2020 QCCQ 11187, 2020 QCCQ 11187

Auger c. Obaldo 2020 QCCQ 11187 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-32-158403-180 DATE: December 3, 2020 ______________________________________________________________________ BY THE HONOURABLE MARTIN BERGERON, J.C.Q. ______________________________________________________________________ MICHEL AUGER Applicant v.

ELENOR ASEO OBALDO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Michel Auger claims from Elenor Aseo Obaldo the reimbursement of a loan of $2,975. [ 2 ] For her part, Ms. Obaldo claims to have repaid this loan. [ 3 ] At the hearing, the Court raises the issue of prescription, that is the limitation period for Mr. Auger's recourse. ISSUE IN DISPUTE 1. Is the recourse of Mr. Auger prescribed? 2. If the recourse is not prescribed, then was the loan reimbursed? CONTEXT AND ANALYSIS [ 4 ] Mr.

Auger is represented at the hearing by Mr. David Gordon in virtue of a mandate dated June 6, 2018. [ 5 ] Ms. Obaldo admits having received a loan from Mr. Auger in 2011. No loan contract was signed between the parties. The loan terms appear in an unsigned document submitted by Mr. Auger entitled “Proposition from Michel Auger [1] ” (“ Loan Offer ”). [ 6 ] The Loan Offer provides for a loan in the amount of $2,975 payable by way of 12 monthly equal and consecutive installments of $300 each starting as of December 15, 2011. [ 7 ] Mr. Gordon files as evidence nine cheques drawn on Ms.

Obaldo’s bank account at the TD Bank and dated between December 15, 2011 and October 15, 2012. They were remitted to Mr. Auger in view of reimbursing the loan. Four of them were returned by the financial institution with the mention “Non Sufficient Funds”. The other five were not deposited by Mr. Auger. [ 8 ] According to Mr. Auger, the filing of these cheques proves the default of Ms. Obaldo to reimburse the loan. [ 9 ] For her part, Ms. Obaldo states having made the full repayment of the loan in cash and that Mr.

Auger was to give her back the cheques in exchange for the cash payments, which he neglected to do and explains why the cheques are still in his possession though the loan was reimbursed. [ 10 ] To decide on the issue of prescription of Mr. Auger’s recourse, the Court will consider that Ms. Obaldo has failed to make the payments provided for in the Loan Offer. [ 11 ] The applicable prescription is that of three years [2] .

When a money loan is repayable by installments as it is in the present case, each installment is prescribed as of its third due date year. [ 12 ] In the present case, the procedures were instituted by Mr. Auger on June 8, 2018. At this date, more than three years had elapsed since the due date of each installment to which Ms. Obaldo was held according to the terms of the Loan Offer. [ 13 ] In addition, the proof reveals that Ms. Obaldo did not renounce to the prescription acquired for her benefit. To the contrary, it is established that she refused to sign the acknowledgment of a debt presented by Messrs.

Gordon and Auger in November 2017. [ 14 ] Consequently, the Court concludes that the recourse of Mr. Auger is prescribed and that it must fail. It is therefore not necessary to decide on the second issue in dispute.

FOR THESE REASONS, THE COURT: DISMISSES Mr. Michel Auger’s application; CONDEMNS Mr. Michel Auger to pay the legal costs of $167 to Ms. Elenor Aseo Obaldo. __________________________________ MARTIN BERGERON J.C.Q. Date of hearing: October 19, 2020