2015 QCCQ 2553, 2015 QCCQ 2553

Jayasundara c. Québec (Curateur public) 2015 QCCQ 2553 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139384-137 DATE: April 2, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ ROHINI JAYASUNDARA Plaintiff v. CURATEUR PUBLIC DU QUÉBEC ( ès qualités for A.

J. ) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Rohini Jayasundara ( Mrs. Jayasundara ) is claiming $1,980.70 from Curateur public du Québec, ès qualités for A. J. , ( Public Curator and Mrs. J. ), for unpaid services rendered for the period of July 15, 2012 to September 10, 2012. [ 2 ] Public Curator denies owing that amount as no contract or document established that Mrs. J. retained the services of Mrs. Jayasundara for extra services. Public Curator also questions the validity of Mrs.

J.’s consent. QUESTIONS IN ISSUE

A) Has Mrs. Jayasundara established the existence of a contract and her right to be paid for the services rendered?

B) What are the damages established by Mrs. Jayasundara? CONTEXT AND ANALYSIS [ 3 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [1] . In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence . This implies that the Mrs. Jayasundara must demonstrate that the existence of a fact is more probable than its non-existence [2] . [ 4 ] All relevant elements of evidence are analysed by the Court.

The probability is evaluated based on the direct evidence, the circumstances and the presumptions [3] . [ 5 ] Every person has a duty to honour his contractual undertakings [4] . [ 6 ] The Court summarizes as follows the relevant facts from the evidence presented. [ 7 ] Mrs. Jayasundara was acting as a cleaning lady for Mrs. J.’s house since approximately 2010. She was paid 82 $ for six hours of work per week. [ 8 ] Public Curator handles the personal affairs of Mrs.

J. since January 31, 2013. [ 9 ] Its representative explained that Public Curator handles all requests for payments notwithstanding the fact that the services might have been rendered prior to their mandate. [ 10 ] Art. 284 of the Québec Civil Code provides: 284. Acts performed before the curatorship may be annulled or the obligations resulting from them reduced on the mere proof that the incapacity was notorious or known to the other party at the time the acts were performed. [ 11 ] In July 2012, Mrs. Jayasundara explained that Mrs. J. (approximately 90 years old) requested extra services.

At that time, it seems that Mrs. J. had difficulty eating and had lost part of her memory.

[ 12 ] The extra services were the following:

a) Feed the cats in the house;

b) Walk with Mrs. J. to go feed the cat’s colony (in the forest nearby);

c) Do the grocery;

d) Prepare the meals for Mrs. J.. [ 13 ] Mrs. Jayasundara stopped providing those extra services when Mrs. J. was hospitalised for a period of seven weeks, in September 2012. [ 14 ] Mrs. Jayasundara wants to be paid for those extra services rendered. [ 15 ] Demand letters were sent and led to some exchanges with the Public Curator [5] .

A) Has Mrs. Jayasundara established the existence of a contract and her right to be paid for the services rendered? [ 16 ] The Québec Civil Code establishes the necessary elements to be proven for a contract: 1385. A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law requires a particular form to be respected as a necessary condition of its formation, or unless the parties subject the formation of the contract to a solemn form. It is also of the essence of a contract that it have a cause and an object. 1386.

The exchange of consents is accomplished by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person. [ 17 ] Furthermore: 1398. Consent may be given only by a person who, at the time of manifesting such consent, either expressly or tacitly, is capable of binding himself. 1399. Consent must be free and enlightened. It may be vitiated by error, fear or lesion. [ 18 ] On April 26, 2012, a report was issued on Mrs. J., declaring her totally inapt to administer her property and to exercise her civil rights [6] .

The report included the medical and psychosocial assessment signed by the physician on January 25, 2012. It indicated an impairment on orientation, memory and judgment. Moderate Alzheimer was diagnosed as a cognitive disorder. [ 19 ] Andrée Couture testified at trial. She considers herself as Mrs. J.’s friend. She knows her since approximately thirteen years as they share a passion for cats and live close by. She would visit Mrs. J. on a regular basis and would often walk with her to the forest located behind her house to feed the colony of cats living there. [ 20 ] Mrs. Couture had and still has the key of Mrs.

J.’s apartment. She was and still is the one who took care of her upon her return from the hospital, at no charge for the Public Curator. [ 21 ] She questions the testimony of Mrs. Jayasundara. She does not understand how Mrs. Jayasundara could charge 2 hours and a half each day for the extra services described when she compares it with the time it takes her when she helps Mrs. J.. [ 22 ] She confirmed having seen Mrs. Jayasundara at Mrs. J.’s place but could not testify that she was solely working as a cleaning lady: she had seen her watch television with Mrs.

J. and drink tea with her. [ 23 ] Although aware of Mrs. J.’s cognitive problems, Mrs. Couture testified that when questioning her with respect to the extra services required, Mrs. J. denied retaining Mrs. Jayasundara’s services. That evidence has no probative value in the circumstances. The Court nonetheless considers that Mrs. Couture presented a credible testimony. [ 24 ] Mrs. Jayasundara invokes the existence of a verbal contract. [ 25 ] No invoices and no time sheets were filed by Mrs. Jayasundara. [ 26 ] With the testimonial and documentary evidence, Mrs. Jayasundara has not convinced the Court that Mrs.

J. gave a valid consent to retain her services. [ 27 ] Furthermore, as indicated in the Québec Civil Code : 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500. However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in

the ordinary course of business of an enterprise. [ 28 ] Under the balance of probabilities, Mrs. Jayasundara has not established the existence of a valid contract and her right to be paid for the services rendered.

B) What are the damages established by Mrs. Jayasundara? [ 29 ] That second question becomes moot in view of the first answer. [ 30 ] Mrs. Jayasundara claims $1 980.70 based on a calculation of 145 hours at a rate of $13.66 which is the same rate as the one charged for the house cleaning. [ 31 ] She testified having worked seven days per week and 2 hours and a half each day. [ 32 ] That testimony has been contradicted by Mrs. Couture who provided and still provides similar services, at no cost and in less time. [ 33 ] The Court does not grant the amount claimed.

FOR ALL THOSE REASONS, THE COURT : DISMISSES the action of Plaintiff Rohini Jayasundara against Defendant Curateur Public du Québec, ès qualités for A J. ; WITHOUT COSTS. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Date of hearing: February 17, 2015