2017 QCCQ 15206, 2017 QCCQ 15206

Celik c. Sowakejian 2017 QCCQ 15206 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-154549-168 DATE: November 28, 2017 ______________________________________________________________________ BY THE HONOURABLE Catherine pilon, J.C.Q. ______________________________________________________________________ Bekir Celik Plaintiff v.

Sarkis Sowakejian Defendant ______________________________________________________________________ JUDGMENT RENDERED ON THE BENCH ______________________________________________________________________ [ 1 ] The Plaintiff claims $14,500 from the Defendant in relation to two loans respectively of $5,500 on March 20, 2012, and $11,000 on January 14, 2013.

According to the Plaintiff both loans were to be reimbursed within one week. [ 2 ] The Defendant denies the existence of these loans. [ 3 ] There is no written loan agreement between the parties. [ 4 ] The Plaintiff refers to his credit card statement which shows entries of $ 5,500 on March 20, 2012 to “Pub du Faubourg Inc.” where the Defendant works, and $ 11,000 on January 14, 2013 to “Telebank cash advance”.

A note added by the Plaintiff to his credit card statement refers to the Defendant. [ 5 ] The Plaintiff also produces a copy of two checks of $5,000 and $4,000 which he says were signed by the Defendant in October 2015 to reimburse the loans. [ 6 ] The heading of the checks indicates 9226-4142 Quebec Inc. The checks, which the Defendant denies signing, were returned NSF. [ 7 ] The Plaintiff has also filed a series of emails he exchanged with the Defendant. None of these emails contain an admission by the Defendant that he borrowed amounts from the Plaintiff. [ 8 ] Pursuant to

article 2803 Civil Code of Québec (“C.c.Q.”): 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. [ 9 ] The Plaintiff had the burden to prove the existence of the loans and their conditions. In the absence of a written document evidencing the loan, the Court must refer to the

article 2862 of C.c.Q. : 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. [ 10 ] The credit card statement, the checks and the emails do not contain sufficient information to constitute a commencement of proof which could lead the Court to allow testimonial of proof by the Plaintiff of the existence of the loan. [ 11 ] If the amounts indicated on the credit card statement were indeed loans, the Court is not in a position to determine to whom they were made.

Similarly, if the checks were to reimburse the loans, they are not conclusive on the identity of the borrower since they were made by Quebec Inc. and not the Defendant. [ 12 ] The Court finds that the Plaintiff has not met his burden to prove the existence of the loans. [ 13 ] In addition, the Court claim was brought on October 18, 2016, more than three years after each of the loans became due.

Article

2925 of the C.c.Q. provides that this type of action must be brought within three years of its existence, it is otherwise prescribed. This is further reason to dismiss the claim. FOR THESE REASONS, THE COURT : DISMISSES the application of the Plaintiff ; THE WHOLE without costs. __________________________________ CATHERINE PILON, j.c.q. Date of hearing: November 28, 2017