A legal story about Nasir Amhad
Semionov c. Ahmad
ALEXANDER SEMIONOV
vs.
NASIR AHMAD
[2008] Q.J. No. 7368
2008 QCCQ 6871
No.: 500-22-133899-073
Court of Quebec (Civil Division)
District of Montreal
The Honourable Sylvie Lachapelle, J.C.Q.
Heard: April 11, 2008.
Judgment: July 21, 2008.
(28 paras.)
Counsel:
(Fraser Baird), attorneys for Plaintiff.
________________________________________
JUDGMENT
THE FACTS
1 Mr. Alexander Semionov ("Semionov"), claims the amount of $7,600 which represents his alleged share of profits according to a contract concluded on September 2006 with Mr. Nasir Ahmad ("Ahmad").
2 The parties invested $4,000 each in order to buy raw material from a company in South Carolina, U.S.A. The merchandise was to be shipped by truck to Montreal and sold to Ahmad's clients in Montreal for an estimated amount of $16,000.
3 According to Ahmad, the shipment never cleared Canada Customs. It is returned to South Carolina.
4 Semionov denies this saying that Ahmad did receive the merchandise and sold it. Therefore, he claims his share of profit of $7,600.
THE ANALYSIS
5 The evidence is contradictory. Having heard the parties, the Court concludes that Ahmad's version is not reliable.
6 Ahmad gives two (2) different versions at the hearing.
7 According to the first version, Ahmad explains that the two (2) shipments could not be cleared at the border and were consequently immediately sent back to South Carolina.
8 When the Court asks if a bill of lading confirms that shipment, Ahmad states he does not have a copy because the merchandise never crossed the border and the bill of lading was kept by the truck driver.
9 In his second version given later on at trial, Ahmad informs the Court that the two (2) trailers were detained at the border for two (2) months, from October to December 2006, which explains why he could not pay Semionov.
10 Ahmad did not file any exhibit confirming that the merchandise was held for such a period of time.
11 Semionov says he did not learn until January 2007 that the merchandise was held at the border.
12 Prior to January 2007, when Semionov asks for his money Ahmad answers that he would pay him without ever mentioning any kind of custom problem.
13 In January 2007, Semionov was impatient to be paid and he asked to meet Ahmad at his office to clarify that situation.
14 In the course of that meeting, Ahmad told Semionov he had received the merchandise and that he would pay him his share of profit accordingly;
15 This time Semionov takes the precaution to bring his tape recorder. He then informs Ahmad that he will ask him questions and that he would register their conversation to which Ahmad agreed;
16 The Court listened to that tape in presence of both parties and although some part of the very brief conversation is inaudible, the Court can clearly identify the voices of both parties.
17 Ahmad admits he will pay Semionov $3,800 in a week and another $3,800 after the second load is cleared.
18 At the hearing, Ahmad testifies that he made that admission because "the man was demanding and was threatening him" which is denied by Semionov.
19 Ahmad explains to the Court that the part of the conversation when he was threatened was conveniently not registered. Ahmad states that he called the police at that moment. Ahmad did not file any police report.
20 The Court cannot conclude from the registered conversation that Semionov threatened Ahmad. To the contrary, Semionov's voice was rather calm whereas Ahmad spoke nervously and rapidly rose the tone of his voice as he also did during the hearing.
21 The Court's appreciation of the credibility of the parties is not only based on the fact that Ahmad changed his testimony during the hearing but it also takes into consideration the following factors.
22 Ahmad has twenty-two (22) years of experience as a load broker and although he is not a custom broker he is nonetheless familiar with the requirements that need to be fulfilled for shipments crossing the border.
23 Ahmad did not explain to the Court why the shipments could not be cleared.
24 Ahmad testifies that he talked to a custom broker to help him clear custom. The Court asked to see an invoice from that broker but according to Ahmad such invoice does not exist because the custom broker gave him free advice.
25 The Court was not informed either if the recommendation given by the broker yielded good results or not.
26 Ahmad did not file any letter and/or written declaration from his contact person at the company to confirm the reception of the merchandise when it was allegedly shipped back to South Carolina.
27 Ahmad's version is so full of irreconcilable discrepancies that the Court discards that testimony.
28 Semionov must prove the facts upon which his claim is based. In light of the evidence that consists of his non-contradicted testimony, he has done so.
FOR THESE REASONS, THE COURT:
GRANTS Plaintiff's action.
• CONDEMNS Defendant to pay to Plaintiff the amount of $7,600 plus legal interests and additional indemnity foreseen by article 1619 of the Civil Code of Québec since April 16, 2007.
• THE WHOLE with costs.
SYLVIE LACHAPELLE, J.C.Q.
cp/i/qlisl
