2010 QCCQ 13133, 2010 QCCQ 13133

Martinovic c. Schacter 2010 QCCQ 13133 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-122791-108 DATE: December 17, 2010 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ PAUL MARTINOVIC […] Côte St-Luc, Quebec […] Plaintiff vs.

GILDA SCHACTER […] Côte St-Luc, Quebec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Paul Martinovic, sues the Defendant, Ms Gilda Schacter, claiming the sum of $295.23 allegedly a balance of a personal loan made during a trip to China in May 2007. [ 2 ] Ms Schacter denies owing any amount. [ 3 ] Mr Martinovic and Ms Schacter, platonic friends, joined forces to travel in China in May 2007.

Parts of the trip involved travelling together but at certain times each had individual activities, Mr Martinovic attending a tradeshow and Ms Schacter touring and shopping on her own. [ 4 ] A certain number of expenses were incurred jointly, often involving expenses that had to be paid for by credit card.

Mr Martinovic assumed the charges and they were settled up later. [ 5 ] At the end of the trip, the two friends were not on such good terms as they were at the beginning. [ 6 ] Mr Martinovic admits that many of the expenses he incurred were reimbursed but he lists a series items totalling $567.76 (US), in respect of which he claims to have only received $281.93 (US) leaving a balance of $285.82. (In the amounts mentioned in this judgment, the Court excludes, for the sake of simplicity, foreign currency exchange surcharges.) [ 7 ] The statement (P-16) was, admittedly, made after his return to Montreal based on his recollection, various manuscript notes and the invoices themselves.

The calculations show approximately 15 items at various stages of the trip ranging from bus fares to hotel bills. The statement (P-16) is not exhaustive. Mr Martinovic admits that several of the expenses he incurred were paid up by Ms Schacter and he has excluded them from the tally. [ 8 ] The Court asked Mr Martinovic to show his calculations to indicate how he had recorded the receipt of the foreign currency equivalent of $281.93. Mr Martinovic provided a manuscript page torn from a pad (P-18). On it three entries totalling $3,114.20 appear.

Then there is a subtraction of $2,154 leaving a balance of $960.20. [ 9 ] This is not the $2,044.10 in foreign currency shown on the statement as equivalent of $285.82. [ 10 ] Ms Schacter states that, from her recollection there were expenses covered jointly and others covered individually and that

Mr Martinovic's tendency to assume expenses became a source of conflict between them. She asserts that a final payment was made and that she no longer owes any balance with respect to any expenses Mr Martinovic incurred on her behalf. [ 11 ] Although she does not remember the amount of foreign currency she gave Mr Martinovic on the last day of the trip, she believes it covered whatever claim he had. [ 12 ] In a case such as this one, the person asserting the existence of a debt has the burden of establishing its proof on the balance of probabilities.

After hearing the case, the Court must be convinced that it is more probable than not that the balance claimed is owed. [ 13 ] The Court does not question Mr Martinovic's sincere belief that a small amount remained owing to him at the end of the trip but, on an objective analysis of the evidence, it is impossible for Mr Martinovic to establish this with any degree of certainty. [ 14 ] While the statement he prepared (P-16) can be tracked to a series of invoices and vouchers, the amounts he transcribed into the statement showing payment received are not established convincingly from the annotations made. [ 15 ] Perhaps Mr Martinovic received the amount he alleges; perhaps he received more, or perhaps he received less.

As for the amounts owing, has he forgotten some; has he included as unpaid some items that were reimbursed in whole or in part? [ 16 ] The uncertainties inherent in the informal record keeping, or, perhaps more correctly, the lack thereof, diminish the probative value of the evidence. [ 17 ] There can be no blame for this inadequate record keeping; Mr Martinovic was dealing with a friend on an informal basis in a non-business situation. [ 18 ] It is unfortunate that friendly feelings gave way to acrimony with the result that the issue, a very minor one, could not be resolved. [ 19 ] Such are risks inherent in friendship, and its aftermath. [ 20 ] It is unfortunate that the case became judiciarised.

The Court will not impose costs. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action, without costs; __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 7, 2010