2015 QCCQ 11192, 2015 QCCQ 11192

Astels c. Caron 2015 QCCQ 11192 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BONAVENTURE (NEW CARLISLE) TOWN OF NEW CARLISLE « Civil Division » N o : 105-32-001691-153 DATE : October 6, 2015 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q. ______________________________________________________________________ LORNES ASTELS Plaintiff v.

CLAUDE CARON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On May 20, 2015, Lorne Astels (L. Astels) claims the sum of $ 10 000 against Claude Caron (C. Caron), for moral and corporal damages resulting from an assault. facts and context [ 2 ] On May 3 rd , 2014, L. Astels mentions that while he was driving his four wheeler, on the street, when he passed by C. Caron, he hit him in his back with a pipe. Furthermore, he hit his left hand and also broke his rear-view mirror. L. Astels and C.

Caron are nearby neighbours. [ 3 ] After the event, he says he went to the CLSC to seek medical attention but ended up putting an ice bag on his injury, and he went back home without be attended. He doesn’t deposit a medical note stating of his presence at the CLSC. [ 4 ] At a later date, L. Astels called the Société d’assurance automobile du Québec (SAAQ) to obtain information in regards to the incident.

On May 5, 2014, he went back to the CLSC to have a consultation with a doctor to assess him. [ 5 ] From November 12, 2014 to December 18, 2014, he received physiotherapy treatments for traumatic tendinitis to his left hand that he claims to be the consequence of the assault from C. Caron. [ 6 ] On May 3, 2014, L. Astels calls the police. The officers Huard and E. Gosselin show up at his residence to take his complaint. At that time, he mentions to them that he was hit by a pipe on the head, on his left hand and that his four-wheeler rear-view mirror was broken by C. Caron.

At that moment, both officers noticed that there was no injury on his head or his hand. Furthermore, they saw that the mirror was intact. Before leaving officer Huard suggests to him to go to the CLSC for precaution. [ 7 ] C. Caron contests the claims and denies committing an assault. C. Caron indicates that he was raking leaves on his property, and he did see L. Astels pass by on his four-wheeler, but he never touched him. [ 8 ] On May 5, 2014, L. Astels calls the police again because he is unhappy that nothing was done after he filed his complaint. The officer C. Gosselin came to his residence.

He explains the events and that he had a swollen hand. Once again, the officer did not notice any injury on C. Caron and after looking at the four-wheeler there is no damage as alleged by L. Astels. [ 9 ] All the officers considered that the complaint of L. Astels was not founded, and the file was close. No charges were ever laid against C. Caron. [ 10 ] L. Astels doesn’t work and did not suffer from any lost wages. All his physiotherapy treatments were assumed by the fund provided by “

Loi sur l'indemnisation des victimes d'actes criminels” (LIVAC) . [1] LAW APPLICABLE [ 11 ] Sections 1457 , 2803 and 2804 of the Civil Code of Québec (C.c.Q.) are applicable for this case; they read as follows:

« 1457. Every person has a duty to abide by the rules of conduct, which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. 2803. 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. 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. » analysis [ 12 ] L. Astels goes to the CLSC two days after the presumed assault. It’s not clear when exactly he did present himself at the CLSC on or about the day of the event. Was it before or after the visit of the police? [ 13 ] Even, if L.

Astels declares that he was severely beaten and badly injured, the evidence shows that the witnesses heard, didn’t notice neither the injury on L. Astels nor the damage on his four-wheeler. [ 14 ] Moreover, if the Court concludes that C. Caron has committed a fault, the causal link to damages must be established. In the case, there’s no proof of a fault and even less in regard to the link between the fault, and the damages claimed. Anyway, the Court does not conclude by the burden of evidence that C. Caron committed a fault towards L.

Astels. [ 15 ] In civil law, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided for in

article 2803 C.c.Q ., by a preponderance of evidence, that its request is justified. After analyzing this case and the evidence adduced, the Court considers that the plaintiff has not established, through preponderant evidence, that his claim is well-founded. THEREFORE, the Court: [ 16 ] DISMISSES Plaintiff's claim; [ 17 ] CONDEMNS the Plaintiff to pay to the Defendant the cost for contestation fixed at $190. __________________________________ CELESTINA ALMEIDA, J.C.Q. Date of hearing : August 18, 2015