2016 QCCQ 8694, 2016 QCCQ 8694

9146-4503 Québec inc. c. Coré-Tec internationnal inc. 2016 QCCQ 8694 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division» No: 500-32-142002-148 DATE: July 12, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ 9146-4503 QUÉBEC INC. Plaintiff and Cross-Defendant v. CORÉ-TEC INTERNATIONAL INC.

Defendant and Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lessor 9146-4503 Québec inc. is claiming $4,218.73 from its Lessee , Coré-Tec International inc. (Coré-Tec) , for unpaid rent and business taxes. [ 2 ] Lessee Coré-Tec denies owing that amount. [ 3 ] By way of a cross-claim, Lessee Coré-Tec is claiming $7,000 from its Lessor for various expenses incurred, alleging its contractual negligence. [ 4 ] Lessor denies owing that amount. QUESTIONS IN ISSUE

A) Did the Lessor establish its right to claim $4,218.73 from Lessee Coré-Tec?

B) Did Lessee Coré-Tec establish its right to claim $7,000 from its Lessor? CONTEXT AND ANALYSIS [ 5 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [1] . [ 6 ] The burden of proof [2] lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities, also called preponderance of evidence .

This implies that both the demand and the cross-claim must demonstrate that the existence of a fact is more probable than its non-existence [3] to convince the Court. [ 7 ] All relevant elements of evidence are analysed by the Court. [ 8 ] In this matter, Lessor administers a building with 18 to 20 lessees. [ 9 ] Lessee Coré-Tec is in the business of selling electronic parts. [ 10 ] In December 2009, Lessee Coré-Tec showed an interest in renting commercial premises in Lessor’s building wishing to move from the residential property from which it operated. [ 11 ] Discussions, emails and visits regarding the premises to be rented lasted for approximately two years. [ 12 ] Various locations in the building were visited and considered (for instance: suite 3, suite 110, suite 132). [ 13 ] Drafts of leases were exchanged and commented, without ever being signed [4] .

[ 14 ] During that period of time, were discussed: square feet available, rent, GST, QST, business taxes, deposit to be given by Lessee Coré-Tec. [ 15 ] In December 2010, discussions resumed. [ 16 ] Without signing a lease, on January 15, 2011, Lessee Coré-Tec finally moved in and got installed in suite number 3 [5] . [ 17 ] Three lessees were occupying same suite number 3, including Lessee Coré-Tec.

The latter was using four offices and the common areas (kitchen, bathroom). [ 18 ] A contract can be verbal and it can be a valid lease. [ 19 ] The difficulty then facing the parties bound by it is to prove the applicable terms. [ 20 ] Contradictory versions on its applicable conditions are to be foreseen. [ 21 ] In this matter, a lease dated January 13, 2011, was filed and produced [6] where suite number 3 was mentioned as the rented premises.

It triggered a debate with the parties in view of the absence of signature on it. [ 22 ] Lessee Coré-Tec did not pay any deposit for the rented premises and did not pay any rent.

A) Did the Lessor establish its right to claim $4,218.73 from Lessee Coré-Tec? [ 23 ] Every person has a duty to honour his contractual undertakings [7] . [ 24 ] The contract binds the parties not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law [8] . [ 25 ] Both parties have presented contradictory evidence on the renting conditions for the commercial premises. [ 26 ] According to Lessor, Lessee Coré-Tec decided to get installed in the commercial premises without notifying it, without its agreement and without paying any deposit. (It appears, however, that the police was not called by the Lessor to get Lessee Coré-Tec evicted). [ 27 ] Lessee Coré-Tec denied that version.

According to it, Lessee Coré-Tec could occupy the commercial premises but the lease had yet to be finalized. [ 28 ] However, as Lessee Coré-Tec was moved from one area to another in the rented premises, it was difficult to quantify the rent considering the variable square feet available. [ 29 ] Lessor filed the layout of suite number 3 [9] . [ 30 ] Four coloured areas can be identified on it. Those coloured areas are necessary to understand the versions of the different lessees who testified at trial.

The Court will refer to these areas by referring to their colours: yellow, blue, pink or green. [ 31 ] Chris Coré and Donna Palo Pivarnik explained that Lessee Coré-Tec moved to the yellow area on January 14, 2011. [ 32 ] That same day, Lessee Coré-Tec had to stop its moving process and put furniture in some other rooms as other lessees were not satisfied with the selected offices. [ 33 ] A few days after, Lessee Coré-Tec was asked by the Lessor to move to the blue area as another lessee (Annamaria Piccioni) was relocated from her rented space to suite number 3.

She explained that she was relocalised by the Lessor to that same yellow area. [ 34 ] Lessor explained that the relocation was justified as it wanted to accommodate another lessee expanding the square feet he intended to rent. [ 35 ] Lessee Coré-Tec therefore had to move to the blue area. [ 36 ] Lessor’s reasoning was simple: no lease was duly signed and no deposit was given, so, it had the right to relocate lessees.

Lessor’s decision could be taken on the basis of financial difficulty of one lessee for paying the rent or because an opportunity arose with another lessee. [ 37 ] The representative of the moving company hired by Lessee Coré-Tec testified at trial. [ 38 ] He presented a credible version. [ 39 ] He indicated that he first moved Lessee Coré-Tec from the residential property to the Lessor’s premises. [ 40 ] He got it set up. Then, the same day, he had to go back to relocate it within the same building. He then had to repack and put stuff in the hallways. Some of it also went to storage.

He then had to put it back from the hallways and storage to smaller offices than the ones used for the initial move. Then again, he had to move Lessee Coré-Tec from the smaller offices to the larger superficy to finally end up moving it in another building. [ 41 ] He said : “It’s a little complicated. I did this move 4-5 times. OK I’ll tell you what we did because I remember, it was a crazy job and I have been in the business since 25 years. This stood up my mind”.

[ 42 ] He concluded: “It was a mess”. [ 43 ] Indeed, at the beginning of March 2011, Lessee Coré-Tec was told that it would move again. [ 44 ] At that time, Lessor had found a lessee interested in renting the entire suite number 3 and felt justified to ask Lessee Coré-Tec to move out again and to offer it another renting space in the building [10] . [ 45 ] That was the straw that broke the camel’s back. [ 46 ] Lessee Coré-Tec started looking for a new renting space and left the commercial premises. [ 47 ] It admitted having paid no rent, ignoring which amount was owed in view of the various changes in location in the building. [ 48 ] The unpaid rent ($3,246.87) covers a period of three months, from January 15 to April 15, 2011 [11] .

The applicable business tax claimed for such period is $1,025.86 [12] . This explains the total claimed of $4,218.73 by Lessor. [ 49 ] Notwithstanding the issues between Lessor and Lessee Coré-Tec, a rent should have been paid. [ 50 ] Lessee Coré-Tec remained in the commercial premises from January 15, 2011 to March 15, 2011 (2 months).

Lessee Coré-Tec has convinced the Court that it occupied the premises for such period. [ 51 ] Consequently, a rent for that period is owed. [ 52 ] However, the lease [13] referring to suite number 3 is incomplete. [ 53 ] It does not mention the exact location of the rented space. [ 54 ] The monthly rent indicated is $1,082.29 plus 3.7 % for additional charges, representing the share of Lessee Coré-Tec based on a superficy divided between 3 lessees. [ 55 ] However, as the area rented comprised less square feet than expected, the Court arbitrates the rent claimed and grants to the Lessor a total of $2,000 for 2 months, including the taxes.

B) Did Lessee Coré-Tec establish its right to claim $7 000 from its Lessor? [ 56 ] The behaviour of Lessor and the various relocations imposed upon Lessee Coré-Tec partly explained why it left the premises. [ 57 ] Lessee Coré-Tec is using those same facts to justify its cross-claim of $7,000. [ 58 ] Furthermore, Lessor admitted that the relocation of Lessee Coré-Tec from the yellow area to the blue area did not trigger any reduction of rent or payment of any type of damages for the moving. [ 59 ] Lessee Coré-Tec had to pay the moving company $6,728.70, [14] as per the three invoices.

Part of it is linked to the initial move, then, to packaging and storage and relocations imposed by Lessor’s decisions. [ 60 ] However, Lessee Coré-Tec would have had to pay the moving company for the first move. [ 61 ] The Court will therefore subtract $1,573.59 and grant $5,155.11. [ 62 ] Lessee Coré-Tec also claims $2,448.96 [15] for the moving of the phone systems. [ 63 ] Once again, Lessee Coré-Tec would have had to pay for the move from the residential property to the initial renting space. [ 64 ] However, Lessee Coré-Tec has the right to be reimbursed for having to move the phone system twice after occupying the rented premises. [ 65 ] Therefore, the Court will subtract $632.36 and grant $1,816.60. [ 66 ] Lessee Coré-Tec also claims $600 for the Bell Canada installations [16] .

The document filed in this regard has a weak probative value. The Court does not grant that amount. [ 67 ] In a nutshell, the total awarded for the cross-claim is $6,971.71. FOR THOSE REASONS, THE COURT: GRANTS partly the action of 9146-4503 Québec inc. against Coré-Tec International inc.; CONDEMNS Coré-Tec International inc. to pay $2,000 to Plaintiff 9146-4503 Québec inc., plus the interest at the legal rate of 5 % per annum and the additional indemnity provided for at

article 1619 of the Québec Civil Code, calculated as of December 30, 2011 [17] ; CONDEMNS Coré-Tec International inc. to pay to 9146-4503 Québec inc. the legal costs of $187;

GRANTS partly the cross-claim of Coré-Tec international inc. against 9146-4503 Québec inc; CONDEMNS 9146-4503 Québec inc. to pay $6,971.71 to Coré-Tec International inc, plus the interest at the legal rate of 5 % per annum and the additional indemnity provided for at

article 1619 of the Québec Civil Code, calculated as of March 21, 2014; CONDEMNS 9146-4503 Québec inc. to pay to Coré-Tec International inc. the legal costs of $94.50. __________________________________ DOMINIQUE VÉZINA . , J.C.Q. Dates of trial: January 26, 2016 and May 16, 2016