2018 QCCQ 8493, 2018 QCCQ 8493

Sapps c. Bilodeau 2018 QCCQ 8493 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-700406-173 DATE: November 19 th 2018 ______________________________________________________________________ BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ EDWARD SAPPS Plaintiff v.

ANNIE BILODEAU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The parties have known each other for numerous years. [ 2 ] They formed a couple and were in a long-distance relationship for close to one year and a half, Mr. Sapps living in Syracuse (State of New York) and Ms. Bilodeau living in Gatineau. It appears that the distance between the two cities did not prohibit them from seeing each other.

Indeed, they did see each other quite often, even though they disagree on the approximate amount of visits. [1] [ 3 ] The couple formed in June 2015 and ended in October 2016 (according to Mr. Sapps) or in September 2016 (according to Ms. Bilodeau). [ 4 ] It appears that Mr. Sapps did financially help Ms. Bilodeau during their relationship. He bought some furniture, two televisions, a dining set, etc. (hereinafter collectively referred to as the “ Furniture ”), and he helped with some expenses of the defendant. Such is admitted by all parties involved, as well as from the various witnesses provided by Ms.

Bilodeau. [ 5 ] All did mention, at one point or the other of their testimony, that Mr. Sapps was of a generous nature. [ 6 ] However, following the termination of the relationship, Mr. Sapps decided to introduce, on August 10 th 2017, a Claim in the Small claims division of the Court of Québec, asking for the reimbursement of various furniture that he bought (valued at 2 251,98$ CAD), as well as for the repayment of various sums of money that he paid relating to Ms. Bilodeau’s rent (500$) and for her Kia automobile (1 154,98$).

He adds, in the weeks prior to the Trial, a claim for an amount of 513,26$ [2] for his disbursements linked with the Court file, and for an amount of 413,73$ [3] for his loss of salary for the day of the Trial. [ 7 ] The amounts linked with the Furniture and the payments made by Mr. Sapps are not, per se , contested. [4] In other words, it is not the quantum that is contested. [ 8 ] Actually, Ms. Bilodeau contests such claim by submitting that the Plaintiff’s claim refers, in every case, to gifts that were given to her by the latter. Mr.

Sapps, she submits, would have confirmed such generous intent to many of her family members and friends. [5] She submits that the Plaintiff only decided to claim for those after the termination of the relationship. [ 9 ] Furthermore, Ms. Bilodeau produces a Cross-application [6] in which she submits that Mr. Sapps caused her serious bodily and psychological damages during a physical altercation, which would have occurred on May 22 nd , 2016. At such date, Ms. Bilodeau submits that Mr.

Sapps – who is of a relatively imposing physical stature - pushed her, very strongly, causing her to hit her head in a wall at her apartment, causing her forehead to be severely cut. [ 10 ] Ms. Bilodeau submits that this injury, duly illustrated by photos [7] , did require 8 stitches, and that she did suffer a concussion. She had to miss a long period of work and went down with severe anxiety and depression. For her loss of wages and the related pain, stress and inconveniences, she claims an amount of 10 000$. [ 11 ] As for Mr.

Sapps, he admits that there was a physical altercation between the parties on May 22 nd 2016, but that he used a “defensive push” and that he never intended to injure Ms. Bilodeau. Moreover, he submits that Ms. Bilodeau was very drunk at the time and that she acted in an embarrassing way. [ 12 ] Furthermore, he submits that the symptoms suffered after such event by the Plaintiff would not be the result of this specific injury, but rather because of already existing “psychological baggage”, linked with Ms. Bilodeau’s difficult past relationships. Mr.

Sapps also submits that it appears that some of the psychological distress alleged by Ms. Bilodeau is the direct result of his own Small claims Demand, and not of the injury. QUESTIONS IN ISSUE [ 13 ] The present litigation raised the following questions of facts and of law:

i) Were the various Furniture items bought by Mr. Sapps gifts or not? ii) Were the payments made by Mr. Sapps as to the Kia automobile and Ms. Bilodeau’s rent (hereinafter referred to as the Payments ) also gifts? Was there, at the time of one or all of those payments a specific undertaking from Ms. Bilodeau to reimburse Mr. Sapps of those amounts when it would be, financially, possible to do so? iii) Even if the Furniture and/or the Payments were deemed to be gifts, was there an undertaking, binding in nature, of Ms. Bilodeau to reimburse such amounts of money to Mr. Sapps?

If so, what is the impact of such undertaking in the circumstances of the current file? iv) As for the Cross-application, does Ms. Bilodeau demonstrate, by way of preponderant evidence, that Mr. Sapps engaged his civil liability during the physical altercation that occurred on May 22 nd 2016? If so, does Ms. Bilodeau demonstrate that there is a sufficient causal link between such event and the various damages that she alleges? And if so, what are the damages that must be granted to Ms. Bilodeau? ANALYSIS OF THE EVIDENCE AND LEGAL PRINCIPLES APPLICABLE [ 14 ] Both parties’ claims are of a civil nature.

The burden of evidence, consequently, did rest upon their shoulders as to their respective claims. Sections 2803 and 2804 of the Civil Code of Québec (hereinafter the CCQ ) do provide 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. [ 15 ] In other words, both parties must demonstrate, in order to convince the court, on the basis of a preponderant evidence, that their respective claim is well founded. AS FOR MR. SAPPS’ CLAIM [ 16 ] The Plaintiff’s claim totals an amount of 3 906,96$, and details as follows: i) 55 inch Vizio Smart TV; ii) TLC 32 inch TV; iii) Portable air conditioning unit; iv) Ashley 5 piece dining set;

v) Vizio sound system; vi) Belkin wireless router; vii) Intex Air mattress; viii) Reimbursement of two payments made at Hull Nissan (for the Kia automobile): 1 154,98$; ix) ATM withdrawal for the partial payment of Ms. Bilodeau’s rent [8] : 500$;

[ 17 ] As indicated previously, the amounts in question are not contested. Nobody contests that Mr. Sapps did make those payments and did buy said Furniture. Various exhibits, produced by Mr. Sapps, do demonstrate clearly said payments. [9] [ 18 ] The positions of the parties do differ as to the nature of those expenses that were undertaken by Mr. Sapps. Were those gifts, either totally or partially, or not? THE FURNITURE [ 19 ] The Court will first discuss the Furniture elements. [10] [ 20 ] It appeared clearly, from various testimonies, that the Furniture elements were paid by Mr.

Sapps because of his generous – duly admitted by all – nature. [ 21 ] Indeed, Ms. Bilodeau’s testimony on the subject is credible. [ 22 ] It was demonstrated by the Plaintiff’s clear and preponderant evidence that many of the Furniture elements were offered to her during Christmas time (of 2015) and on her Birthday in November (as for the dining set). [ 23 ] Ms. Bilodeau furthermore indicates that the 55 inch television was given to her by Mr.

Sapps because he wanted to “congratulate her” on her decision to leave behind her previous abusive boyfriend. [ 24 ] Furthermore, the long list of Text messages that were produced [11] in the Court file also, in numerous instances, confirm that Mr. Sapps’ intentions were clear – at the time the Furniture was bought. Those were gifts given by a person trying to help his loving partner. [ 25 ] Indeed, the Court specifically refers to Exhibits D-16, D-20 and D-21 – all of which being text messages between the parties. In the latter, dated October 7 th 2016, we can see the following exchange: Ms.

Bilodeau: Thank you and I am not asking you anything back of what I gave you. At Christmas. Birthday. That would be bad. I don’t do that. Mr. Sapps: God will bless me in another way. Enjoy everything. Bye. [ 26 ] In other words, at least at such time, Mr. Sapps intentions appeared to be still intact. The Furniture had been given to Ms. Bilodeau and there was not much more to that portion of their story. [ 27 ] It appears, however, from text messages that followed those, more notably in 2017 [12] , that Mr. Sapps decided to claim from Ms.

Bilodeau the value of said Furniture. [ 28 ] Furthermore, it also appeared from various testimonies heard at Trial, that the gift nature was never in doubt during the relationship of the parties. [ 29 ] More precisely, Ms. Stephany Brouillette, who is Ms. Bilodeau’s daughter, did confirm, in a very credible way, that she was present when the 32 inch TV was given to her mother (at Christmas). She was also present for the gift relating to the dining set. She also heard Mr. Sapps commenting on his gift of the Vizio sound system. [ 30 ] Mrs.

Nicole Robert, who is the Defendant’s mother, also confirmed, in a strong testimony, that she gave her warmest “thank you’s” to Mr. Sapps for both televisions that were given to her daughter. She comments that Mr. Sapps was very happy of the situation and thanked her back. [ 31 ] Mr. André Dagenais, who is also a family member, also confirms that he also thanked Mr. Sapps for the gifts in question. Mr. Sapps never responded that those were not gifts. Actually, Mr. Sapps did say to him that “she deserved them”. [ 32 ] As for Mr. Sapps, his

interpretation of events – on that particular topic – is not very convincing. Actually, he tries to have Ms. Brouillette confirm to the Court that what he actually said to her was: “those things I bought were an investment in the couple”, or something close to that effect. Ms. Brouillette, in a convincing answer, does mention that Mr. Sapps never mentioned anything of the sort. [ 33 ] Indeed, it appears from Mr. Sapps’s testimony that he believes that said Furniture items were “given conditionally” to Ms. Bilodeau. In other words, the Furniture was given to Ms.

Bilodeau for as long as they would be a couple. “She could keep them as long as I could live there”, he adds. [ 34 ] However, in all intellectual honesty, he does concede, when questioned by the Court on this matter, that this “condition” was never discussed, in any way, with Ms. Bilodeau during their relationship. After all, as he puts it: “we were a couple ”, thus meaning that it would not have been a very fruitful or “timely” discussion to have with his girlfriend of the time. [ 35 ] Mr. Sapps also argues that some text messages (P-5 and P-6, in particular), do tend to demonstrate that Ms.

Bilodeau would have agreed, in April and July 2017, to give him “back his things” and to reimburse him his “ dumb money back ”. The Court will revert back to those Text messages later on in this Judgment as for the other half of Mr. Sapps’ claim. However, those text messages are explained by Ms. Bilodeau. [ 36 ] Indeed, Ms. Bilodeau does explain that those “things” that were referred to, at least in her mind when she wrote those text messages, referred to clothes and minor elements that were still in her apartment and that were clearly the property of Mr. Sapps (toothbrush, and so on).

She does refer the Court to an exchange of text messages [13] in which she mentions to Mr. Sapps that she is surprised that he needs a “van” to move away his stuff. Said exchange reads as follows: Ms. Bilodeau: Why the van? Why you need that much for few stuff you have here? Mr. Sapps: It’s all they had. [ 37 ] In other words, the preponderant evidence does not demonstrate that Ms. Bilodeau took a valid, and binding, undertaking to give back to Mr. Sapps the Furniture. [ 38 ] As the evidence clearly demonstrated at Trial, the Furniture was given to Ms. Bilodeau, by way of a contract of gift.

The evidence does point out to the fact that Mr. Sapps tried to revoke such donation/gift after it became clear that it was not possible to reconstruct the relationship with Ms. Bilodeau. Moreover, it appears from Ms. Bilodeau’s testimony that Mr. Sapps introduced his proceedings once he thought that she was living with a new companion (who would only be a friend, she adds). [ 39 ]

Section 1806 of the CCQ defines the contract of gift as follows: 1806. Gift is a contract by which a person, the donor, transfers ownership of the property by gratuitous title to another person, the donee; a dismemberment of the right of ownership, or any other right held by a person, may also be transferred by gift. [ 40 ] Such gift of movable objects, like said Furniture, is possible without any particular legal formalities, as it is provided in section 1824(2) of the CCQ, which provides: 1824.

The gift of movable or immovable property is made, on pain of absolute nullity, by notarial act en minute, and shall be published. These rules do not apply where, in the case of the gift of movable property, the consent of the parties is accompanied by delivery and immediate possession of the property. [our emphasis] [ 41 ] If the Court was to follow Mr.

Sapps’ argumentation, it would mean that he would have given the Furniture in question, while keeping his right to revoke such gift in certain events, notably in case of the termination of the relationship. [ 42 ] First of all, the Court considers that the preponderant evidence does not, in any way, tend to demonstrate that such condition was discussed between the parties. [14] [ 43 ] Actually, the possibility for such unilateral revocation – on the account of ingratitude - is provided, in strict terms, under sections 1836 to 1838 CCQ. Those sections specifically provide as follows: 1836.

Gifts inter vivos may be revoked on account of ingratitude. Ingratitude is a ground of revocation where the donee has behaved in a seriously reprehensible manner towards the donor, having regard to the nature of the gift, the faculties of the parties and the circumstances. 1837. The action in revocation may be brought only during the lifetime of the donee and within one year after the ingratitude became a ground or the day the donor became aware of it.

The death of the donor within the time for bringing an action does not extinguish the right of action, but the heirs of the donor may act only within one year after his death. 1838. The revocation of a gift obliges the donee to restore to the donor what he has received under the contract, in accordance with the rules of this Book pertaining to the restitution of prestations.

The revocation extinguishes, for the future, the charges stipulated in the contract. [ 44 ] That being said, the evidence adduced in the current instance does not tend to demonstrate, and certainly not on a preponderant basis [15] , any kind of ingratitude of the nature indicated in such sections of the CCQ. Actually, the evidence demonstrated that the defendant, as well as her family members, were, at all times relevant, and rightfully so, very grateful towards Mr. Sapps’ generosity. [ 45 ] Furthermore, as it was demonstrated by the Superior Court in the file of Sever v.

O’Beirn [16] , the fact that the end of a love relationship is the trigger of a party’s decision to ask for the revocation of a gift does not modify the original nature of said donation.

Said decision also reaffirms the principle that a Gift is irrevocable by its very nature. [ 46 ] Indeed, and to that effect, Justice Robert Castiglio, J.C.S., enunciates, in such Sever file, the following: [115] Le tribunal conclut que c’est en fait la fin de la relation amoureuse, qui survient un mois avant l’envoi de la mise en demeure, qui explique le recours de Sever et non pas le fait que O’Beirn ait renié quelque engagement que ce soit. [116] Comme l’a déterminé la Cour d’appel dans l’affaire Dussault c.

Jolicoeur : « [15] [...] La remise de la propriété d’un bien par A à B, sans que B s’oblige en contrepartie, est une donation même si la remise est faite dans l’espoir, dans l’esprit de B, qu’un événement se réalise. La réalisation de l’espoir et le mobile de la remise, et non sa condition résolutoire . [16] Bref, une donation faite dans l’espoir qu’un événement se réalise n’est pas révocable lorsque l’événement ne se réalise pas.

Le fiancé qui fait une donation à sa future épouse ne peut réclamer le remboursement du don lors d’une séparation de corps ou d’un divorce malgré l’espoir d’une longue vie commune que le fiancé entretenait lors de la donation.» [117] Comme nous le rappelle le professeur Pierre Ciotola:

« La donation entre vifs est essentiellement irrévocable ; la donation à cause de mort est de sa nature révocable . Précisons que, comme tout contrat, la donation est irrévocable; toutefois, les parties peuvent d’un commun accord en modifier les effets ou même la résoudre. Comme tout contrat, la donation peut comporter des conditions et des charges licites. Cependant, l’irrévocabilité a un sens particulier en ce qui concerne la donation; l’irrévocabilité entend neutraliser toute condition, charge ou clause qui laisserait à la seule discrétion du donateur l’existence ou l’exécution de la donation.

C’est cette spécificité qu’énonce la maxime “Donner et retenir ne vaut”.» [118] Permettre à Sever de remettre en question la donation qu’il a librement consentie, du simple fait qu’il a décidé de déménager Munzer à Richelieu et de confier à d’autres personnes la responsabilité de prendre soin d’elle, va à l’encontre du principe de l’irrévocabilité de la donation. [119] Le tribunal conclut que la somme de 146 000 $ était une donation de Sever à O’Beirn, que cette donation était faite à

titre gratuit et qu’aucune condition n’y était rattachée. [our emphasis] [ 47 ] Moreover, even if Mr. Sapps “original obligation” was qualified as being a “natural obligation” (obligation naturelle under the CCQ), his undertaking to “help” Ms. Bilodeau could not be, in itself, resiliated unilaterally [17] . Indeed,

section 1554 CCQ provides: 1554. Every payment presupposes an obligation; what has been paid where there is no obligation may be recovered. Recovery is not admitted, however, in the case of natural obligations that have been voluntarily paid. [our emphasis] [ 48 ] Consequently, and for all those reasons, the Court does reject Mr. Sapps’ portion of the claim which refers to the Furniture. THE PAYMENTS [ 49 ] Is the situation different as to the Payments Mr.

Sapps did in regards to the Kia automobile and the rent? [ 50 ] Let’s analyse, first, the two payments – which total 1 154,98$ - linked with the Kia automobile. [ 51 ] Firstly, the parties do not agree on the intrinsic reason for such payments. It is not contested that Mr. Sapps did make those, but to what effect? [ 52 ] Mr. Sapps submits that those were made to help Ms. Bilodeau in her buying of a new car. [ 53 ] Indeed, it appears from the evidence, which is not contested, that Ms.

Bilodeau had trouble with her credit (those difficulties, she mentioned, would be linked with that previous difficult relationship that she had). Mr. Sapps submits that the amount of 1 154,98$ was paid out to help Ms. Bilodeau in regards to the deposit linked with said car. [ 54 ] Ms. Bilodeau denies such allegation. Two other witnesses, namely Ms. Linda Courbron and Mrs. Nicole Robert, do support Ms. Bilodeau’s allegation that the amount of 1 154,98$ was paid by Mr. Sapps not for the deposit in regards to the car but for a long term warranty of said car. [ 55 ] Again, it appeared obvious that Mr.

Sapps wanted to help his girlfriend by paying for such. He would have insisted, as per Ms. Courbron’s testimony to pay for such: “I will pay, I will pay”, he would have said. [ 56 ] Are those elements sufficient to establish that this portion of the Plaintiff’s claim is ill founded? [ 57 ] Not exactly. [ 58 ] Indeed, there is an important difference between that portion of the claim and the one concerning the Furniture. The fact that it was for a long term warranty, and not for a deposit, is not of crucial interest. The chronology of events remains the same. [ 59 ] It was indeed established, notably by Ms.

Bilodeau’s own admission at Trial, that she took the undertaking, prior to Mr. Sapps’ disbursement of said amount, to reimburse him whenever she could [18] . “But it was not a debt”, she argues. [ 60 ] That being said, such undertaking was also confirmed, through her testimony, by Mrs. Linda Courbron. [ 61 ] Mr. Sapps further adds that Ms. Bilodeau had mentioned that she would start repaying such amount when she would be “out of her bankruptcy”, namely, as per his testimony, in October 2016. [ 62 ] In other words, even if Mr.

Sapps’s gesture was of a generous nature, the payment of that amount of 1 154,98$ [19] cannot be defined as being a gift. [ 63 ] Furthermore, the text messages [20] exchanged between the parties do confirm such understanding between the parties. Ms. Bilodeau does confirm in such, for example, that “ one day, I will be able to give your dumb money back. But now, my mom needs my help. Big time. So for now. She is my priority.

And I feel good about that. ” [ 64 ] This exchange of text messages, in particular, does demonstrate a continuous understanding between the parties which permits the Court to consider that such amount of 1 154,98$ is owed by Ms. Bilodeau to Mr. Sapps. [ 65 ] The fact that the initial agreement provided that Ms. Bilodeau would reimburse that amount “whenever she could” does not prevent the Court from establishing that such undertaking was an obligation with a term .

Indeed, numerous jurisprudences – on a very long period of time - have confirmed such reasoning. [21] [ 66 ] To that same effect, sections 1508 and 1510 CCQ provide as follows: 1508. An obligation with a suspensive term is an existing obligation that does not become exigible until the occurrence of a future and certain event. 1510. If an event that was considered certain does not occur, the obligation is exigible from the day on which the event normally should have occurred. [ 67 ] Consequently, that sub-portion of Mr. Sapps’ claim (1 154,98$) is well founded and will be granted. [ 68 ] What about Mr.

Sapps claim for the reimbursement of the rent (500$) that he paid for Ms. Bilodeau? [ 69 ] That portion of the claim is different than the Kia automobile’s claim. [ 70 ] First of all, it is clear from the evidence that Ms. Bilodeau did not agree – prior to such payment – to reimburse Mr. Sapps. There was no agreement in the relevant portion of time. [ 71 ] Secondly, it appears from the chronology demonstrated by the evidence that this “good will gesture” was put forward by Mr.

Sapps a couple of days after the physical altercation between the parties (on May 22 nd 2016). [ 72 ] Thirdly, the text messages exchanged between the parties clearly demonstrate that Mr. Sapps’ sole purpose was to help her girlfriend in a difficult time. Indeed, the most relevant text messages, which were sent during Ms. Bilodeau’s stay at the hospital read as follows: Ms. Bilodeau: Sucks I will be 6 days not paid. That’s the

part I hate the most. Mr. Sapps: I will help. Mr. Sapps: Keep me informed. I have some money I was saving for us. Mr. Sapps: Have you figured out what you will need for next month? Ms. Bilodeau: I don’t need much to be done baby. Really. Just maybe few things. Mr. Sapps: I mean for money. Ms. Bilodeau: Ah OK lol. Mr. Sapps: Do they accept bank card payments at your apartment building? Ms. Bilodeau: I think so. [ 73 ] Those text messages do confirm, on that topic in particular, Ms.

Bilodeau’s testimony. [ 74 ] Furthermore, some of the witnesses (Stéphany Brouillette, Linda Courbron in particular) produced by the Defendant, do confirm that Mr. Sapps did reaffirm his undertaking in “helping Annie” after the May 22 nd incident and in relation to such event. It is to be noted that, at such time, the “official” version of the parties was that Ms. Bilodeau had fell down in the bathroom of her apartment, thus explaining the very serious cut on her forehead. [ 75 ] As to the text messages to which the Court has previously alluded to, in which Ms.

Bilodeau mentioned that she would reimburse “the dumb money”, the Court is satisfied by the evidence – notably through Ms. Bilodeau’s testimony - that such referred to the Kia payments and not to the reimbursement of that portion of the rent which was paid by Mr. Sapps. MR. SAPPS’ CLAIMS FOR HIS DISBURSEMENTS LINKED WITH HIS COURT CLAIM (513,26$) AND HIS LOSS OF WAGES BECAUSE OF HIS PRESENCE IN COURT ON THE DAY OF THE TRIAL (413,73$) [ 76 ] As we have seen, Mr. Sapps amended his Claim to request Ms.

Bilodeau to reimburse him of various disbursements he had to undertake in relation to the production of his Court claim in the Small claims division of the Court of Québec. He also claims for his loss of salary on the day of the Trial.

[ 77 ] Courts have frequently decided that such claims cannot, normally, be granted because they are linked – directly – with one’s procedures in front of the Court. [ 78 ] Indeed, both parties – implicated in an eventual trial – are submitted to imperatives such as the preparation for the trial, as well as to the presence at the Courthouse to produce various documents, and so on and so forth.

The same can be said about one’s presence in Court on the day of the Trial. [ 79 ] In other words, both parties have inconveniences linked with a claim produced in court. [ 80 ] Obviously, the financial consequences of the preparation for the Trial and for the presence in Court appear to be more important for Mr. Sapps. Indeed, he lives in Syracuse, in the State of New York. Ms. Bilodeau definitely lives closer. [ 81 ] But again, those are “normal inconveniences” that parties do share. [ 82 ] As it was mentioned by the Superior Court, in the case of Provost v.

Curnew [22] : [52] Le requérant réclame comme perte de revenus le temps qu'il a mis à la préparation du dossier et à sa participation aux activités judiciaires (interrogatoire hors cour, assistance au procès). Le requérant explique que le temps consacré au dossier lui a soutiré du travail d'anesthésiste pour lequel il aurait été rémunéré. À ce titre, il réclame la somme de 14 051,20 $ soit l'équivalent de huit jours de travail. [55] Comme tel, le temps que le justiciable consacre à la préparation de son dossier pour procès n'est pas compensable.

D'autre part, l'attitude du requérant paraît inconciliable avec l'obligation de mitigation des dommages. Cette réclamation est donc écartée. [ 83 ] Furthermore, the Québec’s Court of Appeal in Société Radio-Canada c. Gilles E.

Néron Communication Marketing Inc does enunciate the following: [290] With the greatest of respect, I do not believe that trial judges are empowered to award litigants “symbolic” amounts of this sort for the time they have spent helping their counsel to prepare the file and the proceedings in court: in Quebec, time spent this way has not been treated by the Courts as a direct damage, in either contractual or extra-contractual matters. [ 84 ] Consequently, that sub portion of Mr. Sapps’ claim cannot be granted. [ 85 ] That being said, the first paragraph of

section 340 of the Code of civil procedure [23] ( CCP ) provides that Legal costs are owed to the party that was successful, unless the court decides otherwise. [ 86 ] Legal costs are much more limited than the amounts that were claimed by the Plaintiff under that sub portion of his claim. However, even though Mr. Sapps’ claim is only partially granted (1 154,98$) – with interests at the legal rate, as well as the special indemnity provided in

section 1619 CCQ, the Court will grant him, in conformity with the principle established at

section 340 CCP , said legal costs. [ 87 ] Now, the Court will turn its attention to Ms. Bilodeau’s Cross-application. MS. BILODEAU’S CROSS-APPLICATION [ 88 ] As we have seen, Ms.Bilodeau submits that Mr. Sapps violently pushed her, on the evening of May 22 nd 2016, that such push made her hit a wall and that she suffered important bodily and psychological damages because of such event. [ 89 ] As for Mr. Sapps, he does confirm that there was a physical altercation, but that such was explained by Ms. Bilodeau’s erratic and alcoholised behaviour, that the “push” described by Ms.

Bilodeau was only of a “defensive nature” and subsidiarily, that, furthermore, the damages claimed cannot be granted in their totality, even in the eventuality that the Court would find him civilly liable, because a portion of such damages would be linked to other extraneous events that are not directly linked with his own faulty, le cas échéant , behaviour. [ 90 ] In order to succeed in her counterclaim, Ms. Bilodeau must demonstrate, by way of preponderant evidence, the following:

i) That Mr. Sapps committed a fault; ii) That she suffered a prejudice; iii) That there is a sufficient causal link between elements

i) and ii). [ 91 ] Indeed,

section 1457 CCQ provides the following as to a party’s potential extra contractual civil liability: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [ 92 ] In other words, does the evidence demonstrates that Mr. Sapps acted in a way different than a reasonable – prudent – person in the same circumstances? [ 93 ] Mr. Sapps, as we have seen, does concede that he did push Ms. Bilodeau. He argues that this push was of a defensive nature. Ms. Bilodeau strongly denies such situation, adding that the very strong push (with two hands she adds) that Mr.

Sapps applied made her “fly” into the apartment’s wall. She adds that a defensive push would not have generated such important damage to her forehead. [ 94 ] Indeed, it is not contested that Ms. Bilodeau hit her head on the wall. One photo, in particular, demonstrates the stitches done at the hospital. The cut appears to be important, quite deep and required 8 stitches. [ 95 ] The Court considers that the preponderant evidence does demonstrate that the push applied by Mr. Sapps was very severe in nature. The Court cannot reasonably arrive to the conclusion that the “push” made by Mr.

Sapps was only defensive in nature (as he mimed it in the Courtroom). Such a defensive push would not, on a preponderant basis [24] , have generated such damage to Ms. Bilodeau’s forehead. [ 96 ] Such scar is still quite visible on the day of the Trial, even though Ms. Bilodeau hides it well with her hair. [ 97 ] Mr. Sapps’ testimony is to the effect that he did proceed with that “push”, and then he heard a “sound”, which was Ms. Bilodeau either hitting the wall or falling down.

Consequently, it is very difficult for him to indicate to the Court, keeping such chronology in mind, exactly what happened after the push. [ 98 ] That being said, Mr. Sapps adds that this injury would be the result of Ms. Bilodeau’s own erratic behavior [25] on that evening. Indeed, he mentions the following as to that night’s chronology:

i) They both went to a supper event at one of Ms. Bilodeau’s friends; ii) He drank a little bit of wine during the supper and had two tequila shots afterwards; iii) He decided not to stay, overnight, as was the original plan, because Ms. Bilodeau started cursing and acting bizarrely. Mr. Sapps admits that he was “upset” at the time and was not at all happy with Ms. Bilodeau’s conduct; iv) Ms. Bilodeau would have been very drunk (8 out of 10 he evaluated) [26] ;

v) On the way home, Ms. Bilodeau brought back, while shouting, a previous event during which he would have been unfaithful; [27] vi) He had to retain her from getting out of the car on the highway; vii) Once back in the parking lot of the apartment building, he had to convince her to get back to the apartment, since she was walking away; viii) He was, at the time, carrying two bags in his hands; ix) She would have hit, with her hands, in the glass window on the ground floor of the apartment building;

x) In order to ridicule him, and because of her previous discovery of photos in his phone, she would have mimicked some poses, by dropping “her pants to her ankles”; xi) Once out of the elevator, she continued shouting, thus potentially waking up the neighbors at such late time (approximately 1 AM); xii) He used that “defensive push”, Ms.

Bilodeau hit her head, and then tried to jump off the balcony (from the 8 th floor); xiii) She then locked herself up in her apartment’s bathroom and took an undetermined number of sleeping pills; xiv) He had to convince her to get to the hospital, promising her “anything” to convince her, including “promising to denounce himself to the police because of what had just happened”; [ 99 ] To say the least, Ms. Bilodeau’s version is quite different. Her chronology of events unfolds as follows:

i) She did drink during the evening, as did Mr. Sapps, but she was always very conscious and alert of what was happening; ii) Mr. Sapps became particularly enraged while she was preparing, with her friend, the couple’s bedroom for the night. She mentions that he thought that they were making fun of him; iii) Mr. Sapps then requested them to leave, not wanting anymore to stay at her friend’s house for the night; iv) He yelled extensively to her during the drive home;

v) She never tried to “jump” off the car on the highway; vi) She did “bring back” the infidelity of Mr. Sapps and a strong argument followed; vii) Once back in the parking lot, she tried to walk away but he grabbed her, by the arm, to bring her back towards the apartment building;

viii) Mr. Sapps had no bags in his hands; ix) In the elevator, she did pull down her pants “maybe an inch or so” to mimic the pose included in a photo found in Mr. Sapps’ phone;

x) Mr.

Sapps then grabbed her, bringing her towards her apartment; xi) He then pushed her, and she hit her head, blood came out gushing right away; xii) She felt extremely vulnerable at the time, and past domestic violence (from previous relationships) came resurging, which explains her thoughts on jumping off the condo’s balcony; xiii) She did take 25 to 30 sleeping pills afterwards, felt quickly very uneasy, threw up, and asked to go to the Gatineau Hospital (and not to the Hull Hospital considering she worked there as a nurse and did not want to cross paths with her coworkers); [ 100 ] There is only one other testimony that refers, specifically, to a portion of those events, namely Ms.

Linda Courbron’s testimony. [ 101 ] Ms. Courbron is a registered nurse and has known Ms. Bilodeau for a rather long period of time. She does admit, without any difficulty, that both Mr. Sapps and Ms. Bilodeau drank quite a bit of alcohol on the evening in question. She further adds that her ideas are really clear about what happened since she was probably the only guest at the supper that did not really drink alcohol. [ 102 ] That being said, she does confirm that Ms.

Bilodeau did not pass out due to alcohol and that there was nothing particular about her conduct. [ 103 ] However, she does add that she witnessed Mr. Sapps insisting that Ms. Bilodeau and himself leave the party and that it was caused by his impression that they were laughing at him, and not at all because of Ms. Bilodeau’s alleged alcoholised erratic behavior and cursing. [ 104 ] Furthermore, let’s assume, for a moment, that Mr. Sapps’ chronology of events did occur.

In other words, his girlfriend is almost passed out, she is hitting in windows, she is shouting at him at 1 AM in the apartment building, she drops her own pants to her ankles, and walks like that on the 8 th floor of her apartment building. [ 105 ] In such scenario, and considering that the Court has determined, based on the preponderant evidence submitted, that Mr. Sapps did push rather violently Ms. Bilodeau, it shows that Mr. Sapps did proceed to such push on a woman that had her pants to her ankles and in a very troubled alcoholised state.

If that is the case, this only shows, even more, the lack of elementary prudence and the obvious carelessness as to the possible consequences of that push. [ 106 ] Indeed, to push somebody in such a weak and vulnerable position cannot be qualified in any other way than as a civil fault, to say the least, the whole based on

section 1457 CCQ. [ 107 ] Having analysed the entire, rather detailed, evidence submitted at Trial, the Court does arrive to the conclusion that Ms. Bilodeau’s explanation of events is more plausible and more probable. Indeed, Ms. Courbron’s testimony was quite helpful in that regards, and the Court has no reason to disregard her testimony based on the sole fact of her long lasting friendship with the Defendant. [ 108 ] Ms. Courbron’s testimony did appear truthful and the elements she submits, even though it only refers to the first portion of the evening, do add considerable credibility to Ms.

Bilodeau’s own testimony. [ 109 ] And, as we have seen, even if that was not the case, it would only demonstrate that Mr. Sapps’ push was applied in very particular circumstances during which Ms. Bilodeau was in a very vulnerable state. [ 110 ] And if Ms. Bilodeau was indeed shouting, that cannot serve as an excuse for such an important physical push. [ 111 ] In all circumstances, the Court must arrive to the conclusion that Mr. Sapps’ conduct clearly qualifies as a civil fault. [ 112 ] Mr. Sapps’ conduct afterwards is also indicative of his state of mind.

The Court has no doubt that he had quick remorse about what had just happened. He does confirm to the Court that he offered, in conformity with Ms. Bilodeau’s recollection of events [28] , to her to “denounce himself to the police”. [ 113 ] Why would Mr. Sapps propose such offer? [ 114 ] The obvious reason would be, as Ms. Bilodeau puts it, that he feels guilty for what just happened. [ 115 ] Mr. Sapps proposes an alternative explanation. He submits that he made that offer since he was “begging” Ms.

Bilodeau to go to the hospital, and that he “was ready to say anything to convince her to do so”. [ 116 ] With respect, this alternative explanation is not convincing. [ 117 ] Moreover, the exchange of text messages between the parties, in the hours, days and weeks following that incident, also point out towards a real sense of guilt of Mr. Sapps. He does admit that he pushed Ms.

Bilodeau “in the door”, that he pushed her “inside the apartment” [29] , he confirms that he will help her with some expenses because she needs to miss out on work days, [30] he confirms that he will use the “ money I was saving for us ”, [31] and he insists on her making the arrangements to meet with a plastic surgeon [32] . [ 118 ] Furthermore, two witnesses do confirm that Mr. Sapps indicated to them that he would pay for the plastic surgery. Indeed, Ms. Courbron confirms such. Ms. Stéphany Brouillette also testifies specifically to that effect.

THE EXISTENCE OF A PREJUDICE [ 119 ] That being said, the existence of a civil fault is not sufficient, in itself, to condemn Mr. Sapps to the payment of damages. Indeed, as we have seen, it is necessary for Ms. Bilodeau to demonstrate, by way of preponderant evidence, the existence of damages and the causal link – even though such can sometimes be deduced – between the fault and the proven damages, le cas échéant . [ 120 ] Sections 1607 and 1611 CCQ do provide on such topic the following: 1607.

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and assessable is taken into account in awarding damages. [ 121 ] As for the existence of damages, the evidence is convincing. Ms.

Bilodeau’s testimony does demonstrate that she suffered a concussion [33] , a “trauma crânio-cérébral” [34] that relate directly to the incident that occurred on May 22 nd 2016. She suffered, and is still suffering, from a serious depression [35] and from severe anxiety [36] . [ 122 ] Ms. Bilodeau does confirm that she had to miss work for many months, that her salary was reduced in consequence [37] for approximately one year, that she lost the first 6 full days of salary, and that all of that situation has generated severe consequences on her well-being.

She has difficulties to concentrate for more than 15 minutes and has been very sad of all that situation since then. [ 123 ] The evidence also points out various sleeping problems. [ 124 ] Mrs. Nicole Robert confirms that her daughter has changed quite importantly following her relationship with Mr. Sapps. She now stutters [38] quite frequently (she did stutter on numerous occasions in front of the Court). [ 125 ] The cost of the plastic surgery is evaluated at 740$, taxes included. [39] [ 126 ] Ms. Bilodeau has had frequent migraines since the May 2016 incident.

She has had difficulties “preparing meals” and had some difficulties “getting out of bed” for the period immediately following the incident. [ 127 ] The Court does not consider, at all, that Ms. Bilodeau’s conduct is of the nature of a vendetta. Indeed, the evidence heard clearly demonstrates that Ms. Bilodeau only admitted – with difficulty - to her friend and family members what had really happened. She did not want Mr. Sapps to “denounce” himself to the police. She never filed a complaint neither. [ 128 ] As for Mr. Sapps, he does not directly contest the existence of the alleged damages.

He insists, however, on the lack (either in totality or partially) of a true causal link between the alleged damages and the incident that occurred on May 22 nd 2016. [ 129 ] On such topic, Mr. Sapps raises two arguments. The first one concerns the fact that Ms. Bilodeau’s “past history” would be the reason explaining, at least for a big part, all of those psychological consequences that appear to have followed the May 2016 incident. [ 130 ] After all, it does appear, indeed, in the medical reports provided and produced by Ms.

Bilodeau, that her stress is linked with the May incident, but also as it intertwines with previous very bad, abusive it appears, relationships. [ 131 ] In other words, Mr. Sapps argues that if the Court wants to find the “root” of Ms. Bilodeau’s psychological condition, that it will be “a long road to follow”, thus arguing that she was “already psychologically affected” prior to his own relationship with her. [ 132 ] This argument cannot succeed. For two main reasons. [ 133 ] The first reason is that the preponderant evidence points towards the fact that Ms.

Bilodeau was in a very good psychological state of mind during the period of time during which she dated Mr. Sapps. Mrs. Robert’s testimony, in particular, is quite revealing on the matter. [ 134 ] In other words, Ms. Bilodeau was in a good shape, psychologically speaking, during the period of the relationship (June 2015 – September/October 2016). Consequently, it is difficult, when analysing the evidence, to link those previous toxic relationships to the consequences suffered by Ms.

Bilodeau. [ 135 ] But there is another, even more fundamental reason. [ 136 ] Indeed, the jurisprudence has accepted the principle, for a long period now, that the faulty party causing damage to a “victim” must “accept his/her victim as he/she is”. [ 137 ] That principle, known as the “thin skull / crumbling skull doctrine” has been applied on numerous occasions by Courts, notably in civil jurisdictions. [ 138 ] Justice Mark Peacock, J.C.S., in Laflamme v. Groupe T.D.L. Ltée [40] , outlines its principles as follows:

The Thin Skull and the Crumbling Skull Doctrines[300] A leading Supreme Court of Canada case outlining these two doctrines is the 1996 judgment of Athey v. Leonati.[301] A very succinct

summary of both of these doctrines, which are applied both in the common law provinces as well as Quebec, is found in the 2012 Ontario Court of Appeal decision of M.B. v. 2014052 Ontario Ltd:16. The first argument put forward by the appellant is based on the “crumbling skull principle”. The crumbling skull principle is derived from the familiar thin skull principle. Both principles speak to the extent ofdamages – not causation. The thin skull rule holds that a tortfeasor takes his victim as he finds him.

In other words, if as a result of a pre-existing vulnerability – a thin skull - a plaintiff suffers greater injury than anaverage person would, the defendant is nonetheless responsible for the full extent of the plaintiff’s loss: Athey, at para. 34.17. The crumbling skull rule on the other hand, applies to situations where the defendant’s act causes the premature or accelerated degeneration of the plaintiff’s pre-existing condition.

If there is a “measurablerisk” that the condition suffered by the plaintiff would have affected the plaintiff in the future regardless of the defendant’s tortious act, the defendant will be liable for the effect of his act on the degenerative process. However, the defendant need not compensate the plaintiff for any debilitating effects of the pre-existing condition that would have occurred in any event: see Athey, at para. 35. (this Court’s emphasis) [our emphasis][139] To the same effect, the Honourable William Fraiberg, J.C.S., in Saint-Maurice v.

City of Montréal[41] explains such doctrine in paragraphs 4 and 5 of his judgment, in which he confirms that such can be alsoapplied to psychological damages:[4] As noted by Wilson J. in Janiak v. Ippolito a thin skull may be psychological:10. It is, of course, well established that damages for aggravated injuries consequent on some pre-existing infirmity of the plaintiff are recoverable even if the infirmity is of a psychological nature: see, e.g., Love v. Portof London Authority, [1959] 2 Lloyd's Rep. 541 (Q.B.); Gray v. Cotic, (SCC), [1983] 2 S.C.R. 2. As Geoffrey Lane J. said in Malcolm v.

Broadhurst, [1970] 3 All E.R. 508, at p. 511, "there is nodifference in principle between an egg-shell skull and an egg-shell personality". Indeed, it would seem that the locus classicus of the "thin skull rule", the decision of Kennedy J. in Dulieu v.

White & Sons, [1901] 2 K.B.669, was in fact a case of aggravated injuries which were triggered by the impact of the defendant's tortuous act on the plaintiff's inchoate psychological hypersensitivity.[5] The thin skull and crumbling skull rules are accepted as part of the law of civil responsibility of Quebec. [our emphasis][140] Consequently, and for those reasons, Mr. Sapps’ argument that Ms.

Bilodeau’s current condition is the result of intertwining psychological difficulties[42] – some of them that already existed prior to theirrelationship - cannot be accepted.[141] The Court considers that the evidence – by way of expertise or otherwise – does not demonstrate such situation. As already mentioned, the evidence demonstrates quite the opposite, which is that Ms. Bilodeauwas feeling quite good during her relationship with the Plaintiff.[142] As to Mr. Sapps’ argument, during the Trial, that he never intended to injure Ms.

Bilodeau - “I did not push her to harm her” - , it must also be rejected because of the nature of the damages that are claimed by Ms.Bilodeau. Indeed, such precise intention – or lack thereof – is not relevant as to the kind of damages that Ms. Bilodeau is seeking.[143] Indeed, Ms. Bilodeau is not seeking punitive damages from Mr. Sapps, but only compensatory damages. [144] That being said, is it possible to consider – based on the evidence – that the entirety of the damages claimed by Ms.

Bilodeau have a sufficient causal link with the May incident?[145] Such causal link, even though it can be sometimes deduced in some circumstances, must be demonstrated, by way of preponderant evidence, by the Defendant.[146] Actually, what the evidence very clearly demonstrates is that it is not possible to conclude that 100% of Ms. Bilodeau’s difficulties since May 2016 are linked with such event.[147] Indeed, it manifestly appeared from the evidence, and from the expertise reports produced by Ms. Bilodeau, that an important portion of the damages and anxieties suffered by her are linked directly to Mr.

Sapps’legal claim in the Small claims division.[148] Ms. Bilodeau, in her own testimony, states that she “crashed out” when she received Mr. Sapps’ Claim. [149] Furthermore, the CSST medical report[43] directly refers to her preparation for the Court case. On an even clearer note, the psychologist’s – Dr. Berthelot - report[44] stresses out that Mr. Sapps’ claim is, in itself,a very strong stressor in Ms. Bilodeau’s life, indicating – also – that the May 2016 incident was in itself followed by a reconciliation between the parties, albeit for a rather short period.[150] The wording used by Ms.

Bilodeau in her Cross-Application[45] also supports that conclusion.[151] In other words, it appears clearly from the evidence that Mr. Sapps’ claim, instituted in August 2017, was a strong trigger, and that it was the source or the root as to some of the damages that are now alleged byMs. Bilodeau.[46] [152] Can Mr. Sapps be, in consequence, liable for the totality of the damages that are claimed?[153] The answer must be a negative one. Mr. Sapps does indeed succeed in demonstrating that the causal link is lost, at least for a portion of the damages that are alleged.[154] Indeed, Mr.

Sapps had the right to address his claim against Ms. Bilodeau. The Court cannot conclude to the existence of a civil fault as to the introduction of that claim.[155] As we have seen, that claim is partially granted, thus demonstrating even further that it was not intrinsically frivolous or presented in bad faith.[47][156] Claims in front of the Courts get rejected on numerous occasions. It does not mean that those claims were without any merit, frivolous, or instituted in bad faith.

It is surely even more the case with claims that arepartially (even in a quite limited fashion) granted, as it is the case in the present instance.[157] In other words, the damages suffered by Ms. Bilodeau and that are in a direct causal link with the introduction of Mr. Sapps’ claim cannot be granted, as they are not in a sufficient direct relation with a civil faultcommitted by the latter.[158] Based on the entire evidence adduced at Trial, the Court considers that the damages suffered by Ms.

Bilodeau divide equally between the faulty incident of May 2016, on the one hand, and the introduction of alegal claim – by Mr. Sapps - in front of the Court on the other hand.[159] In other words, the Court will grant 50% of the damages claimed by Ms. Bilodeau.[160] That being said, the amount claimed by Ms. Bilodeau has been, as established previously, clearly demonstrated. The amount of 10 000$ is, per se, reasonable in the circumstances and it has been, by way ofpreponderant evidence, demonstrated. [161] Consequently, Ms.

Bilodeau’s Cross-Application will be partially granted, for an amount of 5 000$, with interests at the legal rate[48], the special indemnity provided in

section 1619 CCQ as well as the legalcosts.JUDICIAL COMPENSATION OF THE AMOUNTS OWED BY BOTH PARTIES[162] As we have seen, both the Plaintiff’s and the Defendant’s respective claims are partially granted. Consequently, and in order to avoid the unnecessary multiplication of payments, the Court will pronounce thejudicial compensation of such debts, the whole in accordance with sections 1672 and following of the CCQ.[163] Consequently, after applying such judicial compensation, Mr. Sapps will be condemned to pay an amount of 3 845,02$ to Ms.

Bilodeau.FOR THOSE REASONS, THE COURT:PARTIALLY GRANTS the Plaintiff’s claim;PARTIALLY GRANTS the Defendant’s Cross-Application;OPERATES judicial compensation on the amounts owed by the Plaintiff and the Defendant; CONDEMNS the Plaintiff to pay to the Defendant an amount of 3 845,02$, with interests at the legal rate, as well as the special indemnity provided in

section 1619 of the Civil Code of Québec, starting from April 16th2018, which is the date of the Cross-Application;THE WHOLE, with legal costs. __________________________________STEVE GUÉNARD, J.C.Q.

Date of hearing: October 29th, 2018