2014 QCCQ 3775, 2014 QCCQ 3775

Alei c. Zhivotovsky 2014 QCCQ 3775 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-130410-113 DATE: April 28, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ MOHAMMAD ALEI -and- GULNOZA BABABEKOVA Plaintiffs v.

DIMITRY ZHIVOTOVSKY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim from Defendant the amount of $6,530 as a result of an alleged breach of a lease agreement. [ 2 ] Plaintiffs allege that Defendant “agreed” to rent them premises to open a business. Several ideas for the business are put forth by Plaintiffs. It could have been a Coffee shop or a hairdresser.

Defendant states the idea was a massage parlour. [ 3 ] The Plaintiffs admit that they never finalized the amount of rent to be paid and this issue remained to be determined in future negotiations. The duration or term was not agreed to either. This is supported by the evidence of the Defendant who states that there was never any final agreement, only negotiations, including that of the amount of the rent. [ 4 ]

Article 1851 of the Civil Code of Quebec defines the contract of lease as follows: “Lease is a contract by which a person, the lessor, undertakes to provide another person, the lessee, in return for a rent, with the enjoyment of a movable or immovable property for a certain time. The term of a lease is fixed or indeterminate.” [ 5 ] It is an essential condition of the contract of lease that the parties determine the amount of rent payable or at least some formula to determine the rent. The proof is not contested that no lease amount was determined or determinable by an agreed method.

Similarly, the term of the envisaged lease was not determined. Instead, there were only negotiations ongoing on these and other questions. In that case, there was no lease agreement. [ 6 ] In the absence of a legal binding agreement, Defendant has committed no breach by simply being unable to come to terms on various elements of a contemplated lease, including the amount of rent and the term. [ 7 ] Furthermore, Plaintiffs did not file before the hearing in the Court Record any exhibits to provide any evidence of quantification of any damages whatsoever.

This is despite the fact that the Defendant specifically alleges in his defence filed that there is no proof of damages with regard to the claim of $6,530. [ 8 ] In the notice of convocation for the hearing, the parties were notified that if they wanted to provide additional documents in support of their legal position, they were required to deposit such documents prior to 15 days from the hearing. [ 9 ] At the date of the hearing, the Court asked if Plaintiff had any documentary proof in support of the alleged financial damages claimed.

Plaintiffs had no invoices, quotes, receipts, cancelled cheques or any other proof of payment or any other valid proof of damages for any specific amount. [ 10 ] Accordingly, even if the Court ruled in favour of Plaintiffs as to the existence of a binding agreement of lease or offer to lease with Defendant, which the Court does not do, Plaintiffs have not established any specific financial damages resulting from an alleged breach of such an alleged agreement. [ 11 ] The Court has no alternative but to dismiss Plaintiffs’ claim with costs. FOR THESE REASONS, THE COURT:

DISMISSES Plaintiffs motion. WITH COSTS in favour of the Defendant in the amount of $148. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: April 8, 2014