2016 QCCQ 4007, 2016 QCCQ 4007

Wesley c. Ossandon 2016 QCCQ 4007 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-143714-147 DATE: February 16, 2016 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ VINCENT WESLEY Plaintiff v. MIGUEL OSSANDON and 9151-8175 Québec inc.

D efendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Vincent Wesley claims $7 000 from the Defendants for different payments in virtue of a “Vending machine agreement“ and damages. [ 2 ] Defendant Miguel Ossandon has not contested. [ 3 ] Defendant, 9151-8175 Québec Inc., contests claiming that it has no contractual relationship with Mr Wesley and that Miguel Ossandon alone is responsible for any damages claimed. facts [ 4 ] On April 30, 2013, Vincent Wesley and Miguel Ossandon sign a contract entitled “Vending machine agreement” (Exhibit P-2).

It provides that Mr Wesley is sole proprietor of two vending machines that Mr Ossandon allows him to install in the premises identified in the contract. Mr Ossandon was to receive 50 % of sales, after deducted costs, of all snacks sold on the premises. According to the contract, the machines shall at all times remain the property of Mr Wesley and he shall have the right to retrieve his machines on termination of the agreement.

The Agreement further provides that each party may terminate the agreement on 30 days written notice. [ 5 ] It is not contested that Mr Ossandon had no authority to bind 9151-8175 Québec Inc. At the time, he was an employee at the company’s garage. In his spare time, he was allowed to use the garage for his personal business projects. As well, Mr Ossandon had the machines installed on the premises without 9151-8175 Québec Inc.’s authorisation. [ 6 ] Mr Yuri Airpetian, an administrator of 9151-8175 Québec Inc. testifies that when Mr Ossandon left the company’s employment, there were certain sums owing to it.

The two of them made a verbal agreement by which Mr Ossandon transferred the vending machines to 9151-8175 Québec Inc. in order to compensate his debt. [ 7 ] In September 2013, Mr Airpetian put the two machines on sale on Kijiji since they were of no further use to him. In fact, the machines by that time had been vandalised and emptied of all merchandise, as well as the spare change. [ 8 ] Mr Wesley became aware of Mr Airpetian attempt to sell the vending machines. Mr Wesley contacted Mr Airpetian in order to investigate further. This allowed him to ascertain that they were in fact his machines.

Mr Airpetian offered to sell the machines to Mr Wesley for the sum of $400 namely the amount owing to 9151-8175 Québec Inc. by Mr Ossandon. Mr Wesley refused and then sent demand letters through his attorney. The claim is as follows: • Loss of the snack and drink machine (value 2200$). • Loss of stock within the snacks and drinks machines. (Approximately 600$). • Loss of the change inside the machines. (Approximately 100$) • Updated change machines (value 150$)

• Compensation from the months of July, August and September. (Approximately 450$) • Compensation for the loss of revenue for the months following the termination of the agreement (approximately 1500$) • Compensation for damages and loss of time. (Approximately 2000$) [Reproduced as drafted] [ 9 ] Approximately two to three months later, Mr Airpetian sold the machines to scrap dealers for the sum of $125. Decision [ 10 ] The sole contractual responsibility in this matter lies with Mr Ossandon. He was operating an enterprise, as small as it may have been, by selling the snacks in the vending machines.

Since he has not contested, his liability has been established. As for damages, the price of purchase of the machines paid by Mr Wesley has been proven in the amount of $2 200. As well, he spent a further $172.46 to change the coin machines in each of the machines. Since Mr Ossandon never notified Mr Wesley to retrieve his machines from the premises, these damages have clearly been suffered by him.

As for the other damages claimed, there is no preponderant evidence neither testimonial nor documentary, to grant them. [ 11 ] As for 9151-8175 Québec Inc., the uncontested evidence is that although the machines were on its premises, it had no responsibility for them. No extra contractual fault has been established that would allow the Court to grant Mr Wesley’s claim. As well, the fact that 9151-8175 Québec Inc. attempted to sell these machines back to Mr Wesley in order to pay Mr Ossandon’s debt is of no bearing on the matter. Mr Ossandon was the apparent owner of the vending machines.

The transaction between him and 9151-8175 Québec Inc. in order to compensate his employer for the damages it suffered was made in good faith [1] . In no way does this create solidary liability for 9151-8175 Québec Inc. with Mr Ossandon. The claim against 9151-8175 Québec Inc. is dismissed. For these reasons, the court: Grants the claim, in part, against Miguel Ossandon; Condemns Miguel Ossandon to pay to Vincent Wesley the sum of $2 372.46, plus legal interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , since the demand namely July 4, 2014; Condemns Miguel Ossandon to pay the legal disbursement in the amount of $169; Dismisses the claim against 9151-8175 Québec Inc. with the legal disbursement in the amount of $206. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: November 30, 2015