2011 QCCQ 11123, 2011 QCCQ 11123

9169-2806 Québec inc. c. Naghieh 2011 QCCQ 11123 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-117125-098 DATE: August 30, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ 9169-2806 QUÉBEC INC. 4748 O'Connell Street Pierrefonds, Quebec H9J 2Y6 Plaintiff vs.

MEHRNOUSH NAGHIEH […] Beaconsfield, Quebec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, 9169-2806 Quebec Inc. ("Quebec Inc."), a car dealer, sues the Defendant, Mehrnoush Naghieh, alleging that she failed to pay $7,000, the price of a Volkswagen New Beetle 2003 sold to her on March 6, 2008. [ 2 ] Ms Naghieh contests the action alleging that she did, in fact, pay the $7,000 price of the car, at the time of the transfer of the immatriculation.

ISSUE [ 3 ] Both parties agree that the price of the vehicle was $7,000 and that the Plaintiff transferred the ownership of the vehicle to the Defendant. [ 4 ] The only question to be decided is whether the price of $7,000 was paid. Burden of proof [ 5 ] The obligation to pay $7,000 being admitted, the burden of proving that the payment was, in fact, made lies upon the Defendant because it is she that is alleging the extinction of the right through payment. [ 6 ]

Article 2803 of the Civil Code of Quebec reads as follow: 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. (Underlining added for emphasis) [ 7 ] There is no written proof of the payment. The Defendant testifies that the day of the transfer she remitted $7,000 in $100

bills to Mr Kourosh Salemy Seyfeddin, the principal of Quebec Inc and her boyfriend at the time. [ 8 ] Ordinarily, the proof of this payment would have required a receipt or other document: 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500.

However, failing proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act carried out by him in the ordinary course of business of an enterprise. [ 9 ] In the present case, since the juridical act is carried out by Quebec Inc. in the course of its business as a car dealership, testimony is admissible. [ 10 ] As well, the fact that the ownership in the car was transferred creates a commencement of proof because the transfer is more consistent with payment having been made than the contrary.

This also opens the door to testimonial evidence. [ 11 ] It is nevertheless the Defendant's burden to produce credible testimony or other evidence to convince the Court on a balance of probabilities that the payment was made. [ 12 ] Mr Seyfeddin denies ever having received payment. [ 13 ] His expectation was to receive payment, in approximately 10 days, as was promised to him the day that he delivered the car.

He states that he spoke to a person with whom Ms Naghieh had invested an amount of $17,000 and this individual confirmed that the money would be made available to her. [ 14 ] He states that once the money was not forthcoming he did not immediately demand payment. He and Ms Naghieh were dating and he did not have an immediate need for the money. [ 15 ] The Court heard other testimony about the discussions between the parties.

It seems that both had entrusted savings with this individual and he defrauded them and other investors. [ 16 ] Mr Seyfeddin took the trouble to try to obtain payment from this individual, both for himself and for Ms Naghieh, but was unsuccessful. [ 17 ] Two brothers of Mr Seyfeddin, Behrooz and Davioud, also testified to the effect that Ms Naghieh had contacted them asking for them to intercede with their brother for a delay in the payment of the $7,000. [ 18 ] According to them, she pressed them to collect the money from their new brother-in-law, Ms Naghieh's former husband who had recently become the husband of their sister. [ 19 ] Ms Naghieh admits having spoken to these brothers but denies having asked for time to pay the debt, which she does not recognise owing. [ 20 ] She does, however, speak of the debt that was owed to her by her former husband and that she had asked these brothers, who were now his new brother-in-law, to attempt to obtain payment for her. [ 21 ] Finally, the Court heard from Robih Mehanna, a concert promoter with whom Ms Naghieh has been working since January of 2007 helping to organise concerts and selling tickets. [ 22 ] The purpose of his testimony was to establish that Ms Naghieh had sufficient funds to purchase the car in March of 2008. [ 23 ] While he did confirm this; his testimony did not confirm an important aspect of Ms Naghieh's testimony. [ 24 ] She stated that when she required the $7,000 to pay for the car, Mr Mehanna came to Montréal and gave her the funds in $100 bills at her home. [ 25 ] When he was asked what he knew about her payment of the price of the vehicle, he had no recollection of this event and in fact, confirmed that his usual way of paying Naghieh for her services to the business was by letting her keep cash that she had collected in the sale of tickets.

It was only when the question was asked to him suggestively that he confirmed that on some occasions, he paid her in cash as well. [ 26 ] Generally, persons alleging a cash payment are at a serious disadvantage, in Court, when they have not obtained a receipt. [ 27 ] One way to try to overcome this difficulty is to show the Court objectively, the provenance of funds.

It is not uncommon to hear evidence that the exact amount of money allegedly paid was withdrawn in cash from a bank contemporaneously with the transaction. [ 28 ] In the present case, Ms Naghieh attempted to prove the provenance of the funds by asserting that they were paid to her by Mr Mehanna very shortly before she allegedly made the payment to the Plaintiff. [ 29 ] Her testimony was very specific, that she was given $100 bills, which she used to make the payment. She was not able to get a collaboration of this testimony through her business associate, Me Mehanna.

He did not bear her version of the events, and, when asked to give his, did not mention giving her the $100 bills. [ 30 ] In cases where one party alleges a fact and the other party denies it, there is, from the point of view of the parties, someone

who is not telling the truth. [ 31 ] In the present case, there was a great deal of emotion and a lot of hard feelings between the parties.

Each side expressed feelings of injustice because the other party told the facts differently. [ 32 ] In deciding the issue, the Court does not wish to refer to either party as being dishonest, nor can it see into the conscience of each and assign blame. [ 33 ] Objectively, it is not possible for the Court to find in favour of the Defendant, because her evidence of the payment is neither coherent nor convincing. [ 34 ] Consider the following factors: 1) There would have been no reason for Quebec Inc. to insist upon cash: it had a documented purchase of the vehicle and was not making any profit. 2) Ms Naghieh did not admit having even seen the contract of sale presented to the Court and that Mr Seyfeddin says he asked her to sign.

The purchase of the vehicle and its transfer for the SAAQ were documented and there would be no reason for the vendor not to want to have this contract documented as between buyer and seller. 3) Something as unusual as giving seventy $100 dollar bills to Ms Naghieh is not something that her alleged source of funds, Robih Mehanna, should have had difficulty remembering. In testimony, he drew a complete blank on this event. 4) Another inconsistency is Ms Naghieh's allegation that she has been in business with him since 2003.

His testimony was that they worked together since 2007. 5) Only when the question was asked to him suggestively did he state that, in fact, he has known her since 2003 because she worked with another individual somehow related to the business. [ 35 ] In conclusion, the various elements of the testimonial evidence of the payment are not sufficiently plausible and consistent to tip the balance of probability in favour of the Defendant's position. [ 36 ] The evidence provided by the Plaintiff and his brothers contradicted the testimony and was, at least, as credible as that of Ms Naghieh, if not more so. [ 37 ] On the whole, the Defendant has not established her defence and the action will, therefore, succeed.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $7,000, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from April 29, 2009; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $204. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: July 18, 2011