2015 QCCQ 9567, 2015 QCCQ 9567

Hoque c.

Mizi 2015 QCCQ 9567 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal TOWN OF montreal Civil Division No: 500-32-144409-143 DATE: September 22, 2015 ______________________________________________________________________ presided BY THE HONOURABLE david l. cameron, j.c.q. ______________________________________________________________________ mohammed mominul hoque -and- nargis akter […] Montréal (Québec) […] Plaintiffs v. sirajul islam mizi […] Montréal (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The Demand and the Contestation [ 1 ] The Plaintiffs, Mohammed Mominul Hoque and Nargis Akter, sue the Defendant, Sirajul Islam Mizi, alleging that they lent him an amount of $ 3,000 on October 17, 2011, and that Mr.

Mizi failed to repay them. [ 2 ] Mr. Mizi denies owing the amount although he admits he received a cheque for $ 3,000 on October 17, 2011 drawn on a joint account of Mr. Hoque and his wife, Mrs. Akter. He alleges that this payment was a really the reimbursement to him of a loan of $ 3,000 that he had made to Mr. Hoque in April 2011. [ 3 ] As well, he asserts a defence of prescription. Facts [ 4 ] A copy of the cheque, recto-verso, was produced and explained by the parties (P-1, D-1). [ 5 ] Mrs. Akter, who operated the joint account on behalf of herself and her husband, testified that Mr.

Hoque asked her to provide a cheque for $3,000; this was money he needed for his friend, Mr. Mizi. [ 6 ] Mr. Hoque testified that he asked his wife to give him the cheque which he then remitted to Mr. Mizi on October 17, 2011, at a meeting held in front of his house. The amount of the cheque was written, as well as the date, by Mrs. Akter and signed by her, leaving in blank the name to whom the cheque was payable. [ 7 ] Mr. Hoque states that the cheque was not filled out in his presence. He believes that the handwriting of the name, “Sirajul Islam Mizi”, and the inscriptions, “loan paid”, were made by Mr.

Mizi but he did not witness this. [ 8 ] Mr. Mizi admits having written his name and the expression “loan paid” but asserts that he did so in Mr. Hoque’s presence. He asserts that the meeting took place at a donut shop close to the parties’ residences. Analysis [ 9 ] The cheque, along with the related testimony, establishes that a payment of $ 3,000 was made by the Plaintiffs to the Defendant on October 17, 2011, but there is no written evidence that this cheque constituted a loan. Testimony not admissible

[ 10 ] In cases such as this one, where the amount in issue is greater than $ 1,500, evidence may not be made of a juridical act through testimony unless there is a commencement of proof. [ 11 ] In this case, a commencement of proof would be either an inscription on the cheque made by the Defendant or something in his testimony that indicates that, when he received the money, he was borrowing it. The inscription on the cheque suggests the opposite, namely that this was the payment of a previous loan obligation owed to Mr. Mizi as lender by Mr. Hoque as borrower. [ 12 ] To constitute a commencement of proof, Mr.

Mizi’s testimony would have to be either an admission that he received a loan or testimony which, because of its evasiveness or lack of clarity, would indicate to the Court that there is a likelihood that the loan that the Plaintiffs are claiming truly exist. [ 13 ] The Court listened carefully to Mr. Mizi’s testimony. There was nothing in that testimony that suggested that he admitted a loan nor was there any hesitation or evasiveness that would allow the Court to consider the existence of a loan obligation in the Plaintiffs’ favour to be indicated.

Therefore, the Court found that there was no commencement of proof and the testimonial evidence of the existence of a loan in the Plaintiffs’ favour is therefore inadmissible. Burden of proof not met [ 14 ] Having said this, the Court considers that the evidence given would not be effective in demonstrating the existence of a loan on the balance of probabilities, even if it were admissible. [ 15 ] Mr. Hoque alleges that Mr. Mizi asked him for a loan of $ 2,000 which was given in cash just prior to October 17, and a subsequent loan of $ 3,000 which was given by cheque.

He asserts that the reason for the loan was to pay Mr. Mizi’s mutation taxes on the purchase of a property. [ 16 ] Mr. Mizi testifies that he lent Mr. Hoque $3,000 in April of 2011 to assist Mr. Hoque who was purchasing a property. According to his testimony, there was no term fixed for the loan, but when he requested payment in October 2011 from Mr. Hoque, Mr. Hoque obliged by remitting to him the cheque for $ 3,000 drawn on the joint account. According to Mr. Mizi’s testimony, the payment is admitted, but as a repayment to Mr. Mizi of the loan that was outstanding since April, not as a new loan to him from Mr.

Hoque. [ 17 ] There were other dealings between the parties involving a circumstance where Mr. Mizi "bailed" Mr. Hoque out when he had been arrested, paying $ 300 to Mr. Hoque’s attorney and depositing $ 200 cash as bail. Both parties admit that this was a loan and that Mr. Hoque paid it back. [ 18 ] These facts add color to the file but do not bear directly on the issue that is before the Court, namely whether the payment of $ 3000 on October 17 was a loan to Mr. Mizi or the repayment to Mr. Mizi of an amount he had lent to Mr. Hoque. [ 19 ] Mr.

Hoque produced a copy of his bank book (P-2) showing that in April he had significant bank balances. The balances indicated between March 24 and May 25, 2011 fluctuate between, at the lowest point, $ 18.71 and, at the highest point, $ 80,195.26 on May 12. [ 20 ] There are, however, times in the period where the bank balance is significantly lower than $ 3,000. The bank statement does not establish any probative evidence that Mr. Hoque either needed or did not need money in April when Mr.

Mizi alleges having made the loan to him. [ 21 ] On the whole of the evidence, there is not a greater likelihood that the $ 3,000 was a loan to Mr. Mizi than a repayment to Mr. Mizi of a loan owed to him. [ 22 ] Because Plaintiffs are suing and alleging the existence of the obligation, they have the burden of proof and, in the present case, even if the testimonial evidence were admissible, it would not have been effective to fulfill the burden of proof, not having a higher probative value on the Plaintiffs’ side than on the Defendant’s side. Defence of prescription [ 23 ] Mr.

Mizi also raised a defence of prescription. This defence is not validly pleaded because the action was brought just within three years of the alleged loan, on October 14 2014. What's more, prescription would have run not from the loan itself but from the default to repay the loan which, at the earliest, would have been when a demand was fist made. The allegation made by the Plaintiffs is that the loan should have been repaid on December 14, 2012.

Conclusion [ 24 ] For these reasons, although the defence of prescription was not successful, the Plaintiffs’ action must fail because the Plaintiffs’ did not fulfill the burden of proving the existence of a loan with admissible evidence of a significant probative value. for these reasons, the court : Dismisses the Plaintiffs’ action; Condemns the Plaintiffs’ to pay the Defendant judicial cost of $125. __________________________________ david l. cameron, j.c.q.

Date of hearing: September 14, 2015