2018 QCCQ 4278, 2018 QCCQ 4278

Craddock c. Sauvé 2018 QCCQ 4278 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-700449-178 DATE: April 30, 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Wendy CRADDOCK Plaintiff v.

Chloé Alexis SAUVÉ Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs. Craddock claims from Mrs. Sauvé the amount of $ 12 195, representing her half of a loan she allegedly made to help Mrs. Sauvé and her son Todd Cools Lartigue to buy their first house ($ 10 000). The other amount of $ 2 195 is the reimbursement for municipal taxes that were paid by Mrs. Craddock on her behalf.

THE CONTEXT: [ 2 ] This is the sad story of a young couple who decided that they would buy their first house together, while they were not ready for it. It appeared from Mrs. Sauvé’s testimony that her relationship with Mr. Cools Lartigue was not strong enough when she accepted to sign an offer to purchase a house for $ 320 000 in St-Lazare on August 2014. As far as Mr. Cools Lartigue is concerned, neither was he ready for such a purchase, as he had not saved for the down payment, which he asked his mother to provide.

The Court heard his testimony with disbelief when he said he signed the offer to purchase, indicating a $ 20 000 down payment, before asking his mother to give or lend him the money. [ 3 ] As the procedures to buy the house were going, the First National Bank, who was handling the mortgage, asked for the signature of a gift letter by Mrs. Craddock, which was done on August 18, 2014. This letter was needed because one cannot borrow money for a down payment. [ 4 ] On October 27, 2014, Mrs.

Craddock paid an amount of $ 2 195.46 which represented half of the city taxes, to avoid the payment of interest and the sale of the property for unpaid taxes. Mr. Cools Lartigue and Mrs. Sauvé had already separated at that time. [ 5 ] Procedures were taken by Mrs. Sauvé against Mr. Cools Lartigue on March 18, 2015, with a “Requête introductive d’instance pour mettre fin à la copropriété indivise, mettre en vente l’immeuble et remboursement de prêt” . Mrs. Sauvé relies on a judgment rendered on April 10, 2015, by Mrs. Justice Nicole M. Gibeau, J.C.S., which was rendered by default, and that orders Mr.

Cools Lartigue to solely bear all associated expenses with the property until its sale, notably the municipal and school taxes. [ 6 ] During the hearing, it was discovered that this judgment was later revoked, as Mr. Cools Lartigue filed a demand for revocation of judgment on April 28, 2015. This motion was granted and the file was scheduled to be heard on April 10, 2017. [ 7 ] Before the trial, Mrs. Sauvé decided to desist from her demand, as she could not afford any more legal fees. ANALYSIS AND DECISION:

[ 8 ] The question to be decided is if Mrs. Craddock can prove by her testimony that, despite the gift letter that was signed by all parties on August 18, 2014, the $ 20 000 was borrowed by Mr. Cools Lartigue and Mrs. Sauvé and not given. [ 9 ] Sections 2863 and 2865 of the Quebec Civil Code are relevant; they read as follows: 2863. The parties to a juridical act set forth in a writing may not contradict or vary the terms of the writing by testimony unless there is a commencement of proof. 2865.

A commencement of proof may arise from an admission or writing of the adverse party, his testimony or the production of real evidence, where it renders plausible the alleged fact. [ 10 ] This means that Mrs. Craddock cannot, by her sole testimony, say the contrary of what was written in the gift letter, except if there is a commencement of proof. This means that without an admission on the part of Mrs. Sauvé or any document or payment made by Mrs. Sauvé to prove that she had agreed to reimburse that amount, Mrs. Craddock’s testimony cannot be heard. [ 11 ] The fact that Mr.

Cools Lartigue testified that it was in fact a loan cannot be taken into consideration, as he has a direct interest in having Mrs. Sauvé being responsible for half of the amount of $ 20 000. [ 12 ] This situation could have been solved by the signature of a counter letter, as

Section 1451 of the Quebec Civil Code allows such a situation, between the parties. This

Section says: 1451. Simulation exists where the parties agree to express their true intent, not in an apparent contract, but in a secret contract, also called a counter letter. Between the parties, a counter letter prevails over an apparent contract. [ 13 ] Unfortunately, such a document was not signed. [ 14 ] Therefore, Mrs. Craddock cannot claim from Mrs. Sauvé the amount of $ 10 000. [ 15 ] The situation is different for the amount of taxes that she paid on her behalf. Mrs. Craddock’s demand was filed just one day before the three year prescription ended. Mrs. Sauvé cannot rely on Mrs.

Justice Gibeau’s judgment saying that Mr. Cools Lartigue was solely responsible of the taxes, as this judgment has later been revoked by Mrs. Justice Gibeau herself on September 12, 2016. [ 16 ] At that time, Mrs. Sauvé was still co-owner of the house with Mr. Cools Lartigue, and she has to reimburse to Mrs. Craddock her share of the taxes. FOR ALL THESE REASONS, THE COURT: GRANTS partially the action; CONDEMNS Defendant, Chloé Alexis SAUVÉ, to pay to Plaintiff, Wendy CRADDOCK, the amount of $ 2 195.46 with interest at the legal rate and the additional indemnity provided for by

Section 1619 Q.C.C., since November 9, 2017, date of the assignment; THE WHOLE with the judicial costs of $ 200. __________________________________ CÉLINE GERVAIS, J.Q.C.