2012 QCCQ 4542, 2012 QCCQ 4542

Ricardo M. Panti, service d'ingénieurie RMP c. Danso 2012 QCCQ 4542 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-120231-099 DATE: May 22, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ RICARDO M. PANTI, service d'ingénieurie R.M.P. 987 Clifton Ave. Montreal, Quebec H4A 2N1 Plaintiff v.

AKOSUA MENSAH DANSO [...] Pierrefonds, Quebec [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Ricardo M. Panti, sues Akosua Mensah Danso for the repayment of a loan of $10,000 made May 8, 2007 with a six month-term. [ 2 ] Mr Panti put Ms Danso in default to repay the loan by way of a letter dated March 25, 2009 (P-1). [ 3 ] He reduces his claim to $7,000, the limit of the Small Claims Division. [ 4 ] Ms Danso contests the action.

While, she admits that the cheque for $10,000 was made to her order and deposited in her account, she states that she did not sign the loan agreement which purportedly bears her signature dated May 8 th , 2007.

She states that her husband, Mr Kwajo Danso, alone borrowed the money from Mr Panti asking her if he could channel the money through her bank account because he did not have one. [ 5 ] She states that she accepted that the money be passed through her account as a conduit but that she never agreed to be considered a borrower and was not aware that her husband was agreeing to documentation where she was described as such. [ 6 ] Ms Danso's testimony is clear that her husband has been separated from her since 1998.

Since that time, he has come and gone visiting the household from time to time in order to see his children but he has maintained a separate residence throughout the period from the separation in 1998 until 2007 when he departed and has not been seen since. [ 7 ] She showed examples of her signature on other documents including the contestation in the present case and, visibly, the signature placed on the loan agreement does not appear to be hers. [ 8 ] Mr Panti was not able to testify as to her signature because he was not present when the document was signed.

He remitted it to Mr Danso and it was returned to him with the signature on it.

[ 9 ] He then signed it and remitted the cheque to Mr Danso. He states that he was with Mr Danso when he called Ms Danso asking whether she would agree to the cheque passing through her account. [ 10 ] The Court also heard from one of Ms Danso's children, Genevive, who corroborated the fact that her father visits the family but does not live with them.

ANALYSIS [ 11 ] It is clear that the payment of the sum of money does not necessarily prove the existence of a loan. [ 12 ] The cheque to Ms Danso (P-2) proves that she received the money but it does not prove that she agreed to repay it. [ 13 ] The circumstances of the signature of the loan (P-3) clearly demonstrate that there is no proof of Ms Danso's signature on the document, nor any proof that she agreed to delegate to her husband her signature on the document. [ 14 ] The only agreement she made was to be a conduit for the transfer of funds because her husband has no bank account. [ 15 ] The loan agreement mentions a joint business venture between Mr Panti and the borrower but Ms Danso has nothing to do with her husband's business and does not have any business dealings with Mr Panti. [ 16 ] In order to recover the loan from Ms Danso, Mr Panti had the burden of proving that she agreed to repay the loan, a burden of proof that he would normally fulfill by proving her signature on the loan agreement. [ 17 ] He was not successful in fulfilling this burden of proof because, on the balance of probabilities, the signature is not hers and she did not, in any other way, acknowledge that her receipt of the money was an acceptance of an obligation to repay it. [ 18 ] It was really Mr Danso who borrowed the money and who received it through the intermediary of Ms Danso and it is he who would have had an obligation to repay the loan.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action; CONDEMNS the Plaintiff to pay, to the Defendant, judicial costs in the amount of $146. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: May 15, 2012