2016 QCCQ 1929, 2016 QCCQ 1929

Garand c. Paul 2016 QCCQ 1929 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145986-156 DATE: February 25, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ CHRISTOPHER GARAND […]Montréal (Québec) […] Plaintiff v.

KAMARIAH PAUL […]Montréal (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Christopher Garand, sues the Defendant Kamariah Paul, for a total of $ 9,086.99, alleging a series of loans. [ 2 ] The Plaintiff and the Defendant were a couple who were living together at the time the loans were allegedly made, from May 2013 until around October 2013.

Mr Garand argues that, since Mrs Paul co-signed the lease for the premises where they resided along with two other individuals, she owed continuing obligations for her share of the lease after her departure on / or about October 10-11, 2013. [ 3 ] On that date, he presented to her for signature an agreement (P-1) in which she acknowledged owing an outstanding amount of $ 1,250.84 promising to repay it before October 11, 2014.

A modality in the agreement reads as follows: […] In return for full re-payment of the outstanding, primary leasee [sic] Christopher Garand, […] releases Kamariah Paul of her share of the obligations for the aforementioned property lease totalling $500 (five hundred dollars) a month. [ 4 ] Mr Garand’s position is that, since she defaulted on the payment of the outstanding amount, he is now entitled to claim from her all of the debts resulting from loans he made to her and several months of rent, totalling $ 7,500, on an ongoing basis. [ 5 ] In her written contestation, Mrs Paul asserts that the Plaintiff’s claim is exaggerated; she acknowledges owing only $ 1,250.84 “pour des activités auxquelles j’avais donné mon plein consentement”.

She alleges that an additional amount is not owed because she signed under stress, having been pressured by Mr Garand at a time when she suffered from a psychological disorder.

Mr Garand replies that the document was freely signed and that he is entitled both to re-establish the amount owed to claim the amounts that he and his roommates had to cover for Mrs Paul’s share of the rent. [ 6 ] The Court must decide what if any amounts are owed by Mrs Paul, and set the modalities of payment, if in fact, any amount is owing. [ 7 ] The claim breaks down into a number of miscellaneous expenses, including $ 500 for the July rent and $ 200 for the August rent, approximately $ 500 for Mrs Paul’s share of the expenses of a camping holiday, as well as a balance for May rent, and various and sundry small expenses.

Mrs Paul states that, when it was decided she would move in with Mr Garand and his family members, she was told that her share of the rent would be $ 500. The lease that she signed is for $ 1,750 per month which, divided by four gives $ 437.50, but there were utility charges as well. [ 8 ] Mrs Paul asserts that, once she moved in, she was told that she would have to contribute $ 50 every two weeks for joint food supplies. She objects to this as she was not eating much at the time, having suffered apparently from malnutrition and she could not

afford such a payment. As a matter of fact, during the time she co-habited with Mr Garand, he would, on occasion, advance money for her expenses and he paid for various leisure activities including a camping trip.

Mr Garand stated in his testimony that, when Ms Paul signed the agreement on October 11, she in fact owed $ 1,900, but he agreed to lower it first to $ 1,500 and then to $ 1,250. [ 9 ] When she failed to pay, he tendered a new agreement for her signature dated October 8, 2014. [ 10 ] In this new agreement, he grants an extension until November 11, 2014 and after this date, annual interest of 14%. [ 11 ] Mrs Paul did not pick up the registered mail containing the new proposed agreement signed by Christopher Garand. [ 12 ] On January 21, 2014, he sent her a written letter of default, claiming $ 8,725.41 adding, in addition to the $ 1,250.84 mentioned in the October 11 agreement, 15 months of outstanding rent payments totalling $ 7,500, repayment of purchases at IKEA made October 12 totalling $ 1,174.57 minus $ 200 from an electronic mail transfer dated October 13, 2014. [ 13 ] Mrs Paul testifies that, at the time she moved in with Mr Garand, she started to experience mental health problems in the form of stress and low self-esteem.

By September she sought help from the psychiatric department of the Jewish General Hospital, where she became a patient, participating in individual and group therapy to deal with a certain number of issues. [ 14 ] She states that during the time she was with Mr Garand, she was feeling dominated and when she decided to leave, he took her into a room in the apartment that was set up as an office, blocked the door and, at one point, pushed her.

When she asked, “ are you going to hit me ?” he said , “ if I have, to I will ”. [ 15 ] Her understanding of the monetary advances Mr Garand made to her during the time they were living together was that the expression of an intention to repay the debts was not serious, not formal, that she expected that he would not enforce the commitment as a loan and that he would be generous and support her, given her financial position, which was not very good. [ 16 ] Mr Garand gives fairly ambivalent testimony about the nature of the financial situation between them: it seems that he was trying to be business-like about certain items, such as the lease and that he intended to apply this to some of the miscellaneous amounts but not to others. [ 17 ] He was extremely negotiable changing the amount that he requested her to commit to pay on October 11. [ 18 ] The part of the agreement that deals with prospective rents is very interesting.

As a co-signer of the lease, Mrs Paul was actually solidarily liable for the entire amount of the lease toward the landlord. The rent was however paid in full and the landlord entered into a new lease eventually with the remaining tenants. Neither of the other tenants has claimed anything from Mrs Paul, which stands to reason, because she did not continue to co-habit the apartment with them. [ 19 ] If the others had not paid, she could be liable to the landlord for the entire amount.

She was not aware of this when she signed the lease. [ 20 ] For them and for Mr Garand, it would have been appropriate to mitigate their losses when Mrs Paul moved out by subletting the apartment or assigning the lease. By remaining in possession of the apartment for the duration of the lease without seeking another tenant, and without trying to mitigate their loss, they were simply accepting the fact someone in their group had decided to no longer be part of the arrangement. [ 21 ] In the Court’s view, therefore, Mrs Paul did not owe them rent on a forward-going basis from the time she left.

The consideration, therefore, for which she is “released” from her share of the obligation is the acknowledgment of a debt that, in the Court’s view, she did not owe. [ 22 ] When two people are in an amorous relationship and live together and share leisure activities, it is normal for the one having more cash to subsidise expenses of the other. It would require a very definite express agreement to turn the situation into one where the more affluent member of the couple is a creditor and the more bereft is a debtor.

In such a quasi-family relationship, the intention is more likely that of a liberality than an onerous obligation. [ 23 ] Although she signed an acknowledgment of indebtedness, she did so at a time when she was suffering from a mental condition that made it difficult for her to exercise her will freely and the Court accepts as sincere her testimony about giving in to pressure to sign the agreement. [ 24 ] It is not necessary to decide whether Mr Garand did in fact act with violence because, in Mrs Paul’s state of mind, the psychological pressure of the moment would have been sufficient for her to succumb and passively accept what she was being asked to do. [ 25 ] Therefore, in the Court’s view, the “Agreement” does not dispel the strong doubt that the Court has that the financial relationship between the parties was truly one of a debtor and creditor. [ 26 ] If the Court had found that there was in fact an obligation, it would be for a lesser amount and not for all of the items that were added, especially not the ongoing obligation to pay rent.

The lease itself creates an obligation on the part of the tenants co-signing towards the lessor but, among themselves, it would certainly be unfair to condemn the party who moved out to pay an equal share to the others, who did nothing to mitigate their loss. [ 27 ] Therefore, in the Court’s view, the action must fail in all respects. [ 28 ] There will however be no award of judicial costs. FOR THESE REASONS, THE COURT:

DISMISSES the Application; THE WHOLE without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: February 9, 2016