2013 QCCQ 3799, 2013 QCCQ 3799

Shearer c. Williams 2013 QCCQ 3799 JG2338 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION « Civil Division »

N° : 760-32-014909-123 DATE : April 11, 2013 ______________________________________________________________________ IN THE PRESENCE OF : THE HONOURABLE CÉLINE GERVAIS, J.C.Q ______________________________________________________________________ CRAIG SHEARER Plaintiff vs JULIE WILLIAMS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Craig Shearer and Julie Williams were once a couple and owners of a house in Hemmingford. Mr. Shearer sues Mrs.

Williams for $7 000, claiming he was arrested and restricted by the Court from going back to his home, following a false accusation by Mrs. Williams. The amount claimed represents the rent he had to pay to stay in another apartment between April 2009 and March 2012. THE FACTS : [ 2 ] Mr. Shearer and Mrs. Williams were living together since September 2003, and bought on December 23, 2005 a house located in Hemmingford from Mrs. Patricia Audrey Jones. [ 3 ] On February 11, 2009, Mr. Shearer and Mrs. Williams were still living together, but only as co-owners, not as a couple anymore.

A dispute happened, that made Mrs. Williams call the police. Mr. Shearer was then arrested and signed on February 12, 2009 an undertaking by which he promised to keep the peace and be of good behavior, and abstain from being or going at their home in Hemmingford or any other place where Mrs. Williams may reside, whatever the address. The undertaking also provided that he could not be at the work place or in the physical presence of Mrs. Williams, and that he shall abstain from communicating in any manner with Mrs. Williams, directly or indirectly. [ 4 ] Mr. Shearer was charged for assault under

section 266

b) of the Criminal Code , for contravention of storage regulations of a fiream under sections 86(2) and 86(3)

b) of the Criminal Code , and for possession for purpose of trafficking under sections 5(2) and 5(3)

a) of the Controlled Drugs and Substances Act . [ 5 ] Mrs. Williams served Mr. Shearer with a Motion to Partition on December 10, 2009. On February 12, 2010, a safeguard order was rendered, providing for conditions of sale of the house, and allowing Mrs. Williams to stay in the house during the procedures. [ 6 ] Mr. Shearer's criminal trial was held on August 31 st , 2010, and he was acquitted of the charges of assault and possession, but found guilty for the inappropriate storage of firearms. [ 7 ] The judgment on the Motion for Partition was rendered on January 26, 2012 by Mr. Justice Jean-Jude Chabot. Mr. Shearer filed the present lawsuit on May 10, 2012.

ARGUMENTS OF THE PARTIES: [ 8 ] Mr. Shearer claims that Mrs. Williams made false accusations against him, and that, as a result, he was deprived from the possession of his house, as undivided co-owner; he had to find a rent somewhere else, which he now claims from Mrs. Williams. In fact, he claims the rent of his new apartment from April 2009 until March 2012, which amounts to $ 7128, which he accepts to reduce to $7000 to present his Demand in the Small Claims Court. He sent a Letter of Demand to Mrs. Williams on March 12, 2012. [ 9 ] In her Contestation, Mrs. Williams states that the judgment rendered by Mr.

Justice Chabot settles the question, as he decided on both parties' claims regarding the house. PREVIOUS JUDGMENTS: [ 10 ] The judgment on the criminal accusations was rendered orally on August 31, 2010, by Mr. Justice Éric Simard. Mr. Justice Simard first found that Mr. Shearer was guilty on the count of contravention of storage regulation of a firearm, because the small slide locker on the top of the door of the room where the arms were kept was not safe enough. [ 11 ] As to the counts of assault and possession of drugs, Mr. Justice Simard asked himself if he believed Mr. Shearer's version of the facts.

He concluded, after hearing Mr. Shearer's testimony, that he could not find any contradictions or any version that was not credible of his account of the events that happened on February 11, 2009. As Mr. Justice Simard found that Mr. Shearer was credible in his testimony, he had a reasonable doubt and then proceeded to acquit Mr. Shearer. [ 12 ] As concerns the civil litigation, Mr. Justice Chabot, of the Superior Court, granted Mrs. Williams' action. He ordered that the house be sold "de gré à gré" for the amount of $ 85 000, ordering Mr.

Shearer to sign all necessary documents to conclude the Deed of Sale. [ 13 ] Both parties presented claims against each other concerning the maintenance of the house in the Superior Court file. Mr. Shearer was claiming from Mrs. Williams an indemnity of $ 700 per month under

section 1016 of the Quebec Civil Code which provides that if one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation. [ 14 ] Mr. Justice Chabot stated that Mr. Shearer brought no proof as to the value of the rental of such a house. Despite the fact that Mrs. Williams could benefit from the house, she had to pay Mr. Shearer's share regarding taxes, insurance, and general up keeping of the house. [ 15 ] Mr. Chabot decided that Mrs. Williams had assumed alone expenses totaling $ 5345.60, which were due to her by Mr. Shearer.

The Court considered though that this amount of $ 5345.60 represented an adequate compensation for the exclusive use of the house by Mrs. Williams, and operated a compensation between Mr. Shearer's claim and the amount he was owing to Mrs. Williams. [1] ANALYSIS AND DECISION : [ 16 ] Dealing first with the compensation argument proposed by Mrs. Williams, the Court considers that if Mr. Shearer's claim was to be granted, the amount of $ 5345 should be deducted from his claim, as it is directly related to the fact that Mrs. Williams was living alone in the house.

Though this amount of $ 5345 does not represent money he received from Mrs. Williams, it represents expenses that he did not have to pay regarding the upkeeping of the house. [ 17 ] Despite that conclusion, the Court has to decide whether Mr. Shearer is entitled to recover the rent he had to pay because Mrs. Williams allegedly made false accusations against him. [ 18 ] The case-law on that matter is well defined by Mr.

Justice Bernier of the Court of Appeal in Arcand vs Attorney General of Quebec : "Pour avoir gain de cause dans une poursuite en dommages suite au dépôt d'une dénonciation, il faut d'abord que le demandeur qui a été acquitté de l'accusation portée fasse la preuve que la dénonciation a été faite par malice de la part du plaignant ou par suite d'une erreur grossière ou d'un geste téméraire ou encore en l'absence d'une cause raisonnable et probable." [2] [ 19 ] This means that Mr. Shearer does not only have to prove that he was acquitted, but also has to convince this Court that Mrs.

Williams acted recklessly, without a reasonable cause, or with malicious intention when she called the police on February 11, 2009. [ 20 ] It should be noticed that once the police was called, the decision to file an accusation against Mr. Shearer was not anymore Mrs. Williams', but the Attorney General's. [ 21 ] The fact that Mr. Justice Simard believed Mr. Shearer's version at his criminal trial, considering that the Attorney General had to prove the infraction without any reasonable doubt, does not mean automatically that a civil court can conclude, on the balance of probabilities, that Mrs.

Williams acted maliciously. [ 22 ] Having heard the transcript of the criminal trial, as well as the parties' testimony at the hearing, this Court is not convinced that Mrs. Williams acted with malicious intentions or without reasonable cause when she called the police on February 11, 2009, and in consequence, Mr. Shearer's action cannot succeed. FOR THE ABOVEMENTIONED REASONS, THE COURT :

DISMISSES Plaintiff's action; WITHOUT costs. __________________________________ CÉLINE GERVAIS, J.C.Q.