2016 QCCQ 14779, 2016 QCCQ 14779

CST Canada Co c. Deane 2016 QCCQ 14779 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL « Civil Division» No: 500-32-148978-150 DATE: December 8, 2016 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ CST CANADA CO Plaintiff v.

BRIAN DEANE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Initially, CST Canada Co ( CST ) was claiming $897.97 from Doreen Kennedy (Mrs Kennedy) . [ 2 ] However, as she passed away, her heir and husband Brian Deane (Mr Deane) filed an Affidavit in continuance of suit to establish his interest, indicating: […] 1. THE DEFENDANT – DOREEN PASSED AWAY ON THE 21 ST DAY OF DEC 2014. (SEE COPY OF DEATH CERTIFICATE ATTACHED) 2.

I AM THE SURVIVING SPOUSE OF THE DECEASED, (REGISTRATION #3222872 BY Me J.M. TROTTIER REGISTERED IN THE MONTREAL REGISTRY OFFICE. 3. I AM A HEIR OF THE DECEASED DEFENDANTS ESTATE, SEE WILL PREPARED BY Me JENNIFER McCARTHY SET UP IN JANUARY 21, 2013 […] [ 3 ] Mr Deane denies owing $897.97. QUESTION IN ISSUE Has CST established its right to claim $897.97? 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 the party presenting a demand.

That party has to present evidence which will be weighed on the balance of probabilities, also called preponderance of evidence [3] . This implies that to convince the Court, the demand must demonstrate that the existence of a fact is more probable than its non-existence [4] . [ 6 ] On December 3, 1995 [5] , Mrs Kennedy signed a contract with Ultramar Canada Co inc. (Ultramar) [6] regarding heating oil deliveries at her home.

Such contract was renewed from year to year. [ 7 ] Upon the request by the Court, CST has established that it took over all contracts signed by Ultramar and had the interest to sue. [ 8 ] Throughout the years, Ultramar would fill Mrs Kennedy’s oil tank from time to time, without specific request, as foreseen in the contract. [ 9 ] On January 22, 2015, Mr Deane requested services from Ultramar in view of an heating problem in the property [7] . At trial, he admitted it. [ 10 ] On that day, Mr Deane signed the work order/invoice including the written description of the job [8] .

The cost was $188.79. [ 11 ] On February 9, 2015 and on March 3, 2015, oil was delivered at Mrs Kennedy’s property for a total of $708.98 [9] . [ 12 ] Both the services and oil deliveries claimed by CST amount to $897.77. [ 13 ] On May 21, 2015 [10] , CST’s credit department issued a notice for payment.

[ 14 ] Mr Deane contests the automatic deliveries as he did not request nor accept them. [ 15 ] According to him, Ultramar knew that his wife passed away and should have enquire for all future deliveries under the contract. [ 16 ] The Court granted Mr Deane’s permission to review his file and provide any evidence of cancellation of contract or acknowledgement by Ultramar about the death of his wife, prior to the last deliveries [11] . [ 17 ] The CST’s letter dated January 20, 2015 refers to Mr Deane’s request and indicates: This document will allow us to make the changes you have requested and thus authorize us to continue delivery and other services at the same terms and conditions previously established with the owner of the original contract. [ 18 ] The Court concludes that CST was aware of the death of Mrs Kennedy, prior to the last deliveries in February and March 2015. [ 19 ] However, the same terms and conditions for the contract were to be applied. [ 20 ] Mr Deane indicated that the estate had the intention to cancel the contract and that Ultramar was aware of it. [ 21 ] Indeed, the contract mentioned how the contract could be cancelled, but Mr Deane failed to establish that he did so according to the expressed conditions mentioned. [ 22 ] Furthermore, the oil was delivered and used for the heating system. [ 23 ] Every person has a duty to honour his contractual undertakings [12] . [ 24 ] Therefore, CST has established that the amount of $897.97 is owed by Mr Deane [13] .

FOR THOSE REASONS, THE COURT: GRANTS the action of Plaintiff CST Canada Co; CONDEMNS Defendant Brian Deane to pay $897.97 to Plaintiff CST Canada Co, plus the yearly interest of 18 % per year, calculated as of May 27, 2015 [14] ; CONDEMNS Defendant Brian Deane to pay the legal costs of $74.00 to Plaintiff CST Canada Co. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Date of trial: Under advisement: October 18, 2016 November 8, 2016