2014 QCCQ 13627, 2014 QCCQ 13627

Akoi c. Rod 2014 QCCQ 13627 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS LOCALITY OF CHÂTEAUGUAY Civil Court N°: 760-32-016087-142 DATE: October 31, 2014 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CLAUDE MONTPETIT, J.C.Q. ______________________________________________________________________ JOSEPH M. AKOI Plaintiff-Defendant by Counterclaim v.

GAMSON ROD Defendant-Plaintiff by Counterclaim ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Akoi is claiming $3 500 in damages from defendant Rod who evicted him from his house on October 17, 2013, although he had paid the rent for his room ($350/month) until October 31, 2013. [ 2 ] Defendant Rod refuses to pay this sum invoking his right to refuse access to his home to Mr. Akoi and his brother, and claims $4000 in damages for vandalism to his windows and car tires caused by Akoi.

THE FACTS [ 3 ] In the summer of 2013, defendant Rod, who lives alone in his house at 126 St-Joseph in Châteauguay, accepts to accommodate plaintiff Akoi, who he describes as an acquaintance, and rents him a room for $350 per month for a few months. [ 4 ] Plaintiff Akoi has access to the kitchen, the living room and the bathroom. [ 5 ] Plaintiff Akoi pays rent as agreed upon for July, August, September and October 2013. [ 6 ] In October of 2013, plaintiff Akoi informs Mr.

Rod that his brother Dorbor is arriving from France and will come to live with him in his room for a few weeks. [ 7 ] Defendant Rod accepts upon increasing the rent to $500 a month, a $150 increase for the additional resident. [ 8 ] The two men can’t come to an agreement and decide that the plaintiff will hand the keys to Mr. Rod and leave on October 31, 2013. [ 9 ] On October 17, 2013, plaintiff Akoi is unable to enter the house and Mr.

Rod refuses to open the door. [ 10 ] Plaintiff Akoi asks the police to get involved and the police come and discusses with both men. [ 11 ] Plaintiff Akoi is informed he can no longer enter the house and will have to make an appointment to take possession of his personal belongings. [ 12 ] The police leaves but Mr.

Akoi and his brother remain outside the house and decide to knock at the door once more. [ 13 ] An altercation happens when defendant Rod opens the door and plaintiff Akoi enters the house. [ 14 ] Defendant Rod contacts the police who come back. [ 15 ] Plaintiff Akoi is arrested and brought to the police station for interrogation. [ 16 ] A few hours later, he is released after having signed a promise to appear with the condition not to go to […] in Châteauguay, defendant Rod’s address, except once to pick-up his belongings in the presence of the police (Exhibit P-1).

[ 17 ] In his statement in lieu of his testimony, the plaintiff’s brother mentions the following (Dorbor Gleevoegec): « Mr. Akoi had passed by Mr. Rod at the front door & proceeded to the apartment. Then, Mr. Rod called the police to complain that Mr. Akoi had force (sic) himself into the apartment. The police came & arrested Mr. Akoi for break and entry and they took him/Mr.

Akoi, to the police station in handcuff but was later release (sic) that same day after spending about 3 hour (sic). » [ 18 ] Later the plaintiff picked-up his personal belongings accompanied by the police officers except a few objects he claims he forgot. [ 19 ] Around November 20, 2013, he received a letter from the Service de police de Châteauguay informing him that the Crown attorney had not filed the complaint laid against him and that he would not have to go to Court or give his fingerprints. [ 20 ] On February 19, 2014, plaintiff Akoi institutes his proceedings with the Court of Québec, Small Claims Division.

THE LAW [ 21 ] The parties are bound by a verbal lease under the provisions of the Civil Code of Québec as per a lease of dwelling provided by

section 1892 , paragraph 4 , which reads as follows: “1892. [….] 4° T he lease of a room situated in the principal residence of the lessor, if not more than two rooms are rented or offered for rent and if the room has neither a separate entrance from the outside nor sanitary facilities separate from those used by the lessor”. ANALYSIS [ 22 ] During his testimony in court, plaintiff Akoi claims being a victim of slander given the criminal complaint (breaking and entering) laid against him by the defendant. [ 23 ] The court immediately mentioned to the plaintiff that a claim for slander is not admissible in Small Claims Division because it is excluded by

section 954 of the Code of Civil Procedure which reads as follows: « 954. This Book does not apply to actions arising from the lease of a dwelling or land referred to in

article 1892 of the Civil Code , to actions for the payment of support or to class actions.

Nor does it apply to suits for slander or to actions for the recovery of a claim instituted by a person, partnership or association to whom the claim was assigned in return for payment .” (The passage was underligned by the Court). [ 24 ] The plaintiff also adds he incurred troubles and inconveniences caused by his arrest and the six hours he claims having passed at the police station for his interrogation. [ 25 ] The plaintiff is contradicted by his brother Dorbor, who, in his written statement in lieu of his testimony, claims that plaintiff Akoi was released by the police after three hours at the station. [ 26 ] The Court believes that the plaintiff is the sole responsible for his arrest and the only artisan of the subsequent inconveniences because he did not leave the premises after the police’s first intervention and decided to go back and knock on the door for food, which worsened the situation and lead to his arrest. [ 27 ] The plaintiff did not prove the value of the items he claims he left behind. [ 28 ] The Court believes that he had the opportunity to pick-up his belongings and that he purposely forgot certain things. [ 29 ] As to the rent paid until the end of October 2013, the Court believes in all fairness that the plaintiff proved being entitled to the $158 refund, the portion of the rent paid from October 18 to 31, 2013.

THE COUNTERCLAIM [ 30 ] After the October 17, 2013 incident, defendant Rod claims that five of his thermal windows were broken by a BB gun and that his four tires were punctured with a blunt object. [ 31 ] The defendant advances the theory that plaintiff Akoi, his sole enemy, would be the author of these acts of vandalism. [ 32 ] However, defendant Rod offered no direct or indirect evidence that plaintiff Akoi committed these acts that the latter categorically denies. [ 33 ] Also, the defendant mentioned to the police that neighbours who held a grudge against him could have committed the mischief (exhibit D-3) which would contradict his testimony before the Court. [ 34 ] Consequently, given defendant Rod did not prove his allegations, his counterclaim must be dismissed under

section 2803 of the C.c.Q. which reads 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 .” FOR THESE REASONS, THE COURT: Partially GRANTS the plaintiff’s application; ORDERS defendant Gamson Rod to pay the plaintiff the sum of $158 for overpaid rent, with interests at the statutory rate and the additional indemnity provided by

section 1619 of the C.c.Q. as of the summons dated February 24, 2014; DISMISSES the counterclaim of defendant Gamson Rod; THE WHOLE , each party paying his own costs. __________________________________ CLAUDE MONTPETIT, J.C.Q. Date of hearing: October 16, 2014

SECTION III DU RETRAIT ET DE LA DESTRUCTION DES PIÈCES Les parties doivent reprendre possession des pièces qu'elles ont produites, une fois l'instance terminée. À défaut, le greffier les détruit un an après la date du jugement ou de l'acte mettant fin à l'instance, à moins que le juge en chef n'en décide autrement. Lorsqu'une partie, par quelque moyen que ce soit, se pourvoit contre le jugement, le greffier détruit les pièces dont les parties n'ont pas repris possession, un an après la date du jugement définitif ou de l'acte mettant fin à cette instance, à moins que le juge en chef n'en décide autrement. 1994, c. 28, a. 20.