2018 QCCQ 8994, 2018 QCCQ 8994

Siddique Zubair c. Chaudhry 2018 QCCQ 8994 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-154720-165 DATE: October 10, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ MOHAMMED SIDDIQUE ZUBAIR Plaintiff v.

NAVEED CHAUDHRY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] After reducing his claim, Mohammed Siddique Zubair seeks $10,800 from Naveed Chaudhry, corresponding to the reimbursement of the balance of a loan of money originally in the amount of $11,500, granted in March 2013. [ 2 ] Mr.

Chaudry denies owing this amount in its entirety. [ 3 ] In his written contestation, he states that he already reimbursed $1,500 and refuses to pay any further amount unless he is given a receipt confirming it. [ 4 ] At the hearing, he added to his contestation that the loan of money was granted on terms that Mr. Zubair never respected. [ 5 ] The court file reveals that on March 19, 2018, the Honourable Eliana Marengo J. of the Court of Quebec rendered judgment by default, dismissing Mr. Zubair’s application given his unjustified absence from the hearing that day. [ 6 ] On April 17, 2018, Mr.

Zubair filed an application for revocation, and on April 19, 2018, the Court found that the grounds appeared sufficient for the parties to be summoned again to be heard on the application for revocation and, if applicable, on the merits of the dispute. [ 7 ] At trial, the Court took the application for revocation under advisement and heard the evidence on the merits of the case subject to its decision on the application for revocation. ISSUES [ 8 ] (

a) Do the grounds raised by Mr. Zubair in support of his application for revocation of judgment constitute an “other cause considered sufficient” within the meaning of

article 346 of the Quebec Code of Civil Procedure (“ C.C.P . ”), justifying the Court’s revocation of the default judgment rendered on March 19, 2018? (

b) If so, has Mr. Zubair established evidence of a promissory note in the amount of $11,500, the balance owing of which is currently $10,800? (

c) Has Mr. Chaudhry provided evidence of a partial reimbursement in the amount of $1,500 and of terms attached to the said loan? ANALYSIS AND DECISION [ 9 ] In civil matters, the burden of proof lies with the plaintiff under the principle set out in

article 2803 of the Civil Code of Québec (“ C.C.Q .”), which states that “a person seeking to assert a right shall prove the facts on which his claim is based.” [ 10 ] The Court renders its decision in accordance with the balance of probabilities set out under

article 2804 C.C.Q. , which states that “evidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 11 ] Regarding the revocation of judgment, the Court must strike a fair balance between two competing principles: the finality of judgments rendered and the right to make full answer and defence. [ 12 ] Finally, on the merits of this case, the Court finds that the parties are governed by a contractual framework and will each have to convince the Court that their positions are well founded, i.e., Mr.

Zubair will have to establish the existence of an outstanding loan of money, and Mr. Chaudhry will have to establish his reimbursement and the terms of the said loan that were not met.

[ 13 ] Let us consider the merits of this case. Do the grounds raised by Mr. Zubair in support of his application for revocation of judgment constitute an “other cause considered sufficient” within the meaning of

article 346 C.C.P ., justifying the Court’s revocation of the default judgment rendered on March 19, 2018? [ 14 ] In matters dealing with the recovery of small claims, applications for revocation are governed by

article 568 C.C.P. : 568. An application for revocation of the judgment must include an affidavit setting out the grounds on which the application is based and the revocation is sought, and be filed with the court office within 30 days after the party becomes aware of the judgment, but not more than six months after the date of the judgment, these being strict time limits.

If, on the face of the record, the grounds appear sufficient, the court may stay forced execution of the judgment; the court clerk then summons the parties so that they may be heard on the application for revocation and, if applicable, on the merits of the dispute. [ 15 ] The grounds giving rise to an application for revocation are set out in articles 345 and 346 C.C.P. Here, only

article 346 C.C.P. attracts the Court’s attention: 346 . A party against which a default judgment has been rendered following failure to answer the summons, attend the case management conference or defend on the merits but that was prevented from doing so owing to fraud, surprise or any other cause considered sufficient may apply to the court that rendered the judgment for the revocation of the judgment and the dismissal of the original application.

The application for revocation must contain the reasons justifying the revocation as well as the grounds of defence raised against the original application. [ 16 ] In this case, the Court accepts from Mr.

Zubair’s remarks that he was not aware of the notice of the March 19, 2018, hearing. [ 17 ] Because he had told the registry he was available on that day, he contacted the Court on March 19, 2018, to ask about the hearing date and was told that the hearing took place that morning and that a judgment had been rendered. [ 18 ] He was informed of the steps he needed to take to obtain the revocation of his judgment and immediately prepared his application, which he filed at the first opportunity. [ 19 ] By its very nature, the application for revocation constitutes an exception to the principle of finality in litigation. [ 20 ] This means that the statutory provisions giving rise to it must be interpreted strictly and narrowly such that re-assessing a decision remains the exception rather than the rule. [ 21 ] According to the case law, the Court must bear in mind during its analysis that if it dismissed the application for revocation, the prejudice suffered by the party against whom judgment is rendered by default is significantly greater than that suffered by the other party if the application is granted. [ 22 ] In this regard, the Court reiterates the words of Grenier J. in Tremblay c.

Savard : [1] [ translation ] [41] The Court deciding whether to grant an application for revocation of judgment must bear in mind two guiding principles, that of the finality of judgments rendered by the courts, the application of which ensures the stability of the judicial system as an important component of our democratic system, and that of a person’s right to defend themselves against an action brought against them by presenting their evidence and arguments before the Court, an immemorial principle of natural justice known as the “ audi alteram partem ” rule codified at

article 17 C.C.P . [42] The Court must also bear in mind the fact that if the application is dismissed, the prejudice suffered by the party against whom judgment is rendered by default without having had the opportunity to present his or her grounds of defence is much greater than the prejudice suffered by the opposing party if the application is granted, which is limited to the inconvenience of having to once again proceed with the hearing on the merits of the case, but this time in the presence of the defendant. [43] For these reasons, the principle of the right to make full answer and defence must therefore in principle prevail over the principle of the finality of litigation, unless the person submitting the application for revocation placed him or herself in a situation, through his or her own negligence or turpitude, where he or she can no longer credibly raise their right to a defence. [44] In that context, it should also be noted that absent a clear situation regarding the conduct of all parties that led to the default judgment against the defendant, benefit of the doubt must be granted so as promote the maintenance of his or her legal recourses. [ 23 ] In this case, the Court is of the view that it cannot attribute any serious deficiency to Mr.

Zubair or negligent conduct in the management of his affaires. [ 24 ] In fact, his conduct throughout the proceedings revealed no recklessness or negligence in the management and follow-up of his case. His explanation for his absence from the March 19, 2018, hearing is plausible. It constitutes a sufficient reason to justify the revocation of the judgment rendered on March 19, 2018. [ 25 ] Consequently, the Court revokes the default judgment rendered on March 19, 2018, and will now address the merits of the case. Has Mr.

Zubair established evidence of a promissory note in the amount of $11,500, the balance owing of which is currently $10,800?

[ 26 ] Mr. Zubair claims to have loaned the amount of $11,500 to Mr. Chaudhry at the latter’s request, as appears from the loan agreement signed by the parties on March 25, 2013. [2] [ 27 ] Mr. Zubair explained that he gathered this amount from his savings account and his line of credit and that his recollection was that this amount was intended to help Mr. Chaudhry in his work. [ 28 ] As appears from the loan agreement, Mr.

Chaudhry undertook to reimburse the loan through monthly installments of $500 as of May 1, 2013. [ 29 ] No conventional interest was discussed; the loan was payable on demand, subject to three months’ written notice. [ 30 ] Mr. Zubair recalls having received two payments from Mr. Chaudhry in May and June, 2013, totalling $700, hence the reduction of his claim. [ 31 ] Subsequently, he did not receive anything despite Mr. Chaudhry’s assurances that he would have money shortly. [ 32 ] On October 17, 2016, through his counsel, Mtre Josée Lata, Mr. Zubair gave Mr.

Chaudhry formal notice to reimburse him. [ 33 ] In view of Mr. Chaudhry’s inaction, Mr. Zubair filed his action before the small claims division on October 31, 2016. [ 34 ] The loan of $11,500 is admitted by Mr. Chaudhry. [ 35 ] He contests the amount of the loan reimbursement. He claims to have reimbursed $1,500 rather than the $700 reported by Mr. Zubair. [ 36 ] In the face of impugned evidence, it is up to the Court to assess the quality and credibility of the testimony heard. [ 37 ] In the Court’s view, Mr. Zubair’s testimony is the most convincing. [ 38 ] The explanations he gave are consistent and uniform.

He did not hesitate to acknowledge a partial reimbursement of $700, while knowing that Mr. Chaudhry was unable to prove it. [ 39 ] Mr. Chaudhry’s version is more complicated, and above all, implausible. [ 40 ] He was unable to prove his repayments other than through his verbal assertions. [ 41 ] The Court notes that alleging a fact is not equivalent to proving it. To be conclusive, the statement must be supported or documented with objective written or verbal information. In this case, Mr. Chaudhry made no more than mere assertions. The Court cannot therefore consider them to be probative. [ 42 ] Next, Mr.

Chaudhry alleged that it was Mr. Zubair who contacted him to loan him $11,500 to purchase a truck. [ 43 ] According to his explanation, he was to purchase the truck and put it in his name, even though between the two of them, Mr. Zubair was the actual owner. [ 44 ] Mr. Chaudhry added that this loan agreement was subject to employment at Mr. Zubair’s transportation company. [ 45 ] Thus, according to Mr. Chaudhry, as soon as he started his job at Mr. Zubair’s company, Mr. Zubair was to deduct the amount of $500 from his pay to reimburse the loan of $11,500. [ 46 ] Mr.

Chaudhry continued, saying he never got the job at Mr. Zubair’s company as Mr. Zubair chose another person. [ 47 ] That explains why there was no repayment of $500 on the loan. [ 48 ] At the hearing, he reiterated the offer he made to Mr. Zubair during their mediation session, which Mr. Zubair refused, i.e., for Mr. Zubair to take the GMC 5500 truck back in final payment and settlement of the $11,500 loan. [ 49 ] In response to the Court’s questions, Mr.

Chaudhry explained that he had been the owner of the truck since October or November 2012, after buying it back from a company. [ 50 ] When questioned by the Court, Mr. Zubair said that he knew nothing about Mr. Chaudhry’s story, nor understood it. He refused the verbal offer to settle that was made to him. [ 51 ] Mr. Zubair informed the Court that he was the head of a transportation company and that he has trucks registered in his name or in the name of his business. He is not interested in taking Mr. Chaudhry’s truck and does not understand why he would have asked Mr.

Chaudhry to act as his prête-nom for the purchase of a truck. [ 52 ] He specified that the $11,500 was not subject to any terms and that Mr. Chaudhry could do what he wanted with the money. [ 53 ] The documentary evidence confirms Mr. Zubair’s testimony. [ 54 ] The loan agreement contains no terms or information supporting Mr. Chaudhry’s version. [ 55 ] That is why, according to the Court, Mr. Zubair’s testimony is credible, reliable and preferred to that of Mr. Chaudhry. [ 56 ] The Court is therefore of the view that Mr. Zubair conclusively and convincingly established a loan of money in the amount of

$11,500 to Mr. Chaudhry, a partial reimbursement of $700, and a balance owing of $10,800. [ 57 ] Mr. Chaudhry, for his part, did not discharge his burden of proof of establishing the allegations of his written and verbal defence. FOR THESE REASONS, the Court: GRANTS Mohammed Siddique Zubair’s amended application; ORDERS Naveed Chaudhry to pay Mohammed Siddique Zubair the sum of $10,800, with interest at the legal rate, plus the additional indemnity under

article 1619 of the Civil Code of Québec , as of October 17, 2016, the date of formal notice; THE WHOLE, with legal costs. __________________________________ JO ANN ZAOR, J.C.Q. Date of hearing: August 29, 2018