2011 QCCQ 14169, 2011 QCCQ 14169

Brooks c. Goldberg 2011 QCCQ 14169 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-123985-105 DATE: November 16, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ DIANE BROOKS Plaintiff v.

SOL GOLDBERG Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Initially, Ms Diane Brooks claims from Sol Goldberg an amount of $410 alleging that « The defendant had the responsibility to pay telephone and electric services during his stay, which he did not. » (paragraph 2 of the Application). [ 2 ] At hearing, Ms Brooks amends her demand to add an amount of $1,500 as additional monthly rent. [ 3 ] In his contestation, Mr Goldberg denies owing any sum to Ms Brooks pleading that she received an amount of $2,000 for one month of rent and utilities, including the sum of $410 claimed. [ 4 ] Also, Mr Goldberg files a counter-claim of $756.67, alleging that his monthly rent should be $833.33 instead of $1,500. [ 5 ] In order to resolve the present file, the Court must apply the general rules of evidence provided for in Articles 2803 and 2804 of the Civil Code of Québec : " 2803.

A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. 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." [ 6 ] After carefully assessing the evidence adduced, the Court cannot grant Ms Brooks' claim for the following reasons. [ 7 ] The evidence shows that Mr Goldberg rent Ms Brooks' condominium in Florida for a period of three months, from December 15, 2009 until March 15, 2010, at a monthly rent of $1,500.

Mr Goldberg's allegation that the monthly rent is less than $1,500 is ill founded both in fact and in law. [ 8 ] In fact, Mr Goldberg occupies Ms Brooks' condo from December 15, 2009 to January 14 or 15, 2010, at the most. [ 9 ] Mr. Golberg remits to Ms Brooks an amount of $2,000 to cover the first monthly rent and other fees. [ 10 ] This being the case, the said sum of $2,000 covers the first monthly rent ($1,500) and Ms Brooks' demand of $410 for telephone and electric services. [ 11 ] The Court cannot grant the amount of $1,500 claimed by Ms Brooks after her amendment.

There is no preponderant evidence establishing that Mr Goldberg stayed in her condo after January 15, 2010. Also, the evidence shows that Ms Brooks took possession of her condo after the departure of Mr Goldberg. [ 12 ] Given all of the above, the Court concludes that Ms Brooks did not discharge her burden of establishing, through preponderant evidence, the merit of her claim, nor did Mr Goldberg regarding his counter-claim. Consequently, both claims must be dismissed but, exercising its discretion, the Court does not impose any costs on any party. THEREFORE, the Court:

DISMISSES Diane Brooks' demand; DISMISSES Sol Goldberg's cross-demand; THE WHOLE, each party paying its own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: November 8, 2011