2017 QCCQ 9936, 2017 QCCQ 9936

9097-5509 Québec inc. c. 8442398 Canada inc. 2017 QCCQ 9936 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF CHÂTEAUGUAY Civil Division No: 760-32-017600-166 DATE: June 22, 2017 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ 9097-5509 QUÉBEC INC. Plaintiff v. 8442398 CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 9097-5509 Québec inc. (ALB Impex), an import and export broker, claims from 8442398 Canada inc. (8442398) the amount of $10 112.65, representing unpaid invoices between April 30 and November 17, 2015.

THE FACTS: [ 2 ] ALB Impex’s claim is detailed as follows: DATE INVOICE NUMBER REFERENCE AMOUNT DUE 30/04/15 12125 Container HLXU8445870 2,297.42 10/06/15 12149 Container HLXU6497257 1,127.53 30/07/15 12164 MRKU9945228 258.69 08/09/15 12179 Container FSCU913264 1,180.10 30/10/15 12193 10173-403270170 548 52 17/11/15 12198 Container MEDU186677 1,149.47 Total $ 6561.73 CND 17/07/15 61944 DFSU2436846 660.04 17/07/15 61945 TGHU9253692 14.00 21/07/15 61950 144-2122809-2 309.94 05/08/15 62041 144-9683172-2 135.00 19/08/15 62111 Container BSIU2792917 615 00 24/08/15 62143 144-2144663-7 1,287.08 24/08/15 62144 144-2122936-3 1,290.53

25/08/15 62158 144-2123040-3 205.41 17/11/15 62638 144-2143829-5 (1,817.09) Total $ 2699.91 USD [ 3 ] In its demand, ALB Impex claims $ 3550.92 CND for the $ 2699.91 USD, at an exchange rate of 1.3152, on the date of filing of the demand.

Invoices and supporting documents are filed as exhibits P-4 and P-5. [ 4 ] In its contestation, 8442398 alleges four points: • ALB Impex did not credit an amount of $ 4753.75 paid on November 10, 2015; • ALB Impex has billed $ 345 for fees resulting from an error on their part; • ALB Impex has not credited $ 1760 USD contrary to an agreement between the parties; • ALB Impex misapplied a payment of $ 1218.86 USD made by defendant; [ 5 ] At the hearing, 8442398 had no proof to offer on the second point.

As for the credit of $ 1760 USD, 8442398 recognized in a further email that such credit was indeed applied. [ 6 ] As for the payments of $ 1218.86 and $ 4753 that were misapplied, ALB Impex offered at the hearing to send additional documents to demonstrate the contrary within 15 days, and 8442398 was granted the same delay to respond. [ 7 ] As concerns the payment $ 4753.75 made by cheque number 1301 dated July 2, 2015, the copy of said cheque demonstrates that it was made to the order of ALB Logistics to pay a series of invoices that are not part of this claim. [ 8 ] Regarding the payment of $ 1218.86, 8442398 pretends, after reviewing the additional documents sent by ALB Impex, that invoice number 61722 in the amount of $ 465 USD was never received and does not appear in any statement of account ever sent to ALB Impex. [ 9 ] In their response to ALB Impex’ documents, 8442398 asked that ALB Impex send them a copy of invoice number 61722, and explanation as of why this invoice does not appear on any account statement, with copy of all invoices from 2015 and corresponding payments. [ 10 ] Such a demand by 8442398 was not transmitted by the undersigned to ALB Impex, as 8442398 could not request further proof in this litigation regarding an invoice that is not claimed in this file.

ANALYSIS AND DECISION: [ 11 ]

Section 2803 of the Quebec Civil Code requires that the party alleging a fact has the burden to prove it. [ 12 ] To succeed in its action, ALB Impex had to demonstrate the invoices sent to 8442398 and to file the supporting documents, which they did. They also had to prove that they had not received payment for those bills. [ 13 ] On the other hand, 8442398 had the burden to prove to the Court that such invoices were not due, or were already paid.

The grounds of defense raised by 8442398 are related to other invoices, and they did not prove that the services described in the unpaid invoices were not rendered or that they were not correctly billed. [ 14 ] If there is a litigation between the parties about invoice 61722 of $ 465 USD, it cannot be opposed to ALB Impex who is claiming an important amount of money for other invoices. [ 15 ] The Court has to conclude that 8442398 has not proven that they had reasons not to pay the invoices mentioned in the table appearing on page 2 of this judgment, and they will be condemn to pay them accordingly.

FOR ALL THESE REASONS, THE COURT: GRANTS the action; CONDEMNS defendant, 8442398 CANADA INC., to pay to plaintiff, 9097-5509 QUÉBEC INC., the amount of $ 10 112.65 plus interest at the legal rate and the additional indemnity provided for by

Section 1619 Q.c.C., as of March 18, 2016, date of reception of the Letter of Demand, with the judicial costs of $ 300.

__________________________________ CÉLINE GERVAIS, J.Q.C.