2015 QCCQ 6276, 2015 QCCQ 6276

Patel c. Compagnie mutuelle d'assurances Wawanesa 2015 QCCQ 6276 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139280-137 DATE: June 26, 2015 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ MANISHKUMAR VINUBHAI PATEL Plaintiff vs.

LA COMPAGNIE MUTUELLE D’ASSURANCE WAWANESA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Munishkumar Vinubhai Patel (the Plaintiff ) claims $7,000 from La Compagnie Mutelle d’assurance Wawanesa (the Defendant ) as compensation for the loss of his car, which he alleges was stolen. [ 2 ] Although alleging in his application that the car was worth $10,000 at the time it was stolen, he is claiming $7,000 in order to benefit from the rules applicable to small claims. [ 3 ] The Defendant contests the claim alleging that Plaintiff failed to demonstrate that he was ever in possession of the vehicle, that he had used it or that the vehicle could run. [ 4 ] Subsidiarily, Defendant contends that at the time it was stolen, Plaintiff’s car had a market value of $3,542.49.

QUESTION AT ISSUE [ 5 ] The Court will decide if Plaintiff has established that his car was stolen and if he is entitled to be paid the amount he claims from the Defendant. CONTEXT

Preamble [ 6 ] At the onset of the hearing the Court wanted to verify with Plaintiff that he had received Defendant’s nine exhibits and had had the opportunity to take cognisance of same. [ 7 ] Without looking at the documents he had in front of him, Plaintiff’s first answer was that he did not understand why the Defendant would send him documents all written in French knowing that he does not speak French. [ 8 ] When the Court pointed out to Plaintiff that Defendant’s exhibits consist mainly of Plaintiff’s English written declaration, a recording of his meeting with Defendant’s claim adjuster which was held in English, the transcripts of his statutory examination held in English and the contract of purchase that he provided, he would still not confirm that he had received Defendant’s exhibits. [ 9 ] It is only when the Court confronted Plaintiff with the fact that he had a few of Defendant’s exhibits in front of him that he acknowledged having received them directly from the Defendant but having decided that he did not need to bring them all at the hearing. [ 10 ] At the end of the hearing, Defendant called Luc Pouliot ( Pouliot ), claim adjuster, to testify about his involvement in the case.

Pouliot referred to a meeting that he had with Plaintiff on May 24, 2012, the recording of which was filed as exhibit D-6. [ 11 ] Answering the Court’s question, Plaintiff confirmed that he had listened to the recording of his interview with Pouliot to prepare for the hearing. Plaintiff’s testimony at hearing to establish his claim [ 12 ] Plaintiff declared that, on September 14, 2011, he went to the Jarry Park where he had been playing cricket once a week for the previous two years. The cricket season was not over yet. [ 13 ] He saw in the parking lot of the park a Mazda RX8 (the Car ) bearing a For Sale sign.

The Car belonged to a person named Saleem [1] ( Muhammad ), a cricket player from the opposing team. [ 14 ] Plaintiff was interested by the Car and decided to test drive it in the parking lot of the Jarry Park for approximately five minutes. He liked the car, judged that nothing was wrong with it and decided to buy it. [ 15 ] Muhammad and he did not agree on a price right away as Plaintiff was trying to get it lowered. Plaintiff left the Jarry Park, called Muhammad later that day and, when they reached an agreement on the price, left his home to go to the bank where he got a bank draft to pay for the Car.

He paid $8,084 with the tax. [ 16 ] On the same day, September 14, 2011, Plaintiff met Muhammad somewhere in the West Island, in front of a residence, where they finalised the transaction in the street. [ 17 ] Plaintiff drove his Toyota Avalon to meet Muhammad in the West Island. After he gave Muhammad the bank draft to pay for the Car, he left his Toyota where he had parked it and drove his new car to an office of the Société de l’assurance automobile (the SAAQ ) to get it registered in his name. He went back to pick up his Toyota Avalon the next day.

Plaintiff’s testimony answering Defendant’s questions [ 18 ] When answering the questions of the Defendant, Plaintiff gave more details about the circumstances surrounding his purchase of the Car that somewhat changed his initial testimony.

[ 19 ] He specified that he did not see that the Car was for sale in the parking lot, but rather that Muhammad had told him that he had a one to sale. [ 20 ] He actually did not purchase the Car from Muhammad, but from Muhammad’s company, 9200-7913 Québec inc. ( 9200 Inc. ). [ 21 ] He had heard from some members of the cricket team that Muhammad was a car dealer. [ 22 ] After he drove the Car in the parking lot, he judged that it was a good deal and decided to purchase it. The asking price was $9,000 and he bargained to bring it down to $7,800 plus tax.

At that time a car of that model was worth more than that. [ 23 ] Muhammad calculated the amount of the tax and asked him to get a bank draft made out to ESP [2] . He allegedly did not ask why the bank draft had to be made out to ESP nor who ESP was. He figured Muhammad’s car dealer company purchased the car from ESP. [ 24 ] The Defendant filed the bank draft and Plaintiff’s September 2011 business bank account in support of its plea [3] .

The Court then noticed that the bank draft was dated September 13, 2011, and was made for an amount of $8,300, Plaintiff having used his business account to pay for the purchase. [ 25 ] Plaintiff could not or would not explain how it was that the bank draft was made the day before he first learned and saw that Muhammad had a car for sale. As for the fact that the amount of the draft was higher than the agreed upon price by $216 he would not explain how that came about, but confirmed that when he realised it he did not mind because in his view the Car was worth more than what he had paid for it.

Later in his testimony he declared that it is at the hearing that he realised that he paid more for the Car than what had been agreed upon! [ 26 ] Plaintiff, who has a transport company and owns and drives a truck for a living, explained to the Court that he purchased the Car for personal and business uses. [ 27 ] Charles Tawil, the Defendant’s sales representative Plaintiff dealt with when he insured the Car, filed Defendant’s insurance record.

When looking to insure the Car, Plaintiff did not declare that it would be used for his business [4] . [ 28 ] Plaintiff eventually admitted that he was driving the Car to go to and from work mainly. [ 29 ] Plaintiff cannot explain why while looking to insure the Car he gave a current value of $7,600 other than saying that $100 difference with the price that he paid does not change anything for the insurance company.

As for the reason why he provided a current value of $7,600 when he believed that the Car was worth over $12,000 he justified himself by saying that he must have misunderstood the question. [ 30 ] Plaintiff then went on to explain that he did not have any repairs done to the Car during the time he owned it, except for changing the tires after one month of his purchase. He does not have a receipt for that purchase. [ 31 ] He had the oil changed twice by a friend of his that owns garage MR Auto.

He thinks his friend changed something when he did one of the two oil changes but he cannot remember what it was because he does not know anything about mechanics. He paid his friend approximately $40 cash for each oil change for which he did not get receipts. [ 32 ] Plaintiff declared that he did not experience any problems with the Car while it was in his possession, although the car dealer that owned it before Muhammad had reported that it had a major oil leek and presented a hard clutch [5] .

His answer regarding this issue is “Why would I buy a car that had a major oil leak?” [ 33 ] Plaintiff told Defendant’s representatives during their investigation that he checked the oil in the Car every two to three days, and explained to the Court that he took that habit from driving a truck. [ 34 ] According to Plaintiff, when he purchased the Car, the odometer indicated between 115,000 km and 116,000 km. [ 35 ] While studying the inspection report dated August 31, 2011, prepared by Les Automobiles La Seigneurie (1990) inc. – Chambly Honda ( Chambly Honda ) [6] , the car dealer that sold the Car to Muhammad’s dealership on September 14, 2011, the Court noticed that the odometer indicated 116,849 km on that last day of August. [ 36 ] Plaintiff testified at the onset of his testimony that he had seen Muhammad drive the Car before he purchased it from him and that he did not take down the number of kilometres the odometer indicated. [ 37 ] It turns out that Muhammad could not have driven the Car other than to bring it to the Jarry Park because his company purchased it from ESP at the auction on the same day it sold it to Plaintiff [7] . [ 38 ] The evidence was silent as to why Muhammad would drive the Car from where he bought it in Lachine, where ESP is located [8] , to park it at the Jarry Park when his dealership is in Dollard-des-Ormeaux [9] , and then drive to Dollard-des-Ormeaux to conclude the transaction with Plaintiff. [ 39 ] Now, to the events at the origin of Plaintiff’s claim. [ 40 ] On February 29, 2012, at around 9:00 p.m.

Plaintiff parked the Car on De l’Épée Street, the next street over where he lived. The next day, March 1 st , 2012, he went back at 7:00 p.m. to get it, but it had disappeared. He immediately called the police to declare the disappearance and called his insurance company to declare the theft. [ 41 ] He does not understand why the Defendant refused to pay for the Car he rented and refused to pay him the indemnity corresponding to the value of the Car. [ 42 ] Plaintiff declared knowing a lot about cars. According to him, the Car was worth $12,000 when it was stolen.

He based his opinion on his knowledge, which was confirmed by information he later found on the Internet. [ 43 ] Yet, in his claim he wrote that at all times relevant, his car had a market value of at least $10,000 and did not file any reliable evidence to support either claims. Defendant’s proof [ 44 ] The Defendant called several witnesses in support of its contestation of Plaintiff’s claim.

Anna Maria Bilinski’s testimony [ 45 ] Anna Maria Bilinski ( Bilinski ) was the claim adjuster that initially dealt with Plaintiff’s claim further to the disappearance of his car. [ 46 ] When she spoke with him, she scheduled an appointment to take his statement, asking him to have with him at the meeting the purchase contract of the Car, pictures of the Car and receipts for repairs if he had any done to it. [ 47 ] The meeting between Plaintiff and Bilinski took place on March 9, 2012.

Plaintiff did not bring any of the documents Bilinsky had asked him to bring. [ 48 ] Bilinski took down Plaintiff’s statement and had him sign it at the end of the meeting after giving him the opportunity to review it. Below is the essential excerpt from Plaintiff’s declaration: It was around 9:00 p.m. The next day around 7:00 p.m. I wanted to take my car and it wasn’t there anymore. I called the police from my cell phone right away, And they came around midnight . (…) I bought my car in September 2011 from a person that used to play cricket with me.

I don’t know im personally, but I saw a paper on is car that it was for sale . It cost me around 12 000 $ that I paid cash . (…) I didn’t do any modification on the car, or any reparations. The car had no problems. The car had around 110 000 km when I bought it . And now the car had 116 000 km . I did only 2 oil change and don’t have the bills for that. I don’t have a contract from the purchase . [10] (sic) (Underscore added)

[ 49 ] After the meeting, Bilinski obtained the SAAQ information pertaining to Plaintiff’s car.

That is how she realised that Plaintiff had not purchased it from an individual as he had stated but from 9200 inc., a company belonging to Muhammad, a used car dealer [11] . [ 50 ] Since Plaintiff had told her that he did not have a contract for the purchase of the car, she contacted Muhammad who was quite uncooperative and would not provide her a copy of the contract. [ 51 ] Seeing that Plaintiff would not provide her with a copy of the purchasing contract, Bilinski transferred the file to her supervisor, Louise Plourde. [ 52 ] In response to Bilinski’s testimony, Plaintiff declared that she was wrong in saying that he did not provide a copy of the purchase contract.

He insisted that he brought it to her office two weeks after their meeting, around March 24, 2012. [ 53 ] Questioned by the Court as to why he told Bilinski he paid $12,000 for the Car, Plaintiff explained that he must have misunderstood the question and told her how much he thought the Car was worth. [ 54 ] Yet he confirmed having read or having been read the declaration before he signed it. Louise Plourde’s solemn declaration [ 55 ] On April 14, 2015, in accordance with

article 980 of the Code of Civil Procedure , the Defendant filed the Solemn Declaration of Louise Plourde, supervisor of Bilinski. [ 56 ] The declaration reads in part as follows: J’ai été impliquée dans le dossier 868038 à tire de superviseur de Anna Maria Bilinski et notamment pour avoir eu une discussion téléphonique avec M. Patel le 17 avril 2012. M. Patel m’a contacté pour discuter du fait que sa location de voiture se terminait vendredi (20 avril 2012) mais aussi pour savoir où nous en étions avec sa réclamation.

Après l’avoir informé que son contrat prévoyait une limite de garantie de 2 500 $ pour sa location de voiture, je l’ai avisé que son dossier était toujours sous enquête et que nous attendions toujours après une copie du contrat d’achat pour avoir une idée du montant payé . M.

Patel m’a clairement indiqué qu’il n’avait pas de contrat d’achat et a terminé l’appel en disant avoir payé 8 000 $, qu’il nous avait dit qu’elle valait 12 000 $, qu’il avait fait un bon marché et n’a pas parlé du montant payé, que c’était une erreur de sa part d’avoir signé la déclaration sans faire indiquer la différence. (Underscore added) [ 57 ] After the Court translated the gist of Plourde’s declaration for the benefit of Plaintiff, he admitted that he must have made a mistake as to the date when he brought the purchase contract to Defendant’s office, but reiterated that he did bring it, at a later date that he could not specify. [ 58 ] He would not comment on Plourde’s declaration that he had told her that he did not have a purchase contract.

Luc Pouliot’s testimony [ 59 ] On April 19, 2012, Plaintiff’s claim was transferred to Luc Pouliot, claim adjuster for the Defendant who takes care of special investigations. He started his investigation on May 9, 2012.

The documents available to him were the SAAQ [12] and police [13] reports, as well as a copy of the vehicle’s registration taken from the original. [ 60 ] The SAAQ report indicated that the Car was sold on August 26, 2011, by an individual to Chambly Honda. [ 61 ] Chambly Honda sold the Car to 9200 inc., Muhammad’s company, on September 14, 2011, which sold it on the same day to Plaintiff. [ 62 ] As for the police report it reads in part as follows: Enregistrement et preuves d’assurance sont dans l’auto (…) le plaignant stationne son auto sur la rue de l’Épée près de 8510 soir vers 22h30 et aujourd’hui, vers 19 h 30 il réalise que son auto n’y est plus (..) nous avons aussi communiqué avec la ville de Montréal afin de voir si l’auto a été remorquée (négatif).

Milage (sic) ( ± ) 120000km (…) (Underscore added) [ 63 ] On May 24, 2012, Pouliot went to Chambly Honda with the intent of getting information on the Car and was handed the evaluation report the dealer had made about the Car which reads in part as follows: Correction: H/F Fuite d’huile majeure au moteur. Filte air. 4 pneus (…) Lumière engine P2096. Embrayage dur (…) [14] [ 64 ] Since Plaintiff had indicated that he did not have a purchase contract, Pouliot also contacted Muhammad intending to get information about the sale.

Muhammad would not cooperate with him. [ 65 ] On the same day, May 24, 2012, Pouliot met with Plaintiff. The meeting was recorded. The Court listened to the recording of the meeting. Pouliot summarised faithfully the information he obtained from Plaintiff at the meeting. Below is the relevant information Plaintiff gave Pouliot while answering his questions: On the event that gave rise to his claim for compensation:

a) The last time he parked his car was around 5 or 6 p.m. (21min08sec).

b) March 1 st , he did not use his car to go to work; his girlfriend came to pick him up from NDG to take him to work. She drove him back to his home after work. His truck is parked in Boucherville (21min27sec).

c) He went to his car at 6:30 or 7:00 p.m. on March 1 st (24min). On the circumstances surrounding the purchase of the Car:

d) A guy had a For Sale sign on his car around Jarry and I bought it … I don’t exactly remember where I saw the car (34min45sec).

e) Before he bought the Car he was driving an Avalon but does not remember whether he had sold it before he bought the Car [15] (35min50sec).

f) He did not go to the cricket ground to play cricket but to gather with friends. At that point the season was over (36min).

g) He bought winter tires and had a friend of his in a local garage put them on the Car, DKSH garage [16] . He had one oil change done at the same place, I don’t have the receipt on me (40min).

h) I paid $7,600 for the car . The seller was asking $8,000 for it (42min).

i) He paid about $8,500 for the car with the tax (43min).

j) Plaintiff did not ask why the Car was being sold under market value. He was satisfied that the seller was willing to give him the Car for the price he was willing to pay

(44min).

k) He made a withdrawal from his bank to pay for the Car, $7,600 or $7,800 by certified check (46min).

l) The seller gave him a paper with the price of the Car. He misplaced it; he thinks he left it in the car. He asked the seller to send it to him and he will send it via email (49min25sec). [ 66 ] It is clear from the meeting of May 24, 2012, that Pouliot did not have the purchase contract in his file.

Yet, Plaintiff maintained at hearing that he brought it himself to Defendant’s office. [ 67 ] During his meeting with Pouliot, Plaintiff repeated numerous times that all the answers he gave were approximate because he did not remember the exact dates, numbers and times. [ 68 ] Pouliot ended his investigation after his meeting with Plaintiff and Defendant decided to ask him to undergo a statutory examination. [ 69 ] The Court gave Plaintiff the opportunity to comment Pouliot’s testimony. He did not have anything to say. Statutory examination [ 70 ] The statutory examination took place on August 8, 2012 [17] .

Plaintiff was represented by attorney. [ 71 ] The relevant information Plaintiff provided at that examination can be summarized as follows [18] :

a) Before he purchased the Car he owned an Avalon that he sold a week or so after his purchase (pages 4-5). He changed the Avalon because it was old.

b) He was looking for a sports car to replace the Avalon and found the Mazda RX8 when [i]t was parked in the parking of parc Jarry, I saw the board that it was for sale on the car and I called the person (…) and he came within ten or fifteen minutes (pages 4-5) .

c) He paid $8,300 or something for the Car [19] .

d) He did not see the seller’s registration of the car.

e) His girlfriend took him to meet the seller of the Car in the West Island (page 13).

f) He did get a sale’s contract on the day he purchased the Car. It took him some time to find it in his documents, he initially thought he had left it in the Car.

g) He was not driving the Car every day. He would drive it mainly to go to work and back home; a total distance of 10 km [20] .

h) He always parked his car on the street next to Bloomfield , De l’Épée (page 24).

i) On March 1 st , 2012, he went to work at around 6:00 a.m. He did not take his car to go to work because it had snowed. He did not want to drive his car in the snow and did not want to shovel to take the Car out of its parking spot. In the morning he called his girlfriend who came from NDG to pick him up in Outremont to drive him to Boucherville where his truck is parked. He called her again finished work. She picked him up from work and drove him back to Outremont but did not stay with him. At 7:00 p.m. he went to get his car to go visit his girlfriend. That is when he noticed that his car had disappeared.

j) He did not know when he purchased the Car that Muhammad was a car dealer . When I got to know him after, that’s when he told me, but when I was buying the car I didn’t know that he was a dealer (page 42). Later during the examination, he said that he learned from M. Pouliot that Muhammad was a car dealer.

k) Although he thought he was purchasing the Car from a private individual, he did not know that he should not have paid tax to him. Yet he knows that when you purchase through Kijij, you pay only one tax. He did not remember that from his last purchase of a used car from an individual, because it dated back three years.

l) As for the reason why he did not provide Mr. Pouliot his cell phone bill like he had undertaken to do at the May 24 th , 2012 meeting, this is what he says: Because of my inability to explain myself sometimes, I was not sure about things that were asked. A friend of mine was supposed to represent me and I gave him a copy of the paper and all that. But he was very busy, he had a problem with his family and I think that his mother is at a last stage.

So that’s why he was not able to provide it, he was not able to help me with that (page 45). [ 72 ] At the statutory examination Plaintiff exhibited the original of the purchase contract [21] , entitled Merchants Sale Contract.

That is when the Defendant learned that Plaintiff had paid $7,700 for the Car plus GST of $385, for a total amount of $8,085. [ 73 ] It is also at that occasion that the Defendant learned that Plaintiff actually gave a check for $8,300 to ESP to pay for the Car and not $9,200. [ 74 ] At the bottom of the contract, Plaintiff signed the following note: The purchaser hereby declares that the mentioned vehicle(

s) in this contract is (are) purchase solely for the purpose or re-supplying by way of sale or of lease for at least one year. [ 75 ] Defendant’s last witness was Fernand Wagner who testified on the value of the Car at the time it was stolen. Fernand Wagner’s testimony [ 76 ] Fernand Wagner ( Wagner ) is an estimate supervisor.

He established the value of the Car in light of the information provided by Chambly Honda which sold the Car to 9200 inc., Muhammad’s used car dealership through ESP, an auctioneer. [ 77 ] According to Wagner, a 2005 Mazda RX8 in good condition with similar mileage was worth $9,400 on March 1 st , 2012. However, considering the major repairs to the engine and the new clutch the Car needed, he established its value at $3,542.49 [22] .

THE LAW [ 78 ] Anyone who wants to assert a right shall prove the facts that sustain his claim and, safe exception, the clear and convincing evidence that makes the existence of a fact more probable than its nonexistence is sufficient [23] to satisfy the test of balance of probabilities [24] . [ 79 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical. It is sufficient that it make probable the disputed fact [25] . [ 80 ] On the question of the

interpretation of the sufficiency of the evidence, justice Denis Le Reste expressed himself as follows in Jodoin v. Gibeau [26] : 31 Pour les Tribunaux, plusieurs règles peuvent aider un juge à décider de la suffisance ou non de la preuve entendue lors d'un procès. 32 Par exemple, une preuve directe est préférée à une preuve indirecte, la preuve d'un fait positif est préférée à celle d'un fait négatif. La corroboration est une preuve qui renforce un témoignage de façon à inciter le juge à le croire, et l'attitude lors d'un procès d'un témoin peut même influencer le Tribunal.

33 Plus récemment, l'Honorable juge Rothstein de la Cour Suprême du Canada, dans l'affaire de F.H. c. Mc Dougall , rappelait les critères applicables suivants de la preuve en matière civile: [45] […]Il n'existe qu'une seule règle de droit : le juge du procès doit examiner la preuve attentivement. [46] De même, la preuve doit toujours être claire et convaincante pour satisfaire au critère de la prépondérance des probabilités. Mais, je le répète, aucune norme objective ne permet de déterminer qu'elle l'est suffisamment. […]Aussi difficile que puisse être sa tâche, le juge doit trancher.

Lorsqu'un juge consciencieux ajoute foi à la thèse du demandeur, il faut tenir pour acquis que la preuve était à ses yeux suffisamment claire et convaincante pour conclure au respect du critère de la prépondérance des probabilités. 34 Le Tribunal doit donc, à la lumière de tous les éléments de la preuve, soit la preuve matérielle, documentaire et la preuve testimoniale reçue lors du procès, déterminer si la

partie demanderesse a réussi à le convaincre selon les règles des probabilités. [ 81 ] To win his case, Plaintiff has the burden of proving by a preponderance of evidence that his car has been stolen [27] . [ 82 ] If the evidence is not compelling enough, or if it is contradictory and the judge is unable to determine where the truth lies, the one upon whom falls the burden of persuading the Court of the merits of the claim loses [28] . [ 83 ] The insurer is liable to compensate its insured for any damage he suffers that is covered by the insurance contract [29] .

It is never however liable to compensate for injury resulting from the intentional fault of the insured [30] or in the event of a deceitful representation from the insured either at the time that he contracted the insurance or at the time he declared an incident [31] . [ 84 ] At the request of the insurer, the insured must provide the insurer with vouchers.

If, for a serious reason, he is unable to fulfil that obligation, he is entitled to a reasonable time in which to do so and attest under oath to the truth of the information [32] . [ 85 ] The burden of proving the intentional fault of the insured bears on the insurer.

To prove that the intentional fault of the insured, the insurer may use a writing, testimony, presumption, admission or the production of real evidence [33] . [ 86 ] In the absence of direct evidence of the involvement of the insured, the insurer must establish the willful misconduct of the insured by means of serious, precise and concordant presumptions [34] . [ 87 ] A presumption is the consequence that the Court draws from a known fact to an unknown fact. [ 88 ] In Barrette v.

Union canadienne (L'), compagnie d'assurances [35] , the Court of appeal defined what serious, precise and concordant presumption is: [33] Larombière, encore cité récemment par la Cour, exprime avec une grande acuité ce qu'il faut entendre par des présomptions graves, précises et concordantes : Les présomptions sont graves, lorsque les rapports du fait connu au fait inconnu sont tels que l'existence de l'un établit, par une induction puissante, l'existence de l'autre(…) Les présomptions sont précises, lorsque les inductions qui résultent du fait connu tendent à établir directement et particulièrement le fait inconnu et contesté.

S'il était également possible d'en tirer les conséquences différentes et mêmes contraires, d'en inférer l'existence de faits divers et contradictoires, les présomptions n'auraient aucun caractère de précision et ne feraient naître que le doute et l'incertitude. Elles sont enfin concordantes, lorsque, ayant toutes une origine commune ou différente, elles tendent, par leur ensemble et leur accord, à établir le fait qu'il s'agit de prouver… Si … elles se contredisent… et se neutralisent, elles ne sont plus concordantes, et le doute seul peut entrer dans l'esprit du magistrat. [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. [35] Le juge doit se poser trois questions : 1. Le rapport entre les faits connus et le fait inconnu permet-il, par induction puissante, de conclure à l'existence de ce dernier? 2.

Est-il également possible d'en tirer des conséquences différentes ou même contraires? Si c'est le cas, le fardeau n'est pas rencontré. 3.

Est-ce que dans leur ensemble, les faits connus tendent à établir directement et précisément le fait inconnu? (Reference omitted) ANALYSIS AND DECISION [ 89 ] Each time Plaintiff explained the circumstances of his purchase of the Car from Muhammad and its disappearance, he gave a different version of what happened or a version that is contradicted by the documentary evidence that he was reluctant to provide but ended up providing when he understood that refusing to collaborate with Defendant’s investigation could lead to Defendant refusing his claim for compensation. [ 90 ] Although Plaintiff justified changing his version of the facts by alleging his poor knowledge of the English language, the Court dismisses that contention for various reasons. [ 91 ] Plaintiff chose to tell the police officers that met him a few hours after he declared his car stolen that he had left the registration in the Car.

He could have told them that he did not know if he had them at home. He could in fact have fetched for them while waiting for the police to arrive. [ 92 ] Plaintiff chose never to say that he did not remember how much he paid for the Car because he could not find the purchase contract but rather chose to give a different price at each occasion he was asked how much he paid for the Car, which turned out to be the wrong one.

Even at the hearing, after having been through Defendant’s inquiry and having filed the bank draft he allegedly used to pay for his purchase, he still gave the wrong purchase price. [ 93 ] Why did he not verify in his bank account how much he paid for the Car? Why did he wait six month to provide the information at his statutory examination?

Probably because he would have to explain why the check he used to pay for the Car was made out to ESP, backdated one day prior to the purchase and the amount payable superior to the amount of the contract. [ 94 ] It is not by mistake that Plaintiff maintained for several months that he did not have a contract rather than saying that he had misplaced it or left it in his car: a. He did not want the Defendant to know that the price he had paid for the Car was different than the amount of money he was claiming after the Car had been stolen. b.

He knew the date of the draft and that of the purchase was different and did not want to explain why. He even refused to provide the Court with an explanation. [ 95 ] Plaintiff changed his version as to when he knew that Muhammad was a car dealer:

a) he had heard about it through a cricket team member some time before he bought the Car from him;

b) he learned about it after he purchased the Car;

c) Pouliot told him in May of 2012. Yet the bank draft was not made out to Muhammad but to ESP! [ 96 ] He also changed his version about how he went to meet Muhammad:

a) his girlfriend gave him a ride in the West Island on September 2011 where he met the seller of the Car;

b) he went to the meeting driving his Avalon that he left in the West Island and went back to pick up the next day. [ 97 ] He declared to the police that the mileage of the Car was 120,000 km and later stated that it was between 110,000 and 116,000 km. [ 98 ] It does not make any sense that he would not want to drive his car to work in the snow for a 5 km ride on March 1 st , 2012, (the day it disappeared) yet wanted to take

it in the evening to visit his girlfriend who had just dropped him off at his place. [ 99 ] He allegedly parked the Car on De l’Épée Street the last day he used it because there was no parking spot on Bloomfield that day, yet states later that he always parked the Car on De l’Épée. [ 100 ] A few hours after the Car disappeared, he told the police that he noticed that it had disappeared at 10:30 p.m. on March 1 st , 2012, and changed his version to 7:00 p.m. for the Defendant and the Court. [ 101 ] As far as the reason why he did not send his cellular phone report to Pouliot it is a false one: Plaintiff is a business owner, although he keeps on pretending that his English is not good, he does not need to speak English to put a cellular phone report into an envelop and send it to the Defendant. [ 102 ] Most of the discrepancies in Plaintiff’s testimony are not at all related to his knowledge of the English language. [ 103 ] Adds to the above noted discrepancies in Plaintiff’s testimony the fact that he declared that the vehicle he purchased from 9200 inc. was running fine although he did not have any repairs done to it.

Yet, the evidence leads the Court to conclude that the Car Plaintiff purchased could not be driven without the major oil leak being fixed. [ 104 ] The major oil leak in the engine the car dealer had noted, explains why a car that according to Plaintiff was worth $12,000 when he purchased it was sold at such a bargain price. [ 105 ] Plaintiff has made important deceitful representations to the police, the Defendant and the Court relating to the circumstances of his purchase as well as the circumstances of the disappearance of the Car. [ 106 ] Plaintiff has not met his burden of proving according to the balance of probabilities that he purchased the Car to drive it, that it was in a condition to be driven, that he actually drove it, and that it was stolen. [ 107 ] Plaintiff made deceitful and false declarations to the Defendant in order to mislead the insurer and get paid a compensation to which he was not entitled [36] . [ 108 ] Consequently, the Defendant was justified to decline Plaintiff’s claim for compensation in application of provision 2472 C.c.Q. and Plaintiff’s claim is denied.

WHEREFORE, THE COURT: [ 109 ] DISMISSES Plaintiff’s claim; [ 110 ] CONDEMNS Plaintiff to pay the judicial costs of $204.00 to the Defendant. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: April 27, 2015