2019 QCCQ 8852, 2019 QCCQ 8852

Shamshiri c. St-Germain 2019 QCCQ 8852 JC00G0 COURT OF QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL N° : 500-32-157629-181 DATE : November 11, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MICHAEL SHAMSHIRI Plaintiff c.

CAMILLE ST-GERMAIN Defendant -and- INTACT COMPAGNIE D’ASSURANCES Intervener ______________________________________________________________________ JUGEMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Michael Shamshiri, sues his neighbour, the Defendant, Camille St-Germain, claiming $ 1,450, the alleged value of a snow blower belonging to Mr. Shamshiri that he left with Mr. Germain, on January 7, 2018. The next day, the snow blower was missing, apparently stolen from the garden shed where Mr. St-Germain had put it. [ 2 ] Mr. Shamshiri holds Mr.

St-Germain responsible for the loss of the snow blower and claims its initial cost of approximately $ 1,450. [ 3 ] Mr. St-Germain, assisted by Mr. Shamshiri’s insurer, Intact Compagnie d’assurances ( “Intact” ), denies responsibility, asserting firstly that he agreed to keep the snow blower in Mr. St-Germain’s shed on a short-term basis, by deposit by gratuitous title, that the shed was properly secured and that Mr. Shamshiri was in no way at fault in connection with the theft that occurred. [ 4 ] Mr.

Shamshiri made no written allegation as to whether the deposit was gratuitous or onerous, i.e. whether it was free or for the payment of an amount of money, but in his testimony, he stated that he gave Mr. St-Germain $ 10, after he had agreed to take possession of the snow blower on January 7, 2018. ISSUES [ 5 ] To resolve this conflict, the Court must determine: 1. Has the Plaintiff established that the deposit was onerous? 2. If this is a case of onerous deposit, can Mr. St-Germain prove that the loss of the snow blower occurred by superior force? or 3. If the deposit was gratuitous, did Mr.

St-Germain commit a fault which resulted in the loss of the snow blower? 4. In the event that the Court finds Mr. Germain responsible, what is the monetary value of the loss suffered by Mr. Shamshiri? FACTS [ 6 ] Mr. Shamshiri places great emphasis on the fact that he inherited the snow blower, from his late father, in December 2017. He explains that this snow blower was a prized possession of his father, who rarely used it, so that it was in virtually new condition. His attachment to the snow blower was such that his father had wanted it to be passed down to his son and to his grandson.

[ 7 ] Mr. Shamshiri’s situation, on the 7 th of January, 2018 was that he had to be absent from his home for a very short time. He agreed to let Mr. St-Germain keep the snow blower for one day, because of latter’s insistence. He anticipated that the snow blower would be kept locked in the garden shed. [ 8 ] He makes much of the fact that the latch on the garden shed was found to be missing on the day that the disappearance of the snow blower was discovered. He points, with suspicion, to the fact that no other contents of the garden shed were stolen, neither Mr.

St- Germain’s own snow blower, nor the valuable tools that Mr. St-Germain kept in his garden shed. [ 9 ] Mr. Shamshiri brought the police into the matter, and it is obvious that he accuses Mr. St-Germain of dishonesty in connection with the disappearance of the machine. [ 10 ] Mr. Shamshiri is particularly insistent about the fact that there was no padlock broken, rather the latch had been dismantled, something that can only be done if there was no padlock on the latch.

At the trial, he exhibited a mock-up showing how the typical latch could only be removed by unscrewing the bolts, if the latch was open, therefore not padlocked. [ 11 ] Mr. St-Germain testified and provided pictures to demonstrate that the latch that he had put on the garden shed did not work with a padlock, but with bolts that can only be removed by using an English wrench, a procedure that would be more difficult than simply shearing a padlock, and therefore, a more effective protection.

This was the device he used to secure his very valuable tools and equipment of his own that he kept in the shed without incident. [ 12 ] Mr. St-Germain testifies that, a few days earlier, Mr. Shamshiri had entrusted the snow blower to him, so that he could fix it. Mr. St-Germain states in his testimony that he put the snow blower back into order by repairing the carburetor. Mr. Shamshiri denies this, stating again that the snow blower was like new and did not require service or repair. [ 13 ] Mr. St-Germain states that he carried out this repair, without charge. [ 14 ] Mr.

Shamshiri, as part of his testimony, stated that he gave Mr. St-Germain $ 10 after he had agreed to keep the snow blower for a short period when questioned about this, Mr. St-Germain admitted that he had received the $ 10, but that it was as a tip for his having fixed the carburetor of the snow blower, without charge. ANALYSIS [ 15 ] It is important for this case to determine whether the deposit should be considered as onerous or gratuitous, as the liabilities of the depositary depend upon this [1] : 2289.

Where a deposit is by gratuitous title, the depositary is liable for the loss of the property deposited, if caused by his fault; where a deposit is by onerous title or where it was required by the depositary, he is liable for the loss of the property, unless he proves superior force. [ 16 ] In the circumstance such as this one, which is a relationship between two neighbours, the presumption of normalcy would suggest that it was a deposit by “gratuitous title”, the type of thing that one neighbour would do for another, without stipulating payment in return. [ 17 ] As to the testimony of two men concerning the events, the Court cannot give more credibility to the statement of Mr.

Shamshiri, connecting the payment of $ 10 to the deposit, than to the testimony of Mr. St-Germain, connecting the $ 10 to the repair that had been previously carried out, as a token of appreciation. [ 18 ] Given that the Plaintiff has the burden of proof of the onerous nature of the deposit, the Court will consider the deposit as gratuitous. [ 19 ] Since it was a gratuitous deposit, the Plaintiff must prove fault. [ 20 ] Mr. Shamshiri knew what he was doing, when he left the snow blower with Mr.

St-Germain: he had been neighbours with him for several years and was aware of the garden shed and he could appreciate the extent to which the latch mechanism created sufficient security, or not. [ 21 ] In the Court’s view, Mr. St-Germain is reasonable in considering that his latch mechanism required time, effort and skill for the de-bolting of the latch with an English wrench and that it was, at least, as effective as a latch secured by a small padlock. [ 22 ] Someone wishing to break into the garden shed could do so just as readily by shearing the lock as he could by de-bolting the latch assembly.

In fact, it would only take an instant to cut the lock with the appropriate tool, while the manipulation of an English wrench, would be more time consuming and would require more skill. [ 23 ] It is not unreasonable for the owner of a garden shed to store items of value and to secure them in this manner, and the Court does not find, in the conduct of Mr. St-Germain, fault within the meaning of the Civil Code of Québec . [ 24 ] Mr. St-Germain, like any other witness, is presumed to be in good faith and there is no evidence to suggest that he orchestrated the disappearance of the snow blower, as Mr.

Shamshiri suspects. [ 25 ] To establish such a malevolent intention would require convincing proof. [ 26 ] Although it is not necessary to decide, if the Court had found Mr. St-Germain to be at fault, it would have applied a significant depreciation factor. The snow blower had been purchased at Sears, in December 2008, and, even if it was in good condition, having been used only moderately, its actual value would have depreciated by at least a factor of 50 %.

[ 27 ] Since this is a dispute between neighbours, and since both believed sincerely in their respective positions, the Court will not award costs. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s Demand; Each party paying its costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing : October 22, 2019.