2020 QCCQ 1120, 2020 QCCQ 1120

4136535 Canada inc. c. Lajoie (Remorquage Lajoie enr.) 2020 QCCQ 1120 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-32-705262-188 DATE: March 12, 2020 ______________________________________________________________________ BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ 4136535 CANADA INC. Plaintiff v.

ÉRIC LAJOIE (REMORQUAGE LAJOIE ENR.) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff claims $3,969.32 from the defendant for damage to its truck during a towing operation. [ 2 ] The defendant argues that he did not commit any fault during this operation. ISSUE [ 3 ] Did the defendant commit a fault causing damage to the plaintiff’s truck during the towing operation? CONTEXT AND ANALYSIS [ 4 ] The plaintiff operates a transport business.

On May 1, 2015, the plaintiff’s truck lost a wheel on Highway 50, near Lachute. [ 5 ] The defendant operates a heavy vehicle towing business and has 18 years’ experience in this field. On May 1, 2015, he was hired by the plaintiff to tow its truck.

Upon arriving at the scene, the defendant noted that the plaintiff’s truck was old and that the underside was resting on the axle, that is, the mechanical device that connects the wheels. [ 6 ] In addition, the defendant noted that the truck was not equipped with a hook for it to be lifted so that the tow truck’s anchoring mechanism could be inserted under it. [ 7 ] However, the defendant somehow managed to lift the plaintiff’s truck and complete the towing operation. [ 8 ] According to the explanations given at the trial, it appears that the oil pan is located near the axle, such that, when the wheel was lost, the oil pan was probably damaged. [ 9 ] Even if this was not the case, the defendant explained that he had no other choice than to proceed as he did, which may have damaged the oil pan, but if it did, this was because of the dilapidated state of the vehicle, the absence of hooks to lift it, and the location of the oil pan near the axle. [ 10 ] In civil matters, the burden of proof lies with the plaintiff according to the principle set out in art. 2803 of the Civil Code of Québec (“ C.C.Q. ”), which states: “[a] person seeking to assert a right shall prove the facts on which his claim is based”. [ 11 ] The Court renders its decision in accordance with the balance of probabilities set out under art. 2804 C.C.Q., which states that “[e]vidence is sufficient if it renders the existence of a fact more probable than its non-existence”.

In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 12 ] After analysis, the Court finds that the plaintiff has not discharged its burden of establishing that the defendant committed any fault whatsoever. [ 13 ] Given the condition of the plaintiff's truck, the defendant could not have proceeded otherwise when he towed it.

No evidence was adduced to establish that a prudent and diligent tow truck operator would have acted differently than the defendant during that towing operation. [ 14 ] In addition, the evidence establishes that the defendant was ready to discuss compensation with the plaintiff’s representative, but

the latter never responded. [ 15 ] Consequently, the Court dismisses the plaintiff’s application, but, exercising its discretion, does not impose any costs. FOR THESE REASONS, THE COURT: DISMISSES 4136535 Canada Inc.’s application, each party paying its own costs. __________________________________ Henri Richard, J.C.Q Date of hearing: February 11, 2020