2019 QCCQ 3634, 2019 QCCQ 3634

Szabadi c. Chowieri 2019 QCCQ 3634 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” No.: 550-32-024266-188 DATE: June 17, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE STÉPHANE D. TREMBLAY, J.C.Q. ______________________________________________________________________ GABRIEL SZABADI Plaintiff v. SAMIR CHOWIERI and CONSTRUCTION KATASA 2010 INC. and KATASA GROUP INC. and KATASA DEVELOPMENT INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Mr. Szabadi alleges that the defendants unlawfully appropriated appliances that belong to him. He claims $9,000 in damages and interest from them. [ 2 ] The defendant, Samir Chowieri, disputes this claim. [1] He argues that he was entitled to take possession of the appliances at issue. [ 3 ] Alternatively, he submits that he cannot be held personally liable for the actions of legal persons related to him.

ISSUES [ 4 ] The application raises the following issues: • Were the defendants entitled to take the appliances acquired by Mr. Szabadi? • If not, what is the quantum of damages sustained by Mr. Szabadi? • Is Mr. Chowieri personally liable for the damages suffered by Mr. Szabadi, if any? BACKGROUND [ 5 ] The Court accepts the following relevant facts from the evidence. [ 6 ] Mr. Chowieri is an experienced businessperson in the Outaouais region. He is involved in real estate construction and promotion, among other things.

He operates his business through different companies, including the three co-defendants, Construction Katasa 2010 Inc. (“ Katasa 2010 ”), Katasa Development Inc. (“ Katasa Development ”) and Katasa Group Inc. (“ Katasa Group ”), (hereinafter collectively referred to as “ Katasa ”). [ 7 ] A brief chronology of the facts will lead to a better understanding of the context surrounding Mr. Szabadi’s claim. [ 8 ] In April 2015, Mr.

Szabadi expressed an interest in acquiring condominium unit number [1], located at 760 Aylmer Rd., Gatineau, which was part of Phase 1 of the Château Cartier [2] condominium project. (” Unit [1] ”). [ 9 ] During his visit that day, Pierre Chartrand, a housing consultant working for Katasa, accompanied Mr. Szabadi. [3] Mr. Chartrand explained to him that the condominium complex belonged to Katasa, but that Unit [1] belonged to Mr. Chowieri, Katasa’s senior officer. Mr. Chowieri had intended to occupy that unit, but a marital breakdown changed his plans. This explains why Unit [1] was for sale.

[ 10 ] Shortly after that first visit, Mr. Szabadi met with Mr. Chowieri at his office. It was then agreed that Mr. Szabadi would lease the condominium for a period of two years, with an option to purchase. [ 11 ] At the time, Unit [1] was unoccupied and some construction work needed to be done. A list of work to be completed was drawn up. [ 12 ] Nearly one year later, in February 2016, Mr. Szabadi received an offer to lease his condominium in Ottawa.

He therefore went to the sales office at the Château Cartier condominium complex to assess the progress of the work so that he could plan his move. [ 13 ] He again met Pierre Chartrand, who took him to visit Unit [1]. [ 14 ] He then discovered that Helder Farias occupied Unit [1]. He also noted several construction defects in the work that had been done. [ 15 ] Surprised, he contacted Mr. Chowieri. Mr.

Szabadi did not understand why Unit [1] was occupied when he planned to move in once the construction was completed. [ 16 ] Nevertheless, it was agreed that the work would be completed by April 1, 2016, at the latest, and that Mr. Szabadi could then move in. [ 17 ] Mr. Szabadi refused to sign the lease agreement with the option to purchase until Unit [1] had been finished to his entire satisfaction because he did not trust Mr. Chowieri completely. [ 18 ] That did not prevent Mr.

Chartrand from informing the current occupant (Helder Farias) that he would need to leave the premises by April 1, 2016, at the latest. [ 19 ] Mr. Farias was upset. He had just bought furniture for the condominium. He accepted to sell his appliances to Mr. Szabadi because he did not have a place to store them after April 1, 2016. [ 20 ] Mr. Szabadi thought it was a good deal. He wanted to be sure, however, that Mr. Chowieri had no rights with respect to the appliances at issue. He therefore asked Mr.

Chartrand to prepare a contract of sale for the appliances, [4] which he agreed to do. [ 21 ] One of the conditions of the contract of sale was the following: The owner of the unit is Samir Chowieri of Katasa construction. - It is the declaration of Mr. Helder Farias that no monies are owned to Mr. Chowieri and therefore no lean will be applied to the appliances to be purchased by Mr. Szabadi. (sic) [Emphasis added] [ 22 ] Mr. Chartrand also signed the contract of sale as a witness. [ 23 ] On March 21, 2016, Mr. Szabadi paid for the appliances with a bank draft. [5] [ 24 ] Mr.

Szabadi, however, wanted to be sure, before he handed over the bank draft, that he would be able to take possession of the appliances whether or not he signed the proposed lease agreement. [ 25 ] Mr. Chartrand reassured Mr. Szabadi and gave him a document he had signed, which indicated: I reached Sam and got his consent to release the 8 appliances belonging to Helder Farias from any liens or encumbrances from Sam Choweiri and Katasa Group, whether a lease is signed by Mr. Gabi Szabadi with Katasa Group or not, Mr.

Szabadi is free to remove all the appliances from unit [...] QC. [signed Pierre Chartrand] (sic) [ 26 ] The finishing work dragged on. Mr. Szabadi became impatient. In July 2016, he had an engineer inspect Unit [1]. [ 27 ] Even though it was July, no work had been done since March 2016. [ 28 ] In spite of that observation, Mr. Chartrand reassured Mr. Szabadi and told him that the finishing work would be done over the next few weeks. [ 29 ] In February 2017, Mr. Szabadi visited Unit [1] and noticed that the work was still not completed. Mr.

Szabadi permanently lost confidence and gave up on his plan to move into Unit [1]. [ 30 ] On March 6, 2017, he contacted Mr. Chartrand to agree on the date he would take possession of his appliances. [ 31 ] Two days later, Mr. Chartrand told him that Mr. Chowieri refused to allow him to take possession of his appliances. [ 32 ] Mr. Chowieri explained that he kept the appliances because Mr. Farias left without paying the last three months of rent. [6] [ 33 ] He therefore considered himself justified in seizing the appliances Mr. Farias had left in the condominium. ANALYSIS AND DECISION

[ 34 ] The legislature enacted the procedural regime applicable to small claims in order to facilitate access to justice by allowing litigants to recover small amounts of money at little cost. [7] Although its procedure is simple and flexible, the Small Claims Division of the Court of Quebec is not a court of equity.

Like before any other court of justice, the rules of evidence and the rules of law must be followed. [8] [ 35 ] In matters of evidence, the Civil Code of Québec provides that the party seeking to assert a right has the burden of proving the facts on which his or her claim is based. [9] That party must adduce evidence that renders the existence of the fact to be proved more probable than its non-existence. [10] The evidence must establish that the fact in issue is not only possible, but also probable. [ 36 ] Where the evidence of an essential fact is contradictory and the Court is unable to ascertain the truth, the party upon whom the burden of proof lies will lose. [11] [ 37 ] The Court will examine the claim and the grounds of defence on the basis of these principles.

Were the defendants entitled to take the appliances acquired by Mr. Szabadi? [ 38 ] Mr. Chowieri states that he was entitled to offset Mr. Farias’s rent arrears by the property that he left in the condominium. [ 39 ] Is that the case? [ 40 ] The compensation mechanism set out in the Civil Code of Québec is not a means to appropriate the property of one’s debtor. Compensation is effected upon the coexistence of debts that are certain, liquid and exigible and both of whose subject is a sum of money or a certain quantity of fungible property identical in kind. [12] [ 41 ] Clearly, Mr.

Chowieri may not raise compensation to claim the appliances that previously belonged to Mr. Farias. Compensation is effected upon debts whose subject is a sum of money, which is not the case here. [ 42 ] Moreover, Mr. Chowieri did not adduce any evidence to establish that Mr. Farias was indebted to him or to Katasa. No lease, statement of account or formal notice was filed, and the amount was not even specified. [ 43 ] The sole testimony of Mr. Chowieri that Mr. Farias owed him rent arrears is not sufficiently probative to establish Mr. Farias’s debt. [ 44 ] In any event, the appliances were no longer in Mr.

Farias’s patrimony. They had belonged to Mr. Szabadi since March 2016. [ 45 ] Mr. Chowieri did not have a suretyship on the appliances. He had no legal basis for appropriating the property belonging to Mr. Szabadi. [ 46 ] Furthermore, Mr. Farias was entitled to dispose of his property without Mr. Chowieri’s consent. [ 47 ] That being so, Mr. Chowieri’s argument that Mr. Chartrand was not authorized to consent to the sale in his name does nothing to assist him. What is the quantum of damages suffered by Mr. Szabadi? [ 48 ] The evidence establishes that the value of the appliances acquired by Mr.

Szabadi was $18,111 [13] before taxes. Mr. Szabadi, however, is not claiming that amount. He is claiming damages of $9,000, that is, the amount that he had or will have to pay for new appliances. [ 49 ] According to him, but for the fault of Samir Chowieri, he would not have had to pay that amount. [ 50 ] Although Mr. Szabadi did not file any invoices in support of his claim, the evidence in this respect is not contested. In addition, the contract of sale [14] specifically identifies the appliances subject to the sale, and Mr.

Szabadi filed the replacement cost of these appliances. [15] [ 51 ] In light of the evidence as a whole, which moreover is not contested, the Court considers Mr. Szabadi’s statement that he had or will have to spend $9,000 to acquire similar appliances reasonable. As a result, the defendants’ fault caused him damages for which he is entitled to compensation. Is Mr. Chowieri personally liable for the damages suffered by Mr. Szabadi? [ 52 ] At the hearing, Mr.

Chowieri sought to avoid his personal liability by making the following argument: A- Katasa 2010 built the condominium unit; B- Katasa 2010 then sold Unit [1] to Katherine Chowieri; [16] C- Therefore, Katherine Chowieri is the owner of the appliances, and she is the one who should be sued. [ 53 ] This argument does not withstand scrutiny. [ 54 ] In his application for revocation of judgment, Mr. Chowieri acknowledged that he could personally claim the furniture: 10.

Therefore, when the Plaintiff purchased the appliances from Mr Farias it was at his own risk and peril and therefore the right of the Defendant to holdback the appliances are opposable to the Plaintiff ;

11. The Defendant’s right to holdback the appliances is based on the fact that Mr. Helder Farias had vested them in favour of the Defendant before Mr. Farias mislead the Plaintiff and sold him is appliances on or about March 21, 2016; (sic) [Emphasis added] [ 55 ] As indicated by Mr. Szabadi, he has never dealt with any of Mr. Chowieri’s companies or related entities. [ 56 ] Obviously, Mr. Szabadi was aware that a company related to or controlled by Mr. Chowieri was responsible for the development of the condominium complex; however, he had been told that Mr.

Chowieri owned Unit [1]. [ 57 ] Moreover, the communication that followed concerning the refusal to allow Mr. Szabadi to take possession of his appliances took place directly with Samir Chowieri. [ 58 ] In those discussions, Mr. Chowieri never stated that one of the entities related to him had claimed the appliances. [ 59 ] In addition, it is surprising that at the hearing, Mr. Chowieri did not file any document in support of his argument. [17] [ 60 ] In any event, the ownership of the condominium is not determinative of the issue of Mr. Chowieri’s liability. [ 61 ] For Mr.

Chowieri to be found liable, the Court must find that he committed a fault. [18] [ 62 ] In this case, even if Mr. Chowieri did not take the appliances, the corporation or legal entity that unlawfully appropriated them was able to do so because of Mr. Chowieri’s deeds and actions. [ 63 ] The Court finds that Mr. Chowieri committed a fault by allowing one of his corporations or related entities to appropriate Mr. Szabadi’s appliances, when he knew that Mr. Szabadi had bought them from Mr. Farias in March 2016. [ 64 ] Mr.

Chowieri had to have known that the appliances that he or one of his companies appropriated were no longer Mr. Farias’s property. The exchange of text messages with Mr. Chartrand is a clear indication thereof. [ 65 ] By Mr. Chowieri’s admission, Construction Katasa 2010 Inc. appropriated the appliances. Therefore, it will also be held liable for the damages suffered by Mr. Szabadi. [ 66 ] Considering that Mr. Chowieri and Construction Katasa 2010 Inc. committed a fault, they will be condemned solidarily to compensate Mr. Szabadi for the damages caused by that fault. [19] [ 67 ] Mr.

Szabadi also claims fees of $21.79 for sending the formal notice. That claim is supported by sufficient documentation and will be granted. FOR THESE REASONS, THE COURT: CONDEMNS Samir Chowieri and Katasa Construction 2010 Inc. solidarily, to pay Gabriel Szabadi the amount of $9,021.79 with interest and the additional indemnity as of the formal notice, that is, October 30, 2018, and legal costs (court fees) of $187. __________________________________ STÉPHANE D. TREMBLAY, J.C.Q. Date of hearing: April 15, 2019