] With these precepts in mind, let us turn to the issues in dispute.

a) Are the defendants in default of their contractual obligations, and if so, which ones? [ 26 ] The plaintiff alleges that the defendants had an obligation to provide the Sacramant Maple casket since that was his mother's choice in the Contract (Exhibit P-1, page 4). [ 27 ] Mr. Goleszny alleges that the substitution is unjustified since he contends that the Sacramant Maple casket was available at the time of his mother's death.

Finally, he finds the situation intolerable in that the change was made without his consent, without informing him and with a property of lesser value. [ 28 ] As noted above, the primary obligation of the merchant is to provide the service contracted for. That said, it is not sufficient to find that the agreed service was not provided in order to conclude that there has been a breach of contract that may give rise to civil liability. The intensity of the obligation must be taken into account in determining the burden of proof on the victim and the defenses available to the contracting party.

[ 29 ] The Director of Operations Support, Nichols Chapleau, acting as representative of the defendants, readily admits that Feron replaced the Sacramant Maple casket with a Michaelangelo PC model. [ 30 ] The reason for this change was the unavailability of the Sacramant Maple casket at the time of death. She recalls that in November 2020, the COVID-19 pandemic was prevalent and it was difficult for funeral homes to obtain certain caskets from manufacturers. This was the case here. [ 31 ] She then refers to the performance by the equivalence clause in

Schedule B of the Contract (Exhibit P-1, page 4) which provides as follows: The parties hereto acknowledge that this contract does not call for the future delivery of any specific brand or make of merchandise and that Seller is obligated only to furnish goods and services which conform to the general description listed herein or are equivalent quality or material and workmanship and are readily available at the time of need. Manufactures of the merchandise purchased for future delivery are subject to change and warranty information, if any, will be available at the time of nee on such merchandise. [ 32 ] Ms.

Nichols, who has been in the funeral service business for over 30 years, adds that substitution of one good for another is very common in their industry. In fact, she said, it often happens that the casket chosen by the purchaser is discontinued or simply not available at the time of death, given the time that may elapse between the signing of the pre-arrangement contract and its execution.

She adds that the funeral home does not keep in its inventory the casket chosen on the day the pre-arrangement contract is signed, hence the necessary equivalence clause in the pre-arrangement contract. [ 33 ] Turning to the issue of substitution, she asserts that the Michaelangelo PC casket was a product that was entirely comparable to the Sacramant Maple casket.

She even believes that the Michaelangelo PC, which is made of whole wood, was of superior quality to the Sacramant Maple, which is made of veneered wood. [ 34 ] Recalling that the defendants' obligation is one of means and not of result, they can be exonerated from a breach of duty if they demonstrate that they took all reasonable means available to them to satisfy their principal obligation. [ 35 ] This is the case here. Here is why. [ 36 ] First, the Court finds that the equivalency clause in the Contract is valid and rejects the plaintiff's claim that it is an abusive clause [4] . [ 37 ] Second, Ms.

Nichols demonstrates that the defendants were unable to obtain a Sacrament Maple casket in good condition. Her explanation for the unavailability of the product in November 2020 is plausible, credible and not contradicted.

It is the application of the adage: to the impossible, no one is bound. [ 38 ] Third, although the plaintiff alleges that the Sacrament Maple casket was available in November 2020, relying on an email dated June 13, 2020 (Exhibit P-1, page 15), it is at the time of performance that the conduct of the defendants must be assessed and not six months earlier. [ 39 ] Finally, the plaintiff also fails to convince the Court that the availability of the Sacramant Maple casket in January 2021 on the Batesville website is tantamount to saying that the defendants failed to perform their obligations in November 2020. [ 40 ] Moreover, as James Brock, Batesville's sales representative, pointed out, the availability of caskets in stock on the company's website does not guarantee their proper use. [ 41 ] Accordingly, the Court finds that the plaintiff has not proven to a convincing and preponderant degree that the Sacramant Maple casket was available in November of 2020, and by extension, that the defendants have breached their duty. [ 42 ] Having taken this step, we must now assess whether the product supplied was a product of comparable quality as stipulated in the equivalence clause of the Contract (Exhibit P-1, page 4). [ 43 ] According to the plaintiff, this is not the case.

His assertion is based on various submissions he obtained in May and June 2021 to determine the price of the two coffins. [ 44 ] Thus, at J. J.

Cardinal Funeral Home in Montreal, the Michaelangelo casket costs $4,057, while the Sacramant Maple casket costs $4,940 (Exhibit P-9). [ 45 ] At Ostrander's Funeral Home Limited, located in Ontario, the Michaelangelo casket is offered at $3,645 (Exhibit P-13). [ 46 ] At Koru Cremation in Vancouver, the Michaelangelo casket is priced at $4,695 (Exhibit P-15) [ 47 ] Finally, in Saskatchewan, Cherished Memories Funeral Home advertises the Sacramant Maple casket in its catalogue for $5,400 (Exhibit P-13). [ 48 ] At the end of this demonstration, he concludes that the Michaelangelo PC casket is of lesser value than the Sacramant Maple casket and that the fact that the defendant Memorial Park advertises the Michaelangelo PC casket in its catalogue at a cost of $6,735 should not be taken into account (Exhibit P-10). [ 49 ] In order to meet his burden of proof, it is up to Mr.

Goleszny to show how and why the quality of the materials used in the Michaelangelo casket differed from those used in the Sacramant Maple. In fairness, the submissions he makes only show that in 2021 there is a price disparity for the same product in the Canadian provinces.

[ 50 ] The absence of this evidence is fatal, especially since his witness, Mr. Brock, stated that each funeral home is master of its choices and free to set its prices according to the laws of the market. [ 51 ] Let us also add that, according to the statements of Ms. Nichols and Mr. Brock, two people knowledgeable in the field, the Michaelangelo PC casket is of superior construction and more expensive than the Sacramant Maple. [ 52 ] Finally, a review of the photographs of the two caskets reveals the great similarity between the two products (Exhibit D-2 and Exhibit D-3).

Also, the features associated with the caskets are very similar.

Both have a hand-rubbed high-gloss finish, an interchangeable corner design feature, wood bars, antique hardware or gold or antique colored hardware, a keyed clasp, an adjustable bed and mattress and colored appliques. [ 53 ] Apart from the proven fact that the substituted casket did not contain a MemorySafe drawer, the Court finds that the plaintiff has not proven that the defendants breached the equivalency clause in the Contract. [ 54 ] Indeed, the Court is of the opinion that the evidence does not allow it to determine that this feature, which was so important to the plaintiff, was equally important to his mother.

There is no specific mention in the Contract that this MemorySafe drawer was the reason for her purchase, without which she would have chosen another coffin. [ 55 ] That being said, it remains to be assessed whether the plaintiff's final complaint that the substitution of caskets was made without his consent and without informing him in advance is credible. [ 56 ] Even if the Court only has the benefit of the applicant's testimony here, it does not believe it to be credible. [ 57 ] Having heard the applicant testify, the Court was able to see that nothing escaped his notice.

He was methodical and meticulous, knew the various applicable laws, claimed everything possible and was ready to respond to all requests. [ 58 ] Thus, five months before his mother's death, the plaintiff proved that he had made sure with the defendants that the Sacramant Maple coffin was available (Exhibit P-1, page 15). [ 59 ] However, knowing his mother's choice, there is no explanation as to why the plaintiff initialed the funeral contract of November 3, 2020 (Exhibit P-1, page 13) clearly indicating that the casket provided would be a Michaelangelo. [ 60 ] The plaintiff offers no explanation for this, and, indeed, if he initialed the contract without reading it, it is an inexcusable error [5] that does not constitute a defect of consent. [ 61 ] Also, the applicant's conduct at the funeral is not consistent with his version of the facts as presented to the Court.

According to the uncontradicted testimony of Ms. Nicholls, at the time of the funeral, Mr. Goleszny made no complaints about the coffin.

He never pointed out to the Feron staff that the MemorySafe drawer, which he was so anxious to place personal items in, was missing. [ 62 ] As the evidence shows, this issue was raised for the very first time in the formal notice of January 2021. [ 63 ] In the Court's view, this silence is telling. [ 64 ] First, it undermines the plaintiff's version that the MemorySafe drawer was the main, if not the only, reason for purchasing the Sacramant Maple casket. [ 65 ] Indeed, if that had been the case, the Court is persuaded that the problems associated with the casket substitution would have been known to everyone on the first day of the visitation. [ 66 ] Second, it can be inferred from this silence that the substituted casket bore a striking resemblance to the Sacramant Maple casket.

Indeed, if the plaintiff is to be believed, Feron's representative had shown him a photograph of a Sacramant Maple coffin and nothing else. In this case, Mr. Goleszny would have simply confused the two coffins. But in the more likely case, this silence suggests that Mr. Goleszny had been notified of the substitution and had agreed to it. [ 67 ] It is in fact the latter possibility that the Court accepted in light of Ms. Nichols's information. Ms.

Nichols explained that, at the time of signing the funeral contract, it is customary to show the purchaser a photograph of the casket to be used, and this becomes imperative when the casket chosen by the beneficiary is to be replaced by an equivalent. Ms.

Nichols does not believe it is possible that the Feron’s agent would have limited himself to showing only a photograph of the Sacramant Maple casket when the funeral contract clearly states that the Michaelangelo casket will be provided. [ 68 ] Thus, in light of the funeral contract initialed by the plaintiff on November 3, 2020, describing the coffin as the Michaelangelo, the Court concludes that the plaintiff knew that the chosen coffin was unavailable and that he agreed to have the Michaelangelo coffin substituted. [ 69 ] For all of these reasons, the Court finds that the plaintiff, as liquidator of the estate of Zofia Izydorczky, has failed to prove to the requisite standard of proof his claims for $5,800. [ 70 ] Let us now turn to the second issue.

b) Is the plaintiff, personally, entitled to the damages he or she claims? [ 71 ] At the hearing and in his plan of argumentation submitted at the very end of the trial, the plaintiff claimed moral and punitive damages, alleging bad faith [6] on the part of the defendants, the abusive nature of the equivalence clause [7] in the Contract (Exhibit P-1, page 4), the lack of accountability for the administration and use of the sums used under the Contract and the defendants' failure to

provide him with an updated list of the price of each good and service he offered [8] . [ 72 ] He also complained that the color of the floral arrangement was too red for his taste, even though he had clearly specified that he did not want red flowers. [ 73 ] He maintained that he was unable to mourn in peace and attributed the reason for this to the defendants' failings. He claimed $3,000 from them. [ 74 ] Having already determined that the defendants had fulfilled their contractual obligation to provide an equivalent coffin, only the grievance concerning the flowers remains.

Indeed, all other breaches were merely alleged and, it must be said, are far removed from the claim. [ 75 ] That said, the award of contractual damages is assessed in accordance with the well-established rules set out in articles 1607, 1611 and 1613 CCQ: 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived.

Future injury which is certain and assessable is taken into account in awarding damages. 1613.

In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance. [ 76 ] In the circumstances of the case and in the absence of any documentary evidence in support of the $3,000 in moral damages, the Court considers that the damages claimed were not foreseeable and that they do not constitute an immediate and direct consequence of the choice of fuchsia-colored flowers. [ 77 ] For these reasons, the plaintiff's claim will be dismissed.

FOR THESE REASONS , the Court: DISMISSES the plaintiff's action; THE WHOLE , with legal costs. __________________________________ JO ANN ZAOR, J.C.Q. Date of hearing: May 1, 2023