2016 QCCQ 734, 2016 QCCQ 734

Capozzi c. Bucaro 2016 QCCQ 734 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-143903-146 DATE: February 4, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GIOVANNI CAPOZZI […] Montréal, Qc […] Plaintiff v.

BIAGIO BUCARO […] Montréal, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Giovanni Capozzi, sues the Defendant Biagio Bucaro for reimbursement of a loan he alleges to have made to Mr Bucaro, in the amount of $ 6,028.01, in December 2012. [ 2 ] Mr Capozzi, at the time, was working with Mr Bucaro, his son-in-law, in Mr Bucaro’s landscaping business, known as Aménagement B. [ 3 ] The trailer was purchased by Mr Bucaro and registered in his name, and it was used by Mr Capozzi, who worked part-time with Mr Bucaro as an employee of the business. [ 4 ] Mr Bucaro is married to Mr Capozzi’s daughter Mary.

The couple were separated as of March 5, 2014, and are presently undergoing divorce proceedings [1] . [ 5 ] At the time of the separation, the two men ceased working together, and Mr Capozzi continued to use the trailer he had in his possession for his own landscaping business.

As a result of certain matters that occurred in the divorce file, Mr Capozzi gave the trailer back to Mr Bucaro, and at that point, he needed to buy a new one in order to carry out his work. [ 6 ] He then put Mr Bucaro in default to repay the amount that had been advanced by him for the purchase of the trailer, alleging that this was not a gift, but a loan and it was intended that he would be reimbursed as funds became available through the business operated by Mr Bucaro. [ 7 ] Mr Bucaro acknowledges that the payment to require the trailer was advanced by Mr Capozzi, but he maintains that Mr Bucaro was paid the amount he was owed out of funds he collected on behalf of the business, which operated, to a large extent, on cash payments. [ 8 ] He states that the parties worked together for the last time in the fall season of 2013. [ 9 ] The finances of the business were handled by his wife and other members of the Capozzi family, and he has had no access to the cash, and has not received an accounting of the administration of the liquidities of his business from his former collaborators. [ 10 ] He also states that when the trailer was given back to him in June 2014, parts had been taken off of it, and it was no longer suited to be used in the landscaping business.

[ 11 ] He disposed of it for $ 2,000, being short of cash at the time. [ 12 ] Be that as it may, the allegation made by Mr Bucaro is that Mr Capozzi should consider himself repaid by virtue of the fact that his family is in possession of the residual liquidities belonging to the business, therefore belonging to Mr Bucaro. They should simply take the amount owed out of the money that they hold on his behalf. [ 13 ] The Court heard the testimony of Giuseppina Capozzi, (the sister of Mr Bucaro’s wife Mary).

She confirmed that several members of the family were working within the business and that her sister Mary was managing the funds. As far as she knows, these funds were not used to pay her father back: in fact, her father contributed financially to other financial obligations of the business, notably for the purchase of a truck. As well, several family members were working without being paid. [ 14 ] She testifies as well that when the agreement in the divorce file permitted Mr Bucaro to pick up the trailer, he was free to pick up the screen as well, which is the main accessory.

He chose not to take it. [ 15 ] But Mr Bucaro confirmed to the Court that it is no longer of any use to him, since he no longer owns the trailer. [ 16 ] Giuseppina Capozzi believes that, at end of the business, there were only a few thousand dollars of liquidities left, therefore not enough to reimburse her father. ANALYSIS [ 17 ] In a case such as this one, where the Plaintiff admits the existence of the loan, he then has the burden of proving that the loan has been reimbursed.

Although to the Defendant, his father-in-law’s family worked as a group, they are separate individuals and the Court cannot consider that Mr Capozzi has been reimbursed simply by the virtue of the fact that his daughter was the administrator of the business’ funds. There would have to be direct proof that he in fact received this amount and, since he does not admit it, and there is no actual proof of payment, the Defendant has not fulfilled his burden of proof. [ 18 ] The Court has no other option than to confirm that he must reimburse the amount of the loan.

He has suffered a loss which he has partly mitigated by recovering the possession of the trailer and selling it, but his real grievance is not with his father-in-law, but with his former wife. [ 19 ] If an accounting of the amounts remaining in the business after the payment of debts and tax liabilities is met, the accounting of that situation should be made by Mary Capozzi.

This is something that could be covered by the Superior Court’s jurisdiction in the divorce file, since these funds would normally be part of the partnership of acquests. [ 20 ] In the divorce, Mary Capozzi has asked for an unequal distribution of the net value of the partnership of acquests. In order to resolve that issue, it should be taken into account that that business has a liability to Giovanni Capozzi in the amount of the present judgment for which the Defendant is personally exposed. [ 21 ] The jurisdiction of this Court is limited to acknowledging that the debt remains unpaid.

The impact of that liability on the resolution of the financial situation between the couple is a matter for the Superior Court to decide and it can only be hoped that the lawyers in the divorce file will find the proper solution to this problem in an agreement to be submitted to the Superior Court Judge for incorporation in the final divorce judgment. [ 22 ] The amount claimed is $ 6,028.01, but the only amount proved is the amount of the cheque (P-2) $ 5,800.28.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the amount of $ 5,800.28, together with interest at the legal rate and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the proceedings, September 2, 2014; CONDEMNS the Defendant to pay to the Plaintiff judicial costs in the amount of $ 169. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 8, 2015