2015 QCCQ 5871, 2015 QCCQ 5871

Hammerschmid c. Digiovanni 2015 QCCQ 5871 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-144915-149 DATE: June 22, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ LINDA HAMMERSCHMID […]Westmount, Qc […] Plaintiff v.

GIUSEPPE DIGIOVANNI […] Montréal, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Maître Linda Hammerschmid, who operates a legal practice under the name and style, Hammerschmid & Assoc., sues a former client, Mr Giuseppe Digiovanni, for a balance of $ 1,050, on account for legal services rendered. [ 2 ] The letter of demand dated July 31, 2014, acknowledges receipt of a cheque of $ 1,196.94 applied against an outstanding amount on February 17, 2014 statement of account of $ 2,196.94, [ 3 ] Mr Digiovanni does not contest the amount of the bill nor the value of the services rendered, rather he alleges having paid $ 1,000 cash to Maître Hammerschmid’s employee, Maître Samy Staltari.

Mr Digiovanni explains to the court that Maître Staltari, who was managing the file for him, asked for the $ 1,000 on the eve of a Court appearance, and that Mr Digiovanni borrowed the money from his mother and gave it to Me Staltari, at the Court House, asking for a receipt. [ 4 ] He testifies that Maître Staltari told him not to worry, that he would give him a receipt, but that later refused to acknowledge that the amount had been paid.

He explains this as the reason why he gave a cheque for $ 1,196.94, i.e. $ 1,000 less than the amount shown on the statement of account of February 17, 2014 of $ 2,479.27 less an amount that it been credited to him. ANALYSIS [ 5 ] The Plaintiff has the burden of proving the existence of the debt. This burden is met by the billing and by the admission Mr Digiovanni makes, acknowledging this debt. His defence, that of a payment of $ 1,000 in cash, that the debt was extinguished by payment.

He has the burden of proof on that defence. [ 6 ] Testimony is admissible in this case to prove the payment but Mr Digiovanni’s testimony is countered by that of an equally credible witness, Maître Staltari. He states that, according to procedures he always followed and that were standard at the firm, any amount received in cash would be immediately evidenced by a receipt and remitted for deposit. Had he taken $ 1,000, not issued a receipt and not remitted it to his employer, it would be quite astounding.

It is simply not plausible that an attorney in good standing, who has an active practice and is successful at it, would do such a thing. [ 7 ] Mr Digiovanni had made all the other payments in the file by cheque and there was simply no reason to make a payment in cash. [ 8 ] On the basis, therefore, of what is probable, it does not seem likely that Mr Digiovanni paid an amount in cash and was not given credit for it. While the Court does not doubt the sincerity of Mr Digiovanni in believing that occurred, his testimony does not have

a higher probable value than that of Maître Staltari. [ 9 ] The defence fails because it is not adequately proved; the burden of proof has not been met. [ 10 ] Mr Digiovanni takes a Cross-demand in the amount of $ 2,999.99 for time spent dealing with another accounting problem that occurred in connection with payments that he eventually settled, and for his time and energy put into the case which caused him stress. [ 11 ] In the Court’s view, this type of allegation is not actionable: time spent preparing the case and time spent in Court is not recoverable.

The time Mr Digiovanni spent dealing with the attorneys, including any time spent over a clarification of his accounts, does not result from any demonstrable fault on their part. [ 12 ] The Court will however relieve Mr Digiovanni from any judicial costs in the matter, hoping that this will assist the parties in putting the matter to rest. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the amount of $ 1,000 with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from the institution of the proceedings; THE WHOLE, without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: May 27, 2015