2014 QCCQ 527, 2014 QCCQ 527

Hauptmanova c. Benson 2014 QCCQ 527 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-015070-123 DATE: The 24 th day of January, 2014 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ IVA HAUPTMANOVA Plaintiff and Cross-Defendant v. CAROLINE BENSON AND CHÂTEAU DES PETITS PAS INC.

Defendant and Cross-Plaintiffs AND GEORGE VOK Cross-Defendant and Impleaded party AND GEORGE VOK INC. Cross-Defendant and Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Iva Hauptmanova claims from Caroline Benson and Château des Petits Pas Inc. (hereinafter Château) an amount of $ 7000 representing the reimbursement of moneys she allegedly invested in Château, in a daycare business in which she pretends to have been associated with Mrs. Benson.

The amount allegedly invested was $ 9000, but Mrs. Hauptmanova accepts to reduce her claim to $ 7000 to be able to present her demand before the Small Claims Division. [ 2 ] Mrs. Benson and Château also claim an amount of $ 7000 from Mrs. Hauptmanova, alleging that she took money from the daycare operations, together with her husband, George Vok, for more than $ 20 000. They also accept to reduce their claim to $ 7000 to be able to present their demand before the Small Claims Division. On August 23 2012, Mrs. Benson and Château appealed to the file George Vok and G. Vok Inc.

THE FACTS: [ 3 ] During summer 2009, Mrs. Benson met Mrs. Hauptmanova while visiting a building in Coteau-du-Lac for residential renting purposes. During the course of this visit, Mrs. Benson said that the first floor of that building would make nice premises for a daycare. Mrs. Benson was already operating a daycare in Vaudreuil. [ 4 ] Mrs. Hauptmanova and Mr. Vok, her husband, later visited Mrs. Benson and discussions started for the operation of a daycare.

It was then agreed verbally that both Mrs. Benson and Mrs. Hauptmanova would invest $ 9000 to transform the first floor of the building so that it could be used as a daycare. [ 5 ] Mrs. Benson gives two cheques to G. Vok Inc., who was doing the construction works, the first one in the amount of $ 5000 dated August 12, 2009 and a second one in the amount of $ 4000 on September 10, 2009. [1] [ 6 ] There is no written evidence of Mrs. Hauptmanova's payment of said amount of $ 9000. [ 7 ] On August 29, 2009, a lease is signed between G.

Vok Inc. and Château for premises located on the first floor of the building located in Les Coteaux for five years, for a rent of $ 1800 plus taxes per month. The lease also contains an option to purchase the building. [2] [ 8 ] On September 22, 2009, G. Vok Inc. gives in payment the building to Bact System Inc. (hereinafter Bact), this fact being unknown then to Mrs. Benson. A prior notice had been sent to G.

Vok Inc. by Bact on November 2008. [ 9 ] A second contract of lease is signed between Château and Bact, on October 29, 2009, [3] under circumstances that gave rise to a litigation between them, which was settled out of Court last September. [ 10 ] Exhibits P-7 and P-8 represent different drafts of an association contract that was written and modified by both parties, that mention the deposit of the amount of $ 9000. No contract of society was ever signed between Mrs. Benson and Mrs. Hauptmanova. [ 11 ] On October 15, 2009, Mrs. Benson incorporates Château under

Section 1 A of the Companies Act . [4] She is the sole shareholder, the president and secretary. Her daughter-in-law, Jennifer Bernard, is an administrator of the company. [ 12 ] It was proven during the hearing that Mrs. Hauptmanova did not want her name to appear in the new company or society, as she had problems with fiscal authorities regarding a nursing home she was previously operating. [ 13 ] The daycare starts its operations around mid-October 2009. [ 14 ] On April 23, 2010, Mrs. Benson receives a letter of demand from Mr.

Vok's attorneys claiming the reimbursement of a loan of $ 17 000, on which an amount of $ 15 530 was still due. According to a statement of account attached to the letter of demand, three sums of $ 5000 were lent to Mrs. Benson on October 5, October 15, November 3, and $ 2000 on January 11, 2010. [ 15 ] On May 31 2010, Château sends a letter to the parents asking that the daycare payment be made by cheque to the order of Château and remitted to Mrs. Bernard. [5] [ 16 ] On August 26, 2010, Mrs.

Hauptmanova signs a letter in which she says that she is "resigning on my position of child care provider until the dispute about the partnership of the Château des Petits Pas will be resolved." [6] [ 17 ] On May 31 st , 2012, G. Vok Inc. sues Château and Mrs. Benson claiming $ 18 703.40, representing the cost of services rendered for construction work in the daycare. [7] [ 18 ] Two months later, on July 31, 2012, this file is opened by Mrs. Hauptmanova. [ 19 ] On December 18 th , 2012, Mr. Justice Claude Montpetit, j.c.q., renders a judgment dismissing G.

Vok Inc.'s claim, considering that there was an enterprise contract between G. Vok Inc. and Château for the work needed for the daycare, and that G. Vok Inc., as a contractor could not claim an increase of the price, as the price was fixed by the contract at $ 18 000. [ 20 ] Mrs. Hauptmanova has filed as exhibit P-3 numerous invoices, "en liasse" , with a breakdown showing how the amount of $ 18 000 was spent for the purchase of material for the construction work in the daycare. These invoices seem to be the same one as were filed in the previous file between G. Vok Inc. and Mrs. Benson and Château.

This breakdown shows that, in material only, an amount of $ 10 000 was already spent as of September 20, 2009, a few days before the giving in payment of the building. ANALYSIS AND DECISION: [ 21 ]

Section 2186 of the Quebec civil code describes the contract of partnership as follows: 2186. A contract of partnership is a contract by which the parties, in a spirit of cooperation, agree to carry on an activity, including the operation of an enterprise, to contribute thereto by combining property, knowledge or activities and to share any resulting pecuniary profits. [ 22 ] The first thing that has to be established by Mrs. Hauptmanova to succeed in her recourse is the fact that she indeed put $9 000 in the partnership. Mrs. Benson's investment was clearly established, as it was made with two cheques.

It is much harder to establish how Mrs. Hauptmanova invested her money. Her testimony was unclear and the Court was not sure whether she gave money to her husband, or whether her contribution was made by the fact that G. Vok inc. paid the bills for materials used in the construction. [ 23 ] When he testified, Mr. Vok was more affirmative; he said his wife gave him cash money, twice, to match Mrs. Benson's payments of $5 000 and $4 000. He said he cashed Mrs.

Benson's cheques, and put the money in a box, with the cash payment received from his wife, as he preferred to pay cash when buying building materials. [ 24 ] In her claim, Mrs. Hauptmanova alleges that Mrs. Benson admitted her deposit of $9 000 in a letter sent by her attorney in the file opposing G. Vok inc. to Château [8] . The basis for the allegation in this letter is Exhibit D-2, in the G. Vok file, which is a document prepared by Mr. Vok, entitled "Quotation for daycare modifications". In his judgment, Mr.

Justice Montpetit mentioned that there was no receipt or other proof of payment, and concluded that G. Vok inc. had not proven the allegations of its Demand. Mr. Justice

Montpetit has not concluded that Me Abramowitz' letter was an admission, and this Court cannot do so either. [ 25 ] If Mrs. Hauptmanova claims that her investment of $9 000 was made by G. Vok inc. paying bills for material to be installed in the daycare, as it is also shown by the invoices filed as Exhibit P-3 under the name of G. Vok inc., she cannot personally claim money that was paid by her husband's company. Anyway, G. Vok's claim was already decided by Mr. Justice Montpetit's judgment. [ 26 ] If she pretends that her own personal money was given to G. Vok inc. for construction work, she has to prove it to the Court, as

section 2803 of the Quebec civil code says that a person wishing to assert a right shall prove the facts on which his claim is based .

Section 2804 of the Quebec civil code says that evidence is sufficient if it renders the existence of a fact more probable than its non- existence, unless the law requires more convincing proof. [ 27 ] The facts proven to the Court (cash money put in a box, without receipt or any other documents, deposit unknown to Mrs. Benson) lead the Court to conclude that the proof of the payment of $9 000 was not made. [ 28 ] While deliberating, the Court read a judgment rendered by Mrs.

Justice Sirois, in which Plaintiff was claiming the value of products bought while she was operating a beauty institute under a verbal association contract for five months. [9] [ 29 ] Mrs. Justice Sirois concluded that the Small Claims Court did not have jurisdiction because it was necessary that the Court proceed to the dissolution and the liquidation of the partnership first, which does not constitute a "small claim" according to

Section 953 of the Code of civil procedure. [ 30 ] This question was not raised by the Court at the hearing, but it should be mentioned that this question of jurisdiction is another obstacle to Mrs. Hauptmanova's claim. The cross-demand [ 31 ] In her cross-demand, Château says that money was illegally taken from the daycare by Mrs. Hauptmanova, allegedly in excess of 20 000$. Château has asked that Mr. Vok and G. Vok inc. be impleaded in the file, pursuant to

section 969 of the Code of civil procedure . Château has directed its cross-demand against Mrs. Hauptmanova, Mr. Vok and G. Vok inc. [ 32 ] Château cannot do so.

Section 968 of the Code of civil procedure says that a counter-claim may be made against the plaintiff. It cannot be made against an impleaded party. [ 33 ]

Section 2803 of the Quebec civil code also applies to Château in its counter-claim. Château filed a document prepared and explained by Mr. Eddy Wesley, Mrs. Benson's son. It was prepared in January 9, 2013, almost three years after Mrs. Hauptmanova was replaced in accounting by a new employee of Château. This document, Exhibit D-5, shows a discrepancy of 10 682 $. It covers the period from October 2009 to June 2010. [ 34 ] Mrs. Benson testified that she hired an accountant in January 2010 because she felt something was going wrong.

The Court cannot understand why nobody realized that such an amount was missing, and why it was claimed only when the cross-demand was filed on August 23, 2012. [ 35 ] Mrs. Hauptmanova has filed a document in defence to this cross-claim, Exhibit P-6, that shows a few mistakes in the Excel document, which have also been shown during the hearing. [ 36 ] The Court concludes that such a document does not constitute sufficient proof to conclude that money was taken by Mrs. Hauptmanova personally, and the cross-claim is dismissed.

FOR ALL THESE MOTIVES, THE COURT: DISMISSES Plaintiff's claim; DISMISSES the Cross-Demand; THE WHOLE , each party paying their own costs. __________________________________ CÉLINE GERVAIS, J.Q.C.