2014 QCCQ 2489, 2014 QCCQ 2489

Meili c. Gergely 2014 QCCQ 2489 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-131857-122 DATE: February 28, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ JANE MEILI […] Beaconsfield, Quebec, […] Plaintiff v.

ROSE GERGELY […] Alexandria, Ontario, […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Jane Meili, sues the Defendant Rose Gergely, for reimbursement of a loan of $750 and for $500 as damages for having posted allegedly false information on a Website. Various costs and interests are claimed as well. [ 2 ] The circumstances of the loan are not disputed. Ms Gergely operates a charity known as Refuge RR.

The activity of the organisation consists in rescuing horses and other animals that are without care and in danger of perishing. [ 3 ] On January 21, 2011, Ms Gergely communicated with the Plaintiff through a mutual friend, Nicole Joncas, asking for a credit-card payment of $750 for an emergency veterinary treatment required for a sick foal. [ 4 ] Ms Meili accepted and the charge was put through on her visa account.

Though the activity and the financial benefit were for the charity, Ms Gergely accepts her personal responsibility to reimburse the loan, stating, however, in her defence that she has already repaid the $750. [ 5 ] She alleges the payment was made to a supplier to cover the cost of hay provided to Nicole Joncas to feed Ms Meili’s horse, “Acorn”. [ 6 ] Nicole Joncas operates a farm in Glen Robertson, Ontario, where she keeps horses of her own. She also allows Refuge RR to board approximatively 20 of its rescued horses there as well.

The parties refer to Nicole Joncas’ location as Teja’s Animal Rescue (« Teja’s »). [ 7 ] Ms Gergely asserts that her charity, Refuge RR, paid for the cost of feeding Acorn along with other costs assumed, not only for the charity’s horses kept there, but also for Teja’s other horses. [ 8 ] Ms Gergely reports that Nicole Joncas told her that she had reimbursed Jane Meili the $750 loan, and would accept, in return, payment of costs associated with maintaining Acorn. [ 9 ] Jane Meili’s daughter, Miss Julia Menache, is an equestrian. She used to mount Acorn, who is now retired.

She frequently visits the horse at Teja’s. On one such occasion, she became upset when an employee of Teja’s insinuated that she should not be considered the owner of the horse, because she had failed to pay for the horse’s feed. [ 10 ] That would be because the feed was provided at the expense of Ms Gergely, or Refugee RR. [ 11 ] Acorn’s picture was posted on a Website « http://www.refugerr.org » with a caption “Acorn, written by Kristina, Monday, 14 November 2011 08:25. This big girl is retired by her family but not supported.

She loves her food…” (P-5, an exerpt from the Website as it stood on January 4, 2012). [ 12 ] This is somewhat of a paradox because, if Teja’s was providing hay at Ms Gergely’s expense and this was set off by the debt owed by Ms Gergely to Ms Meili, then the Meili family was, indirectly, paying for the food.

[ 13 ] Ms Jane Meili complained about this, and the horse’s photo was taken off the site, which is operated on behalf of Refuge RR. [ 14 ] Ms Jane Meili denies the existence of a three-way deal by which her claim for reimbursement of the loan was to be set off against the debt for the hay provided to Teja's for her benefit, to feed Acorn.

She testifies that Nicole Joncas lent her the $750 so that she could pay the credit card bill, and that she intends to reimburse Ms Joncas. [ 15 ] As for the hay provided to Acorn, she states that her deal with Ms Joncas was barter: care for the horse in return for services she provided to Teja’s. [ 16 ] Finally, Ms Gergely stresses that the claim against her for reimbursement, initiated by a letter of demand on December 23, 2011 (P-1) is not sincere, but rather a reaction to the posting on the Website which Ms Meili first complained about on December 11, 2011. [ 17 ] Ms Meili took issue with the posting of the information about Acorn on the Website as an unwelcome association of her horse with Refuge RR to falsely solicit funds and a defamation, by the insinuation that she, as owner, had abandoned the animal.

Analysis [ 18 ] To the extent that this is a claim for damages to reputation through a libel, it must be dismissed “sauf recours” (saving any recourse) as being beyond the jurisdiction of the Small-Claims Division. As mentioned in the exclusionary provisions of

Section 954 C.C.P. 954. This Book does not apply to actions arising from the lease of a dwelling or land referred to in

article 1892 of the Civil Code , to actions for the payment of support or to class actions. Nor does it apply to suits for slander or to actions for the recovery of a claim instituted by a person, partnership or association to whom the claim was assigned in return for payment. [ 19 ] The French text of the Code is more exact.

It uses the term "diffamation" which includes both libel and slander. [ 20 ] The Court will not comment on this aspect of the case further, except to say that any claim based on harm suffered by Miss Julia Menache, could not be claimed by her mother, as she was not a minor child at the time the demand was instituted in January 2012. [ 21 ] The Court understands Ms Gergely’s point that the matter of the debt seemed only to resurface after the issue of the website posting of Acorn’s picture with the captioned text, but this is not sufficient to satisfy the burden of proof incumbent on Ms Gergely to establish that the debt was repaid through the financial arrangement that she described. [ 22 ] Unless Ms Meili were to admit the existence of such an assignment and the subsequent payment to the assignee of the debt, which she does not, Ms Gergely would have to prove it.

That would require, at the very least, in the absence of a written agreement, convincing testimony from Ms Joncas, who was not called as a witness. [ 23 ] Documentary proof was provided that Ms Rose Gergely payed a supplier for deliveries of hay to Teja’s, but no proof was made of the exchange of consent between Ms Joncas and Ms Meili to set off a debt for hay against the claim for payment of the loan. The defence has not been established.

FOR THESE REASONS THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $750, together with interest at the legal rate of 5% per annum and the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from December 23, 2011; DISMISSES , "sauf recours", the claim in damages for libel; CONDEMNS the Defendant to pay the Plaintiff’s judicial disbursements of $103. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 09, 2013