2016 QCCQ 7828, 2016 QCCQ 7828

Sabiq c. Sookwa 2016 QCCQ 7828 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL TOWN OF LAVAL Civil Division No: 540-32-028054-151 DATE: July 21 th , 2016 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ ADEL Z. SABIQ Plaintiff v.

MOHAMED ZAHIR SOOKWA Défendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant the sum of 15 000 $ in damages. [ 2 ] In the application that Plaintiff has filed in Court, he alleges that Defendant is responsible for the breaking-up of his family.

The litigation opposing the parties is in fact, a family dispute. [ 3 ] Plaintiff was represented in Court by his father, Mohamed Sabiq, under the authority of a mandate signed on May 28 th , 2015. [ 4 ] Defendant is the uncle of Plaintiff. [ 5 ] As Plaintiff was not present in Court at the hearing, the facts of the case were presented to the Court by his father, Mohamed Sabiq. Consequently, for the most part, the testimony of Mr. Sabiq constitutes hearsay evidence to which the Court can grant but very little weight. [ 6 ] This being said, Defendant contests Plaintiff’s action.

He denies categorically having taken any action the object of which was to break up Plaintiff’s relationship with his family. [ 7 ] In fact, Defendant is convinced that the action instituted by Plaintiff is, most probably, the doing of Plaintiff’s father, Mohamed Sabiq. [ 8 ] Although, when reading the allegations contained in Plaintiff’s action, the said action appears to be clearly unfounded, Defendant decided nevertheless to seek counsel from an attorney and, by way of a cross-demand, he is claiming from Plaintiff the sum of 2 000 $ in reimbursement of the legal fees he has paid to his lawyer. [ 9 ] In the present matter, as concerns the principal action, the burden of proof lies with the Plaintiff. [ 10 ] In this regard, articles 2803 and 2804 C.c.Q. state 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. 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. [ 11 ] After consideration of the testimony rendered by Mr. Sabiq, the testimony rendered by Defendant and the documents filed in the Court record, the Court concludes that Plaintiff has not satisfied his burden of proof.

He has not established, by preponderance of the evidence, that his demand is well founded in fact and in law. Consequently, his action is dismissed.

[ 12 ] As concerns Defendant’s cross-demand, after consideration of the evidence adduced at trial and considering the fact that Plaintiff did not testify, the Court concludes that Plaintiff’s action is clearly unfounded and frivolous. [ 13 ] This being said,

article 54 N.C.c.p., states the following: 54. On ruling on whether a judicial application or pleading, including one presented under this division, is abusive, the court may order a provision for costs to be reimbursed, order a party to pay, in addition to legal costs, damages for any injury suffered by another party, including to cover the professional fees and disbursements incurred by that other party, or award punitive damages if warranted by the circumstances.

If the amount of the damages is not admitted or cannot be easily calculated at the time the application or pleading is declared abusive, the court may summarily determine the amount within the time and subject to the conditions it specifies or, in the case of the Court of Appeal, refer the matter back to the court of first instance for a decision. [ 14 ] In view of the preceding, the Court grants Defendant’s cross-demand in part and Plaintiff is therefore condemned to pay him the sum of $1,000 in damages in partial reimbursement of the legal fees he has incurerred.

WHEREFORE, FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff’s action; GRANTS Defendant’s cross-demand, in part; CONDEMNS Plaintiff to pay Defendant the sum of $1,000 $ with interest at the legal rate of 5% per annum plus the additional indemnity pursuant to

article 1619 C.c.Q. as of April 28 th , 2015; CONDEMNS Plaintiff to pay to Defendant the amount of $180.00 representing the judicial costs incurred for the filing of the contestation and $68,75 representing the judicial costs incurred for the filing of the cross-demand; __________________________________ ARMANDO AZNAR, J.C.Q. Date of hearing: July 4 th , 2016