2019 QCCQ 3516, 2019 QCCQ 3516

Akerman (Estate of Akerman) c.

Tolensky 2019 QCCQ 3516 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702199-177 DATE: June 12, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ MARCIE AKERMAN, ès qualité of liquidator to the estate of the late barbara levitt akerman Plaintiff v. david tolensky Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Marcie Akerman, in her quality as sole liquidator to the estate of her mother Barbara Levitt Akerman (the “ Estate ”), claims damages of $15,000 from Defendant David Tolensky. [ 2 ] The Estate alleges that Defendant has refused to remit moveable property which belonged to the late Mrs.

Akerman (the “ Deceased ”) despite a formal demand to do so and that he subsequently undertook to pay to the Estate $15,000 in exchange for keeping said property, but failed to do so. [ 3 ] Defendant initially contested the claim on the grounds that he had offered to return the property at issue to the Estate, who allegedly refused. He later denied that many of the items at issue were ever in the Condominium or that they belonged to the Deceased. [ 4 ] The Court must determine, firstly, whether Defendant agreed to pay $15,000 to the Estate.

If he did not, then the Court must determine if the Estate is entitled to the damages claimed because of Defendant’s failure to remit the property at issue. [ 5 ] For the reasons more fully set out below, the Court finds, on a balance of probabilities, that an agreement was reached between the parties pursuant to which Defendant undertook to pay $15,000 to the Estate in exchange for retaining the property at issue. The Estate’s claim must be granted on this basis. FACTUAL CONTEXT [ 6 ] The Deceased passed away on April 27, 2017 at the age of 69.

She had two adult daughters, Marcie and Tammy Akerman. [ 7 ] When she passed away, the Deceased had been in a long-term companionship with Defendant for more than 30 years, having earlier been married to Joseph Akerman. Although they lived apart in Montreal, the Deceased and Defendant jointly owned a condominium in Boca Raton, Florida (the “ Condominium ”).

It is undisputed that full ownership of the Condominium reverted to Defendant when the Deceased passed away. [ 8 ] According to the Estate, the contents of the Condominium (furniture, appliances, household furnishings, decorative items and personal effects, including certain family heirlooms (the “ Moveable Property ”)) belonged to the Deceased and reverted to the Estate upon her passing. [ 9 ] In June 2017, Defendant met with Marcie and Tammy Akerman to resolve certain issues surrounding the transfer of the Condominium and the Moveable Property as well related matters. [ 10 ] According to Tammy Akerman, a verbal agreement was reached during this meeting providing that Defendant would pay to the Estate an estimated amount of $12,000 to $20,000 representing the tax payable by the Estate on the capital gain resulting from the deemed disposition of the Condominium on the death of the Deceased, as the applicable tax legislation provides.

This is corroborated by contemporaneous emails. [1] [ 11 ] When Defendant did not carry through with this agreement, his relationship with Marcie and Tammy Akerman seriously deteriorated. Another dispute also arose regarding an amount of $82,000 held in the Deceased’s bank accounts at Chase Bank in Florida.

Protracted exchanges ensued regarding the Estate’s rights to the Moveable Property and the Chase Bank funds. [2] [ 12 ] These written exchanges reveal that Defendant was highly emotional and acted erratically during this period, in turn agreeing to pay the Estate compensation to keep the Moveable Property, offering to remit same to the Estate only to later delay or refuse to do so, and offering again to pay in lieu of returning the property. [ 13 ] The Estate eventually lost patience and filed the claim seeking damages in the instant case.

ANALYSIS [ 14 ] To succeed on its Application, the Estate bears the burden of proving, on a balance of probabilities, the facts upon which it relies. This is provided in articles 2803 and 2804 of the Civil Code of Québec (“ C.C.Q. ”), which read as follows: 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. 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. [ 15 ] What does the evidence reveal? [ 16 ] Firstly , Defendant has formally admitted at trial that the Moveable Property contained in the Condominium when the Deceased passed away belonged to her and now belongs to the Estate.

He cannot withdraw that admission. [ 17 ] Secondly , the Estate has adduced extensive evidence regarding 32 specific items [3] that establishes in a clear and convincing manner that said items belonged to the Deceased and that they were in the Condominium when she passed away.

Notably, the Court refers to the following evidence: ➢ The testimony of Tammy Akerman, who has been in the Condominium on numerous occasions; ➢ Photographs of the Condominium showing nearly all of the items; [4] ➢ Extracts from credit card bills and/or proof of purchase regarding items 17 to 23, 25, 28 to 32; [5] ➢ The sworn declarations of David Sefkind regarding item 24; [6] ➢ The sworn declaration of Joseph Akerman regarding item 27. [7] [ 18 ] At trial, Defendant vehemently denied that the items other than the furniture, appliances and a few of the furnishings were ever in the Condominium.

He continued to deny this, even after the Court brought to his attention photographs of these very items clearly visible in the Condominium. [ 19 ] This seriously affects the reliability of Defendant’s testimony. Defendant is over 75 years of age; he appears to have been quite distraught since the Deceased passed away, which is understandable following the loss of a long-time companion. This may well have affected his recollection of what was in the Condominium at the time, as well as other facts at issue in this case.

As a result, the Court finds that Defendant’s testimony has little probative value. [ 20 ] The Court therefore accepts the clear, precise and convincing testimony of Tammy Akerman and supporting documentary evidence described above and concludes, on a balance of probabilities, that the 32 specific items were in the Condominium when the Deceased passed away. [ 21 ] Thirdly , on a balance of probabilities, the evidence reveals that although Defendant at times expressed his willingness to remit the contents of the Condominium to the Estate, each time he later sought delays to do so, tried to limit the scope of what he was to remit or changed his mind altogether, despite being put in default by a formal demand from the Estate. [8] [ 22 ] Defendant did testify that he arranged to meet Tammy Akerman at the Condominium on September 27, 2017 to allow her to empty the Condominium and that she did not show up.

Tammy Akerman, on the other hand, affirms that although this was discussed, after she pressed Defendant to no avail for confirmation of his intentions in order to make travel arrangements, he reverted back to allowing the Estate to take only a few items. The Court prefers Ms.

Akerman’s testimony in this regard, which is corroborated by contemporaneous email correspondence. [9] [ 23 ] Fourthly – and most importantly – the Court finds on the basis of the evidence that an oral agreement was reached between the parties pursuant to which Defendant undertook to pay to the Estate $15,000 in exchange for keeping the contents of the Condominium.

The Court comes to this conclusion based on Tammy Akerman’s testimony, as well as the corroborating exchange of emails between the parties. [10] [ 24 ] The agreement arose out of Defendant’s original agreement in June 2017 to pay the capital gain tax that the Estate would have to pay (estimated at the time at $12,000 to $20,000, but in fact of approximately $15,000), on which Defendant reneged.

In December 2017, Defendant reached out to Tammy and Marcie Akerman, stating in an email that he wanted to “ make good regarding the [$82,000] that [they] are intitled (sic) to ” (referring to the amounts in the accounts at the Chase Bank which he kept) and that he intended to pay them what he owed to them. [11] He reiterated this a few days later, stating that he would return the contents of the Condominium, and later agreeing to pay $15,000 to keep said contents. [12] [ 25 ] At the beginning of January 2018, after paying an initial amount of $50,000 to the Estate, Defendant apologized for his past behaviour and stated that “ he would honour his commitment ”, which can only refer, given the context, to the additional sums of $32,000 and $15,000 that he had previously undertaken to pay. [13] [ 26 ] On the facts, the Court therefore concludes that Defendant had the contractual obligation to pay $15,000 to the Estate in consideration for keeping the property at issue.

This justifies granting the Estate’s Application. [ 27 ] Even if the Court had concluded that no such agreement took place, it would still have awarded the Estate damages of $15,000. Indeed, the Court would have concluded that the Estate suffered injury as a result of Defendant’s failure to remit the property at issue,

entitling it to compensation for the loss sustained, [14] namely the value of the Moveable Property on the date that the Deceased passed away. [ 28 ] The Estate claims that the total value of the 32 items proven to have been in the Condominium is $43,149, [15] but this amount must be reduced for the following reasons. [ 29 ] For the vintage family heirlooms (items 1 to 15), the Estate provided evidence of the purchase price of similar items available for online purchase based on photographs of the items. [16] Establishing the value of such items is difficult.

Typically, it requires expert evidence from a collector or antique dealer. Even if the Court can accept the evidence submitted, it is unreliable as the condition of the actual items may differ from that of the similar items available online. Under the circumstances, the Court would have reduced the estimated value by 50%. [ 30 ] For the other items (items 16 to 32), the Estate has provided evidence of their value when new [17] . Again, the Court would have reduced the estimated value by 50% to take into consideration their depreciation and actual value.

Moreover, as concerns item 32, namely the hurricane shutters fitted in the Condominium, the Court would not awarded the amount claimed ($6 522,10 [18] ), as the shutters have been incorporated to the building and do not constitute moveable property that the Estate was entitled to recover. [ 31 ] On the basis of the above, the Court would have arbitrated the damages to $15,000 to take into account a reasonable depreciation and respect the monetary limit of the jurisdiction of the Small Claims Division of this Court.

FOR THESE REASONS, THE COURT: GRANTS the Application; CONDEMNS David Tolensky to pay to Marcie Akerman, ès qualité of liquidator to the estate of the late Barbara Levitt Akerman, an amount of $15,000, together with legal interest and the additional indemnity provided by

article 1619 of the Civil Code of Québec from the date of the application, namely June 27, 2017; THE WHOLE, WITH LEGAL COSTS of $200 representing the judicial costs paid on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: November 6, 2018 and February 12, 2019