2019 QCCQ 1446, 2019 QCCQ 1446

Brisk c. McBrearty 2019 QCCQ 1446 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BONAVENTURE TOWN OF CARLETON-SUR-MER « Civil Division » N o : 145-32-700048-180 DATE : January 10, 2019 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q. ______________________________________________________________________ RICHARD BRISK Plaintiff v. ÉRIC MCBREARTY Defendant and MINISTÈRE DES TRANSPORTS DU QUÉBEC LES ENTREPRISES P.E.C. INC.

Forced intervenant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff claims $1,800 plus court fees to the defendant Éric McBrearty, for damages sustain on his car while it was parked on his lot. [ 2 ] Mr. McBrearty forces the Ministère des transports du Québec (MTQ) to intervene as a co-defendant in the proceedings. The latter also asks another party, Les Entreprises P.E.C. inc (PEC), to also intervene as a co-defendant in the file. [ 3 ] At the hearing, the defendant Mr. McBrearty is absent.

The co-defendant the MTQ represented by Mr. Jean-Charles Fiset and PEC represented by Mr. Marc Chouinard. [ 4 ] Mr. McBrearty denies in his written contestation, any responsibility in the damages, alleging that Mr. Brisk is the one who left his car on his property for at least a month following the repairs done to his car. [ 5 ] MTQ contest the claim alleging having a contract with PEC for the snow removal and de-icing for this portion of the road.

They are therefore responsible for any events that could occur in that section. [ 6 ] PEC also denies its responsibility due to the fact that they did their work diligently, conscientiously and meticulously, as usual. Furthermore, there is no evidence in regards to the identity of the person responsible for the alleged damages nor how they occurred. CONTEXT [ 7 ] Around mid-October 2017, Mr. Brisk brings his car, a Dodge pick-up truck, to the garage Auto-tech, own by Mr.

McBrearty, in order to change the tires, do the alignment and other work. [ 8 ] All the work on the car was completed around November 1, 2017, as mentioned on the Auto Tech bill [1] . [ 9 ] Mr. Brisk was not able to pay the bill for the repairs right away, so he left his car on the premise of the garage. [ 10 ] On November 29, 2017, Mr. Brisk went to get his car back and noticed damages on his hood, fender and the radiator grill, possibly done by rocks. Some paint chips were also visible. [ 11 ] The following day November 30, 2017, Mr.

Brisk went to Central garage to have an estimate of the cost of the repairs to his car. The evaluation amounts to $1,879.10. [ 12 ] On January 18, 2018, Mr. Brisk sent a formal notice addressed to Auto Tech claiming the amount of the damages evaluated at $1,800. His attempt was unsuccessful. On July 24, 2018, Mr. Brisk instituted proceedings in the small claims division. ANALYSIS AND DECISION

[13] In civil law, the burden of proof lies on the plaintiff’s shoulders in accordance with the principle provided inarticle of the Civil Code of Quebec, by a preponderanceof evidence that the request is justified. [14] Mr. Brisk sustain that damages were caused by rocks projected on his car. He found some of them on his hood, fender and evenon the grill of his radiator, as well as paint chips. He produces pictures as exhibits to demonstrate the extent of the damages. [15] First of all, Mr. Brisk is the one who left his car in the parking lot for a long period of time.

He also admitted during histestimony that he does not know who exactly made the damages to his car. [16] The evidence is silent in regard to the person responsible for the damages. Mr. McBrearty cannot be held responsible for avehicle that a customer deliberately chooses to leave it in his parking lot, because of financial issues. [17] After hearing all the testimonials and the documentary evidence adduced, the Court concludes that Mr. Brisk has not establishedthrough preponderant evidence, that his claim is well-founded, therefore his claim is dismissed.

Exercising its judicial discretion andconsidering the particularity of the file, each party will assume their own costs. THEREFORE, the Court [18] DISMISSES the plaintiff’s demand; [19] THE WHOLE, each party paying its own costs. __________________________________ CELESTINA ALMEIDA, J.C.Q. Date of hearing : December 5, 2018