Assetco Recovery Services Inc. c. Ross 2011 QCCQ 18468 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-117995-094 DATE: December 8, 2011 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO ______________________________________________________________________ ASSETCO RECOVERY SERVICES INC. Plaintiff v.

MARK ROSS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS , in its application, plaintiff alleges that "Mr.

Ross and Bob Croll of Assetco Recovery made an agreement with Fer Ornemental NDG to sell assets by way of auction"; [ 3 ] WHEREAS , according to the preponderance of evidence, no such agreement intervened (credible testimony of Serge Belec and Bruno Scarsella and contract D-2 between Belec Auctions Inc. and Fer Ornemental NDG); [ 4 ] WHEREAS plaintiff further alleges that it entered into a verbal agreement with defendant "to split 50% of the proceeds of sale" resulting from the liquidation and sale by auction of Fer Ornemental NDG's machine shop equipment; [ 5 ] WHEREAS defendant vehemently denies that the parties entered into any such agreement, and contends that he only ever acted as a broker, on commission, for plaintiff; [ 6 ] WHEREAS plaintiff has the burden of proof ( articles 2803 and 2804 of the Civil Code of Quebec ); [ 7 ] WHEREAS the Court is faced with two irreconcilable versions as to whether or not the parties did in fact enter into any such agreement; [ 8 ] WHEREAS the Court is not obliged to choose one version over the other, as, in law, plaintiff has the burden of establishing the facts alleged in support of its claim, failing which it shall be dismissed [1] ; [ 9 ] WHEREAS plaintiff failed to meet its burden of proof; WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's action, with costs. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: December 6, 2011