2019 QCCQ 2631, 2019 QCCQ 2631

Sawyer c. Ménard 2019 QCCQ 2631 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-703844-177 DATE: April 24, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE DANIEL BOURGEOIS, J.C.Q. ______________________________________________________________________ Tammy SAWYER [...] Pointe-Claire, Quebec [...] Plaintiff v.

Jean-François MÉNARD [...] Montreal, Quebec [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The plaintiff, Ms. Tammy Sawyer (”Sawyer”), [1] claims from the defendant, Mr.

Jean-François Ménard (”Ménard”), an amount of $15,000, arising from a loan of $8,000 that the defendant failed to reimburse. [ 2 ] This amount of $15,000 includes interest at a rate of 23% claimed by the plaintiff since April 1, 2015, date on which, according to Sawyer, the loan should have been reimbursed by Ménard, and also includes loss of wages and other fees (bailiff and medical fees). [ 3 ] Sawyer also claims the return of a full-sized mattress (double mattress) and a bed base (bedframe) that she loaned to Ménard in June 2015. [ 4 ] In his written contestation, Ménard recognizes owing the amount of $8,000 but denies that the loan bore interest at 23%.

He also argues that the other amounts claimed are unrelated to this $8,000 debt and, consequently, refuses to pay them. BACKGROUND [ 5 ] It is not disputed that the parties met in a professional context and that a personal relationship later developed between them. [ 6 ] On December 24, 2014, Sawyer issued an $8,000 cheque made out to Ménard (P-1). [ 7 ] On the cheque, there was a provision that the amount would be reimbursed on April 1, 2015.

As stated above, this fact is not contested by the defendant. [ 8 ] Because the plaintiff argues that the amount of $8,000 bore interest at a rate of 23%, the Court asked her if the parties had signed a written agreement stipulating this rate. [ 9 ] The plaintiff answered that they had not, but at the hearing, she referred to many documents that she adduced as evidence (emails, text messages, various photographs) that, in her view, could demonstrate that the 23% interest rate was, under the circumstances, a reasonable rate in light of what some financial institutions claim from their clients.

ANALYSIS [ 10 ] In contractual liability matters, art. 1458 of the Civil Code of Québec (” C.C.Q. “) stipulates the following: 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to

make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. [ 11 ] As stated at the hearing, to succeed in her claim, the plaintiff had to prove a causal connection between the contractual fault and the damages claimed. [ 12 ] In this case, the contractual fault is admitted by the defendant.

Indeed, he admits owing the amount of $8,000. [ 13 ] There remains the question of assessing the damages. [ 14 ] In this respect, the relevant provisions establishing the possibility of claiming damages from the debtor in the event of a failure to perform the contract are found under arts. 1607 and 1613 C.C.Q. : 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1613.

In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance. [ 15 ] According to the above, the damages that may be claimed in the event of a breach of contract may only compensate the harm actually suffered and are not intended to punish a contractual fault. [ 16 ] Finally, in contractual matters, as the above provisions state, the harm must not only be the immediate and direct consequence of the nonperformance, but must also be foreseeable. [ 17 ] In fact, the plaintiff must prove that the damages she claims were foreseeable when the contract was entered into. [ 18 ] According to author Vincent Karim, [ translation ] “a damage is foreseeable when it normally results from any contractual relationship of the same type, in the same circumstances, irrespective of the creditor’s situation”. [2] [ 19 ] In this case, the evidence adduced by the plaintiff shows that the damages claimed (lost wages, medical fees) are not an immediate and direct consequence of the contractual default or, even, that the damages were foreseeable when the money was loaned in 2014.

The Court will grant the bailiff fees in the amount of $200, however. [ 20 ] Moreover, with respect to the 23% interest rate claimed, and as stated at the hearing, the plaintiff’s testimony cannot, subject to exceptions, be accepted as evidence to prove that the defendant had undertaken to pay the interest rate in question. [ 21 ] In this respect, arts. 2862 and 2865 C.C.Q . are worth citing: 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500.

However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in the ordinary course of business of an enterprise. 2865.

A commencement of proof may arise from an admission or writing of the adverse party, his testimony or the production of real evidence that gives an indication that the alleged fact may have occurred. [ 22 ] The Court explained, at the hearing, the notion of commencement of proof in writing to the plaintiff and asked her to identify, among the many documents she filed in evidence (P-4 to P-19) those among them that could be considered to be a document from Ménard that could make her argument that a 23% interest had been agreed upon likely. [ 23 ] The plaintiff was unable to identify a particular document, merely stating that the parties had discussed some form of compensation. [ 24 ] In fact, a detailed review of the said documents (P-4 to P-19, en liasse ) shows that they are not relevant to the subject at issue. [ 25 ] Considering the above, and for the reasons given at the hearing, the Court cannot allow the claim for interest calculated at a rate of 23% per year. [ 26 ] Finally, with regard to the claim for the mattress and bedframe, and as explained at the hearing, the small claims division of the Court does not have jurisdiction to order the return of this property because such an application is not a “claim” within the meaning of the Code . [3] The Court notes, however, that the defendant does not object to the plaintiff coming to fetch these things at his home. [ 27 ] In light of all the evidence, the Court will grant the application, but only in part, for an amount of $8,000, plus the bailiff’s fees of $200, for a total of $8,200. [ 28 ] FOR THESE REASONS, THE COURT: [ 29 ] GRANTS the application in part; [ 30 ] Condemns the defendant, Mr.

Jean-François Ménard, to pay the plaintiff, Ms. Tammy Sawyer, the amount of $8,200 with interest at the legal rate and the additional indemnity under art. 1619 of the Civil Code of Québec , as of June 1, 2015.

[ 31 ] Condemns the defendant, Mr. Jean-François Ménard, to reimburse the plaintiff, Ms. Tammy Sawyer, the legal costs of $200. __________________________________ DANIEL BOURGEOIS, J.C.Q. Date of hearing: February 26, 2019