2019 QCCQ 1628, 2019 QCCQ 1628

Felix c. Bain 2019 QCCQ 1628 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-702227-176 DATE: March 28, 2019 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ CHERYL FELIX Plaintiff v.

CATHERINE BAIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is requesting $3,969.16 from the Defendant, claiming that the amount represents her contribution to the expenses they incurred when they shared an apartment and the use of a car. [ 2 ] Defendant claims that she paid Plaintiff in full for her share of their joint expenses and desisted from her counterclaim. I. QUESTIONS AT ISSUE

a) Has Plaintiff established that the Defendant owes her money?

b) Has the Defendant established that she paid Plaintiff her share of the parties’ common expenses? II. the CONTEXT [ 3 ] The parties lived together from February 19 until the end of August or very early September 2016, during which period they agreed to share equally the payment of the expenses related to the apartment they lived in. [ 4 ] Plaintiff purchased a car on January 4, 2016, for $25,292.20 (P-9) and was repaying the loan she contracted in relation to the purchase by monthly instalments of $412.54 (P-11). [ 5 ] According to Plaintiff, the parties’ intention was to purchase the car together.

The Defendant, however, could not buy the car with her because she did not pass at credit and did not have a valid driver’s licence. [ 6 ] She claims that notwithstanding that fact, the Defendant agreed to pay half of the expenses related to the purchasing and maintenance of the car because she was going to drive the Defendant around.

The parties later agreed that as of September 1, 2016, Plaintiff would have sole usage of the car, and that the Defendant would not have to contribute to the payments related to it as of that date. [ 7 ] Plaintiff claims $3,969.16 from the Defendant contending that she did not pay her share of their living and car expenses for the period ending with the month of September 2016. [ 8 ] Defendant claims that she paid Plaintiff in cash and money transfers all the money she owed her in accordance with their agreement, denies that Plaintiff drove her around as she contends, alleging that she even had to walk back home from work one night.

III. the ANALYSIS [ 9 ] Anyone who wants to assert a right shall prove the facts that sustain her claim by a clear and convincing evidence that makes the existence of the facts in support of her claim more probable than their nonexistence [1] , to satisfy the test of the balance of probabilities [2] .

[ 10 ] If the evidence is not compelling enough or is contradictory and the judge is unable to determine where the truth lies, the one upon whom falls the burden of persuading the court of the merits of her claim loses [3] , in full or in part.

a) Has Plaintiff established that the Defendant owes her money? [ 11 ] Plaintiff’s evidence as to whether Defendant owes her any money is not reliable. [ 12 ] On January 23, 2017, Plaintiff sent a demand letter to the Defendant, claiming that she owed her $2,450.80 as an accumulation of payments she did not make between April 1 st and September 30, 2016, towards her share of the living expenses, and payment relating to the purchasing, insuring and maintaining of the car she purchased (P-1). [ 13 ] It is not clear to the court how the amount the Defendant would owe Plaintiff increased to $3,969.16 in the claim she filed with the Small Claims Division on June 29, 2016. [ 14 ] At the hearing, Plaintiff modified her claim to reduce the amount the Defendant would owe her to $2,459.58. [ 15 ] Because the parties could not complete the presentation of their evidence on the first court date of October 30, 2018, the hearing continued on February 5, 2019. [ 16 ] On that date, in an attempt to clarify the evidence she had presented so far, Plaintiff filed a table detailing the amounts she claims reimbursement for. [ 17 ] In that table Plaintiff indicates that Defendant owes her $2,426.04 in back contribution for living and car expenses.

She adds $200 to that amount claiming that she had asked the Defendant to safe keep for her, $100 of which the Defendant kept and $100 that she used to repair the screen of her telephone, for a total claim of $2,626.02 [4] . [ 18 ] Plaintiff’s contention that she gave $200 to the Defendant to safe keep for her is irreconcilable with the rest of the evidence.

This assertion is indeed incompatible with the fact that according to Plaintiff the Defendant never had money and would never pay her share of the common expenses in time. [ 19 ] It is not clear either why Plaintiff could not just hide the money somewhere in the apartment if the purpose of “hiding” the money was to make sure she would not give it to her ex-husband if he came to ask her for money, rather than ask the Defendant to hold to the money for her. [ 20 ] Plaintiff has not established to the satisfaction of the Court the usage the Defendant had of the car and that she used it as much as she for up to $495 of gas between the months of April and August. [ 21 ] Plaintiff could not have expected the Defendant to participate in the payment of the insurance of the car when she did not own it and since any money that the insurer would have had to pay in settlement of a claim would have been payable to her exclusively. [ 22 ] These conclusions reduce the claim Plaintiff may have against the Defendant by at least $684. [ 23 ] It was clear from the onset of Plaintiff’s presentation that she did not keep track of the amounts she received from the Defendant on a weekly nor monthly basis, did not give her receipts relating to the money owed and received, and tried to recapitulate the amounts after the parties parted ways in bad terms. [ 24 ] The handwritten document that Plaintiff filed on the first day of hearing to establish the amount she claims the Defendant owes her was prepared after the fact and while Plaintiff was presenting it, the Court identified and pointed to miscalculations. [ 25 ] In the table that Plaintiff filed at the continuation of the hearing, except for the rent, she used different numbers than the ones she originally presented to the Court. [ 26 ] Plaintiff admitted having received $2,958.50 from the Defendant between April, 1 st and August 31, 2016.

Defendant moved out of the parties’ apartment as agreed upon by the end of August 2016, or very early September 2016. [ 27 ] According to the documents filed, Defendant’s share of the parties living expenses for the period of five months, between April and August 2016, was $3,014,82, as detailed below: Rent $2,375.00 Netflix $29.97 Bell $340.06 Hydro [5] $269.79 Total $3,014.82 [ 28 ] According to the above numbers, the Defendant would owe Plaintiff $56.32.

However, considering Plaintiff’s miscalculations the Court doubts that the figure is accurate. [ 29 ] Plaintiff contends that the Defendant owes her $475 as half of the rent for the month of September 2016 even though she did not live there, which would bring the amount she owed to approximately $531.32. However the evidence did not establish that Plaintiff did not receive the amount through other payments nor that Defendant should pay half of the rent for the month of September 2016.

b) Has the Defendant established that she paid Plaintiff her share of the parties’ common expenses? [ 30 ] As for the Defendant she does not have much proof to establish what she paid to Plaintiff as her contribution to the parties’

various common expenses. [ 31 ] Both party’s evidence is so unreliable that the Court dismisses Plaintiff’s claim. Legal fees [ 32 ] Although

article 340 of the Code of Civil Procedure provides that the losing party is entitled to legal costs, considering the specific facts of this case, the Court does not grant the costs to the Defendant. WHEREFORE, THE COURT: [ 33 ] DISMISSES the claim in part; [ 34 ] PRAYS ACT that the Defendant desisted from her cross-claim; [ 35 ] WITHOUT COURT COSTS . __________________________________ MAGALI LEWIS, J.C.Q. Dates of hearing: October 30, 2018, and February 5, 2019