2019 QCCQ 7423, 2019 QCCQ 7423

Ali Uylasi c. Blumenthal 2019 QCCQ 7423 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-704889-189 DATE: October 29, 2019 ______________________________________________________________________ BY THE HONORABLE CAtherine Pilon J.C.Q. ______________________________________________________________________ OMER ALI UYLASI Plaintiff v. MARK BLUMENTHAL -and- 9298-0267 QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT RENDERED ON THE BENCH ______________________________________________________________________ [ 1 ] The Plaintiff claims $4,139.10 from the Defendants for unpaid gardening and snow removal services. This amount represents services at $100 per month, plus taxes over 36 months.

The Plaintiff also claims $1,000 for trouble and inconvenience related to having to collect the claimed amount. [ 2 ] The Plaintiff brought his claim against the Defendant Blumenthal, the tenant of the property where the work was done, and the Defendant 9298-0267 Québec Inc. (Québec Inc.), the owner of this property. [ 3 ] The services which are claimed range from January 31, 2015 to December 31, 2017. [ 4 ] According to the Plaintiff, the Defendant Blumenthal agreed to pay $100 in cash plus taxes monthly for the services, but he did not pay any amount to this date. [ 5 ] According to the Defendant Blumenthal, the services were paid monthly pursuant to his agreement with the Plaintiff, namely $75 in cash every month, including taxes, until September 2017 when he advised the Plaintiff that he would no longer require his services. [ 6 ] The Defendant Québec Inc. argues that it never agreed to the services of the Plaintiff, and that if there was such an agreement, it was only between the Plaintiff and the Defendant Blumenthal.

Analysis [ 7 ] The Court is faced with two contradictory versions. The Plaintiff contends that the services were not paid. The Defendant contends that the services were paid in full. All parties agree however that no invoices or receipts were ever issued for the duration of the services, nor was there any written agreement. [ 8 ] In this context, it is important to emphasize on the rules of evidence, in particular on the burden of proof. [ 9 ] The burden of proof is met when the existence of a fact is more probable than its non-existence.

In other words, is the Plaintiff’s version more likely the Defendant’s? [ 10 ] The Court is of the view that the Plaintiff has not met his burden of proof in this matter in respect of the Defendant Blumenthal, and that his version has raised a number of issues with affect his credibility: - The Plaintiff argues that he performed the services from 2014 to 2018 and was never paid by the Defendant Blumenthal, but he never once invoiced him; - He never claimed any amount throughout the years until the Defendant Blumenthal informed him that he would no longer require his services; - There are discrepancies in the amount claimed at Court, i.e. $3,600 at $100 per month for three years, and the amount claimed by the Plaintiff by text message to the Defendant Blumenthal in January 2018, i.e. $3,600 for four years.

[ 11 ] The claim of the Plaintiff against the Defendant Blumenthal is dismissed, including the amount for trouble and inconvenience for having to collect the claim. [ 12 ] The Court has a discretion in awarding the costs. Although it finds against the Plaintiff, both parties were nevertheless negligent by not having prepared a written agreement, not having issued or required proper invoices and payment receipts, and having asked for and provided cash payments.

This dispute may have been avoided if they had properly documented their relationship. [ 13 ] Although the claim is dismissed in his regard, the costs will not be awarded in favor of the Defendant Blumenthal. [ 14 ] In respect of the Defendant Quebec Inc., the evidence shows that it was not part of the agreement and as such, cannot be he held liable to the Plaintiff. His claim against this Defendant is also dismissed, with costs.

FOR THESE REASONS, THE COURT: DISMISSES the Application of the Plaintiff against the Defendant Mark Blumenthal without costs; DISMISSES the Application of the Plaintiff against the Defendant 9298-0267 Québec Inc.; CONDEMNS the Plaintiff to pay the Defendant 9298-0267 Québec Inc. the Court costs of $252. __________________________________ CATHERINE PILON, j.c.q. Date of hearing: October 29, 2019