Décision

[1]                This is an action by an Italian company Mariner UNO srl, the Plaintiff, against Louise Lapointe Ménard, the Defendant, for an amount of $ 96,149.09.

[2]                The Plaintiff alleges amongst other things that it was a supplier to a company in Montreal known as " La Vieille Méditerrranée Inc. ".

[3]                Against the Defendant Louise Ménard it is alleged that she gave a personal guarantee to the Plaintiff of the debts of La Vieille Méditerranée Inc., a company in which she was a shareholder and in which she invested a considerable amount of money.

[4]                It is to be noted that the alleged guarantee is alleged to have been given verbally; there is no writing to support that proposition.

[5]                It is also alleged that the Defendant Louise Lapointe Ménard has committed a fault and is guilty of bad faith.

[6]                There has been no evidence whatsoever, not a scintila of evidence that this Defendant was in bad faith, nor there is any indication that she is committed any fault of any nature whatsoever.

[7]                The Defendant, in the year 2000, was a widow who owned and operated four stores. Madame Ménard's mother tongue is French; she does however speak English. There are two other people involved in this story. One is a Mister Giovanni Allegra, who was also a shareolder in La Vieille Méditerannée, who speaks only Italian and English, and Mariner's President and owner of the Plaintiff's company Mariner UNO who speaks only Italian; his name is Mr. Primo Gasparetti.

[8]                It is alleged by the Plaintiff and it is the evidence given by Mr. Gasparetti that in course of the years 2000 and 2001 and 2002 there were meetings in Montreal attended by him, the Defendant Louise Lapointe Ménard and her then partner Mr. Giovanni Allegra.

[9]                The meetings that took place in Montreal, at which Mr. Gasparetti alleges that Louise Ménard gave her personal guarantee of the company La Vieille Méditerranée to this Plaintiff company for goods that had been shipped and were yet again in future to be shipped. That was the purpose of the three meetings that were held, according to testimony of Gasparetti.

[10]            It is important to describe the nature of the triangle, if I can characterize them in that fashion, of these meetings.

[11]            It should be noted that Ménard spoke no Italian, Gasparetti spoke no French and no English. Allegra spoke English and Italian and no French.

[12]            I understand that from a combination of the testimony of Mr. Gasparetti, Mr. Allegra and Madam Ménard, essentially the meetings took place in the Italian language as Mr. Gasparetti couldn't either speak directly to Madam Ménard or understand anything she was saying because she couldn't communicate in his own language but to the extent that there is anything transmitted by Madam Ménard whatsoever it would had to have come through Mr. Allegra; from Ménard in English to Allegra who spoke no French then translated to Mr. Gasparetti in the Italian language.

[13]            There cannot have been any direct undertaking from Madam Ménard which Mr. Gasparetti could have understood. Nothing that she may have said in those
meetings could have been understood by him. That is his testimony and that is Ménard's testimony.

[14]            Mr. Gasparetti testifies that he got a verbal guarantee. That is categorically denied by the Defendant Louise Ménard and was also denied categorically by Giovanni Allegra.

[15]            The Plaintiff considers that it has documentary evidence which supports the proposition that Madam Ménard gave a personal guarantee of debts of the company La Vieille Méditerranée.

[16]            Much was made by the Plaintiff of a letter dated the 5^th of June 2001, which has been filed as Exhibit P - 8. This is a letter which was written in the Italian language on the letterhead of La Vieille Méditerranée Inc. to Mr. Primo Gasparetti. The letter is signed by Madam Ménard and Giovanni Allegra. The letter was drafted in the Italian language and was translated by an official translator, Teresa Ricci, which translation has been produced into the record together with the Italian version as part of Exhibit P‑8.

[17]            While it is the case that both Ménard and Allegra signed the letter, one needs only to look at the middle paragraph, that is the second paragraph of this letter to understand that it was drafted by Allegra and not Ménard. The third sentence in the second paragraph reads as follows: " Madame Ménard et moi-même considérons votre ligne étant la meilleure."

[18]            It makes no sense that Madam Ménard would have written the letter and referred to herself in the third person. So I will take it as given that the letter itself was drafted by Allegra. But it is not that which is so striking in the letter; it is the first line of the third paragraph of the letter P‑8 which in the French translation reads as follows:

" Le cheque vous sera envoyé dans les meilleurs délais et je tiens à vous rappeler que nos engagements ont été et seront toujours respectés. "

[19]            Counsel to Plaintiff cites that line as evidence that this letter was a confirmation of Madam Ménard's guarantee of La Vieille Méditerranée.

[20]            The question is:  whose undertakings have always been respected.

[21]            The Plaintiff is produced a cheque dated the 29 March 2002 in the amount of $ 7,528.21 on the personal bank account of the Defendant Louise Ménard payable to Mariner Uno SRL. This cheque, and there is no controversy about the circumstances of it, was given by her in replacement of a cheque for an identical amount which had been drawn on the bank account of the company La Vieille Méditerranée in favour of Mariner Uno SRL, on which payment has been stopped.

[22]            There is no evidence in the record as to who stopped payment on the cheque, and what were the circumstances.

[23]            The date is critically important in the Court's view. It is dated almost a year after the letter Exhibit P‑8.

[24]            No other personal payment was ever made by either Madam Ménard or Giovanni Allegra other than this cheque Exhibit P‑5 in the year 2002 in replacement of a cheque on which payment has been stopped.

[25]            Therefore the first line of the third paragraph of the letter of 5 June 2001 (P‑8) could not have stood to mean that we always respected our undertaking as referring to a personal undertaking, which has been respected by either of Allegra or Ménard, because the cheque, which is the only evidence of a personal payment, came one year after the letter Exhibit P‑8.

[26]            The Court has also been referred by Plaintiff's Counsel to an examination on discovery of Madam Ménard which took place on the 1^st of October 2003 as evidence that there is an admission that she had guaranteed the payment.

[27]            At page 19 of the discovery, the question is asked of Madam Ménard at line 12:

" Alors vous n'avez pas informé monsieur Gasparretti, comme on le mentionne au paragraphe 8, que les paiements étaient garantis? Paragraphe 8 de notre déclaration amendée. "

[28]            Parenthetically, I will read paragraph 8 to which counsel was referring, which was alleged and I quote:

" Durant leurs discussions, la défenderesse et Giovanni Allegra ont garanti personnellement le paiement de toutes factures dues à la demanderesse par « La Vieille Méditerranée Inc. ». "

[29]            The answer to the question who begins at line 16 on page 19 of the discovery is:

" Lorsque nous avons entré les produits de Mariner, il va sans dire que, je suppose que - écoutez, c'est loin dans mon esprit - que nous avons dit: lorsque les stocks seront vendus et selon les modalités de paiement, nous les respecterions. "

[30]            Counsel continues on line 21: "La question est: est-ce que au paragraphe 8, je dis que vous avez garanti le paiement des factures. "

[31]            Réponse at line 23: " Nous avons garanti probablement le paiement des factures. "

[32]            The Court does not take that to be in any way a guarantee by this Defendant of debts to the Plaintiff company.

[33]            It is, I believe, important to underline that Mr.Gasparetti never either indirectly or expressly heard this Defendant Louise Ménard guarantee the debts of La Vieille Méditerranée to his company the Plaintiff.

[34]            Madam Ménard described herself, at the beginning of her testimony, as a silent partner of the company La Vieille Méditerranée.

[35]            We must recall that when she met Giovanny Allegra, she was already a businesswoman and had been for approximately 20 years, and was at that point running several stores.

[36]            Plaintiff would have me believe that her credibility is somewhat diminished as a consequence of her having allowed Allegra to bring Mr. Gasparetti to her home in Montreal where they did have discussions. And that she from time to time wrote cheques for the company, and this in itself was an indication that she was not a silent partner, and that the Court should take this as evidence to mean that her word is not to be trusted.

[37]            She denied categorically both in direct and in cross-examination that she guaranteed the debts of the company either directly or indirectly.

[38]            Giovanni Allegra, the one third shareholder who was her former friend or social friend was not called to testify by either the Plaintiff or the Defendant.

[39]            The Court on its own initiative insisted that Allegra testify and the Court did so for the following reason: Gasparetti had testified that Allegra also guaranteed the debts of La Vieille Méditerranée to Mariner Uno the Plaintiff. Allegra however has not been sued nor has any demand ever been made on him for the $ 96,149.09 that is being claimed in this proceeding against Madam Ménard.

[40]            Allegra is the only person, in any of the meetings, attended by each of Mr. Gasparetti, Madam Ménard and himself who could understand everybody else's language. Gasparetti could not possibly know what Ménard was saying without Allegra's help, and Ménard could not understand what Gasparetti was saying without Allegra's help, and so it is the Court's view that it was important to hear the testimony of Giovanni Allegra. He was clear and credible that neither he nor Madam Ménard gave a personal guarantee on behalf of La Vieille Méditerranée to Mariner Uno.

[41]            Article 2335 of the Civil Code of Quebec reads as follows: " Suretyship is not presumed; it is effected only if it is express. "

[42]            In the case of Guy Paquette and Giovanni (John) Gadler v. 151082 Canada Inc. and Maria Di Girolamo[1], Mr. Justice John Gomery articulated very carefully the nature of the burden of proof in cases such as the one before me. At page 3 of 5, paragraph 16, he had the following to say:

" The law imposes a particularly heavy burden of proof upon a party who alleges a verbal contract of suretyship. First, he must show that there is a commencement of proof, unless the contract was 'carried out by him in the ordinary course of business of an enterprise' (Article 2862 C.C.Q.). Even supposing that this initial hurdle has been overcome[…]. "

[43]            And then Judge Gomery quotes 2335 to which I just have made reference.

[44]            In paragraph 18 of the same judgment at page 3, Judge Gomery quotes Professor Jacques Deslauriers in his book Précis de droit des sûretés[2]; who says the following at page 29:

" […] La volonté de s'engager de la caution doit être manifeste. Les règles spéciales du cautionnement dérogent à la règle générale des obligations qui prévoient la possibilité d'un consentement implicite (art. 988 C.c.). "

[45]            The judgment goes on to say at page 4, paragraph 19, the following: " This opinion reflects the traditional view that the slightest doubt in these matters should be resolved in favour of the alleged debtor. "

[46]            In very much the same vein in the case of Frenette & Frères ltée c. Ycon Inc. et al[3], an unreported judgment of Madam Justice Louise Otis, then of the Superior Court but now of the Quebec Court of Appeal, we find at page 5 and I quote:

" Le cautionnement est un contrat consensuel qui commande la manifestation de la volonté expresse de souscrire un engagement pour autrui. Conséquemment, le cautionnement n'émane pas de présomptions ni ne résulte de conjectures. À cet égard, le professeur Jacques Deslauriers remarque: "

[47]            Madam Justice Otis, at page 10 of the decision had the following to say and I must point out that it was based on the old Civil Code:

" Quant à l'étendue du cautionnement, l'effet conjugué des articles 1935 et 1019 du Code civil permet d'affirmer qu'en présence d'un doute sérieux sur l'effet de l'obligation, il faut interpréter l'engagement en faveur de la caution. "

[48]            I cannot conclude other then by saying that it is the Court's strong view that  Louise Ménard, this Defendant, never intended to give a guarantee to the Plaintiff on
the behalf of the company La Vieille Méditerranée, or did she in fact give a guarantee to the Plaintiff in circumstances as described by the Plaintiff's representative, Mr. Primo Gasparetti and

[49]            FOR THESE REASONS:

[50]            The action of the Plaintiff is hereby dismissed with costs.