2023 QCCQ 1141, 2023 QCCQ 1141

Ousmanova c. Association Hampstead Court 2023 QCCQ 1141 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-32-161819-208 DATE: March 14, 2023 ______________________________________________________________________ BY THE HONOURABLE DANIEL BOURGEOIS, J.C.Q. ______________________________________________________________________ OLGA OUSMANOVA Plaintiff vs.

ASSOCIATION HAMPSTEAD COURT Defendant ______________________________________________________________________ JUDGMENT RENDERED FROM THE BENCH [1] ______________________________________________________________________ [ 1 ] Plaintiff Olga Ousmanova (« Ousmanova [2] ») claims from Defendant Association Hampstead Court (« Association ») an amount of $6,213.81. [ 2 ] The claim concerns management fees for the period of 2015 and 2016 that, according to Ousmanova, should have been paid during the time she was a member of the Board. [ 3 ] Plaintiff states that she learned about the management fees only when she sold her condominium or apartment in June 2019. [ 4 ] The Association contests the above and denies owing any money to Ousmanova. [ 5 ] Plaintiff has filed with the Court different documents, one of which (Exhibit P-4) being an account of statement produced by the bookkeeper, where we can see that at the end of December 2017, a credit of $6,213.81 was owed to her by the Association. [ 6 ] She also files another document, (Exhibit P-5), which is a

summary of account owing for condominium fees, created by her, whereby it is shown that $4,785 is owed by her for condominium fees on June 30, 2019, and that, after taking into account what is owed to her by the Association for management fees, the net result is that the Association owes Plaintiff $1,262,16. [ 7 ] Four witnesses were heard. All of them were either Board members or managers at the time Plaintiff was the owner of apartment 40, her condominium.

They all testified on what went on at different meetings, either Board meetings or members’ assembly. [ 8 ] All of them, without exception, explained to the Court that on September 28, 2016, during a members’ assembly, Plaintiff clearly expressed that she didn’t want any management fees to be paid to her. [ 9 ] Furthermore, they say that the bookkeeper was an employee of the company of the Plaintiff, who is an accountant. [ 10 ] Hence, Exhibit P-4, the Account Statement, does not come from the Association and has not been approved by it.

ANALYSIS [ 11 ] The law concerning the burden of proof, states the following at Sections 2803, 2804 and 2845: 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. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof.

2845. The probative force of testimony is left to the appraisal of the court. [ 12 ] In instance, the Plaintiff has the burden to prove, on the balance of probabilities, that the Association owed her the amount claimed. [ 13 ] After considering all the evidence, the Court arrives at the conclusion that the Plaintiff has failed to do so. [ 14 ] Firstly, Exhibits P-4 and P-5 contradict one another. [ 15 ] Secondly, Exhibit P-4 was prepared by the bookkeeper who was an employee of Plaintiff. Exhibit P-5 was also prepared by Ousmanova.

This is self-serving evidence. [ 16 ] At last, the Plaintiff was the treasurer of the Association during the period 2014 to 2016. She knew or should have known about the fees. [ 17 ] Furthermore, even if my findings of facts were incorrect,

Section 2925 C.C.Q. states that the claim is prescribed: 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 18 ] In instance, the Application was filed with the Court on July 30, 2020, more than three years after the facts. FOR THESE REASONS, THE COURT: DISMISSES the Originating Application; CONDEMNS the Plaintiff Olga Ousmanova to refund to the Defendant Association Hampstead Court the court fees of $261. __________________________________ DANIEL BOURGEOIS, J.C.Q. Date of hearing: March 14, 2023