2018 QCCQ 774, 2018 QCCQ 774

Hailu c. 9138-1194 Québec inc. (Garage de Montréal) 2018 QCCQ 774 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL «Civil Division» No: 500-32-153677-168 DATE: January 10, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ YODIT HAILU Plaintiff/Cross-Defendant v. 9138-1194 QUÉBEC INC. (d.b.u.n.

Garage de Montréal) Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Yodit Hailu (Mrs. Hailu) is claiming $14,522.88 from 9138-1194 Québec inc. (d.b.u.n. Garage de Montréal ) for loss of revenues alleging it was caused by an inadequate repair of her car’s transmission performed by Garage de Montréal. [ 2 ] Garage de Montréal denies owing any amount.

By way of a cross-claim, it is claiming the unpaid balance of $300 for the repair performed and $1,725 which it had paid in good faith to a third party, Garage D.W. Auto inc. ( DWA ) to get Mrs. Hailu’s car transmission fixed. Such payment was based on its understanding that Mrs. Hailu would not sue Garage de Montréal. QUESTIONS IN ISSUE

A) Has Mrs. Hailu established her right to claim for loss of revenues? In the affirmative, what is the value of such loss?

B) Has Garage de Montréal established its right for the unpaid balance of $300 and for the reimbursement of $1,725 for the repair paid to DWA? CONTEXT AND ANALYSIS [ 3 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based. [1] [ 4 ] The burden of proof [2] lies on the party presenting a demand.

That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence. [3] This implies that to convince the Court, both the demand and the cross-claim must demonstrate that the existence of a fact is more probable than its non-existence. [4] [ 5 ] When the evidence is contradictory or not sufficiently conclusive and when the Court is unable to determine where the truth lies, the party bound to satisfy the requirements of the burden of proof will fail and lose, in part or totally. [5] This well-known rule has resisted the test of time. [6] [ 6 ] Mrs.

Hailu was using her car, a Pontiac 2009, as Uber taxi driver and for nursing services that she was rendering at private properties. [ 7 ] On August 22, 2015, Mrs. Hailu brought her vehicle to Garage de Montréal for the repair of its transmission. Garage de Montréal did it with a rebuilt transmission at the cost of $1,300. [7] [ 8 ] On August 28, 2015, Mrs. Hailu picked up her car. According to her, on September 5, 2015, the car broke down because of the faulty repair to the transmission. Garage de Montréal does not agree with that date indicated by Mrs. Hailu.

According to it, the car was rather brought back to its location on October 9, 2015 [8] , towed by Remorquage exclusif. [ 9 ] Garage de Montréal then tried to find another rebuilt transmission and did so, during 7 to 10 days. However, around October 15, 2015, despite its attempts, Garage de Montréal had to notify Mrs. Hailu that no such part was found. [ 10 ] Mrs. Hailu brought the car back to her home. [ 11 ] Then, on December 11, 2015, Mrs. Hailu had the car towed to DWA and on December 15, 2015, the car was fixed by it.

[ 12 ] As Garage de Montréal was unable to find another rebuilt transmission and redo the work, it decided to pay directly DWA for the repair. [9] Such payment was made based on the understanding that Mrs. Hailu had her car’s problem solved and would not sue for it. [ 13 ] Mrs. Hailu denied having reached such an agreement. [ 14 ] On June 27, 2016, a letter of notice was sent. [10]

A) Has Mrs. Hailu established her right to claim for loss of revenues? In the affirmative, what is the value of such loss? [ 15 ] In her application, Mrs.

Hailu summarized her claim as followed: 2. […] However, Plaintiff was unable to use her vehicle for the period commencing August 28, 2015 through December 15, 2015 and she suffered the following financial losses: 1) $11,542.88 - representing Uber fares that Plaintiff would have otherwise earned over the said period in question and calculated on the basis of weekly average earning of $774.69 ($774.69 x 14.9 weeks = $11,542.88) 2) $2,980 - representing other fares that could have been earned over the same period calculated on the basis of weekly average earnings of $200 ($200 x 14.9 weeks - $2980). […] 6.

The total amount claimed by the Plaintiff is broken down as follows: $11,542.88 - representing Uber fares Plaintiff would have earned for the period of August 28th, 2015 through December 15, 2015 calculated on a weekly average earnings of $774.69 ($774.69 x 14.9 weeks) $2980.00 - representing other fares that Plaintiff would have earned over the same period calculated on the basis of weekly average earnings of $200 ($200 X 14.9 weeks). [ 16 ] Regarding damages, the Québec Civil Code is clear: 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. [ 17 ] The Court analyses the damages claimed by Mrs Hailu. Uber fares [11] [ 18 ] Payment statements established the amounts obtained from June 8, 2015 to August 31, 2015, covering a period of thirteen weeks. The weekly average is $737.16 and not $774.69, as claimed.

The period of 14.9 weeks has not been established either. Apart from Mrs. Hailu’s testimony indicating that she was the designated driver, the statements do not refer to her name. [ 19 ] At trial, Mrs. Hailu is claiming that she could not use her car from September 5, 2015 up until December 15, 2015. Such testimony does not correspond with the factual information obtained. [ 20 ] Furthermore, the Québec Civil Code [12] obliges the parties to mitigate their damages. [ 21 ] No evidence of mitigation of damages has been provided. Mrs.

Hailu simply explained that she could not rent another car, being too costly. [ 22 ] The Court is not convinced, under the balance of probabilities, that Mrs. Hailu has established her right to such damages. Nursing services [ 23 ] Mrs.

Hailu explained that she would visit clients at night since 2012. [ 24 ] At trial, the Court allowed the following undertakings: Undertaking to file additional documents The Court grants a delay up until December 15, 2017 allowing Yodit Hailu to send the following documents: 1) A letter from her supervisor Sammar, indicating the list of clients she could not serve as a nurse, the dates of required services, the hours that were to be worked on September, October, November and December 2015, the dates with the name of each patient and her hourly rate. 2) The nursing invoices for the period prior to September 2015 (January to August).

These documents will be sent to the Court by email. They will also be sent to opposing parties by email. The authorization of the Court is solely for these documents. The case will be taken under advisement on December 15, 2017 , date where the documents should have been received.

If Yodit Hailu fails to provide these documents, the Court will consider that she renounces to file it. Judgment will then be rendered. [ 25 ] No further evidence was provided based on that permission. [ 26 ] The only income tax information received covers the year 2015. [13] The gross income for that year 2015 is $19,121.

No breakdown by months and no accounting documents have been provided. [ 27 ] There is no evidence with probative value of nursing services that could not be rendered from September to December 2015. [ 28 ] Furthermore, the same obligation to mitigate the damages existed. [ 29 ] In a nutshell, Mrs. Hailu has not convinced the Court under the balance of probabilities that she had the right to recover for loss of revenues.

B) Has Garage de Montréal established its right for the unpaid balance of $300 and for the reimbursement of $1,725 for the repair paid to DWA? [ 30 ] All relevant elements of evidence are analysed by the Court. The probability is evaluated based on the direct evidence, the circumstances and the presumptions. [14] [ 31 ] The repair performed by Garage de Montréal was paid partly by cash and by credit card by Mrs. Hailu. According to Garage de Montréal, an unpaid balance of $300 was due. [ 32 ] Under the balance of probabilities, the Court is not satisfied that such amount still had been to be paid by Mrs.

Hailu and that despite that fact, Garage de Montréal would have accepted to pay $1,725 to DWA. [ 33 ] Regarding that last amount, it represents the cost of repairing the transmission which could be caused by either a defective part provided by Garage de Montréal or by its faulty installation. In both cases, Garage de Montréal is responsible for the job performed. (The Court notes that the amount paid to DWA is similar to the one charged by Garage de Montréal to do the same job). [ 34 ] Garage de Montréal has not established its right to recover any amount.

FOR THOSE REASONS, THE COURT: DISMISSES the action of Plaintiff Yodit Hailu, WITHOUT LEGAL COSTS ; DISMISSES the Cross-claim of Cross-Plaintiff 9138-1194 Québec Inc. (d.b.u.n. Garage de Montréal), WITHOUT LEGAL COSTS . __________________________________ DOMINIQUE VÉZINA , J.C.Q. Date of trial Under advisement November 21, 2017 December 15, 2017