2017 QCCQ 10289, 2017 QCCQ 10289

Tandel c. Tandel 2017 QCCQ 10289 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-152410-165 DATE: August 2, 2017 ______________________________________________________________________ BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ LILY TANDEL Plaintiff v.

ROSE TANDEL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Lily Tandel, claims that on or about October 13, 2010, she loaned her sister Rose Tandel, the Defendant, the sum of 2 500 $. The said loan was due to be repaid in October 2013 at which time Defendant failed to do so. [ 2 ] Defendant contests the plaintiff's action arguing that the said amount was a gift and not a loan.

She adds that the claim is prescribed having been filed on May 11, 2016, more than five years after the funds were disbursed. [ 3 ] The present case raises two questions in litigation: Was the money loaned or given? Is the action prescribed? [ 4 ] To substantiate their respective arguments both parties have filed, in evidence, an impressive amount of text messages and emails exchanged between themselves.

As their testimonies are irreconcilable, the evidence pertaining to these emails and text messages exchanged over a period of a few years remains the most relevant evidence the Court has in order to decide this case. [ 5 ] These emails confirm that the Plaintiff did remit to the Defendant a sum of 2 500$ in 2010. They also show that Plaintiff has consistently claimed that this money was a loan and not a gift. Furthermore, in no written exchange between the parties did the Defendant assert that the amount given by the Plaintiff was a gift rather than a loan.

One would have expected that from the beginning, Defendant would dispute this claim from the Plaintiff by arguing that it was gift rather than a loan. This is not the case and thus the Court gives more credibility to the position stated by the Plaintiff. [ 6 ] There is also the fact that Defendant only raised the argument of prescription to dispute the claim of the Plaintiff. Oddly, this was done in emails where she recognized having received the amounts and having supposedly offered to reimburse them (P-6). [ 7 ]

Section 2898 of the Civil code of Quebec stipulates that : 2898. Acknowledgement of a right, as well as renunciation of the benefit of a period of time which has elapsed, interrupts prescription. [ 8 ] None of the emails exchanged between the parties confirms that the loan was due from 2010 and would therefore be prescribed.

On the contrary, they show that both sisters have discussed the reimbursement over a number of years and that in 2016, Plaintiff, obviously tired of waiting, gave an ultimatum to Defendant. [ 9 ] Globally, the evidence adduced in court convinces that the claim is warranted and that it is not prescribed. FOR THESE REASONS, THE COURT : GRANTS Plaintiff’s action, CONDEMNS Rose Tandel to pay to Lily Tandel the amount of 2 500 $ with interest at the legal rate, plus the additional indemnity stipulated in

section 1619 of the Civil code of Quebec from the deposit of the demand. With judicial costs of 100$.

__________________________________ GILLES LAREAU, J.C.Q. Date of hearing: May 2, 2017