2017 QCCQ 9416, 2017 QCCQ 9416

Budko c. Wafer (Auberge Miguasha Lodge) 2017 QCCQ 9416 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-023604-165 DATE: August 29 th 2017 ______________________________________________________________________ BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ ELAINE BUDKO Plaintiff v.

BOBBY WAFER faisant affaires sous le nom de Auberge Miguasha Lodge Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff is claiming an amount of 6 700$ from the Defendant following a Loan that the parties entered into on November 12 th 2013. [ 2 ] The claim from the Plaintiff consists of an amount of 4 300$ in capital and interests calculated at an annual rate of 20%. [ 3 ] The Defendant is absent on the day of the Trial, although duly called upon.

The Plaintiff was authorized, consequently, to proceed by default. [ 4 ] The Plaintiff testifies that the Defendant asked her in November 2013 for a loan of an amount of 4 800$.

That loan was made because it appears that the Defendant needed the money to pay unpaid taxes for the Auberge Miguasha Lodge, which is located in the city of Nouvelle, in the province of Québec. [ 5 ] The parties have been long time family friends. [ 6 ] It appears from the evidence, notably from a Transaction record produced by the Plaintiff [1] , that the Plaintiff proceeded to transfer, using her credit card, such amount of 4 800$ to the Auberge Miguasha Lodge. [2] [ 7 ] Plaintiff testifies to the effect that a partial payment was received from the Defendant, for an amount of 500$. [ 8 ] Plaintiff admits that there had been no discussion as to a specific interest rate at the time of the conclusion of the Loan.

However, it appears that it was agreed upon that Mr.

Wafer and/or the Lodge would reimburse the total amount no later than at the end of February 2014. [ 9 ] In his written Defence, the Defendant admits that an amount of 4 300$ is indeed owed to the Plaintiff, but contests the validity of the interest rate that is requested from him. [ 10 ] The Defendant also contests that the Miguasha Lodge should be condemned to pay any amount since it is his daughter, Shelly Wafer, who would be the owner of that individual business. [ 11 ] As indicated, during trial, to the Plaintiff, the fact that the file does proceed by default does not limit her obligation to present, to the Court, preponderant evidence as to the validity of her claim. [ 12 ] Indeed, sections 2803 and 2804 of the Civil Code of Québec do provide the following: 2803.

A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim.

2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 13 ] In the present instance, it appears clearly that the Defendant is indeed indebted to Plaintiff for the amount of the capital which is still outstanding, notably an amount of 4 300$. The Defendant does admit it. [ 14 ] What about the interest rate? [ 15 ] As indicated, during trial, to the Plaintiff, the legal interest rate is normally applicable to a Loan, unless the parties agreed otherwise. [ 16 ] Indeed,

section 1565 of the Civil Code of Québec does stipulate the following: 1565. Interest is paid at the agreed rate or, if none, at the legal rate . [ 17 ] In the present file, the Plaintiff does confirm to the Court that there was no agreed upon contractual interest rate. Consequently, the Court will pronounce its judgment using the legal rate provided by the law. [ 18 ] Furthermore, the Court will grant, in conformity with the Demand of the Plaintiff, the special indemnity provided by

section 1619 of the Civil Code of Québec , which provides as follows: 1619. An indemnity may be added to the amount of damages awarded for any reason, which is fixed by applying to the amount of the damages, from either of the dates used in computing the interest on them, a percentage equal to the excess of the rate of interest fixed for claims of the State under

section 28 of the Tax Administration Act (chapter A-6.002 ) over the rate of interest agreed by the parties or, in the absence of agreement, over the legal rate. [ 19 ] As for the court costs, the Court will allow them, in conformity with section 340 (1) of the Civil code of procedure which establishes the following: 340. Legal costs are owed to the party that was successful, unless the court decides otherwise. FOR THOSE REASONS, THE COURT: GRANTS partially the Plaintiff’s claim; CONDEMNS the Defendant to pay to the Plaintiff an amount of 4 300$, with interests at the legal rate as well as the special indemnity provided by

section 1619 of the Civil code of Québec , starting on March 1 st 2014; THE WHOLE , with court costs. __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: August 28 th 2017.