2018 QCCQ 1913, 2018 QCCQ 1913

Fine c. Bank of Nova Scotia 2018 QCCQ 1913 COURT OF QUEBEC « Small Claim Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU N° : 550-32-023953-174 DATE : March 28, 2018 ______________________________________________________________________ PRESENT : THE HONOURABLE JEAN FAULLEM, J.C.Q. ______________________________________________________________________ EITAN FINE Plaintiff c. THE BANK OF NOVA SCOTIA Defendant and FLEURYAUTOGROIUPE.COM INC. (Automobile E.

Fleury) Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ JF 1075 [ 1 ] On December 4, 2016, Plaintiff introduced a judicial application by which he is claiming Defendant $5,482.24 in damages resulting from an alleged disproportionate, excessive and abusive rate of interest that would have been imposed to him when he contracted a Credit Agreement with the latter on September 16, 2014. [ 2 ] Plaintiff is also pleading that the Credit Agreement was written in French without his consent. I.

QUESTIONS IN DISPUTE [ 3 ] The questions of facts and the questions of law to which the Court must respond in the case under review are the following:

A) Has Plaintiff requested the Credit Agreement to be written in English?

B) Is the Credit Agreement abusive, excessive and disproportionate? II. CONTEXT [ 4 ] On September 15, 2014, Plaintiff bought a Subaru Forester 2010 though the Impleaded party. The vehicle’s sale price was

established at $14,859.50 [ 5 ] At the time, Plaintiff and Mr. Benoît Poulin, the Impleaded party’s representative, discussed about finding the best interest rate available on the market. [ 6 ] After verification, Mr. Poulin presented two options to Plaintiff. The first one, with Defendant, at a fixed rate of interest of 29,90% for 60 months and a second one, with TD Bank, at 29,50%.

Evidence shows that overall, Defendant proposition represented the least expensive loan for Plaintiff. [ 7 ] Plaintiff chose the Defendant’s offer and a Credit Agreement was signed on September 16, 2014. [ 8 ] In accordance with the Credit Agreement, Plaintiff committed to reimburse Defendant a sum of $28,965.00, divided as follows: a) $14,949.45 in capital; b) $14,015.55 in interest. [ 9 ] Two years later, Plaintiff managed to contract a new loan for the same vehicle with TD Bank.

At that time, this financial institution offered an interest rate of 10.69% to Plaintiff. [ 10 ] In accordance with this new loan, Plaintiff obliged himself to reimburse the sum of $15,078.00 to TB Bank, divided as follows: a) $11,640.71 in capital; b) $3,437.29 in interest. [ 11 ] When Plaintiff contracted his second loan with TD Bank, he had already accumulated $7,441.06 in interest as regards the Defendant’s loan. [ 12 ] Plaintiff argued that if Defendant would have granted a similar interest rate in 2014, he would only have accumulated $1,958.82 in interest.

He claimed that the rate offered by Defendant was disproportionate, excessive and abusive. He therefore claimed that he would be entitled to be compensated of the difference between the amount of interest paid to Defendant and the one he should have paid if an interest rate of 10.69% would have been granted to him in 2014. [ 13 ] Plaintiff alternatively pleaded that the Credit Agreement signed with Defendant having been written in French, he could not have given an enlightened consent. He declared that he does not speak nor understand this language. III. Analysis

A) Signature of a French version of the Credit Agreement [ 14 ] As for the language argument, the Court dismisses it for the following reasons. [ 15 ] The Credit Agreement under review has been signed in Gatineau. [ 16 ]

Section 26 of the Consumer Protection Act [1] states that any contracts contemplated by this law must be drawn in French, unless the consumer expressly agrees for the usage of another language. [ 17 ] At the time Plaintiff signed the Credit Agreement, he has not requested an English version of the contract. Moreover, he has never expressed to the Impleaded party’s representative, Mr. Poulin, any difficulties to speak or read French. [ 18 ] Mr. Poulin’s testimony confirmed that Plaintiff never demanded either the Borrower Declaration (Déclarartion du demandeur) nor the Credit Agreement be written in English.

He also confirms that oral communication between himself and Plaintiff were made in English and that the interest rate was discussed prior to signing any documents. [ 19 ] Furthermore, prior to introducing his judicial proceeding, Plaintiff never protested about not understanding his obligations toward Defendant and he made all his payments without any complaints. [ 20 ] Therefore, there is no evidence of Plaintiff requesting the Credit Agreement to be written in English in 2014.

B) The excessiveness of the Credit Agreement? [ 21 ] As for the argument pertaining to the abusive interest rate, the evidence presented at trial does not convince the Court of the validity of the Plaintiff’s claim. [ 22 ] According to sections 2803 and 2804 of the Civil Code of Québec , a person seeking to assert a right has the burden to prove the facts on which his claim is based.

Proving that a fact is more probable than its non-existence suffices to convince the Court of a right. [ 23 ] In the matter under review, the evidence presented by Plaintiff is not sufficient to prove that Defendant, or any other party, abused his right to impose him an excessive or disproportionate interest rate in 2014. [ 24 ] On the contrary, Mr. Poulin’s uncontested testimony showed that Plaintiff was presented with more then one financial offer. This testimony confirmed that Plaintiff was presented with the best available options at the time and that he accepted to pay an interest

rate of 29.9% to Defendant. [ 25 ] An annual interest rate of 29,9% is not illegal. [ 26 ] Furthermore, at the time Plaintiff signed the Credit Agreement with Defendant, his credit bureau, which was established in 1999, presented no other historical loan information available for anyone, including Defendant, on which to evaluate risks.

The Consumer Credit report filed by Defendant shown no favourable credit history and the only annotation referred to a collection unpaid account at Virgin Mobile. [ 27 ] Plaintiff has not proved that he could have obtained a better interest rate from any other financials institutions in 2014.

On the contrary, evidence shows that even TD Bank offered Plaintiff an interest rate of 29,5% in 2014. [ 28 ] The lowest interest rate obtained by Plaintiff in 2016 is easily explained by the fact that during the last two years he was able to re-establish his credit along with reducing the capital balance owed on the vehicle by making his monthly payments to Defendant. [ 29 ] FOR THESE REASONS, THE COURT: [ 30 ] DESMISSES the Plaintiff’s judicial application; [ 31 ] THE WHOLE with judicial fees in favour of Defendant, fixed at $250. __________________________________ JEAN FAULLEM, J.C.Q .