2018 QCCQ 1879, 2018 QCCQ 1879

Canute c. Hollowko 2018 QCCQ 1879 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-700804-174 DATE: February 21 st , 2018 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ BERNIE CANUTE Plaintiff v.

BOGDAN HOLLOWKO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant the sum of $270.05 representing the value of the tools that, according to him, were allegedly borrowed by said Defendant and never returned to him. [ 2 ] Plaintiff claims an additional amount of $133.00 in reimbursement of accessary expenses incurred by him in relation to the present litigation. [ 3 ] Defendant contests Plaintiff’s demand.

More particularly, in the contestation filed in court, he alleges that he never borrowed any tools from Plaintiff. [ 4 ] In the present case, the burden of proof rests upon Plaintiff. In this regard, articles 2803 and 2804 C.c.Q. state the following : 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. [ 5 ] At the hearing, the evidence presented by Plaintiff in support of his demand consists solely of his own testimony. No material evidence corroborating his testimony as to the fact that he did lend the tools in question to Defendant was presented to the Court. Furthermore, the “statement in lieu of testimony” dated January 12, 2018 rendered by Mr.

Gunther Schmitz does not address the issue as to whether or not Plaintiff did or did not lend any tools to Defendant. [ 6 ] At the hearing, Defendant, a general contractor, testified.

He denied having borrowed any tools from Plaintiff. [ 7 ] After review and consideration, the Court is of the opinion that there is no conclusive evidence that allows it to retain Plaintiff’s testimony in preference to that of Defendant. [ 8 ] Consequently, as Plaintiff has not established, by preponderance of the evidence, that Defendant has in fact borrowed the tools in question, his demand must be dismissed. [ 9 ] However, in view of the circumstances of the present case, the demand will be dismissed without judicial costs.

WHEREFORE, FOR THE FOREGOING REASONS, THE COURT : DISMISSES Plaintiff’s demand, without judicial costs; __________________________________ ARMANDO AZNAR, J.C.Q.

Date of hearing: February 19, 2018