2021 QCCQ 10870, 2021 QCCQ 10870

Ventura v. Construction Adapt-Solutions inc. 2021 QCCQ 10870 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-159953-191 DATE : November 3rd, 2021 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. ______________________________________________________________________ FRANCO VENTURA Plaintiff c. CONSTRUCTION ADAPT-SOLUTIONS INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr Franco Ventura reproaches Construction Adapt-Solutions Inc. (the contractor ) for not having respected a transaction concluded in order to settle a dispute before the Court of Québec, in particular for not having transmitted a release of a legal hypothec and a prior notice to exercise a hypothecary right, so that he is claiming $15,000 for the prejudice suffered. [ 2 ] In his contestation, the contractor pleads that he performed all his obligations under this transaction and that he was never advised that Mr Ventura was suffering any damage whatsoever as a result of the delay in signing this release.

ISSUE [ 3 ] Does Mr Ventura prove the damages suffered as a result of the contractor's delay in performing its obligations under the transaction?

CONTEXT AND ANALYSIS [ 4 ] In September 2017, the parties finally settled a dispute before the Court of Québec relating to the payment of construction work performed by the contractor at the request of Mr Ventura. [ 5 ] The transaction signed by the parties requires Mr Ventura to pay the total amount of $75,000 in three installments, the last of which is due on September 30, 2018. [ 6 ] The evidence shows that Mr Ventura is meeting all of his obligations. [ 7 ] As a result of these payments, the contractor undertakes to have a release of the legal hypothec and the notice to exercise a hypothecary right prepared at its own expense. [ 8 ] In view of the contractor's default on its obligations in this regard, Mr Ventura asked his lawyer to put him on notice, as appears from a letter dated February 15, 2019, in which he was formally asked to respect the transaction and to proceed with the release of the legal hypothec and the notice to exercise a hypothecary right, in addition to stating : L’inaction de la part de votre compagnie de compléter cette mainlevée a causé un préjudice à nos clients.

Ces derniers n’ont pas pu vendre sa maison et ont eu à vivre avec le stress d’avoir une hypothèque légale sur sa maison . (as-is reproduction) [ 9 ] The contractor, represented by its sole director and shareholder, Mr Giuseppe Giulietti, establishes that after receiving this demand letter, he asks his lawyer to prepare a release, which is signed on February 27, 2019 and forwarded the next day to Mr Ventura's lawyer. [ 10 ] At the hearing, Mr Ventura testified that the delay in preparing this release caused him to lose an opportunity to sell his house and to have problems financing his building. [ 11 ] In civil matters, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided in

article 2803 of the Civil Code of Québec ( C.C.Q. ), which states that “A person seeking to assert a right shall prove the facts on which his claim is based.” [ 12 ] The Court decides on the balance of probabilities, pursuant to

article 2804 C.C.Q., which states that “Evidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must determine what is more probable

and plausible, rather than improbable and implausible. [ 13 ] Despite Mr Ventura's testimony and allegations, the Court finds no evidence to support his application. Specifically, Mr Ventura does not produce any promise to purchase in order to sell his home, nor any documents related to any financing problems.

The only document produced by Mr Ventura in relation to the sale of his residence is a declaration by Mr Eginardo De Angelis which refers to a promise to purchase dated June 4, 2019. [ 14 ] However, the release of the contractor's legal hypothec and to exercise a hypothecary right is duly transmitted to Mr Ventura's lawyer on February 28, 2019. [ 15 ] As for all of Mr Ventura's other allegations relating to intimidation or the behaviour of the contractor's representative towards him, the Court does not consider it useful to refer to them since Mr Ventura's application does not mention them at all, nor does his lawyer's formal notice of February 15, 2019.

In any event, Mr Ventura presents no evidence of the damages actually suffered as a result of the facts to which he testifies. In law, it is not enough to allege damages, they must be proven. [ 16 ] Consequently, given the lack of evidence of damages suffered by Mr Ventura, the Court dismisses his application but, exercising its judicial discretion, does not impose any costs. FOR THESE REASONS, THE COURT: DISMISSES Franco Ventura’s application against Construction Adapt-Solutions inc., each party paying its own costs. _________________________________ Henri Richard, J.C.Q. Date of hearing: October 25, 2021