2012 QCCQ 6580, 2012 QCCQ 6580

Zuckerman c. Chamsi 2012 QCCQ 6580 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N° : 500-32-126562-109 DATE : AUGUST 27, 2012 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ BRAHM ZUCKERMAN Plaintiff v. HENRI CHAMSI and HOUSSES D’AUTO HENRI SEAT COVERS INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $2,567.90 following repairs done by Defendant to his Honda S2000 (the vehicle). THE CONTEXT [ 2 ] Plaintiff’s vehicle was vandalized in March 2010. He contacted his insurer, Intact compagnie d’assurance (Intact), who appointed an insurance adjustor to evaluate the loss. Intact provided the Plaintiff with an estimate in the amount of $3,815.78 for the replacement of the convertible roof of the vehicle.

This estimate refers to the fact that the parts used for the repair will be “PIÈCES SIMILAIRES” together with the labour and minor accessory parts. [ 3 ] Plaintiff explained at the hearing that he agreed to the estimate from Intact and accepted the indemnity of $3,178.74 paid by Intact jointly to Plaintiff and Defendant Housses d’auto Henri Seat Covers inc. (the Company). [ 4 ] Following the payment of said indemnity, Plaintiff alleges that he made a verbal agreement with Defendant Chamsi according to which, although Intact estimate referred to “pièces similaires”, the Company would nevertheless install original parts from Honda.

Plaintiff also referred to a telephone conversation between Mr. Chamsi and Della Honda, from Plattsburgh, U.S.A., which he witnessed, and related to the order of original Honda parts. [ 5 ] According to Plaintiff, he paid $600 cash to Defendant Chamsi to get original parts but obtained no receipt. [ 6 ] The Company repaired the roof of the vehicle and shortly after, Plaintiff noticed that the parts installed were not original ones.

He now alleges that the roof makes noise and that it is not installed properly and wishes to be reimbursed $2,567.90 of the amount of $3,178.74 paid by Intact. [ 7 ] Defendant Chamsi is represented at the hearing by his spouse, Jamila Baoudane, who is the manager of the Company. Mrs. Baoudane, who was present when Plaintiff and Defendant Chamsi discussed the repairs, denied any verbal agreement regarding the installation of original parts and also denied having received $600 cash in this respect.

In any event, the contract for the repairs was between Plaintiff and the Company. [ 8 ] She mentioned that the estimate provided by Intact clearly refers to “pièces similaires” as well as the invoice prepared by the Company on April 4 th , 2010. ANALYSIS [ 9 ] Plaintiff has the burden of demonstrating by preponderant proof that there was a verbal agreement between himself and the Company or Defendant Chamsi with respect to the installation of original parts on the vehicle. Sections 2803 and 2804 C.C.Q read as follows: 2803. A person wishing to assert a right shall prove the facts on which his claim is based.

A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 10 ] Considering Plaintiff’s acceptance of the estimate prepared by the Insurer, considering the invoice prepared by the Company, considering the fact that Plaintiff has no receipt of the amount paid to Defendant Chamsi, the Court finds that Plaintiff has neglected to demonstrate by preponderant proof an agreement with either Defendant Chamsi or the Company with respect to the installation of original parts on the vehicle. [ 11 ] In view of the foregoing, Plaintiff’s claim must be dismissed both against Defendant Chamsi and the Company.

FOR THESE REASONS, THE COURT: DISMISSES Brahm Zuckerman’s claim against Henri Chamsi, without costs; DISMISSES Brahm Zuckerman’s claim against Housses d’auto Henri Seat Covers inc., with costs ($136). __________________________________ JULIE VEILLEUX, J.C.Q. Hearing date: July 10, 2012