2022 QCCQ 6897, 2022 QCCQ 6897

Perreault c. Gagnon 2022 QCCQ 6897 COURT OF QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF TEMISCAMINGUE LOCALITY OF VILLE-MARIE “Civil Division” No.: 610-32-700127-219 DATE: September 27, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE JEAN-PIERRE GERVAIS, J.C.Q. ______________________________________________________________________ MARCEL PERREAULT Plaintiff v.

LINDA GAGNON and MIKE ZWIRTES Defendant s ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff is suing the defendants, alleging that they are in possession of property that belongs to him that they refuse to return to him. Accordingly, he demands that they pay him the value of that property. [ 2 ] Ms. Gagnon and Mr.

Zwirtes vigourously deny that this is true and add that they are ready to return what is in their possession and does not belong to them. [ 3 ] That is an overview of the evidence presented at the hearing. [ 4 ] The plaintiff owns a home located on the lake in the municipality of Notre-Dame-du-Nord.

He put it up for sale, and the defendants, who were acquaintances, were interested, such that a price was agreed upon, and a promise to purchase was signed on April 24, 2021. [ 5 ] In addition to providing for the taking of possession upon the signature of the deed of sale with the notary, the document indicated what the sale included. [ 6 ] The short list includes a boat and the permanent light fixtures. [1] [ 7 ] It was agreed that the new owners could move into the premises early; however, the plaintiff had not yet moved out. [ 8 ] In the following days and weeks, everyone helped each other to allow the defendants to move in and Mr.

Perreault to move his belongings to his new residence. [ 9 ] Ms. Gagnon and Mr. Zwirtes felt that Mr.

Perreault was taking his time to finish moving, and the relationship became more difficult. [ 10 ] According to the plaintiff, at that point the defendants felt they had overpaid for a house that was not in the state they had expected, and as a result, they decided to keep some property as compensation. [ 11 ] For the new purchasers, it was indeed true that there were some unwelcome surprises about the state of the premises, but that does not mean that they refused to give back the seller his property. [ 12 ] Furthermore, while the defendants acknowledge that several of the items on the list are still in the residence, they claim that they are ready to give them back to the plaintiff at his convenience. [ 13 ] Other items, however, are attached to the building and are therefore part of it; others are missing, or were simply given to them due to their state. [ 14 ] Mr.

Perreault is not now open to taking back the property that remained there since he does not know what condition it is in.

[ 15 ] He is, however, willing to reduce his claim of $13,344.92 by 50% to take into account the wear and disrepair of some of these items. [ 16 ] The Court is therefore faced with largely contradictory evidence, but understands that the underlying cause of all of this is the deterioration of the parties’ relationship. [ 17 ] It is clear that the Court must ignore this factor and apply the civil law rules of evidence, namely

article 2803 of the Civil Code of Québec , which requires that a person seeking to assert a right must prove it. 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. 1991, c. 64, a. 2803; I.N. 2014-05-01. [ 18 ] In other words, Mr.

Perreault must prove on a balance of probabilities that he is entitled to the amount he claims. [ 19 ] The Court concludes the following from all this. [ 20 ] The plaintiff is clearly not interested in getting back the property on the list that the defendants are willing to return to him. [ 21 ] Accordingly, the evidence is not probative that the defendants are keeping these items, especially since they were never formally put on notice to return them. It would therefore be difficult to require them to pay the value of these items, whatever it may be. [ 22 ] Mr.

Perreault will always be free to contact them again to take possession of these items, but the Court will not grant his claim with respect to them. [ 23 ] Nor will his claim be granted with respect to the boat trailer, the electric motor, and the GPS installed on it. [ 24 ] Recall that the boat was part of the sale, and it is reasonable to think that the accessories attached to it were included. [ 25 ] The cellular tower and antenna are attached to the residence and are part of it. It is therefore normal that they remain there. [ 26 ] There remain certain Hydro-Québec bills that Mr.

Perreault claims are related to the residence that was sold and should have been paid by the purchasers. [ 27 ] Unfortunately, since none of the bills were filed, the Court is somewhat ill-equipped to rule on the merits of this part of the claim, which, like the rest of it, the defendants contest. [ 28 ] At the very least, the bills should have been adduced into evidence so that the Court could examine them and decide whether it should order that they be reimbursed. [ 29 ] In short, for the reasons above, Mr.

Perreault’s claim is not admissible and accordingly will be dismissed. [ 30 ] Considering the circumstances, however, each party will pay his or her own costs. FOR THESE REASONS, THE COURT: DISMISSES the application; The whole without costs. __________________________________ Jean-Pierre Gervais, J.C.Q. Date of hearing: August 9, 2022