2018 QCCQ 10582, 2018 QCCQ 10582

9967036 Canada inc. c. Kay (Pink and Brown) 2018 QCCQ 10582 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-703590-176 DATE: December 20, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ 9967036 CANADA INC. Plaintiff v. CHARLES KAY (doing business under the name of Pink and Brown) and 6164633 CANADA INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, 9967036 Canada Inc. claims from Charles Kay and 6164633 Canada Inc. in recovery of the amount of $805.00 for goods sold and delivered to Defendants on or about December 4, 2014. [ 2 ] Defendants recognize having purchased and received said goods without ever paying the account.

Charles Kay submits that the goods were defective, never installed and never used. [ 3 ] In evidence, Plaintiff submits the invoice sent to Charles Kay, doing business under the name of Pink and Brown, and a series of texts messages exchanged between Mr. Kay and Ami Kaminski, the Plaintiff’s representative. The messages confirm the sale and the purchase price of the goods. They are silent about any defect that would have affected them. [ 4 ]

Section 2803 of the Civil Code of Quebec stipulates the following : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. [ 5 ] Since Mr. Kay admits having purchased and received the goods, the onus of proving that the purchase price is not owed to the Plaintiff bears with him. Unfortunately for him, the only evidence that the goods were in fact, defective rely solely on his testimony.

There is no corroborating evidence that would demonstrate or confirm such a fact. On the contrary, one would have expected that if such defect did exist and if the goods were in fact unusable, he would have sent to Mr. Kaminsky a letter, an email or at least a text message to that effect. [ 6 ] Since the invoice was sent exclusively to Charles Kay, there is no legal recourse against 6164633 Canada Inc. FOR THESE REASONS, THE COURT : GRANTS plaintiff’s claim; ORDERS Charles Kay to pay an amount of $805.00 to 9967036 Canada Inc., with interest at the legal rate, plus the additional indemnity stipulated in

section 1619 of the Civil Code of Quebec as of the date of the present Judgment; The whole with court fees of 150$.

__________________________________ GILLES LAREAU, J.C.Q. Date of hearing: December 11, 2018