2024 QCCQ 55, 2024 QCCQ 55

Gleason c. Gleason 2024 QCCQ 55 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY “Civil Division” No.: 555-32-700080-225 DATE: January 9 th , 2024 ______________________________________________________________________ PRESIDED BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ LARRY GLEASON Plaintiff v.

PETER GLEASON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The parties are brothers. They were, for several years, the co-owners of a massive 100-acre property in the Municipality of Sheenboro in which they notably operated a beef farm. [ 2 ] The parties eventually enter into an Offer to Purchase and Sale [1] agreement , in late March 2022, in which the Plaintiff offers the Defendant the opportunity to buy his share of the ownership for an amount of 225 000$.

The offer referred to the land, the cattle, the equipment and the feed inventory. [ 3 ] After numerous exchanges, the sale of the property finally does go through. [ 4 ] However, it appears that the parties cannot agree regarding the proper – final - sharing of the hay found on their respective share of the property. [ 5 ] The Plaintiff consequently introduces a Claim on July 25 th , 2022, requesting from the Defendant the payment, in capital, of an amount of 797,44$, which represents the equivalent of 12 bales of wrapped dry hay – at 55$ [2] a unit - that would have been taken by the latter.

The Plaintiff also requests the reimbursement of various disbursements (13,40$ [3] for sending a registered letter), 12$ [4] for photocopying documents for the Court file as well as for the court costs. [ 6 ] The Defendant contests only partially said Claim made against him. He explains that the number of bales claimed from him should be 10 [5] , or 11, but certainly not 12.

He does not contest the smaller disbursements, except the Court costs that he also claims, as we will see, in his own Counterclaim. [ 7 ] Indeed, the Defendant also introduces, on September 5 th , 2022, a Counterclaim in which he basically asks the Court to offset the amounts owed by both brothers. He specifically alleges that the Plaintiff took from the lot of hay to be shared between the parties the equivalent of 16 bales of good quality hay, leaving behind 16 bales of rotten hay. [ 8 ] The Defendant also claims an amount of 235$ for the use of a tractor for one hour.

He submits that this tractor was necessary to “clean up the mess” left by his brother in the vicinity of those alleged 16 bales of rotten hay. He also submits that the Plaintiff should be condemned to reimburse him an amount of 105$ for the costs associated with his presence in Court (150 km X 0,70$/km). Finally, he also requests the reimbursement of the Court costs he had to disburse in the current instance.

ANALYSIS [ 9 ] The evidence provided by the parties, to successfully support their respective claims, must qualify as being preponderant [6] . [ 10 ] Evidence, to qualify as preponderant, must be clear and convincing [7] . [ 11 ] The Court will analyze the parties’ respective claims. - The Plaintiff’s Claim [ 12 ] As we have seen, the only debate regarding the Plaintiff’s Claim relates to the number of bales of wrapped dry hay that would

have been taken by the Defendant in excess of his predetermined – and agreed upon - share. [ 13 ] The Plaintiff submits that the relevant documentary evidence demonstrates that the Defendant took an excess of 12 bales [8] when put in comparison with his established portion. [ 14 ] Various counts were made through the Offer to sale and purchase process. The Plaintiff and his wife even requested the presence of an independent counter named Scott Waddington. [ 15 ] Mr.

Waddington produces a Statement in lieu of testimony [9] in which he states: On June 23, 2022, the plaintiff asked me to count wrapped feed (round bales). Location was [...], Sheenboro, QC. I was not provided any amounts by the plaintiff or the defendant. I counted: Tube 1 Wrapped Straw = 10, Tube 2 Wrapped Hay = 41, Tube 3 Wrapped Hay = 51, Tube 4 Wrapped hay = 48 and Tube 5 Wrapped Hay = 49. [ 16 ] The Defendant admits owing the value of 10 bales at 55$ a bale, but denies owing those extra two bales. He submits that the final number of bales should have been 200, and not 201, as described by the Plaintiff.

He also suggests that Mr. Waddington would not be an “independent” evaluator since he is a friend of the Plaintiff and his wife. [ 17 ] The Defendant also states that Mr. Waddington counted 10 bales in tube 1, thus generating a discrepancy when compared to the agreement as to the sharing of hay provided in Exhibit P-2 [10] , which referred to 9 bales and not 10. [ 18 ] The Plaintiff and his wife replied that the count of 12 bales is correct and that they offered the opportunity to the Defendant, on several occasions, to proceed to a common census [11] and counting of the remaining bales.

It appears that the Defendant preferred to proceed with his own – unilateral - count. [ 19 ] The Court is of the opinion that the option to proceed to a “third party” count was reasonable and appropriate in the circumstances. [ 20 ] The Defendant’s contention that the number of bales owed to his brother should be 10, or 11, but not 12, cannot be agreed upon by the Court.

For various reasons. [ 21 ] First, the Defendant’s argument that the final count of the Plaintiff’s portion of Wrapped dry hay at [...] should be 200 and not 201 cannot be accepted. [ 22 ] Indeed, all the parties countersigned, on March 10 th , 2022, a document titled “ Hay Forage Shared – To be Sold and/or Consumed by Animals by 30 May 2024 ”. [ 23 ] That document is clear and refers to the Plaintiff’s share of 201. Not 200. This document is duly countersigned by both brothers [12] . [ 24 ] Secondly, nothing in the evidence demonstrates that the third-party counter, notably Mr.

Waddington, would have partially proceeded to such a census of the number of bales of hay located on the premises. The Court cannot accept the Defendant’s assertion that Mr. Waddington would have arrived at those results because of his friendship with the Plaintiff. [ 25 ] Furthermore, nothing prevented the Defendant from being present during such census. He elected not to be there. [ 26 ] Finally, the email exchanges between the parties include, in Exhibit P-8, a message from the Defendant to the Plaintiff and his wife. This email is dated June 23 rd , 2022, at 9:17 PM.

At that point, all the counting of the bales had been completed by all parties involved. [ 27 ] The first paragraph of said email specifically states the following: I have complied with Paragraph 3

Section 4. As was written in an earlier email, Larry left 16 bales of broken and varying degrees of rotten hay from his pile at [...]. It was always agreed upon that we would each take bales from our own piles. Larry took only what he wanted from his own pile and then took from my piles (shed and hay that I had not yet used from my pile (approximately 10 bales).

So by my count Larry now owes me 4 bales of 4 – 16 from his pile that he left at farm [minus] 12 bales from the wrapped hay that I had already said that I owed to him. [13] [The Court’s emphasis] [ 28 ] In other words, the Defendant did specifically acknowledge the amount of 12 bales that he owed to the Plaintiff.

That acknowledgment occurs after a long and rather acrimonious – written - debate between the parties. [ 29 ] Considering all the circumstances, the Court considers that the Plaintiff did demonstrate, preponderantly, that his Claim is well founded, for the alleged number of bales (12). [ 30 ] The value of one bale of wrapped dry hay is not contested by the Defendant.

Nor the other disbursements claimed against him. [ 31 ] Consequently, the Plaintiff’s Claim will be granted for an amount, in capital, of 685,40$ [14] . [ 32 ] The Court will adjudicate the legal costs after deciding upon the Defendant’s own Counterclaim. - The Defendant’s Counterclaim

[ 33 ] The Defendant’s contention revolves around the alleged decision of the Plaintiff to collect 16 bales of good hay, leaving behind in the process 16 bales of bad quality [15] . [ 34 ] The Defendant argues that such decision from his brother generated a disbalance in the agreed-upon sharing of the hay. [ 35 ] The Court does note, as per the parties’ representations at Trial, that the main objective behind the sharing of the hay was to proceed to a 50/50 split. [ 36 ] It appears that such equal division was, initially, to be incorporated in the sharing of all 4 locations on which hay was to be found (notably [...], [...], Sullivan Farm and Talion Farm). [ 37 ] Eventually, and most probably to simplify the process, it was agreed upon – as the parties specifically acknowledged at Trial – that the equal sharing would not refer to any specific location.

In other words, the 50/50 split would apply to the entire lot of hay. [ 38 ] The Plaintiff agrees, at Trial, that such 50/50 split was to be also applied towards the relative quality of the bales. In other words, one of the brothers could not take more than 50% of the good-quality bales, and so on and so forth [16] . [ 39 ] All of this is quite logical and reasonable. [ 40 ] To simplify the example, it can be said that if both parties agree to share 40 bales of wrapped dry hay, it is easy to understand that both brothers should collect 20 bales.

However, if the parties note that only 28 bales can be qualified as being of good quality, then it is logical and reasonable to assume that one brother cannot take “his 20 bales” of good quality hay leaving behind only 8 for his brother to collect. [ 41 ] Everything in the exchanges between the parties tends to demonstrate that they wanted an equal share of the bales, not only regarding quantity but also in the quality of the bales. [ 42 ] In other words, the balance and equilibrium of both shares had to be maintained through the actual execution of the split. [ 43 ] Mrs.

Gleason submits that the Defendant would not consider that “spoilage happened on both sides”. “ He only focuses on the spoilage he incurred ”, she adds. [ 44 ] The Defendant refers to the existence of a rupture of said equilibrium, arguing that the Plaintiff elected to collect 16 bales of good quality, leaving behind the equivalent in a bad – rotten – state. [ 45 ] In an email dated June 23 rd , 2022, the Defendant explained as follows his position: This does not resolve the issue of the 16 rotten bales that Larry left at the farm and replaced with 16 of my good bales from the shed. [ 46 ] The Defendant produces various photos showing the state in which those bales were left. [ 47 ] The Plaintiff submits that he also took “bales of bad quality” when he was on the premises to proceed to the split.

He also adds that many of those bales seen on the Defendant’s photos could not qualify as being rotten. “They were still usable”, he argues. [ 48 ] The Plaintiff does concede, however, that some of the bales seen on the photos were indeed problematic. [ 49 ] The evidence is quite contradictory on the true state and condition of the bales seen on the photos. [ 50 ] The Court considers that the evidence adduced at Trial does support – preponderantly – the allegation that there was a light disbalance in the splitting of the bales in terms of their relative quality.

The Court considers that it was a rather minimal disbalance but that it did exist [17] . [ 51 ] That being said, the Defendant does concede that the number of damaged bales in the relevant sector could not be quantified at 32 (16 X 2) but that a certain number of damaged bales exceeded that portion of 16 that was left behind for him. [ 52 ] In other words, this admission does demonstrate that the Plaintiff, in all likelihood, as per his testimony, did also collect – himself – a certain amount of inferior quality bales. [ 53 ] However, the evidence adduced at Trial also tends to demonstrate that the Plaintiff certainly did not take 16 inferior-quality bales.

After all, he is convinced, while looking at those photos produced by the Defendant, that only a portion of those 16 bales could qualify as being rotten and useless. [ 54 ] In other words, the Plaintiff assuredly did not believe that he needed to take 16 substandard quality bales since he did not consider the entire lot of leftover portion of bales to be of a bad quality.

As he states, some of the bales seen on the photo still had their “wrapping” on. [ 55 ] No expert witness testimony is provided to the Court, which is obviously understandable considering the minimal monetary value of both the Claim and Counterclaim. [ 56 ] Considering all the circumstances, and being called upon by the parties to arbitrate the situation, the Court is of the opinion that the disbalance specifically generated by this situation ought to be quantified to 5 bales. [ 57 ] The evidence provided cannot support the existence of a bigger disbalance than those 5 bales. [ 58 ] Consequently, the Court will grant the Counterclaim as it relates to those 5 bales.

[ 59 ] The Court authorized, at Trial, the modification of the Counterclaim [18] to permit to the Defendant to adjust the value requested for each bale.

Indeed, the Defendant is claiming an amount of 55$ [19] per bale, in accordance with the Plaintiff’s own quantification of the value of one bale. [ 60 ] Consequently, the Court will grant to the Defendant an amount of 275$ for said disbalance in the splitting of the bales. [ 61 ] However, the other items claimed by the Defendant in his Counterclaim cannot be granted. [ 62 ] Indeed, the Defendant is claiming an amount of 235$ for the usage and for the driver’s cost of a four-wheel drive tractor [20] .

That portion of the claim would relate to the necessary work done to “clean up the mess” left behind after the Plaintiff’s presence on the premises during that portion of the splitting of the bales. [ 63 ] The evidence is – again – very much contradictory on that topic.

Furthermore, the preponderant evidence demonstrates that the tractor used for the cleaning was still equally owned, at the relevant time, by both parties. [ 64 ] In all eventualities, it appears that the Defendant did not have any disbursement to incur considering that the tractor was easily available to him. [ 65 ] Consequently, that portion of the Counterclaim will not be granted. [ 66 ] The last portion of the Counterclaim relates to the costs associated with the Defendant’s presence at the Courthouse.

He claims an amount of 105$ representing the costs related to his vehicle for that 150 km drive to and from the Courthouse the day of the Trial. [ 67 ] This item cannot be granted. [ 68 ] Both parties elected to claim minimal amounts from each other in front of the Court.

Such decision does generate necessary – ancillary - costs like driving down to the Campbell’s Bay Courthouse. [ 69 ] It is obvious that both parties share the same expense. [ 70 ] The time rendered necessary to participate to the judicial process is not normally a damage that can be indemnified, as per the relevant jurisprudence on such question [21] . The same principle applies to the necessary disbursements in order to be present in Court. [ 71 ] The result regarding that last portion of the Counterclaim could have been different if the Plaintiff’s Claim had been deemed abusive.

However, this is not the case. [ 72 ] Consequently, the Counterclaim presented by Mr. Peter Gleason will be partially granted for an amount, in capital, of 275$. [ 73 ] One topic remains: the allocation of the Court costs, also known as legal costs, as per

section 339 of the Code of civil procedure [22] ( C.c.p. ). [ 74 ]

Section 340 C.c.p. provides the following: 340. Legal costs are owed to the party that was successful, unless the court decides otherwise. [ 75 ] In the current instance, the Court is of the opinion that both parties were somewhat successful in their Court’s endeavors. [ 76 ] Considering all the circumstances, and using its legal discretion provided by

section 340 C.c.p., the Court considers it reasonable in the circumstances to order that both parties remain responsible for their own legal costs, except as otherwise decided regarding the Plaintiff’s Claim. [ 77 ] Considering the amounts granted to both parties, the Court, as per sections 1672 and following of the Civil Code of Québec , will pronounce the judicial compensation of said amounts to evacuate the useless necessity of multiple payments. [ 78 ] In other words, the Court will reduce the amount owed to the Plaintiff by the amount granted to the Defendant.

FOR THOSE REASONS, THE COURT: PARTIALLY GRANTS the Plaintiff’s Claim for an amount, in capital of 685,40$; PARTIALLY GRANTS the Defendant’s Counterclaim for an amount, in capital, of 275$; AND THE COURT, OPERATING JUDICIAL COMPENSATION between the sums owed by both parties: CONDEMNS the Defendant to pay to the Plaintiff the amount of 410,40$, with the interest at the legal rate and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from July 21 st , 2022 [23] ; THE WHOLE, both parties assuming their own legal costs. __________________________________ STEVE GUÉNARD, J.C.Q.

Date of hearing: December 1 st , 2023