2022 QCCQ 731, 2022 QCCQ 731

Nurrito c. Bartolucci 2022 QCCQ 731 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-160631-190 DATE: March 1 st , 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ ANGELA NURRITO Plaintiff v. MASSIMO BARTOLUCCI Defendant JUDGMENT OVERVIEW [ 1 ] Angela Nurrito claims $8,000 from her son Massimo Bartolucci in repayment of a loan for the same amount granted on April 26, 2018. [ 2 ] Mr.

Bartolucci contests the application on the ground that the condition giving rise to the repayment of the loan has not been fulfilled. He claims to still be in school and argues that his mother’s claim is premature. ISSUE [ 3 ] The Court must answer the following question: [ 4 ] Has the plaintiff proved that the condition for the repayment of the loan has been fulfilled such that the defendant must repay the amount of $8,000? BACKGROUND [ 5 ] For the purposes of analysis, the Court accepts the following facts. [ 6 ] In 2018, Mr. Bartolucci asked his mother, Ms.

Nurrito, for help paying for his studies. [ 7 ] According to the plaintiff, the amount of $4,000 was being considered at the time to cover her son’s tuition for his second semester at Collège Inter-Dec, where he was enrolled. [ 8 ] At the time, the relationship between the mother and the son was difficult. It is still difficult at the time of the trial. In sum, the family situation is highly charged, and in the Court’s view, communication is poor. [ 9 ] Despite this, the plaintiff claimed that she was ready to help her son as soon as he asked her.

She was even happy to contribute to his education. [ 10 ] Although at the beginning, the amount requested was $4,000, it doubled when the defendant’s father, Giorgio Bartolucci, withdrew from the scheme.

[ 11 ] Despite her ex-husband’s about-face, the plaintiff wrote a $4,000 cheque to Collège Inter-Dec (Exhibit P-2) and another in the same amount payable directly to her son. [ 12 ] The defendant unreservedly admits that he received $8,000 from his mother. [ 13 ] Because it is a significant amount for the plaintiff, she wanted it to be used wisely.

Accordingly, she obtained a receipt from her son dated April 26, 2018, confirming the amount in question and his agreement to repay the entire $8,000 if he failed to obtain his diploma from Collège Inter-Dec (Exhibit P-1). [ 14 ] The evidence shows that the defendant’s program is given over 18 consecutive months, divided into three semesters of four classes. [ 15 ] In the months following the payment of $8,000, Ms. Nurrito received information that allowed her to follow the defendant’s education.

However, that follow-up completely stopped in the spring of 2019. [ 16 ] On July 5, 2019, after several requests for information that went unanswered, the plaintiff asked the defendant to repay the amount of $8,000 or she would institute legal proceedings (Exhibit P-3). [ 17 ] Ms. Nurrito filed her claim on August 6, 2019, because she did not hear from her son. ANALYSIS Applicable law [ 18 ] As in any civil matter, it is up to the party seeking to assert a claim to prove on a balance of probabilities the merits of that claim.

The party must prove that the facts in dispute are not only possible, but probable, using real evidence, but also presumptions based on the circumstances and the serious, precise, and concordant inferences that may reasonably be drawn therefrom. [1] [ 19 ] On the merits of the case, the parties’ legal framework must be identified to determine their respective obligations. [ 20 ] In this case, the Court will examine the parties’ relationship from a contractual perspective because they are bound by a contract for the loan of money. [2] [ 21 ] According to the first paragraph of art. 1378 of the Civil Code of Québec (“ C.C.Q. ”), a contract is defined as an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation. [ 22 ] When, as in this case, the parties do not call into question the conditions for the formation of the contract, they are bound by the content of that contract. [3] [ 23 ] The following consequences result from this principle.

First, the contract is binding, which means that the creditor may compel the recalcitrant debtor to perform his or her obligations. [4] Second, the contract is irrevocable: the parties are not free to resiliate it unilaterally, although they may agree to put an end to it or to raise the grounds recognized by law to this end. [5] Finally, the contract cannot be modified unilaterally. [ 24 ] Taking into account these elements, the Court begins its analysis of the issue here. 1.

Has the plaintiff proved that the condition for the repayment of the loan has been fulfilled such that the defendant must repay the amount of $8,000? [ 25 ] On April 26, 2018, the defendant obligated himself by mutual agreement to the plaintiff to repay the amount she had loaned him should the following occur: “Received for total 8k, if I don’t graduate gotta pay back in full” (Exhibit P-1). [ 26 ] The parties agreed on a term that made the repayment of the $8,000 conditional on the fulfillment of a future and uncertain event. [6] Simply put, they decided that the amount of $8,000 would have to be repaid if and only if the defendant failed to graduate from Collège Inter-Dec. [ 27 ] Also, it is worth noting that the condition triggering the repayment of the loan does not have a deadline.

This period is therefore potentially unlimited because the condition may be fulfilled at any time. [7] [ 28 ] Nevertheless, this time period elapses when the event occurs or it becomes certain that it will not occur. [ 29 ] It is up to the plaintiff, who claims to be entitled to the repayment of $8,000 to prove the elements and circumstances that would ground a conclusion that the condition has been fulfilled (her son’s academic failure). [ 30 ] Has she done so? [ 31 ] At the outset, the defendant stated that his written contestation, prepared in 2019, is out of date.

On the day of the trial, he reported that he is no longer studying at Collège Inter-Dec and that he did not successfully complete the academic program for which he was enrolled in 2018. [ 32 ] He added that it was not for lack of trying. He proved that he followed the entire program and even repeated three classes during

the summer of 2020 that he had failed (Exhibit D-1). Unfortunately, he failed a second time. [ 33 ] He testified that he did not re-enroll in 2021 because he was anxious about the idea of failing again and, especially, because his financial situation precluded him from doing so. [ 34 ] He is only 24 years old and lives alone in an apartment. He meets his needs and takes care of his sister. He already has several student loans to repay to the government, to which his mother’s must now be added. [ 35 ] At the hearing, he added a variety of reasons why he should not have to repay his mother.

He started by saying that he took all the classes, even though he did not graduate per se from Collège Inter-Dec. Then, he implied that the amount of $8,000 loaned by his mother was actually his money. Supported by his father on this argument, he asserts that his parents had in the past contributed to a registered education savings plan (“ RESP ”) for their children. To illustrate his remarks, he presented a copy of a RESP statement of account dated June 30, 2011, revealing a balance of $25,408.36 (Exhibit D-5).

He claims that he never received any of that money and now claims it today not as a beneficiary but as an owner. Finally, he said that he does not have the means to repay his mother. [ 36 ] The Court is of the view that these new arguments, which are contested by the plaintiff, shed little light on the question of whether the condition giving rise to the repayment of the $8,000 has been triggered. [ 37 ] If, as admitted by the defendant, he did not successfully complete his course of studies, there is nothing in the plaintiff’s evidence indicating that this failure is final and definitive.

There is also nothing indicating that the defendant could not re-enroll at Collège Inter- Dec. Similarly, the evidence adduced by the defence does not ground a conclusion that Mr. Bartolucci will not return to complete his program at Collège Inter-Dec. [ 38 ] In light of this situation, the Court deems that it is too early to order that it is certain and proved that Mr. Bartolucci will not complete his program at Collège Inter-Dec. [ 39 ] Especially since in this case, the Court accepts from the plaintiff’s testimony that her initial intention was to help her son and support him in his studies.

As she stated, the condition associated with repaying the $8,000 was basically, if not exclusively, intended to motivate her son to complete his studies. [ 40 ] That said, the Court deems that it would not be desirable for either the plaintiff or the defendant to be kept indefinitely in a state of uncertainty because there is no time limit on the condition. [ 41 ] By analogy with the power to determine given to judges with respect to obligations with a term, the Court could fix a time limit to fulfill the condition, that is, a deadline to complete the program started by the defendant. [ 42 ] However, in the absence of information on the

schedule of the academic program offered by Collège Inter-Dec, this determination is impossible. [ 43 ] The Court finds that it is up to the parties to agree on a reasonable time limit, taking into account the nature of their agreement, the objectives contemplated, and the fact that fulfilling the condition does not depend strictly on the defendant’s will. [ 44 ] Obviously, if the defendant is now of the view that he does not intend to go back to school, the condition will be fulfilled. [ 45 ] Similarly, if the defendant obstructs the process and refuses to cooperate with the plaintiff in determining with her a reasonable time for the resumption and completion of his studies, the condition will be fulfilled. [ 46 ] In light of the outcome of this case, the Court deems that there are no winners or losers here such that the proceeding will be dismissed without costs.

FOR THESE REASONS, THE COURT: [ 47 ] DISMISSES the plaintiff’s proceeding; [ 48 ] THE WHOLE without costs. Jo Ann Zaor, J.C.Q. Date of hearing: December 2, 2021