2019 QCCQ 8037, 2019 QCCQ 8037

Goodman c. Ville de Montréal 2019 QCCQ 8037 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-156329-171 DATE: November 13, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ STEPHEN GOODMAN Plaintiff v.

VILLE DE MONTRÉAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Stephen Goodman claims $1.490.20 from Ville de Montréal for full reimbursement of his assessment paid to the Société de Développement Commercial du Village (hereinafter “SDC”) in 2016, on the grounds that the premises at 1100 Sainte-Catherine Street East was not the location of any economic activity in 2016. [ 2 ] Ville de Montréal contests the claim. It argues that in 2016, Mr.

Goodman used the premises at 1100 Sainte-Catherine Street East as a warehouse, which constitutes economic activity justifying an assessment. ISSUES [ 3 ] Has Mr. Goodman established that he paid a non-existent debt to Ville de Montréal in error? BACKGROUND [ 4 ] Mr.

Goodman owns a three-storey commercial building located at 1100 Sainte-Catherine Street East, Montreal (the ” building ”), which is in the commercial zone where the SDC carries on its activities (D-2). [ 5 ] Under ss. 458.22 and 458.29 of the Cities and Towns Act , all persons having a place of business in the zone where economic activity takes place is a member of the SDC and must pay assessments. [1] [ 6 ] Mr. Goodman alleges that he did not owe the SDC an assessment in 2016 because his building was vacant after the departure of his tenant Samcon Muz Inc. (” Samcon ”). [ 7 ] Mr.

Goodman says that he paid this unlawfully collected tax to put an end to the harassment from Ville de Montréal. [ 8 ] Ville de Montréal does not agree. [ 9 ] Its first witness, Marieke Pilon, analyst for Ville de Montréal’s financial department, states that Mr. Goodman has paid the SDC assessment since 2007. [ 10 ] She explained that his assessment was reduced in 2013 because the tax expense was divided proportionately according to the surface area occupied by the two merchants in the building, namely Mr. Goodman and the tenant Samcon. [ 11 ] Its second witness, Ms.

Chantale Pellerin, revenue officer at Ville de Montréal, used statements of account issued by Ville de Montréal between 2013 and 2017 to show that the calculation of the assessment payable to the SDC was based on the occupation of the building, namely, 1,400 sq. ft. for Samcon and 4,200 sq. ft. for Mr. Goodman (D-8 en liasse ). [ 12 ] On or about January 22, 2016, Ville de Montréal charged Mr. Goodman $1,186.84, representing the assessment owing to the SDC given his occupation of the building and his economic activity (D-8 en liasse ). [ 13 ] Ms.

Pellerin, whose work requires her to be on the road, affirmed that there was economic activity at the building. She

illustrated her remarks with photographs taken at different times during 2016. They reveal, among other things, several rolls of fabric stored on the different floors. [ 14 ] On April 12, 2017, Mr. Goodman, through his attorney Mr. Vincent Basile, demanded that Ville de Montréal reimburse him the amount of $1,490.20 (P-1). [ 15 ] Given the lack of response from Ville de Montréal, on June 2, 2017, Mr. Goodman brought his suit before the Small Claims Division of the Court of Quebec.

ANALYSIS AND DECISION Applicable law [ 16 ] The Court considers it important to describe the framework applicable to the burden of proof that plaintiffs must meet, particularly since in this case, it seals the fate of the plaintiff’s claim. [ 17 ] In civil cases, the parties are responsible for proving the existence, modification or extinction of a right. [2] [ 18 ] The rules governing the burden of proof impose a persuasive burden, which consists in the obligation to adduce the quantity and quality of information required to persuade the Court that the allegations of fact are true. [3] [ 19 ] In this case, Mr.

Goodman seeks reimbursement of a debt that he believes he was not required to pay but that he nevertheless paid so that the harassment from Ville de Montréal would stop. The action is similar to an action in receipt of a payment not due, for which the relevant rules are set out in arts. 1491 and 1492 C.C.Q.: 1491. A payment made in error, or merely to avoid injury to the person making it while protesting that he owes nothing, obliges the person who receives it to make restitution.

However, a person who receives the payment in good faith is not obliged to make restitution where, in consequence of the payment, the person’s claim is prescribed or the person has destroyed his title or relinquished a security, saving the remedy of the person having made the payment against the true debtor. 1492 . Restitution of payments not due is made according to the rules for the restitution of prestations. [ 20 ] As our colleague Landry J. wrote in Nadon c.

Cormier , [4] the right to argue receipt of a payment not due is based on three cumulative conditions: payment, absence of debt, and payment made in error. [ 21 ] It falls to the plaintiff in the action in receipt of a payment not due to prove that these three conditions are duly met. [5] [ 22 ] In light of this framework, let us now proceed with the analysis of the dispute. Has Mr. Goodman established that he paid a non-existent debt to Ville de Montréal in error? • Payment [ 23 ] The first condition that Mr.

Goodman must establish is proof of the payment of $1,490.20. [ 24 ] Here, the plaintiff asks the Court to believe his statement that he paid this amount. He appeared at the hearing without a copy of his cheque or a receipt from Ville de Montréal in hand, or even proof of a bank withdrawal. His evidence is limited to his testimony that if he claims this amount from Ville de Montréal, it is surely because he paid it. [ 25 ] Mr.

Goodman is also unable to recall the date he made the payment, but he assumes that he paid it late, as this would explain the $303.36 difference in Ville de Montréal’s statement of account dated January 22, 2016, where the amount of $1,186.84 appears (P-8 en liasse), and his claim of $1,490.20. [ 26 ] Although the evidence is based only on Mr. Goodman’s testimony, it is admissible because the value of the dispute is below $1,500. [6] [ 27 ] Thus, the Court finds that the first condition is met. Mr.

Goodman made a payment of $1,490.20 to Ville de Montréal. [ 28 ] Let us now address the second element. • Absence of debt [ 29 ] Mr. Goodman must now prove that he was not liable for a debt. This means that he must prove that his building, although located inside the commercial zone where the SDC carries on its activities, was not the location of any economic activity in 2016. [ 30 ] Ville de Montréal vehemently contests this condition. [ 31 ] Let us now analyze the evidence presented. [ 32 ] Mr.

Goodman’s position is changeable. [ 33 ] In his written proceeding, he alleged that there has been no business or economic activity in his building since his tenant Samcon left.

[ 34 ] At the hearing, when he heard Ville de Montréal explain that the 2016 assessment excluded the surface area rented to Samcon, Mr. Goodman changed his story and claimed that his tenant occupied nearly the entire surface area of his building, not just the 1,400 sq. ft. calculated by Ville de Montréal. [ 35 ] At the hearing, Mr. Goodman filed a screen shot from Google in 2014 in support of his statement. His building can be seen from the side, from the perspective of Amherst Street (P-2). On the image, a sign with Samcon’s name can be seen. The sign stretches across the entire depth of the building.

This leads Mr. Goodman to suggest that his tenant occupied the entire building. [ 36 ] This evidence does not carry much weight in the eyes of the Court. Mr. Goodman would have been better off bringing a copy of the commercial lease between Samcon and himself. [ 37 ] In any event, the statement regarding the occupation of the premises by Samcon is vehemently contested by Ms. Chantale Pellerin’s testimony. [ 38 ] She stated that she assigned a surface area of 1,400 sq. ft. to Mr.

Goodman’s tenant after speaking with an employee at Samcon and validating the information she received from her with a copy of the lease. [ 39 ] She continued her testimony by saying that Samcon was assessed by the SDC on the basis of this surface area, as the accounts from 2014 and 2015 illustrate (P-8 en liasse ). [ 40 ] The Court, which must weigh the testimony of the parties, is of the view that Ms. Pellerin provided credible testimony. [7] Unlike Mr.

Goodman, she recalled specific facts, testified from the notes she recorded in her file at the time, and documented her statements with concrete information. [ 41 ] The Court also mentioned to Mr. Goodman that he had not objected to the calculations of the surface area performed by Ville de Montréal in 2014 and 2015. Mr. Goodman answered that he had in fact contested the assessments payable in 2014 and 2015 and managed to negotiate them down. [ 42 ] The Court assigns no weight to Mr. Goodman’s answer.

Other than the fact that it is not supported by an objective witness or documented in any way whatsoever, it is incomprehensible that such a fact was not raised by Mr. Goodman earlier and was not revealed until the very end of the hearing, after a remark by the Court. Ultimately, this answer does nothing other than undermine Mr. Goodman’s credibility. [ 43 ] Moreover, and more fundamentally, the Court finds on the basis of Mr. Goodman’s testimony that he does not deny having occupied the building to store rolls of fabric there.

What he contests concerns the space attributed to this economic activity by Ville de Montréal for the purposes of establishing the assessment. [ 44 ] Accordingly, the debt exists, which is fatal to the action in receipt of a payment not due undertaken by Mr. Goodman. [ 45 ] Although the absence of this condition disposes of the action, the Court will continue its analysis. • Payment made in error [ 46 ] Finally, because the rule establishes that any payment presupposes an obligation, it falls to Mr.

Goodman to establish that he made his payment in error. [8] [ 47 ] Although he explains his payment by saying that Ville de Montréal harassed him, Mr. Goodman has not proved the harassment he claims to have suffered. [ 48 ] What is more, nothing in the evidence establishes that the amount of $1,490.20 was paid under protest. [ 49 ] Here, the Court can only find that evidence as to the error committed is lacking. Consequently, Mr. Goodman has not proved this third condition. [ 50 ] Ville de Montréal, for its part, established that it was justified in fact and in law in assessing Mr.

Goodman in 2016 because the building was used for storage and was located in the commercial zone where SDC carries on its activities. [ 51 ] The Court adopts the remarks of Gobeil J., made in a case similar to the one before us now: [9] [ translation ] [5] The defendant’s claim that the premises in question were used only as a warehouse for its main activity as an electrical contractor does not prevent the plaintiff from imposing a business tax because the defendant carries on an activity constituting a means of profit under s. 232 of the Act respecting municipal taxation . [10] It is consequently a unit of assessment that constitutes a business establishment under s. 69.2 of the Act. [6] The defendant therefore owes the plaintiff the business tax arrears claimed. [7] As for the assessment to the SDC for the same years, s. 458.22 of the Cities and Towns Act [11] states that all the ratepayers who have a place of business in the commercial district (within the boundaries of a commercial zone established by municipal by-law) are members of the association and the failure to pay any assessment payable merely renders the uncooperative member ineligible to be elected to the board of directors and removes the member’s right to vote at the SDC’s assemblies. [8] Whether the defendant wants to be or not, it is a member of the SDC and, under the applicable by-laws, the plaintiff is within its rights to collect the unpaid assessments.

[ 52 ] In the circumstances, the Court holds that Mr. Goodman has not established the merits of his claims. FOR THESE REASONS, the Court: DISMISSES the plaintiff’s action; THE WHOLE , with legal costs. __________________________________ JO ANN ZAOR, J.C.Q. Date of hearing: September 23, 2019