2016 QCCQ 718, 2016 QCCQ 718

Thirusivanadanam c. Sivagnanam 2016 QCCQ 718 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146072-154 DATE: February 3, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Reka Thirusivanadanam […] Montréal, Qc […] Plaintiff v.

Surendra Sivagnanam […] Ville Saint-Laurent, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mrs Reka Thirusivanadanam, sues the Defendant Mr Sivagnanam, claiming the reimbursement of a total of $3,500 she alleges having given to Mr Sivagnanam, so that he could hire an attorney to represent her husband who was and, is still detained on criminal charges.

She alleges that he did not remit these funds to the attorney and that he now refuses to return them. [ 2 ] Mr Sivagnanam’s Contestation takes issue with the allegation that he did not arrange for the services of a lawyer and he also contests the amount claimed. [ 3 ] In a letter attached to the Contestation as exhibit D-1, dated April 6, 2015, he admits having received $ 500 at the end of June, a payment for the service of referring her to a lawyer and to take her to the police station and to the jail to meet her husband. In that document, he does not admit receiving any other amounts.

ISSUES [ 4 ] The Court must decide: 1. Has the Plaintiff established that she remitted $ 3,500 to the Defendant? 2. If so, is she entitled to the reimbursement of this amount, because it was not provided to the attorney as intended? FACTS [ 5 ] Mrs Thirusivanadanam’s testimony is consistent with the formal statements made in the

schedule to the Application.

She asserts having given $ 2,000 to Mr Sivagnanam on June 24, 2014, $ 500 on June 26, 2014, and another $ 1,000 on July 10, 2014. [ 6 ] She states that because she does not speak English or French, she instructed Mr Sivagnanam to recommend a lawyer and to deal with him, so that he would act in her husband’s interests. [ 7 ] Her husband, Mr Amalan Thandapanithesigar was arrested and detained on charges of murder and he is presently detained, pending trial. [ 8 ] In a sequence of events between June 23, 2014 and the day of her husband’s court appearance on July 8, 2014, she was asked by Mr Sivagnanam to give him various amounts.

She says she gave him $ 2,000 on June 24, 2014, at the home of her friend Kannan (Balasunthram Balasubramaniam).

[ 9 ] On June 26 2014, she gave him another $ 500 also at Kannan’s house, this time in the presence of Kannan and his wife and finally on July 10, 2014, she testifies that she gave $ 1,000 to Mr Sivagnanam in the presence of Kannan and Mr Sivagnanam’s wife. [ 10 ] At that time, Mr Sivagnanam was asking her to arrange another $ 2,000, which the lawyer required for the appearance scheduled for July 18, 2014. [ 11 ] During this period, she had asked her husband’s brother in Switzerland to wire some money. She made the request on June 23, 2014, and she received $ 3,000 through her friend Kannan.

The funds became available on July 5, 2015. [ 12 ] She could not obtain any more money from her wife’s brother, because he insisted on seeing a receipt from the lawyer. [ 13 ] It is indeed remarkable that the lawyer, Me Joseph Laleggia, did not issue any receipt for any funds. The Plaintiff told the Court that she asked for a receipt, but Mr Sivagnanam did not give her one. She states that on July 8, 2014 in the morning, she received a call from Mr Sivagnanam asking for another $ 2,000 to give the lawyer. [ 14 ] As a matter of fact, her husband was represented by another lawyer apparently on a legal aid mandate.

ANALYSIS Admissibility of testimony [ 15 ] In a case such as this one where a claim is being made for an amount in excess of the $ 1,500 threshold, it is prohibited for a Plaintiff to make proof of a payment through testimony. An exception to this rule is provided for when the Defendant provides a commencement of proof. [ 16 ] A commencement of proof is provided through the testimony of Mr Sivagnanam.

While in letter attached to the Contestation dated April 6, 2016, he only alleges having received $ 500, which was to be his own fee, in his testimony he admits receiving another $ 1,000 and he alleges having paid $ 800 to Me Laleggia. He says that he remitted it in an envelope to the receptionist and he declares having kept $ 200 which would be his commission for referring the file.

This testimony is not all plausible. [ 17 ] Firstly, if he is now admitting that he received $ 1,500: he should have made that same admission in his letter. [ 18 ] His assertion that he remitted only $ 800 to Me Laleggia but kept $ 200 based on the idea that he would be owed a commission. This is quite implausible: lawyers do not give commissions to parties who refer files to them. [ 19 ] As well, why would he receive $ 500 from the Plaintiff and, then charge another $ 200 simply for referring a file.

Finally, if Me Laleggia had received even $ 800, he surely would have issued a receipt. [ 20 ] Given that this testimony is entirely implausible and it contains a partial admission consistent with the Defendant’s position that contradicts the Contestation, there is sufficient material to constitute a commencement of proof. [ 21 ] This incoherent testimony makes it likely that the Defendant did receive substantial sums from the Plaintiff. [ 22 ] This opens the door to her testimony which the Court finds to be very straightforward, detailed and honest. [ 23 ] The Court therefore accepts the testimony as proof, on the balance of probabilities, that the Plaintiff remitted a total of $ 3,500 to the Defendant so that he would retain counsel on behalf of her husband. [ 24 ] As to the question whether the Defendant fulfilled his undertaking to the Plaintiff, it is obvious that he did not.

The idea that he would charge her $ 500 to refer the file and to drive her to see the police or to visit her husband is not plausible. As well, it appears that he did not bring her to see the police while in fact his wife went with her along with her friend. Why the Defendant would accept a fee to bring the wife of an accused person to speak to the police is not explained. [ 25 ] The testimony of the Defendant, trying to establish that, in fact, Joseph Laleggia did something and was therefore justified in retaining payment from the funds allegedly received is also not particularly plausible.

Another lawyer appeared for the husband when he was arraigned. [ 26 ] If, in fact, Me Laleggia had performed any services for the benefit of the accused, he surely would have issued an account.

The Defendant states that he asked Me Laleggia to come to the Court to testify, but the latter declined because of the death of a family member. [ 27 ] On the whole, the Court is satisfied that the Plaintiff has established that she remitted $ 3,500 to the Defendant and he failed to remit these funds to lawyer being retained to act in the interests of the Plaintiff’s husband. [ 28 ] He should have returned the funds when called upon to do so.

He had no reason to keep the funds. [ 29 ] It is unfortunate that a vulnerable person, unable to speak English or French, has been taken advantage of in this way. [ 30 ] She testified at Court through a Tamoul interpreter but, despite the indirect nature of her testimony because of this translation, the Court was able to compare her credibility to that of the Defendant. [ 31 ] Her credibility remained intact despite questioning prompted by the Defendant and the Defendant’s demeanour was found by the Court to be wanting. [ 32 ] Of particular interested to the Court is the notion that the Defendant would have been paid $ 200 from the funds to be directed to

the lawyer for translation services that he would render.

The idea that he would collaborate with the police detective to arrange her interview is also somewhat absurd given that he was apparently acting in the best interests of the Plaintiff and her husband. [ 33 ] Surely it would be up to the lawyer handling the defence to decide whether the spouse of an accused man would offer a statement to the police. [ 34 ] The Court therefore finds that the Plaintiff’s testimony is admissible because of a commencement of proof derived from the Defendant’s incoherent testimony, that her testimony establishes that she gave him $ 3,500 for the purpose of hiring an attorney and that the funds were not used for that purpose and that they should therefore be returned to her.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 3,500, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from December 19, 2014. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 26, 2016