2012 QCCQ 10490, 2012 QCCQ 10490

Coates c. Coates 2012 QCCQ 10490 COURT OF QUÉBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF LOCALITY OF SAINT-FRANÇOIS SHERBROOKE «Civil Division» No: 450-32-015359-110 DATE: July 11, 2012 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE PIERRE BACHAND, J.C.Q. ______________________________________________________________________ ROBERT COATES Plaintiff v.

LISA COATES Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Further to a car sale, the plaintiff is suing the defendant for a balance owing of 3 820,00$. [ 2 ] This is a special case because the plaintiff is the defendant's father. In August 2010, he sold her a 1999 Sebring. There was no written contract, according to the plaintiff. Different versions came out from the witnesses' testimonies. First, according to the S.A.A.Q. records, the car was sold for 100,00$.

The plaintiff says that the price of sale was 500,00$ plus a P.T. Cruiser owned by the defendant. He says that payments were made up to an amount of 1 380,00$, leaving a balance of 3 820,00$ which he is claiming. His witnesses Robert C. Coates and Stacy Lancaster come up with the following version. According to Robert C. Coates, he says that the agreement was 450-32-015359-110 2 around 5 000,00$. Mr.

Lancaster says that the plaintiff was asking for 5 500,00$ but they agreed to 5 000,00$ and he had the opportunity to hear most of their discussions. [ 3 ] On the other hand, the defendant says that the agreement was for 1 500,00$ plus her P.T. Cruiser. She has paid so far 1 380,00$, leaving a balance of 120,00$. Her husband, Mr. Cunnington, says that the agreement was for 3 000,00$ less 1 500,00$ for the P.T.

Cruiser, leaving a balance of 1 500,00$. [ 4 ] Finally, the defendant pretends that she offered to give back the car to the plaintiff and the latter refused. [ 5 ] First, the Court could consider the possible nullity of the whole process because the parties did not respect a public order rule, paying the taxes. According to a part of the jurisprudence, a fiscal fraud contaminates the transaction since it is contrary to the public order and the nullity of the contract must be the sanction (Riccio c.

Di Raddo, J.E. 2010 – 1565 (C.Q.), and sections 9 , 1373 , 1411 and 1413 C.c.Q. ). [ 6 ] But even if the Court does not follow this jurisprudence trend, the end result is not very different if the Court decided on the merits of this case. [ 7 ] According to

section 2803 C.c.Q. , the defendant has the onus of proof: “Art. 2803. A person wishing to assert a right shall prov e the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation.” [ 8 ] After reviewing the testimonies, the Court comes to the conclusion that this onus has not been met. There is no reason to believe one side more than the other. There were initials by the defendant after a first payment of 180,00$ but she says that all the other figures were added after her initials.

This is possible since the initials come after of the amount of 180,00$ and it is possible to add the first amount of 5 000,00$ plus the balance of 4 820,00$ as a balance owing after the initials. Since she had no control over this document which was in the plaintiff's possession and that she was not provided a copy, anything is possible.

[ 9 ] The only part which is proved on a balance of probabilities is due to the admission of the defendant concerning the balance owing of 120,00$. Judgment will follow accordingly. FOR THESE REASONS, THE COURT: [ 10 ] CONDEMS the defendant to pay to the plaintiff an amount of 120,00$ plus interests at the annual rate of 5% and the additionnal indemnity provided for by

article 1619 C.c.Q. , as of may 25, 2011. 450-32-015359-110 3 [ 11 ] THE WHOLE with costs of 70,00$. __________________________________ Pierre Bachand, J.C.Q. Date of hearing: June 27, 2012