2016 QCCQ 14780, 2016 QCCQ 14780

9282-8078 Québec inc. c. 6002676 Canada inc. 2016 QCCQ 14780 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division» No: 500-32-149195-150 DATE: November 17, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ 9282-8078 QUEBEC INC. Plaintiff v. 6002676 CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 9282-8078 Quebec inc. (Quebec inc.) claims $2,904.43 from Defendant 6002676 Canada inc. (Canada inc.) for unpaid services rendered as driver of its trucks with various loads. [ 2 ] Canada inc. admits owing $1,677.01 to Quebec inc. but pleads that Quebec inc. agreed to disregard that amount in view of damages caused to another vehicle for which it would be responsible. [ 3 ] Quebec inc. denies having reached such an agreement with Canada inc.

QUESTION IN ISSUE Did Quebec inc. establish that Canada inc. owes it $2,904.43? CONTEXT AND ANALYSIS [ 4 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [1] . [ 5 ] The burden of proof [2] lies on Quebec inc. presenting a demand.

That party has to present evidence which will be weighed on the balance of probabilities, also called preponderance of evidence [3] . [ 6 ] In June 2015, a verbal agreement was reached between the representatives of Quebec inc. and Canada inc. where Quebec inc. would be hired as a sub-trade for driving the trucks with various loads for Canada inc. [ 7 ] Both representatives testified at trial. [ 8 ] Quebec inc. did work for Canada inc. from the beginning of June 2015 until July 28, 2015 when its representative decided to quit. [ 9 ] On September 7, 2015 [4] , Quebec inc. sent a letter of notice to Canada inc. based on its calculation for unpaid services linked to the mileage covered by the driver. [ 10 ] Quebec inc.’s owns calculations on the letter of notice does not match the review of the log book produced as evidence. [ 11 ] On one hand, upon calculating with Quebec inc. representative’s log book, the Court concludes that 3 899.28 miles would have been unpaid. [ 12 ] Canada inc. uses a different software to calculate the mileage and reaches a total of 3604.8 miles to which it adds additional loads to come up with the amount owed of $1,667.01 to Quebec inc. [ 13 ] Every person has a duty to honour his contractual undertakings [5] .

In this case, the difficulty is to define the scope of these undertakings.

[ 14 ] Contradictory versions are given regarding the content of the verbal agreement. [ 15 ] For instance, according to Quebec inc., 42 cents were to be paid for each mile and a bonus of three cents per mile was to be added at the end of each month.

According to Canada inc., the bonus was only granted in the absence of any accident and damages. [ 16 ] The amount allotted for the food inspections or the extra loads varies also ($30 versus $35). [ 17 ] When the evidence is contradictory or not sufficiently conclusive and when the Court is unable to determine where the truth lies, the party bound to satisfy the requirements of the burden of proof will fail and lose, in part or totally [6] . [ 18 ] The invoicing shows that Quebec inc. was never paid an additional three cents per mile and never invoiced it. [ 19 ] Furthermore, the invoicing shows that the food inspections or the extra loads were calculated at $30 and not at $35. [ 20 ] No proof was provided for food inspections ($35) or tolls paid ($195) or accountant fees ($600).

On this last heading of damages, the Court points out that in contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted [7] . [ 21 ] Based on the evidence, the Court relies on Canada inc. data rather than on the calculations of Quebec inc. [ 22 ] The Court concludes that Canada inc. owes an amount of $1,677.01 to Quebec inc. [ 23 ] Canada inc. alleges that Quebec inc. has renounced to any outstanding balance owed in view of damages ($4,310.84) caused to another vehicle on July 8, 2015 by Quebec inc. [ 24 ] Canada inc. pleads that when the representative of Quebec inc. decided to quit, they reached an agreement where Quebec inc. would drop its claim for unpaid services considering that Canada inc. would not claim to Quebec inc. the amount of the damages to the other vehicle. [ 25 ] Canada inc. pleads that Quebec inc. knew that any damages below the deductible of $10,000 caused by the driver would be subtracted from any amount owed to it. [ 26 ] In a nutshell, its action should simply be dismissed. [ 27 ] Although Quebec inc. admits that an accident occurred on July 8, 2015 [8] , it denies any agreement with Canada inc. to renounce to the amount owed. [ 28 ] Facing contradictory evidence, the Court does not conclude that Quebec inc. had agreed to renounce to the amount owed for its services.

Therefore, Canada inc. must pay $1,677.01. FOR THOSE REASONS, THE COURT: PARTLY GRANTS the action of Plaintiff 9282-8078 Quebec inc.; CONDEMNS Defendant 6002676 Canada inc. to pay $1,677.01 to Plaintiff 9282-8078 Quebec inc., plus the interest at the legal rate of 5 % per annum and the additional indemnity provided for at

article 1619 C.c.Q. , calculated as of September 7, 2015 ; CONDEMNS Defendant 6002676 Canada inc. to pay the judicial fees of $159 and the postage cost of $11.50, for a total of $170.50 to Plaintiff 9282-8078 Quebec inc. __________________________________ DOMINIQUE VÉZINA, J.C.Q Date of trial: October 4, 2016