2021 QCCQ 1092, 2021 QCCQ 1092

Leite Fraga c. Archibald 2021 QCCQ 1092 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-32-706998-186 DATE: February 22, 2021 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. ______________________________________________________________________ MARCUS VENICIUS LEITE FRAGA Plaintiff v.

TERESA ARCHIBALD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On a rainy evening at the end of April 2018, the Plaintiff was cycling on a well-delimited bike path eastward on de Maisonneuve Boulevard in Montreal. [ 2 ] Inexplicably, the Defendant, who was driving westbound on de Maisonneuve Boulevard, found herself travelling on the bicycle path, despite the presence of flexible markers that delineated the public road from the bike path. [ 3 ] Obstructed to circulate with his bicycle on the bike path by the presence of the Defendant's car, a verbal altercation occurred during which the Plaintiff asks the Defendant to leave the bicycle lane and return to De Maisonneuve Boulevard.

Remaining impassive, she refuses to move. [ 4 ] A few moments later, the Defendant attempts to back up her vehicle and get back on the public road, but is prevented from doing so by the presence of cyclists behind her vehicle. She then moves towards the Plaintiff, who is still on his bicycle and asking her to stop, which she refuses to do.

That being so, he jumps off his bike and the Defendant continues to ride slowly on the Plaintiff's bike left on the bike path. [ 5 ] This is when an off-duty police officer intervenes and asks the Defendant not to move until the police arrive, failing which it could constitute a hit-and-run. [ 6 ] Called by the Plaintiff and two other cyclists who witness the scene, police officers arrive later and give the Defendant a statement of offence for being on the bike path with her car. [ 7 ] The Plaintiff claims from the Defendant the replacement value of his bicycle in the amount of $791.37 and damages for pain and suffering in the amount of $1,000. [ 8 ] In her defence, the Defendant alleges that she was not in any way on the bicycle path with her vehicle and that the Defendant damaged her vehicle.

However, she did not file a cross-application. ISSUE [ 9 ] Who is telling the truth? CONTEXT AND ANALYSIS [ 10 ] In civil law, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided for in

section 2803 of the Civil Code of Québec ( CCQ ) which states, “A person seeking to assert a right shall prove the facts on which his claim is based.” [ 11 ] The Court decides on the balance of probabilities provided for in

section 2804 CCQ which states, “Evidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must establish what is more probable and likely than improbable or unlikely. [ 12 ] After analysis of the evidence presented, there is no doubt that the Plaintiff has discharged its burden of establishing fault on the part of the Defendant. [ 13 ] The photographic and video evidence produced show that the Defendant's vehicle is entirely on the bike path. Moreover, the testimonies of two independent witnesses of the scene, Mr. Jonathan Crago and Mr.

Peymane Marandi, establish this fact and corroborate the Plaintiff's version of events. [ 14 ] During the trial, the Defendant reiterates that she was on de Maisonneuve Boulevard and not on the bike path. Her testimony is

unlikely and not credible. Had this been the case, the Plaintiff would not have reacted so vehemently to the presence of the Defendant on the bike path and could have continued on his way without any problem.

In any case, the Defendant's version is contradicted by the Plaintiff's photographic and video evidence. [ 15 ] The fact that the Defendant was declared not guilty of the offence of being on the bike path before the Municipal Court of Montreal has no impact on the present case. [ 16 ] One fact remains undeniable, the Defendant received a statement of offence for having found herself with her vehicle on the bike path. [ 17 ] The Plaintiff establishes that he paid $450 for his bicycle.

Therefore, he cannot claim replacement value, since in civil matters, the Court must compensate the Plaintiff for the damages actually suffered, thus preventing it from awarding amounts that are higher than the actual value of the damaged good. [ 18 ] Furthermore, the Court concludes that the Defendant's attitude during this altercation was faulty in that she refused all communication and deliberately damaged the Plaintiff's bicycle. [ 19 ] The Court arbitrates damages for pain and suffering caused to the Plaintiff as a result of the Defendant's fault in the amount of $300.

FOR THESE REASONS, THE COURT: CONDEMS Teresa Archibald to pay to Marcus Venicius Leite Fraga $ 750 with interest at the legal rate and the additional indemnity provided for in

section 1619 CCQ starting October 22, 2018; CONDEMS Teresa Archibald to pay to Marcus Venicius Leite Fraga $101 as legal costs. __________________________________ Henri Richard, J.C.Q Date of hearing: February 9, 2021