2016 QCCQ 6130, 2016 QCCQ 6130

Ceccopieri c. Molina 2016 QCCQ 6130 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division» No: 500-32-139781-134 DATE: March 29, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ ISRAEL ROMERO CECCOPIERI Plaintiff v.

VICTOR MOLINA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The buyer Israël Romero Ceccopieri (Mr. Romero Ceccopieri) is claiming $4,716.28 from his vendor Victor Molina (Mr. Molina ) for various items based on the sale of his property. [ 2 ] Mr. Molina denies owing such amount. QUESTIONS IN ISSUE Has Mr. Romero Ceccopieri established his right to claim for :

a) the repairs of the cracks in the foundation ?

b) the completion of the grass ?

c) the municipal taxes ? CONTEXT AND ANALYSIS [ 3 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [1] . In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence . This implies that the demand must demonstrate that the existence of a fact is more probable than its non-existence [2] to convince the Court. [ 4 ] All relevant elements of evidence are analysed by the Court.

The probability is evaluated based on the direct evidence, the circumstances and the presumptions [3] . [ 5 ] The Court summarizes as follows the relevant facts from the evidence presented. [ 6 ] Mr. Romero Ceccopieri was interested in buying Mr. Molina’s property. [ 7 ] On April 18, 2012 [4] , Vincent Arcobelli, engineer, proceeded to the visual inspection of Mr. Molina’s property and recommended to Mr.

Romero Ceccopieri : […] Considering the state of the present house and with all the work that remains to be done, I strongly recommend that the client not take possession of the property and/or sign off on the property as is because this property is far from being ready for occupancy […] (p. 7) [ 8 ] On May 9, 2012 [5] , a list of work to be completed was provided in the pre-purchase inspection form.

Among the various items listed, the cracks to be repaired and the grass were included. [ 9 ] As per the acceptance terms, an amount of $5,000.00 was to be retained in the notary’s trust account for the execution of work. A delay of 30 days was indicated, leading to the date for the end of work. [ 10 ] On May 11, 2012 [6] , as per the deed of sale, Mr. Romero Ceccopieri bought the property from Mr. Molina. [ 11 ] Contradictory versions are then presented by both parties. [ 12 ] Mr. Romero Ceccopieri alleges that the work which had to be performed within a delay of 30 days was not done. According to

him, as Mr. Molina failed to complete the work, he is allowed to request a reimbursement for the various items listed in the pre-purchase inspection form. [ 13 ] On the contrary, Mr. Molina contests this version and alleges that most work was performed, except for a certain portion of the grass. Furthermore, the cracks were not repaired. [ 14 ] Letters were exchanged [7] . The suit was then brought. Has Mr. Romero Ceccopieri established his right to claim for :

a) the repairs of the cracks in the foundation?

b) the completion of the grass ? [ 15 ] Every person has a duty to honour his contractual undertakings [8] . [ 16 ] The contract binds the parties not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law [9] . [ 17 ] Having admitted that the grass was not entirely completed and that the cracks were not repaired, Mr. Molina evaluated the remaining portion to be done at $2,000.00. He therefore contests the amounts as claimed by Mr.

Romero Ceccopieri. [ 18 ] Pictures were filed into the Court record [10] for both the grass and the cracks. The cracks [ 19 ] Mr. Romero Ceccopieri has established that the cracks in the foundation were the ones identified from the beginning [11] when the contract was signed. He had them repaired. He filed an invoice of a contractor for an amount of $1,270.21 [12] . That amount was paid and Mr. Molina admits it corresponds to reasonable costs for such work. [ 20 ] The Court grants $1,270.21. The grass [ 21 ] In this regard, Mr. Romero Ceccopieri filed an invoice from a contractor.

It is dated April 16, 2013 and is for an amount of $2,299.50 [13] . [ 22 ] The grass superficy covered is not indicated. No plan, no measures were provided to the Court. However, the pictures show that the grass covered the entire superficy, as planned. [ 23 ] Mr. Molina pleaded that the amount claimed was not reasonable, without providing any counter-evidence. [ 24 ] Contrary to what he suggested, nothing on the invoice indicates that additional work (“ terrassemen t ”) was made. [ 25 ] The neighbour of Mr. Romero Ceccopieri testified on a similar litigious matter which opposed him to Mr. Molina.

He verbally confirmed an approximate value of $2,000.00 for the grass that he also had to claim from Mr. Molina in another Court case [14] and for which he obtained a judgment. [ 26 ] The Court grants $2,299.50. Has Mr. Romero Ceccopieri established his right to claim for :

c) the municipal taxes ? [ 27 ] In the deed of sale, acting as vendor, Mr. Molina agreed that all taxes had been paid or would be paid by him. [ 28 ] After he bought the property, Mr. Romeo Ceccopieri alleged that he had to pay to the City previous unpaid taxes ($1,146.57) by Mr. Molina. [ 29 ] The City’s representative explained the calculations of the municipal taxes for this property [15] . The notary also explained these calculations [16] . [ 30 ] All taxes were paid for 2011 by Mr.

Molina, including the interests. [ 31 ] For 2012, the evidence [17] indicated that $2,056.17 was claimed by the City, to be divided in two payments of $1,028.28 for March 1, 2012 and for June 1, 2012. [ 32 ] Mr. Molina paid the taxes for the first portion of the year 2012. [ 33 ] The remaining taxes were to be paid by Mr. Romero Ceccopieri as he was then the owner. [ 34 ] Mr. Romero Ceccopieri has not established his right to claim $1,146.57.

FOR THOSE REASONS, THE COURT: GRANTS partly the action of Plaintiff Israël Romero Ceccopieri against Defendant Victor Molina; CONDEMNS Defendant Victor Molina to pay $3,569.71 to Plaintiff Israël Romero Ceccopieri with the interest at the legal rate of 5 % per annum plus the additional indemnity provided for at

article 1619 Q.C.C., calculated as of June 21, 2013; CONDEMNS Defendant Victor Molina to pay $136.00 as judicial costs to Plaintiff Israël Romero Ceccopieri. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Dates of hearing: May 28, 2015, October 26, 2015 and February 22, 2016