2021 QCCQ 3313, 2021 QCCQ 3313

MOM Montreal Office Maintenance Inc. c. Marchand 2021 QCCQ 3313 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE DE QUÉBEC DISTRICT OF MONTRÉAL Civil Division N° : 500-32-706720-184 DATE : April 28, 2021 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. ______________________________________________________________________ M.O.M. MONTREAL OFFICE MAINTENANCE INC. Plaintiff v.

MATTHEW MARCHAND Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] M.O.M. Montreal Office Maintenance inc. ( MOM ) claims from Matthew Marchand $2,199.50 for cleaning work at his residence, under a verbal contract. [ 2 ] Mr Marchand argues that there is no contract between him and MOM.

He also adds that if MOM's representatives performed cleaning work at his residence, it was the result of a contract with a third party, in this case, the company In Residence, which acted as project manager for the major renovation work done at his residence. ISSUE [ 3 ] In the absence of a written contract, does MOM present a commencement of proof from Mr Marchand to establish the existence of a verbal agreement for cleaning work? CONTEXT AND ANALYSIS [ 4 ] In civil matters, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided in

article 2803 of the Civil Code of Québec ( C.C.Q. ), which states that “A person seeking to assert a right shall prove the facts on which his claim is based.” [ 5 ] The Court decides on the balance of probabilities, pursuant to

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. [ 6 ] In addition, where the Plaintiff bases his action on an verbal contract and the value in dispute exceeds $1,500, the Court must apply articles 2862 et 2865 C.C.Q.: 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500.

However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in the ordinary course of business of an enterprise. 2865 .

A commencement of proof may arise from an admission or writing of the adverse party, his testimony or the production of real evidence, where it renders plausible the alleged fact. [ 7 ] Consequently, MOM must prove a "commencement of proof" arising from an admission, a writing of Mr Marchand or his testimony. [ 8 ] After analyzing the evidence, the Court concludes that MOM does not discharge its burden of establishing such a commencement of proof. [ 9 ] The email exchanges between MOM's representative, Mr.

Jeremy Laufer, and Mr Marchand in September 2017 (P-2) do not contain anything that can legally constitute a commencement of proof establishing any contract for cleaning work between MOM and Mr Marchand. [ 10 ] On the contrary, Mr Marchand makes it clear that the only contractual relationship that may have existed for cleaning work at his residence was with In Residence and no one else.

[ 11 ] Also, Mr Marchand produced a chart from In Residence that breaks down the various renovations at his residence and the corresponding budgets. Under the heading "CLEANING-WHOLE HOUSE", there is no amount. [ 12 ] Furthermore, Mr Marchand's spouse, Ms Tiffany Turner, explains that all contractors doing work on their home in 2017 submit a quote that is the subject of a formal contract, which is never the case with MOM. [ 13 ] As a result of all of the foregoing, the Court finds that MOM does not discharge its burden of establishing its claim.

However, in the exercise of its judicial discretion, the Court does not impose any costs. FOR THESE REASONS, THE COURT: DISMISSES M.O.M. Montreal Office Maintenance inc.’s claim against Matthew Marchand, each party paying its own costs. ASKS the Clerk of the Small Claims Division of the Court of Québec to modify the address of Matthew Marchand to read: [...], Westmount, Québec [...]. __________________________________ Henri Richard, J.C.Q. Date of hearing : April 6, 2021