2019 QCCQ 5259, 2019 QCCQ 5259

Ganeshalingam c. Than 2019 QCCQ 5259 COURT OF QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No.: 500-32-704068-180 DATE: August 22, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ AMALYA GANESHALINGAM Plaintiff v.

THADSHAYINI RAGUHATHAN - and - THANUSHAAN NAGAMUTHU Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff claims $5,000 for damages caused to her car by the defendants, who are her brother-in-law and her sister-in-law. The plaintiff basically claims that the defendants vandalized her car due to extensive family disagreements.

They scratched the paint, which will require repairs of $3,961.28. [1] She also claims $1,000 for trouble and inconvenience. [ 2 ] The defendants say that they have nothing to do with it. They insist that the plaintiff is harassing them and the defendant Nagamuthu’s parents. Last, they note that the plaintiff has no direct evidence connecting them to the damages she claims to have suffered. ISSUE [ 3 ] The only question raised by this file is whether the plaintiff has discharged her burden of proof under arts. 2803 and 2804 C.C.Q.

More specifically, has the plaintiff proved the defendants’ fault and, if so, what is the quantum of damages and causal connection between this fault and these damages? BACKGROUND [ 4 ] This dispute is set against a turbulent family feud that it is important to summarize. [ 5 ] The defendant Nagamuthu owns a residence in Park Extension, Montréal, where he lives with his parents and his siblings. The plaintiff claims that her sister-in-law, the defendant Nagamuthu’s spouse, is scheming to exclude her from her in-laws’ family.

She said that she can no longer go to that house, where her boyfriend, the defendant Nagamuthu’s brother, still lives. [ 6 ] The plaintiff further claims that the defendant Nagamuthu and his spouse falsely accuse her of disrupting the family harmony. She claims that her sister-in-law is jealous of her closeness with her in-laws, in particular their mutual sister-in-law Nila. [ 7 ] The bickering became rather extreme: in the days preceding this hearing, the defendant Nagamuthu bit the ear of one of his sisters who testified in favour of the plaintiff.

The defendant Nagamuthu’s father also tried to influence a witness, Ms. Suruthy Nagamuthu, his own daughter. He threatened that the defendant Nagamuthu would throw all of them out of the house if ever the plaintiff won her case. He finally told his daughter that he would not hesitate to testify in favour of his son, and would even go so far as to lie to the Court if necessary. [ 8 ] In short, the parties’ relationship is tumultuous to say the least.

The subjects of disagreement have multiplied: highly disparaging remarks attributed to the defendant Raguhathan appeared on her Facebook page. [2] Other remarks were attributed to the plaintiff. [3] The parties often disagree and verbally abuse each other when they are together. At the hearing, they glared at each other, which betrayed their continuing mutual resentment. [ 9 ] Let us now turn to the actual facts of the case. [ 10 ] On the evening of November 26, 2017, the plaintiff went to a party at a friend’s home. Her spouse drove her there.

Around 8:00 p.m., he drove the plaintiff’s car, a Toyota Corolla, back and parked it right in front of the defendant Nagamuthu’s home. [ 11 ] Around 11:00 p.m., the plaintiff’s spouse went to pick her up. She noticed marks and scratches along the surface of the doors on both sides of the car. They were made during the evening, probably by a blunt object. The photos adduced illustrate the damage. [4]

[ 12 ] No witness was heard who connected the defendants to the faulty act. The Court, however, benefits from the following evidence: on May 10, 2018, while the parties were again in the midst of an argument, the defendant Nagamuthu shouted: “Yo! Come fight me bitch! We fucked-up the car!!! We fucked-up the car!!!” He said this in front of his sister, Ms. Nila Nagamuthu, and his brother, Mr. Thipeeshaan Nagamuthu.

The plaintiff considers this as an oral out-of-court admission of fault. [ 13 ] On December 7, 2017, the plaintiff sent the defendants a formal notice demanding the reimbursement of $5,000, which she now claims. [5] ANALYSIS [ 14 ] The plaintiff must prove the defendants’ fault, the damages, and the alleged causal connection. She must do so on a balance of probabilities. [ 15 ] The plaintiff enjoys two important means of proof. First, the defendant Nagamuthu’s oral out-of-court admission.

An admission is the acknowledgment of a fact which may produce legal consequences against the person who makes it. [6] [ 16 ] The Court heard the plaintiff, her spouse Mr. Teepeeshan Raguthan, her sister-in-laws Ms. Nila Raguthan and Ms. Suruthy Nagamuthu. All these witnesses described the toxic atmosphere that reigns in the defendant Nagamuthu’s home. [ 17 ] The plaintiff’s witnesses impressed the Court with their frankness.

They were certainly a little nervous when testifying, but did so unwaveringly, while there was tension because they were testifying against other members of their family. [ 18 ] The plaintiff testified with much restraint. [ 19 ] Mr. Teepeeshan Raguthan and his sister Nila Raguthan heard the defendant Nagamuthu twice say “We fucked up the car!” during the dispute outside the family home. [ 20 ] It is revealing that during his testimony, the defendant Nagamuthu did not deny that he said these words.

He instead defended himself by claiming that his brother and his sister were not present during this specific dispute. In failing to deny the sentence that is central to this dispute, the defendant Nagamuthu has added to the weight of the version of facts given by the plaintiff’s witnesses. [ 21 ] Moreover, the Court does not accept the defendants’ theory that merely consists of a general denial.

Their defence is based on their allegation that the plaintiff has no direct evidence that they damaged her car. [ 22 ] The defendant Raguhathan stated that she spent the evening of November 17, 2017, at her mother’s home in Laval, and that she only left around 11 p.m. She added that, given the distance between Laval and her spouse’s neighbourhood in Montréal, she could not possibly have caused the damages at issue. [ 23 ] The defendant called her mother, Ms. Manimekalai Ragunathan, to corroborate her version of the times she claims to have been in Laval. The Court, however, does not accept the testimony of Ms.

Ragunathan, which is unreliable. The bias of this witness in favour of her daughter, the defendant Raguhathan, was clear at trial. Ms. Ragunathan had difficulty remembering key elements in the dispute when she met the plaintiff shortly after the events, in particular the times, but suddenly recovered her memory during the hearing. All of a sudden, she remembered the specific times when the defendant Raguhathan allegedly arrived at her house in Laval, the time she left, and when she went to sleep. The witness’s answers appear to have been memorized.

All this greatly undermines her credibility. [ 24 ] The defendant Nagamuthu did not testify at length. He said that he spent the evening at a soccer game and had been driven there by his brother. He said that he only returned home late in the evening. He said that it was therefore impossible for him to have scratched the plaintiff’s car, which was parked after he left. [ 25 ] The defendant Nagamuthu said that his testimony is corroborated by the testimony of his father, Mr. Nageswaran Nagamuthu.

However, the Court does not accept the father’s testimony for the following reasons. [ 26 ] A statement in lieu of testimony by Mr. Nagamuthu, dated January 8, 2019, was entered into the Court record. This statement is written in English. Yet Mr. Nagamuthu cannot read English. The Court had to suspend his examination so that a Court interpreter could translate his own statement for him. This was necessary because the plaintiff wanted to examine him on that statement. [ 27 ] When his testimony resumed, Mr.

Nagamuthu was uneasy and retracted sentences in the document that, up to that point, had been attributed to him. He then admitted that it was his son, the defendant Nagamuthu, who had written the statement, which was then briefly summarized for him. This adds to the weight of Ms.

Nila Nagamuthu’s statement that her father was ready to do anything during this trial to defend his son. [ 28 ] Based on all the evidence, the Court therefore rejects the defendants’ theory and finds that the plaintiff has proved the oral out- of-court admission made by the defendant Nagamuthu. [ 29 ] The defendant Nagamuthu’s statements are also proof by presumption in favour of the plaintiff, in this case against the two defendants. [ 30 ] Proof by presumption of fact is defined as an inference drawn by the Court from a known fact to an unknown fact. [7] The Court shall take only serious, precise and concordant presumptions of fact into consideration. [8] [ 31 ] The Court of Appeal described the appropriate approach in Barrette c.

Union canadienne (L’), compagnie d’assurances . [9] It consists of: [31] La preuve par présomption est l'un des cinq moyens de preuve mis à la disposition des plaideurs pour démontrer un fait. Souvent utilisée en matière civile pour démontrer un acte fautif et intentionnel, il s'agit d'un moyen de preuve qui répond à ses propres exigences.

[32] Qualifié de preuve indirecte ou indiciaire, ce moyen nécessite la mise en preuve de faits que l'on pourrait, au moyen d'une preuve directe, qualifiés d'indices, suivi d'un raisonnement inductif qui permettra ou non au tribunal de conclure à l'existence du fait à prouver, selon qu'il estime que les faits prouvés sont suffisamment graves, précis et concordants pour conduire à l'inférence qu'il en fera. […] [34] L'exercice prévu à l'

article 2849 C.c.Q . consiste en deux étapes bien distinctes. La première, établir les faits indiciels. Dans cette première étape, le juge doit, selon la balance des probabilités, retenir de la preuve certains faits qu'il estime prouvés. Dans une deuxième étape, il doit examiner si les faits prouvés et connus l'amènent à conclure, par une induction puissante, que le fait inconnu est démontré. […] [36] L'exercice auquel se prête le juge lorsqu'il détermine les faits inductifs commande une grande retenue de la part de la Cour d'appel, laquelle n'interviendra qu'en présence d'une erreur manifeste et déterminante.

Par contre, traditionnellement, on estimait qu'une Cour d'appel était aussi bien placée que le juge de première instance pour tirer des faits prouvés l'inférence qui s'en dégage. Ainsi, la démarche inductive empruntée par le juge de première instance était parfois qualifiée de question de droit, ce qui la soumettait à une norme d'intervention moins sévère. [37] En 2009, s'appuyant sur H.L. c.

Canada (Procureur général) , la Cour, dans l'affaire Christensen , a consacré un changement quant au critère d'intervention, estimant que tant l'appréciation des faits (les indices) que l'appréciation du caractère grave, précis et concordant (raisonnement inductif) sont soumises à la norme de l'erreur manifeste et déterminante.

Le juge Morissette, dans un arrêt unanime, se dit d'avis que : La règle d'intervention en appel pour les présomptions de fait, des inférences que le juge tire de faits connus vers des faits à déterminer, est donc la même que pour toute autre question de fait. [38] La Cour n'interviendra donc qu'en présence d'une erreur manifeste et dominante. [Citations omitted.] [ 32 ] This approach was recently reiterated in Duchesneau c.

Valeurs mobilières Banque Laurentienne , where the Court of Appeal wrote: [57] Qualifié de preuve indirecte ou indiciaire, ce moyen nécessite la mise en preuve de faits que l'on pourrait, au moyen d'une preuve directe, qualifiés d'indices, suivi d'un raisonnement inductif qui permettra ou non au tribunal de conclure à l'existence du fait à prouver, selon qu'il estime que les faits prouvés sont suffisamment graves, précis et concordants pour conduire à l'inférence qu'il en fera. [10] [ 33 ] Based on all the evidence, the Court concludes that the plaintiff has established, on a balance of probabilities, that the defendant Nagamuthu uttered the phrase: “We fucked up the car!” [ 34 ] The Court must now determine whether it can draw an inference from the known fact, the defendant Nagamuthu’s phrase, to an unknown fact, the identity of the perpetrator who damaged the plaintiff’s car. [ 35 ] The Court finds that it can.

Set against the current backdrop of family conflict described above, this phrase can refer only to the scratches on the doors of the plaintiff’s car. Moreover, the personal pronoun “we” can refer only to himself and his spouse; at least, the Court cannot attribute it to anyone else. [ 36 ] Why would the defendant Nagamuthu utter such a disturbing statement so full of consequences if not to admit responsibility?

This phrase, shouted during another family dispute, the strong tensions between the parties, the intimidation, to say the least, suffered by the plaintiff’s witnesses, in particular the bite on the ear, constitute facts that are sufficiently serious, precise and concordant to conclude that the defendants committed the alleged acts. [ 37 ] In other words, the logical conclusion that the Court may draw from all of the evidence is that the defendants, despite their subsequent denial, are the ones who vandalized the plaintiff’s car. [ 38 ] As fault and causal connection have been established, both by admission and by presumption, only damages remain to be assessed. [ 39 ] The plaintiff produced an estimate from a Toyota dealership that recommended the necessary repairs at a cost of $3,961.28.

This evidence has not been contradicted and that amount will be granted. [ 40 ] The plaintiff also claims $1,000 for non-pecuniary damages. She claims to have suffered stress and anguish because of these events. This matter has contributed to poisoning the plaintiff’s relationship with her in-laws. The amount claimed is reasonable, given the facts of this case.

FOR THESE REASONS, THE COURT: [ 41 ] GRANTS the plaintiff’s proceeding; [ 42 ] CONDEMNS the defendants to pay the plaintiff $4,961.28, plus interest and the additional indemnity set out in art. 1619 C.C.Q., as of December 7, 2017; [ 43 ] WITH LEGAL COSTS of $101, the cost of the Court fee.

__________________________________ ÉRIC DUFOUR, J.C.Q. Dates of hearing: January 18 and May 21, 2019