2016 QCCQ 853, 2016 QCCQ 853

Brault c. Sharman 2016 QCCQ 853 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Civil Division No. 455-32-004844-154 DATE: February 3, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ RAYMOND BRAULT Plaintiff v.

VICKY SHARMAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff, Raymond Brault, is claiming $15 000 from his niece, Vicky Sharman, alleging that she has taken goods belonging to him and has damaged others. She completely denies these allegations. [ 2 ] Vicky Sharman reportedly cared for her uncle, the plaintiff, for several years. Notably, after his divorce, he was in a difficult situation and she helped him find another place to live.

This new place was situated at […] in Bedford, where the plaintiff lived until 2014. [ 3 ] In the fall of 2013, he reportedly found himself in a precarious financial situation due to overspending. In order to help, the defendant consented to an agreement in which plaintiff Brault would transfer the immovable that was his residence as a gift to defendant Sharman, with the understanding that she would assume certain debts and the current payment of the plaintiff’s dwelling expenses.

The other understanding was that the plaintiff could remain at this address for life. [ 4 ] It is also noteworthy that the plaintiff’s health condition was not good, as he suffered in the past from various health problems and he was still afflicted with some difficulties in this regard. [ 5 ] In the spring of 2014, a major fire occurred at a hotel close to […].

It was soon agreed by all that, although the residence was not affected, it was more than desirable for the applicant to go elsewhere to live for at least a few days, because of the smoke produced by the fire and the plaintiff’s fragile pulmonary condition. [ 6 ] It was therefore agreed that he move to the dwelling of his new friend, Andrée Corey. Despite the short period planned for the stay, numerous pieces of furniture and other household goods were transported to Ms.

Corey’s dwelling. [ 7 ] Unfortunately, a few weeks later, a second fire broke out, this time heavily damaging the residence at […], making it completely uninhabitable. Despite the fire, the back of the residence as well as a non-attached garage and its contents were left almost intact. [ 8 ] In both these places, a large number of objects which belonged to the plaintiff could be found. These were mainly tools and related objects. Also found at the residence were a snow blower, a lawn mower and a lawn tractor, as well as an air conditioner and other items.

These objects were reportedly left there during the move to Ms. Corey’s, but the plaintiff returned to rue Élizabeth every day, since one of his dogs still remained there. [ 9 ] There was therefore nothing preventing the plaintiff from reclaiming his goods, to which he in fact had access. [ 10 ] In any event, on July 16, plaintiff Brault wrote to Vicky Sharman asking her to deliver all other objects left behind since the fire (see Exhibit D-1).

The next day, the defendant and her husband delivered what they considered as belonging to the plaintiff to his new address. [ 11 ] According to the plaintiff, his goods were basically thrown into the yard, in the rain and without any care, causing severe damage to them (see Photograph P-2). [ 12 ] He also alleges that many of the items were missing or disappeared. His claim is to compensate for the damage sustained on

that occasion. [ 13 ] For the defendant, the photographs submitted are in no way representative of the situation. The goods were reportedly moved with precaution and left in careful order. The photographs do not represent in any way the state of the goods as she left them. She states that she kept three items that were more difficult to move, but which are available if the plaintiff wants them. These are a lawn tractor, a snow blower and a lawn mower. These objects are probably not functional. [ 14 ] She contends that she did not make anything disappear and that she did not damage anything.

If any of the plaintiff’s items are missing, they were possibly destroyed in the fire. [ 15 ] In general, she indicates that the delivered goods were worthless old tools that were not functional or were damaged. Nothing was left in the rain, since it was not raining and it did not rain in the week following the delivery. ANALYSIS AND DECISION [ 16 ] When a person claims the condemnation of another, the burden of proof lies upon the former. The Civil Code of Québec has the following to say on that subject: 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. 1991, c. 64, a. 2803; I.N. 2014-05-01. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. 1991, c. 64, a. 2804. [1] [ 17 ] The evidence here is completely contradictory between the various versions.

Therefore, arguments or solid evidence in particular must be sought to try to establish the credibility of each party. [ 18 ] Three elements retain the Court’s attention. [ 19 ] The first concerns the weather on the day that the plaintiff’s goods were delivered to him at Andrée Corey’s residence. The plaintiff and his witnesses claim that it was raining and that the goods were left outside, under the rain and unprotected. [ 20 ] The defendant contends that July 17 was a hot and sunny day.

Exhibit D-2, an Environment Canada report, strongly supports the version of the defendant, indicating that even afterwards, several days went by without precipitation. [ 21 ] The second element is the photographs submitted as Exhibit P-2 to describe the terrible state of the goods left behind. Careful examination shows that between photographs, there is certainly time that went by, and some of the photographed objects were moved.

While it is true that some photographs were taken after the first trip and others after the second trip, it also seems clear that some items present on some photographs are missing on others or are laid out differently. Furthermore, if, as the plaintiff and his witnesses say, they saw the goods being unloaded in a frenzy, why not photograph it? They did however photograph the truck of the defendant and her husband while they were unloading. [ 22 ] The last element is the value of the goods.

Although some witnesses said that some of the goods were acquired for the sum of $7 000, no bill was filed and the examination of what appears in the photographs does not justify in any way an estimated value of $20 000. [ 23 ] These elements lead the Court to prefer the defendant’s version. [ 24 ] It is worth noting that the defendant has indicated her willingness to return the three items mentioned above to the plaintiff, if he were to request them (lawn tractor, snow blower and lawn mower, all presumably non-functional).

The Court acknowledges this. [ 25 ] Given the foregoing, and given consequently that the plaintiff did not discharge his burden of proof. THEREFORE, THE COURT: [ 26 ] DISMISSES the claim; [ 27 ] THE WHOLE WITH COSTS. __________________________________ Serge Champoux J.C.Q.

Date of hearing: December 14, 2015