2021 QCCQ 52, 2021 QCCQ 52

JR 1973 Nachaj c. Thakrar 2021 QCCQ 52 COURT OF QUEBEC (Civil Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL No: 500-32-705708-180 DATE: January 14, 2021 ______________________________________________________________________ BY LOUIS RIVERIN, JUDGE OF COURT OF QUÉBEC ______________________________________________________________________ HENRY NACHAJ Plaintiff v.

NISH THAKRAR and NIINA VILJAMAA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This case concerns an X3 BMW which was badly damaged by a big black dog; [ 2 ] On November 23, 2017, the Plaintiff, Mr. Henry Nachaj, sees a large black dog emerging from Heritage Park and crossing the street which bears the same name; [ 3 ] The dog makes impact with his car, on the front right corner, then continues on his path on the other side after steps on the brakes, immobilizing his car; [ 4 ] Mr.

Nachaj claims $3 592.10 alleging that the Defendants, Mr. Thakrar and Ms. Viljamaa are the dog’s owners. [ 5 ] The Defendants contest the claim, denying that their dog, Sammy, caused the damages. [ 6 ] In civil matters, the onus of proof is borne by the plaintiff, as set out in articles 2803 and 2804 of the Civil Code of Québec : 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. [ 7 ] In the present matter, the Plaintiff has not fulfilled his burden having failed to prove that the Defendant’s dog Sammy was the dog that stuck his car on November 23, 2017. [ 8 ] The preponderant evidence is contrary to this assertion. [ 9 ] The testimony of a third-party witness, Ms.

Heïdi Sauvé, who has no interest in the outcome of this case, is very clear. [ 10 ] To get to this park, which is behind her property, Sammy went parallel to this street leaving her property. [ 11 ] She states that she saw Sammy cross Grantree Court and continue over her property heading toward the back in the direction of Heritage Park. [ 12 ] When she saw this, Ms. Sauvé put her things down in her car, took her mobile phone and called Mr. Thakrar to let him know his dog was loose. [ 13 ] Before she could initiate the call, she saw Mr. Thakrar, with a leash in this hand, pursuing Sammy.

Getting into her car, she drove out and proceeded a few meters to the corner of Grantree Court and onto Heritage Park. [ 14 ] This sequence of events occurred within a lapse of two to three minutes. Ms. Sauvé produced an aerial shot of the scene, as exhibit D-5.

[ 15 ] On the basis of this very credible evidence, which corroborates that of Mr. Thakrar, the Court concludes that the Plaintiff did not fulfill his burden of proof. [ 16 ] According to the Plaintiff’s version, the dog, having left the park and, after bumping into his car, crossed to the other side of the park and went on his way; [ 17 ] This description of the dog’s trajectory is at odds with the description and duration of the facts as told by Ms.

Sauvé. [ 18 ] Therefore, for the reasons previously mentioned, the Court accepts her version and is therefore not satisfied, on the balance of probabilities, that the Defendant’s dog caused the damages sustained to Mr. Nachaj’s car. By these reasons, the Court: DISMISS the Plaintiff’s claim. Without legal costs. __________________________________ Louis Riverin, JCQ (JR 1973) Date of hearing: November 18, 2020