2016 QCCQ 9735, 2016 QCCQ 9735

Singh c. Kaur 2016 QCCQ 9735 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146194-156 DATE: July 14, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ RAHUL KUMAR SINGH Plaintiff v. RAVINDER JIT KAUR Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Rahul Kumar Singh sues Ms.

Ravinder Jit Kaur for $8,350. Mr. Singh remitted to Ms. Kaur that amount in cash ($8,000) and property, including chocolates ($150), on the basis that she would deliver them to Mr. Singh’s contact in India, Mr. Ravi Yadav. In turn, that contact was to deliver the cash and items to Mr. Singh’s family. Mr. Yadav told Mr. Singh that he did not receive the items that were to be delivered by Ms. Kaur at the designated time and place. However, Ms. Kaur states that she gave everything to Mr. Yadav. Question in issue: Has Mr. Singh proven that Ms. Kaur did not effect the promised delivery? Context [ 2 ] Mr. Singh met Ms.

Kaur in March 2013. He kept up with her by text messages and telephone calls. Mr. Singh lives in the Montreal area and Ms. Kaur often goes back and forth from Montreal to India. [ 3 ] Late in the year 2013, Ms. Kaur told Mr. Singh that she was going back to Delhi, India. She agreed to take an envelope of cash to India for Mr. Singh’s family. He gave her $6,000. Her instructions were to deliver the envelope at the Indira Gandhi International Airport in Delhi to a trusted friend of Mr. Singh, namely Ravi Yadav. Mr. Yadav would in turn give this money to Mr. Singh’s family. The delivery to Mr.

Yadav took place without a hitch. [ 4 ] On December 16, 2014, the parties exchanged text messages and Ms. Kaur informed Mr. Singh that she would be coming back to Canada for a short period and then return to Delhi, India. Mr. Singh asked if Ms. Kaur could take chocolates for his son on the return trip to India. Ms. Kaur agreed to do so and also offered to take money back, as she had done the previous time. Mr. Singh agreed. He subsequently gave her $8,000 in cash to take back [1] . Again, they agreed that the delivery was to be made to Mr. Yadav. [ 5 ] In her testimony, Ms.

Kaur acknowledged that she received the $8,000 and the various other items, including chocolates.

[ 6 ] On December 23, 2014, Ms. Kaur returned to India with the cash and other items to deliver. She states that she met Mr. Ravi Yadav at the airport and that she delivered to him the cash and other items, as she had done the previous time. [ 7 ] Then she left the airport and carried on with her own matters. [ 8 ] Mr. Singh says that he spoke to Mr. Yadav who stated that Ms. Kaur never turned up and never gave him anything. Mr. Yadav did not testify. Mr. Singh did not file an affidavit of Mr. Yadav nor was a declaration in lieu of testimony of Mr. Yadav deposited into Court. Analysis and Decision [ 9 ] Mr. Singh and Ms. Kaur had agreed to a contract of gratuitous carriage of property.

Article 2032 of the Civil Code of Quebec (“ C.C.Q. ”) reads as follows: 2032 . Except where it is effected by a carrier offering his services to the public in the ordinary course of business of his enterprise, gratuitous carriage of a person or property is not governed by the rules contained in this

chapter and the carrier is bound only by an obligation of prudence and diligence . [Emphasis added] [ 10 ] As Ms. Kaur was not being paid for the delivery of the items, the contract is considered gratuitous.

Article 2032 C.C.Q. states the obligation to effect the promised delivery is one of prudence and diligence. The obligation is therefore considered to be one of “means”, that is to say that the obligation assumed by Ms. Kaur was to make reasonable and diligent efforts to effect the delivery but she is not held to an obligation of result. [ 11 ] In the present case, Ms. Kaur states that not only did she exercise all reasonable efforts to effect the delivery but that, in fact, she did make the delivery to Mr. Yadav. [ 12 ] Mr. Singh states that that is false. Mr. Singh states that Ms.

Kaur is a liar and a defrauder and that she stole his money and the various items and that she betrayed his trust and confidence. [ 13 ] But he has no proof to counter Ms. Kaur’s affirmative testimony. Ms. Kaur denies that she has done anything wrong and stands by her version of events. [ 14 ] Article 2803(1) C.C.Q. reads as follows: 2803 . A person seeking to assert a right shall prove the facts on which his claim is based. [ 15 ] Articles 2804 and 2805 C.C.Q. reads as follows: 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.

2805. Good faith is always presumed, unless the law expressly requires that it be proved. [ 16 ] Mr. Singh has not offered any objective proof that Ms. Kaur did not make the delivery, as she states that she did. She had already done so in the past. She states that she recognized Mr. Yadav and that she gave him all the items to be delivered, including the cash. [ 17 ] Ms. Kaur states that he counted the money in front of her, as he had done the previous time, and approved that it totalled $8,000. [ 18 ] To rebut that version of events, it behooved Mr. Singh to produce some evidence that Mr.

Yadav did not in fact receive the delivery. [ 19 ] No letter, written statement, affidavit or declaration in lieu of testimony was submitted by Mr. Singh to rebut Ms. Kaur’s version of events. Ms. Kaur’s version was stated in her defence filed into the Court Record thirty (30) days after the receipt of Mr. Singh’s legal proceeding so he was not taken by surprise by that version of events or grounds of defence. [ 20 ] It may be that Ms. Kaur is not telling the truth. It may be that she is misleading the Court and has committed perjuring during her testimony, as Mr.

Singh states. [ 21 ] But the Court cannot presume that. [ 22 ] If it is the case that Ms. Kaur has committed perjury, she will have to live with that fact and the future consequences. But the Court has no grounds to make that assumption and even less so to rule upon the basis of such an assumption. [ 23 ] The Court is required to base its decision on the evidence heard and the balance of probabilities as to what transpired. [ 24 ] Mr. Singh made no evidence to disprove the possibility that the delivery was in fact made by Ms. Kaur to Mr.

Yadav and the latter either lost, misappropriated or otherwise disposed of the delivered money and other items. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff Rahul Kumar Singh’s Demand; WITHOUT COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: June 20, 2016