2016 QCCQ 19535, 2016 QCCQ 19535

E.H. c. M.P. 2016 QCCQ 19535 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N°: 500-22-225128-159 DATE: NOVEMBER 23, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ E. H. Plaintiff v. M. P.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claimed damages in the amount of $25,257.00 on the ground that his 2006 Cadillac DTS (the car) was “taken away” from him by Defendant in October of 2013. [ 2 ] According to Defendant, Plaintiff signed a debt acknowledgment in his favour and the car was remitted to him when Plaintiff realised that he could not reimburse his debt. At the hearing, Defendant sought the payment of legal costs as well as professional fees by Plaintiff.

QUESTIONS IN DISPUTE - Is Defendant liable for the damages claimed by Plaintiff? - Is Defendant’s claim for professional fees well founded? CONTEXT [ 3 ] Plaintiff bought the car in 2007 and used it until the month of October of 2013. On October 4 th , 2013, he accepted to lend the car to his wife who wanted to drive to Ottawa. A couple of days later, as the car was not returned, he asked questions to his wife and to Defendant, a friend and business acquaintance. [ 4 ] As Plaintiff wasn't getting any answers, he felt that he had to "hunt" for the car during more than two years.

In 2016, in the course of his divorce proceedings, Judge Nantel, S.C.J. ordered that the car be returned to Plaintiff if his ex-wife was in possession of said car. Plaintiff testified that he finally found the car hidden in the backyard of Defendant's residence. He had the car seized by bailiff and towed to his office. He described the condition of the car as follows: - It was not running; - It was rusted; - The battery was dead; - They were leaks; etc. [ 5 ] Plaintiff repaired the car and according to his testimony, he incurred expenses in the amount of $1,000.00 for the parts.

He invested a lot of time in repairing it and claimed $30.00 a day for the loss of use of the car during a two-year period. [ 6 ] Defendant explained that he was involved professionally and socially with Plaintiff. In February of 2013, Plaintiff owed him money for storage and he wanted to be paid. Plaintiff then accepted to sign a debt acknowledgement in the amount of $7,850.00 to be paid off on April 1 st , 2013.

The proof showed that it is Plaintiff's wife who filled in the debt acknowledgment according to Plaintiff's instructions. [ 7 ] Defendant explained that in April of 2013, Plaintiff requested an extension of the delay to reimburse his debt but still neglected to pay it. On October 1 st , 2013, he gave Defendant a written consent to take possession of and drive the car.

[ 8 ] In August of 2014, Defendant registered a lien on the car at the Registre des droits personnels et reels mobiliers. On August 20 th , 2014 a bailiff served upon Plaintiff, through his employee Mr. Maltsev, a prior notice of the exercise of a hypothecary right as per sections 2757 and following of the Quebec Civil Code ( Q.C.C. ). [ 9 ] Defendant explained that he took no additional steps with respect to the car considering the number of issues he then had with Plaintiff.

In addition, Plaintiff was also going through divorce proceedings. [ 10 ] A debt acknowledgment was filed into the Court record and after an expert graphologist, Mrs. Pettinati, prepared a report, Plaintiff admitted having signed it. He however testified that he had no recollection whatsoever of signing this document. From Plaintiff's standpoint, he never owed any money to Defendant and he never accepted to be responsible for his wife's debts with Defendant.

ANALYSIS - Is Defendant liable for the damages claimed by Plaintiff? [ 11 ] Plaintiff has the onus of demonstrating that Defendant’s fault caused the damages claimed as per sections 2803 and 2804 Q.C.C. which read as follows: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 12 ] The preponderant proof demonstrated that Plaintiff signed a debt acknowledgement and remitted the car to Defendant following his incapacity to pay off his debt. Defendant took possession of the car with Plaintiff’s consent. [ 13 ] Considering the above, Plaintiff failed to demonstrate a fault on the part of Defendant. In addition, he offered no documentary proof to support the damages claimed.

In view of the foregoing, Plaintiff’s claim is dismissed. - Is Defendant’s claim for professional fees well founded? [ 14 ] Defendant argued at the hearing that he is entitled not only to the legal costs but also to professional fees considering the application of

Section 342 of the Code of Civil Procedure (C.C.P.) which reads as follows : 342.

The court, after hearing the parties, may punish substantial breaches noted in the conduct of the proceeding by ordering a party to pay to another party, as legal costs, an amount that it considers fair and reasonable to cover the professional fees of the other party’s lawyer or, if the other party is not represented by a lawyer, to compensate the other party for the time spent on the case and the work involved. [ 15 ] Although Plaintiff has neglected to demonstrate liability on the part of Defendant and although he admitted at the hearing having signed the debt acknowledgment, the Court finds no substantial breaches in his conduct which could justify the payment of professional fees.

In addition, no proof was offered by Defendant regarding said fees. FOR THESE REASONS, THE COURT: DISMISSES E. H.'s Motion to Institute Proceedings against M. P.; THE WHOLE , with legal costs. ____________________________ JULIE VEILLEUX, J.C.Q . Mr. E. H.

For himself Me Pierre Gélinas Audet F.G. and associates inc. Defendants’ attorney Hearing date: October 14, 2016