2021 QCCQ 4390, 2021 QCCQ 4390

De Haney c. Luzanga 2021 QCCQ 4390 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” No.: 550-32-701701-192 DATE : May 18, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE STÉPHANE D. TREMBLAY, J.C.Q. ______________________________________________________________________ SUZANNE DE HANEY Plaintiff v. JOSE MELO LUZANGA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1.

Introduction [ 1 ] The parties dated between 2016 and 2019. The plaintiff affirms that, during that period, she loaned him money nine times for a total of $21,200.

The amounts were given to the defendant by way of cheques drawn on the plaintiff’s account. [1] [ 2 ] To remain within the jurisdiction of the Small Claims Division of the Court of Quebec, the plaintiff has voluntarily reduced her claim to $15,000. [2] At the start of the hearing, the Court asked the plaintiff to specifically identify the loans that are covered by this application. [ 3 ] The loans identified are the following: Loan Date of cheque Number Amount Notation on cheque 1 November 3, 2016 095 $1,000 Loan #1 – Trip to Brazil 2 December 3, 2016 097 $1,000 __ 3 March 18, 2017 004 $3,000 __ 4 June 18, 2018 030 $5,000 Car Loan #1 5 July 1, 2018 032 $5,000 Car Loan #2 of 2 [ 4 ] The defendant acknowledges that he received these amounts, but he contests having to reimburse them.

He claims that they were not loans but gifts or payment for sexual services. [3] 2. Analysis [ 5 ] In civil cases, to be successful, a party must prove the merits of his or her claims on a balance of probabilities. [4] To satisfy the balance of probabilities test, the evidence must be clear, and convincing [5] but need not reach the level of certainty.

If the evidence of an essential fact is contradictory and the Court is unable to determine where the truth lies, the party who bears the persuasive burden must fail because he or she has not been able to establish proof on a balance of probabilities. [6] [ 6 ] Applied to the present case, this means that the plaintiff must prove that she gave the defendant the amounts claimed and that he promised to repay her. [7] [ 7 ] The defendant, for his part, bears the burden of establishing that the plaintiff transferred the amounts of money to him by gratuitous title [8] or that the loans have been repaid. [9] [ 8 ] We will apply this analytical framework to each of the amounts claimed by the plaintiff. 2.1 Loan No. 1 – November 3, 2016 ($1,000) [ 9 ] As confirmed by the notation on the cheque, the plaintiff states that she loaned the defendant $1,000 to finance part of his trip to Brazil.

[ 10 ] The defendant acknowledges that this was a loan. However, he affirms that he repaid it. He explains that the plaintiff paid him rent to live in an apartment in his home. The rent agreed on by the parties was $950 a month. He produced one cheque for $500 dated March 28, 2018, and another for $450 dated May 1, 2018. [10] He states that he agreed to reduce the plaintiff’s rent as a way to repay the loan for his trip to Brazil. [ 11 ] The defendant’s evidence is not convincing. First, the notations on the back of each cheque state “½ Month Rent May 2018 ”.

Second, in rebuttal, the plaintiff established, supported by evidence, that the rent was paid in full without interruption between September 2017 and February 2019. [11] [ 12 ] In short, the defendant’s argument that the rent was reduced as a way to repay the loan is not supported by the evidence.

This part of the application will therefore be granted. 2.2 Loan No. 2 – December 3, 2016 ($1,000) [ 13 ] To begin, it is useful to reproduce an excerpt of the formal demand letter sent by the plaintiff: [12] –cheques written between August, 2016 and December, 2018 not labelled as ‘ rent, ‘deposit’ or ‘ partial deposit’ were provided as loans not gifts. [ 14 ] Unlike other cheques where the notation of “ Loan ” on the back establishes that they are loans, the cheque at issue does not feature this notation. [ 15 ] Nevertheless, the plaintiff seeks to establish the existence of the loan, relying on an exchange of text messages that took place on January 12, 2017, during which the defendant stated the following: When you lent me $2000 two thousand dollars in November 2016 we have an agreement that I will pay you back in October 2018. [ 16 ] The defendant denies that this amount is part of the $2,000 that he borrowed in November 2016.

He points out that the cheque is dated December 2016, not November 2016. Moreover, he explains that this amount was given to him under an agreement where he would provide the plaintiff with certain sexual services. [13] [ 17 ] Considering that there is no notation on the back of the cheque combined with the credible explanations provided by the defendant, the evidence is insufficient to establish the existence of a loan.

This part of the application must be dismissed. 2.3 Loan No. 3 – March 18, 2017 ($3,000) [ 18 ] As with Loan No. 2, discussed above, the “ Loan ” notation establishing that the money was a loan does not appear on the cheque at issue.

Aside from her testimony, the plaintiff offers no other evidence to establish the existence of a loan. [ 19 ] The defendant, for his part, states that this amount was part of his remuneration as provided in the agreement discussed earlier. [ 20 ] The plaintiff’s evidence is insufficient to find that a loan contract was entered into with respect to this part of the claim. 2.4 Loans No. 4 and No. 5 ($10,000) [ 21 ] As indicated by the notations on the back of these cheques, the plaintiff alleges that she loaned the defendant $10,000 to purchase an automobile. [ 22 ] The defendant acknowledges that he received the amount claimed and that the $10,000 in question was used to buy a car.

Moreover, he produced the purchase agreement for the vehicle [14] and the financing contract. [15] The contract shows that the car was sold to him. Indeed, on the date of the hearing, he still owned it. [ 23 ] Nevertheless, in his view, he should not be required to repay the plaintiff because she used a ploy to persuade him to buy a vehicle that he did not need. In fact, he submits that the vehicle was purchased for the plaintiff. [ 24 ] The vehicle was purchased in his name solely to avoid affecting the plaintiff’s credit rating by adding a car loan.

It appears from the testimony of the parties that, at the time, the plaintiff was planning to purchase the defendant’s home. It was therefore important that the plaintiff’s credit rating remain intact so that she could obtain the financing she needed to purchase the defendant’s home. [ 25 ] It appears that the plaintiff repudiated her undertaking. The defendant therefore found himself having to repay his hypothec in addition to paying back the car loan taken out in July 2018.

The defendant submits that, in the circumstances, it would be unfair for him to be condemned to repay the amounts advanced to him by the plaintiff. [ 26 ] Although the defendant’s version appears entirely credible, the fact nevertheless remains that he is the owner of the vehicle and has had the use of that vehicle since 2018. The notations on the back of the cheque are clear that it was a loan. The defendant must therefore repay it. 3. LEGAL COSTS [ 27 ] In principle, legal costs are awarded to the party who is successful, unless the court decides otherwise. [16] Considering the

particularities of this case and the fact that the application is granted only in part, no legal costs will be awarded. FOR THESE REASONS, THE COURT: GRANTS the Application in part; CONDEMNS Jose Melo Luzanga to pay Suzanne De Haney the amount of $11,000 with interest at the legal rate and the additional indemnity under

article 1619 of the Civil Code of Québec as of the date of the demand, namely, June 3, 2019; [17] WITHOUT LEGAL COSTS. __________________________________ STÉPHANE D. TREMBLAY, J.C.Q. Date of hearing: March 23, 2021 [6] Léo Ducharme, Précis de la preuve , 6th ed. (Montreal: Wilson & Lafleur, 2005) at para. 146.