2015 QCCQ 2730, 2015 QCCQ 2730

Vilarroel c. Luco 2015 QCCQ 2730 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-136302-124 DATE: March 24, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ TERESA VILARROEL […] Saint-Hubert (Quebec) […] Plaintiff v.

BARROS LUCO […] Montréal (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $ 4,000 from Defendant, the owner of a Chilean bakery, representing the costs of medical care received as a result of food poisoning. ISSUES [ 2 ] Did Plaintiff establish the link between her consumption of the dish and her need for medical care? THE FACTS [ 3 ] On October 12, 2012, Plaintiff, 66 years old, and her in-laws, Mrs. Carmen Fernandez and Mr.

Franklin Fernandez, travelled from New Jersey to Montreal, to visit her sister, Mrs. Rosa Espinosa and her husband, Mr. Jorge Espinosa. They stopped at a rest area to eat. When they arrived in Montreal, they ate a light supper prepared by Mrs. Espinosa. [ 4 ] On October 13, 2012, at 9:00 a.m., Plaintiff had a light breakfast at the Espinosas, a bowl of cereal, a bowl of mixed fruit, a cup of tea, a toast and marmalade. Then, the group went sightseeing in Montreal. [ 5 ] At approximately noon, they stopped at Defendant’s bakery to buy bread. Mrs.

Fernandez noticed, in a window display, a plate of “pastel de choclo”, a typical Chilean dish made of ground beef, chunks of chicken, oregano, sliced eggs, olives and spices. The group ordered three servings, which were taken out of the plate in the display. Mr. Espinosa tasted it, but didn’t like it. Mr. Fernandez ate a bit more, but left it as he didn’t like the taste. Plaintiff and Mrs. Fernandez ate a larger portion, but didn’t finish it. [ 6 ] The co-owner and cook noticed the group’s displeasure and offered to replace it with a freshly baked plate.

The group refused, paid for their order and left. [ 7 ] Approximately an hour and a half later, Plaintiff began experiencing stomach aches that were serious enough for the group to return to the Espinosas’ house. Plaintiff went to bed, hoping the problem would go away. Instead, she started to vomit and to have diarrhea attacks. Mr. Fernandez also had stomach discomfort. At the hearing, Mr. Espinosa testified that he also felt discomfort, but never like Plaintiff and Mr.

Fernandez. [ 8 ] On October 14, 2012, at around 8:00 p.m., Plaintiff decided to go to the emergency room of Pierre-Boucher Hospital, where she was kept overnight with a diagnosis of food poisoning [1] . Mrs. Espinosa called the “Direction de la Santé Publique”. An inspector visited Defendant’s place of business a few days later and didn’t find anything unusual or unacceptable. [ 9 ] Defendant’s co-owner testified that none of the employees working on October 13, 2012 were sick that day or the next day. No one else, employee or client, complained of stomach ache that day or the following day.

He explains th at the offer, to replace the servings was, in the circumstances, only a gesture of good commercial practice. [ 10 ] On October 30, 2012, Plaintiff sent a letter of demand to Defendant [2] , claiming $ 4,000.00, detailed as follows at the hearing: $

3,943.57 $ paid to the hospital [3] , $4.00 for parking, $ 29.46 for medication and $10.18 for postage costs [4] . ANALYSIS [ 11 ] Plaintiff had to prove the facts on which her claim is based [5] . The evidence must be such that it renders the existence of the facts alleged by Plaintiff more probable than their non-existence [6] . This probability is assessed using direct and circumstantial evidence, inferences and presumptions [7] . [ 12 ] Direct and uncontradicted evidence establishes the diagnosis of food poisoning.

But the medical record doesn’t identify the cause or the type of bacteria involved and it doesn’t link the diagnosis to a particular dish or meat. [ 13 ] The Court is also puzzled by the fact that Mr. Espinosa testified that he didn’t eat more than a bite, and yet, he felt some discomfort. [ 14 ] The Court has to distinguish between a possibility and a probability.

It cannot conclude that the bacteria causing Plaintiff’s illness was at Defendant’s place of business and not at the Espinosa’s in the absence of direct or circumstantial evidence or of serious, precise and concordant presumptions allowing to draw such inference. FOR THESE REASONS, THE COURT : DISMISS Plaintiff’s action, the whole without costs. ________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: November 25, 2014.