2016 QCCQ 10660, 2016 QCCQ 10660

Berkley c. Phillip 2016 QCCQ 10660 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146481-157 DATE: July 29, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Nigel Berkley Plaintiff v.

Margaret Ann PhiLlip Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant an amount of $3,642.54 after the car that he lent her was damaged in an accident. He claims that she undertook to pay for any necessary repairs to the car and should be held responsible for their cost. Originally, he also sought the return of a key to the car, but Defendant has since returned it. [ 2 ] Defendant contests the claim.

Although she admits the accident, she denies undertaking to pay for the repairs and claims that Plaintiff himself acknowledged that she did not have to pay. By way of a cross-demand, she also claims damages of $500 from Plaintiff because he undertook to ship a cribset of hers to Grenada and failed to do so or return to cribset to her. FACTUAL CONTEXT

a) The damage to the car [ 3 ] In November 2012, Plaintiff verbally agreed to let Defendant use one of his cars, a 2010 Ford Escape (the “ Car ”). He granted her free and unrestricted use of the Car, while retaining the ability to use it temporarily when he needed it.

He agreed to pay for insurance, but Defendant was to pay for gas and other operating costs. [ 4 ] In the following months, Defendant made regular use of the Car, except when Plaintiff needed it temporarily. [ 5 ] On April 16, 2013, Defendant had an accident while driving to work and the Car was damaged on the driver’s side. [1] The same day, Defendant met with Plaintiff to show him the damage sustained. [ 6 ] The parties disagree on what was said during this meeting. According to Plaintiff, Defendant undertook to pay for any necessary repairs.

Defendant denies this and claims that there was no discussion about who was going to pay for the repairs.

She adds, moreover, that Plaintiff told her a couple of days later that he was going to get the Car fixed by his usual garage and that she should not worry about the cost, as he knew that she could not afford to pay. [ 7 ] One or two weeks later, Plaintiff asked for the Car to travel to Toronto and did not return it to Defendant. [ 8 ] In March 2015, Plaintiff demanded payment of the costs of the repairs, as well as the return of an electronic key that Defendant still had in her possession. [2] After Defendant denied responsibility for the repairs [3] , Plaintiff filed suit in March 2015. [ 9 ] Plaintiff still owns the Car, which has not yet been repaired.

The estimated cost of the necessary repairs is $2,115.54. [4]

b) The failure to ship or return the cribset [ 10 ] Defendant claims that in January 2013, she remitted to Plaintiff a cribset that she owned (the “ Cribset ”), after he undertook to arrange for its shipment to Grenada for the upcoming birth of her sister’s child. [ 11 ] She claims that Plaintiff failed to ship the Cribset despite repeated promises to do so over the following months. She later asked for the Cribset back, but he failed to return it. [ 12 ] Plaintiff, on the other hand, denies undertaking to ship the Cribset to Grenada. He claims that Defendant asked him to store it because se was short of space. He also denies having refused to return it and formally offers to do so. ANALYSIS

a) Liability for the damage to the Car

[ 13 ] The verbal contract between the parties regarding the use of the Car constitutes a contract of loan for use defined by

article 2313 of the Civil Code of Québec (“ C.C.Q. ”), which reads as follows: “2313. A loan for use is a contract by gratuitous title by which a person, the lender, hands over property to another person, the borrower, for his use, under the obligation to return it to him after a certain time.” [ 14 ] The main obligations of the borrower under such a contract are set out in articles 2317 and 2322 C.C.Q., which read as follows: “2317. The borrower is bound to act with prudence and diligence in the custody and preservation of the property loaned.” “2322.

The borrower is not liable for loss of the property resulting from the use for which it is loaned .

However, where the borrower puts the property to a use other than that for which it is intended, or uses it for a longer time than agreed, he is liable for its loss even where the loss is caused by superior force, unless the superior force would in any case have caused the loss of the property.” [Emphasis added] [ 15 ] Applying these principles to the instant case, the Court is of the opinion that Defendant is not liable for the damage to the Car resulting from the accident, which constitutes partial loss of the property loaned within the meaning of

article 2322 C.C.Q. The Court comes to this conclusion because Defendant was using the Car for the purpose for which it was loaned when the damage was sustained and said damage results from this authorized use. [5] [ 16 ] Irrespective of liability under

article 2322 C.C.Q., Plaintiff claims that Defendant verbally agreed to pay for the repairs on the evening of the accident, which is denied by Defendant. [ 17 ] Where the parties rely on conflicting oral evidence in this way, the Court must consider the probative value of each version of the facts and decide liability on the basis of the most probable facts. [6] [ 18 ] The Court prefers Defendant’s testimony, which was detailed and credible, and concludes, on a balance of probabilities, that Defendant did not undertake to pay for the repairs. She is therefore not liable for such repairs. [ 19 ] Plaintiff’s principal claim must therefore be dismissed.

b) The failure to ship or return the Cribset [ 20 ] The parties again offer conflicting oral evidence regarding the reasons why Defendant remitted the Cribset to Plaintiff.

Defendant claims that Plaintiff undertook to have it shipped to Grenada and failed to do so, while Plaintiff claims that he was asked to store the Cribset. [ 21 ] Here again, the Court prefers Defendant’s testimony to that of Plaintiff and concludes, on a balance of probabilities, that Plaintiff undertook to ship the Cribset to Grenada and failed to do so. [ 22 ] Because Plaintiff did not respect his obligations toward Defendant in this respect, he is liable for any material injury suffered by Defendant which is an immediate and direct consequence of his fault. [7] [ 23 ] This being said, Defendant did not provide probative evidence that she suffered any such injury.

The alleged expense to purchase bed linen and accessories for the Cribset was not proven and it constitutes indirect damages that cannot be claimed. [ 24 ] The cross-demand must therefore also be dismissed. [ 25 ] Finally, the Court takes note of Plaintiff’s offer to return the Cribset to Defendant and will order such return. [ 26 ] Given the outcome of the parties’ respective claims, the Court finds it appropriate not to grant judicial costs to either party. FOR THESE REASONS, THE COURT: DISMISSES the principal action. DISMISSES the cross-demand.

ORDERS Plaintiff Nigel Berkley to return to Defendant Margaret Ann Phillip the cribset that is in his possession. WITHOUT JUDICIAL COSTS . __________________________________ DOMINIQUE GIBBENS, J.C.Q. Dates of hearing: March 7 and June 13, 2016