2013 QCCQ 13993, 2013 QCCQ 13993

Partica c. Teleaga-Carpen 2013 QCCQ 13993 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-129196-111 DATE: November 8, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JEANNIE PARTICA […], Laval (Québec) […] Plaintiff v.

SYLVIA TELEAGA-CARPEN […], Lachine (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jeannie Partica is claiming $2,000 from Sylvia Teleaga-Carpen, alleging that Mrs. Carpen assaulted her in a funeral home. Mrs. Carpen denies the claim. The evidence: [ 2 ] Plaintiff, Jeannie Partica, was the curator and god-daughter of Amelia Teleaga-Walsh, who passed away. The funeral took place on February 9, 2011 at Urgel Bourgie Funeral Home.

At the funeral, a photograph of Amelia was placed on a table beside the casket. Defendant, Mrs. Carpen, who was Amelia’s sister, wanted the photograph; it brought back many memories. She told Mrs. Partica she did not have any pictures of her sister and would like to have the one displayed on the table. Mrs. Partica did not respond. [ 3 ] That evening, Mrs. Carpen took the photograph and put it into a bag. However, a relative saw Mrs. Carpen take the photograph and informed Mrs. Partica who was in another room. The parties differ considerably as to what transpired after that. [ 4 ] Mrs.

Partica’s version is as follows: Mrs. Carpen put the photograph behind her back. When Mrs. Partica asked for it, Mrs. Carpen refused. Mrs. Carpen then kicked and pushed her. Mrs. Partica took the photograph and when her back was turned, Mrs. Carpen punched her on her head with both hands. Mrs. Partica turned around so quickly that Mrs. Carpen fell on the floor, on her knees. [ 5 ] The version of Mrs. Carpen differs: She was sitting holding the bag with the photograph in it when Mrs. Partica approached her. Mrs. Partica grabbed the bag with such force that Mrs.

Carpen fell to the floor, on both knees, and was hurt. According to Mrs. Carpen, she never touched Mrs. Partica.

[ 6 ] Mrs. Partica sent a demand letter to Mrs. Carpen seeking damages. The attorney for Mrs. Carpen replied, stating that Mrs. Carpen, who is elderly, was dealing with the loss of her sister and also suffered damages. Her attorney suggested, as a wiser course of action, that the two parties “forgive and forget the unfortunate event and move on” . Analysis: [ 7 ] Mrs. Partica seeks $2,000 in compensation; $1,000 for her physical and psychological pain and inconvenience and $1,000 for attacking her dignity, honour and reputation. [ 8 ]

Article 2803 of the Civil Code of Quebec states that “ a person wishing to assert a right shall prove the facts on which his claim is based.” [ 9 ] Mrs. Partica, who has instituted the action, has the burden of proving that she was attacked by Mrs. Carpen and suffered damages. [ 10 ] As indicated above, the evidence is contradictory. Both parties presented an opposing version of the incident and both are credible. Accordingly, given that the burden of proof falls on Mrs.

Partica, she has not satisfied the Court, by preponderant evidence, that her allegations are well founded and therefore no damages are awarded. [ 11 ] As obiter, it is clear that Amelia Teleaga-Walsh was very important to both Mrs. Partica and to Mrs. Carpen. While there is only one photograph of her and since both parties truly want to have it, it would be appropriate that Mrs. Partica make a photocopy and remit it to Mrs. Carpen, with each party sharing the cost of the copy.

FOR THESE REASONS, THE COURT: DISMISSES the action, each party paying her own costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: August 27, 2013