2015 QCCQ 7626, 2015 QCCQ 7626

Anie c. Begum 2015 QCCQ 7626 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No: 500-32-136745-132 DATE: July 13, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ AMINA SULTANA ANIE Plaintiff and Cross-Defendant v.

MAHMUDA BEGUM Defendant and Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Amina Sultana Anie ( Mrs. Anie ) is claiming $7 000.00 from Mahmuda Begum ( Mrs. Begum ) in recovery for sales proceeds of a duplex property ( the property ). [ 2 ] Mrs. Begum denies owing such amount. [ 3 ] By way of a cross-claim, Mrs. Begum is also claiming $7 000.00 from Mrs. Anie [1] , in recovery for the down payment made for the property. [ 4 ] Mrs. Anie denies owing such amount. QUESTIONS IN ISSUE A.

Has Mrs. Anie established her right to recover $7,000.00 from Mrs. Begum? B. Has Mrs. Begum established her right to recover $7,000.00 from Mrs. Anie? CONTEXT AND ANALYSIS [ 5 ] Mrs. Begum and Mrs. Sanchita Kar owned a property located on […], in Montréal [2] . [ 6 ] In view of financial difficulties, Mrs. Begum wanted to sell her share in the property and contacted Mrs. Anie in this regard. [ 7 ] Their respective husbands knew each other, working at the same place. They handled the discussions.

A) Has Mrs. Anie established her right to recover $7,000.00 from Mrs. Begum?

B) Has Mrs. Begum established her right to recover $7,000.00 from Mrs Anie? [ 8 ] Both parties have reduced their demand to $7,000.00 in view of the jurisdiction of the Québec Court, Small Claims division. [ 9 ] Every person has a duty to honour his contractual undertakings [3] . [ 10 ] The Court will analyse the written terms of a contract. It can also consider verbal agreements in certain circumstances.

However, when a verbal agreement is contested and contradictory evidence is presented, the rules governing the burden of proof will be key for the Court’s conclusions. [ 11 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [4] . 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 demand, in the main action or in the cross-claim, must demonstrate that the existence of a fact is more probable than its non-existence [5] . [ 12 ] All relevant elements of evidence are analysed by the Court. The probability is evaluated based on the direct evidence, the circumstances and the presumptions [6] .

[ 13 ] On December 12, 2009 [7] , Mrs. Begum, Mrs. Kar and Mrs. Anie signed a contract. Their role was defined: Mrs Begum was the party of the first part, Mrs. Kar, of the second part and Mrs Anie was the party of the third part. The notarial deed indicated: […] Accordingly, the parties to the present figurehead agreement declare that the real and sole owner of the half of the first Party of the immovable hereinbefore described is the third party: Amina SULTANA ANE . 4.

These facts being re-established, the party of the first part will continue to act as if she were half owner of the property notwithstanding the fact that all charges relatives to the property will be assumed by the party of the third part . 5. The party of the third part binds herself to this effect to compensate the party of the first part for all loss, disbursements or damages that her title could incurred, income tax, fees, disbursements, etc.: 6.

In return, upon request, the party of the first part binds herself to retrocede to the party of the third part half of the property and all its accessories, for a real or unreal consideration at his latter’s choice: and to sign any and all necessary documents to give effect to the present agreement, [ 14 ] Furthermore : 7. The party of the first part and the party of the second part bind themselves not to sell the property without the writing consent of party of the third part . [ 15 ] On December 18, 2011, Mrs. Dob signed a handwritten document referring to an agreement with Mrs. Anie [8] .

It indicated: After the agreement she based all needed expenses 50% percent. [ 16 ] The reason and context for issuing that document on such date remain unknown for the Court. [ 17 ] On June 24, 2012 [9] , Mrs. Anie consented to the sale of the property. [ 18 ] On June 28, 2012, Mrs. Begum and Mrs. Kar sold the property to Julia Carlton [10] . [ 19 ] Contradictory evidence was presented. [ 20 ] Mrs. Anie claims the proceeds of the sale based on the calculations made for the deed of sale in June 2012. She expected a similar return as the one obtained by the other co-owner Mrs. Dob [11] . [ 21 ] According to Mrs.

Anie, $5,000.00 were also paid cash to Mrs Begum to help her with the expenses. [ 22 ] Furthermore, Mrs. Anie referred to expenses made from 2009 to 2012 [12] which she alleged were paid by her. [ 23 ] Mrs. Begum corrected the data and indicated having received from the notary $11,074.54 [13] and not $18,699.51. The difference would partly be explained by another cheque of $6,500.00 [14] issued by the notary to Mrs. Anie. [ 24 ] Mrs. Begum would have been willing to reimburse the $11,074.54 to Mrs. Anie if the latter had repaid her initial down payment ($11,500.00) and some unpaid taxes. [ 25 ] Mrs.

Begum denies that Mrs. Anie paid expenses on her behalf. She also denies receiving any cash payment of $5,000.00 that she accepted would have accepted the initial down payment. [ 26 ] Letters of demand and replies were issued [15] . [ 27 ] The evidence presented by both parties did not have the probative value to convince the Court. Faced with contradictory verbal evidence, both parties did not meet their burden of proof.

FOR THOSE REASONS, THE COURT: DISMISSES the action of Plaintiff Amina Sultana Anie against Mahmuda Begum; WITHOUT COSTS; DISMISSES the action of Cross-Plaintiff Mahmuda Begum against Cross-Defendant Amina Sultana Anie; WITHOUT COSTS. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Dates of hearing: February 17, 2015 and May 25, 2015