2019 QCCQ 2828, 2019 QCCQ 2828

Muhanna c. Trudel 2019 QCCQ 2828 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL LOCALITY OF LAVAL “Civil Division” No.: 540-32-030434-177 DATE: April 29, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE JOHANNE GAGNON, J.C.Q. ______________________________________________________________________ Niveen Nihad MUHANNA Plaintiff v.

Martin TRUDEL and VILLE DE LAVAL Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ms.

Niveen Nihad Muhanna claims from the defendants $8,000 in compensation for damages she suffered following the statement of offence issued to her by the defendant, Martin Trudel, on December 19, 2016. [1] [ 2 ] She submits that at, the time of the events surrounding the issuance of the statement of offence P-5, Constable Martin Trudel insulted her in public, in front of her children and her husband, and falsely accused her of fraud. [ 3 ] She claims that these events caused her significant psychological damage for which she wishes to be compensated.

More particularly, she says that these events revived in her the psychological pain resulting from a serious automobile accident that occurred in 2014 and that left her disabled. [ 4 ] The defendant Ville de Laval (the “ City ”) is being sued as Constable Trudel’s employer. [ 5 ] The defendants contest Ms. Muhanna’s action, alleging essentially that Constable Trudel did not commit any fault and that Ms. Muhanna has not proved the damages she claims. ISSUES [ 6 ] The Court must answer the following questions: (

a) Did Constable Trudel commit a fault in the performance of his duties on December 19, 2016? (

b) If so, did Ms. Muhanna prove the damages she claims? (

c) If so, is there a legal link between the fault and the damages claimed? ANALYSIS AND DECISION [ 7 ] According to articles 2803 and 2804 of the Civil Code of Québec (the “ CCQ ”), it is up to the party seeking to assert a right to convince the Court that his or her claim is well founded, on a balance of probabilities. This rule provides that a fact will be considered proven if the Court is satisfied that its existence is more probable than not.

It is not a matter of showing that a fact is possible but rather that it is probable. [2] [ 8 ] When the evidence adduced is not sufficiently persuasive, or if the evidence is contradictory and the judge is unable to ascertain the truth, the party who bears the burden of proof will lose. [3] [ 9 ] In the case at bar, the burden of proof is on Ms. Muhanna.

[ 10 ] Since this is a liability action, Ms. Muhanna must meet the burden under

article 1457 CCQ to win her case. She must show fault on the part of the defendants, injury, and a causal link between the fault and the injury.

A/ Did Constable Trudel commit a fault in the performance of his duties on December 19, 2016? [ 11 ] For the purposes of its analysis, the Court accepts from the evidence the following facts. [ 12 ] While he was patrolling the parking lot of the Carrefour Laval shopping mall with his partner on the evening of December 19, 2016, Constable Trudel observed that the disabled sticker bearing number 509800 hanging from the rear-view mirror of a BMW automobile parked in a space reserved for handicapped persons did not seem authentic.

According to his observations, the sticker seemed to be a plasticized colour photocopy of an authentic sticker. [ 13 ] His partner, Constable Ariane Langis, made the same observation. [ 14 ] Constable Trudel testified that this situation constitutes a violation of the provisions of

section 644 of the Highway Safety Code , which reads as follows: Every person who makes, permits or tolerates the fraudulent use of a document issued by the Société is guilty of an offence and is liable to a fine of $300 to $600. [ 15 ] After having verified the information appearing on the sticker, Constable Trudel obtained the telephone number of the holder of the identification sticker, Ms. Muhanna. He called her immediately to notify her of the situation and to inform her that he had to issue a statement of offence. [ 16 ] Ms.

Muhanna was inside the shopping mall when she received the call from Constable Trudel. According to her testimony, she understood from what Constable Trudel told her that he was referring not to the sticker but rather to the certificate issued by the Société d’assurance automobile du Québec in connection with parking identification sticker number 509800. She told him that she had the original of the certificate with her and that she was leaving immediately to meet him at the vehicle but that this would take a few minutes because she was disabled. [ 17 ] Constable Trudel agreed to wait for Ms.

Muhanna. [ 18 ] As she approached the mall exit, Ms. Muhanna filmed the scene with her cell phone. The video and audio recording were filed by Ms. Muhanna in support of her allegations. [4] The recording lasts about two (2) minutes and, according to Ms.

Muhanna, it shows the fault that Constable Trudel committed against her. [ 19 ] After having viewed the video P-1 and heard what was said by both parties during the filmed events, the Court is of the opinion that they do not in any way show that Constable Trudel committed a fault in the performance of his duties. [ 20 ] On the contrary, the video clearly shows that when Ms. Muhanna reached Constable Trudel in the Carrefour Laval parking lot, she was already worked up. She was speaking loudly, not listening to the police officers and constantly interrupting them. [ 21 ] The officers were very calm and courteous.

They were seated in their vehicle and did not show any aggressivity towards Ms. Muhanna and/or her husband, who was already on the scene when Ms. Muhanna arrived. No insults were uttered. [ 22 ] When Constable Langis asked Ms. Muhanna to let her explain the situation and read the provisions of

section 644 of the Highway Safety Code to her, Ms. Muhanna got angry and did not let the officer speak. She told her that she would go before a judge. [ 23 ] In the circumstances, Constable Trudel asked Ms. Muhanna to return to her vehicle, telling her that he would bring her the statement of offence in a few moments. [ 24 ] This evidence causes the Court to question Ms. Muhanna’s version of the events that occurred on the evening of December 19, 2016, which she related during her testimony at the hearing. It is the Court’s view that, in her testimony at trial, Ms.

Muhanna exaggerated the situation and Constable Trudel’s conduct. [ 25 ] The Court need not rule on the merits of the statement of offence P-5; rather, it must determine whether Mr. Trudel’s conduct on the evening of December 19, 2019, constitutes a fault on his part. [ 26 ] In light of the evidence adduced at trial, the Court concludes that Constable Trudel acted reasonably during the events that occurred with Ms. Muhanna on the evening of December 19, 2016, and that he did not commit any fault. [ 27 ] Although the Court is aware that the events of December 19, 2016, could have caused Ms.

Muhanna anxiety given the trauma she experienced in 2014, it is the opinion of the Court that these events and their consequences cannot be attributed to Constable Trudel and/or to the City. [ 28 ] Consequently, the Court concludes that Ms. Muhanna failed to discharge her burden of proof as to the existence of fault on the part of Constable Trudel. [ 29 ] The absence of proof of fault on the part of Constable Trudel is in itself sufficient to result in the dismissal of Ms.

Muhanna’s action. [ 30 ] Given the Court’s conclusion on the first issue, the Court will not rule on the issue of damages and of a causal link.

[ 31 ] Given the circumstances and the Court’s discretion, each party will pay its own costs. FOR THESE REASONS, THE COURT: DISMISSES the claim. THE WHOLE with each party paying its own legal costs. __________________________________ JOHANNE GAGNON, J.C.Q. Hearing date: March 26, 2019