2014 QCCQ 12508, 2014 QCCQ 12508

Lynch c. Ghorayeb 2014 QCCQ 12508 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-015585-138 DATE: December 15, 2014 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ ANDREW LYNCH Plaintiff v. CHARLES K.

GHORAYEB AND RISTORANTE CAPICHE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Andrew Lynch claims from Charles Ghorayeb and Ristorante Capiche an amount of $ 2621.00, representing what would be owed to him further to some construction work he did for Mr. Ghorayeb and his company. In a cross-demand, Mr. Ghorayeb claims from Mr. Lynch $ 3032.26, representing the amount due further to the sale of a Hino truck on May 2, 2012. THE FACTS: [ 2 ] On May 2, 2012, a contract intervenes between Mr.

Lynch and Mr. Ghorayeb for the sale of a 2002 Hino truck, model FB1817, for a sale price of $ 12 000.00. Both parties have filed this contract as exhibit P-1 and D-7, but none of them could find a copy signed by both of them. [ 3 ] The contract is very detailed and states that Mr. Lynch gave a deposit of $ 2500.00. A credit of $ 5288.85 is given to Mr.

Lynch, due to some extensive repairs that have to be done on the truck on the ABS system, which have already been estimated at the abovementioned amount. [ 4 ] It was understood by this contract that the balance of $ 4211.15 was supposed to be paid by monthly payments of a minimum of $ 500.00 each, from May 15, 2012 to February 15, 2013. [ 5 ] It was also understood between the parties that the loan would be interest free if the total amount was paid before March 15, 2013. Otherwise, an interest rate of 10% would be charged, amounting to $ 421.11, as per

Section 11 of the sales contract. [ 6 ] Mr. Lynch made some construction work for Mr. Ghorayeb or his company that was supposed to be deducted from the amount owed for the truck. He asks, by his Demand, for a reduction of $ 421.82 for repairs done to the truck on August 2012, of $ 3500.00 for demolition and reconstruction work at Mr. Ghorayeb's restaurant, and three amounts of $ 1500.00, $ 1000.00, and $ 350.00 for a moving from Châteauguay to Mercier, cleaning of an office and repacking of storage facilities. In his contestation, Mr. Ghorayeb acknowledges owing to Mr.

Lynch $ 1000.00 for the moving (instead of $ 2850.00), and $ 600.00 for the demolition work (instead of $ 3500.00). ANALYSIS AND DECISION:

[ 7 ] Since both the Demand and the Cross-Demand are related to the amount due under the sale contract, and depend on the decision about the value of the work done by Mr. Lynch, both will be decided simultaneously. [ 8 ] From the sale price of $ 12 000.00, the $2500.00 deposit, as well as an amount of $ 5288.85, as mentioned in the contract should be deducted. In Exhibit D-1, it appears that Mr. Ghorayeb was supposed to pay miscellaneous repairs up to $ 800.00, if the work was done at the garage that made the estimate. Mr.

Lynch can therefore deduct from the amount owed the sum of $ 421.82, representing repairs to the truck made at the Hino truck center. [ 9 ] Mr. Lynch also claims the deduction of $ 450.00 for other repairs he made to the truck, but no proof was made, by exhibits or testimony, regarding this amount. [ 10 ] The question that is left to be decided is the value of the work Mr. Lynch did for Mr. Ghorayeb: $1600.00 as Mr. Ghorayeb pretends, or $6350.00, according to Mr. Lynch. [ 11 ] The only thing that is clear is that the value of the work should be deducted from the sale price.

There was no written contract establishing the scope of the work to be done or the hourly rate. [ 12 ] Mr. Lynch testified about his hourly rate and brought a few witnesses who worked with him to explain what was done for Mr. Ghorayeb. Those testimonies were not clear; Mr. Lynch was not sure if his rate was $95.00 or $110.00 an hour, and nor him or his witnesses were able to specify the date on which they went the restaurant. No time sheet, no notes, just memories without specific details. [ 13 ] On the other end, Mr. Ghorayeb's testimony, and the notes he filed were more precise, and exposed dates and rates.

It is Mr. Lynch who had the burden of proof, according to

Section 2803 of the Quebec Civil Code , which states: 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. [ 14 ] Considering the testimony of Mr. Ghorayeb and his witness, Mr. Lynch has not met his burden of proving to the Court that he had an agreement and did work for a value of more than $1600.00 at Mr.

Ghorayeb's premises. [ 15 ] Therefore, the deduction that shall be made on the truck sale price for the work should be $1600.00. [ 16 ] An amount of $ 421.11 shall be added to the amount owed, which represents the interest as per

Section 11 of the contract. [ 17 ] Therefore, the Court concludes that Mr. Lynch owes Mr. Ghorayeb an amount of $ 2610.44 ($12 000.00 - $ 5288.85 - $ 2500.00 - $ 421.82 - $ 1600.00 + $ 421.11). FOR THESE REASONS, THE COURT: DISMISSES the Demand; GRANTS in part the Cross-Demand; CONDEMNS Plaintiff Andrew LYNCH to pay to Defendant Charles K. GHORAYEB the amount of $ 2610.44, with interest at the legal rate of 5%, plus the additional indemnity provided for in

Section 1619 Q.C.C., since the filing of the Cross-Demand on June 6, 2013; THE WHOLE with costs in the amount of $230.25. __________________________________ CÉLINE GERVAIS, J.Q.C.