2020 QCCQ 336, 2020 QCCQ 336

Engel c. Spira 2020 QCCQ 336 COURT OF QUÉBEC “Civil Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” N° : 500-22-239952-172 DATE : February 24, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ AVIVA ENGEL Plaintiff/Cross-defendant v. SHALOM CHAIM SPIRA Defendant -and- ALEXANDER SPIRA BONNIE SPIRA Defendants/Cross-plaintiffs ______________________________________________________________________ RECTIFIED JUDGMENT (art. 338 C.P.C.) ______________________________________________________________________ [ 1 ] CONSIDERING

article 338 of the Code of Civil Procedure ; [ 2 ] CONSIDERING that a judgment was rendered on January 24, 2020; [ 3 ] CONSIDERING that in the conclusions of that judgment, the date of “September 25, 2015” should rather be “December 2, 2016” ; [ 4 ] The Tribunal rectifies the judgment of January 24, 2020 by making this correction . __________________________________ ÉRIC DUFOUR, J.C.Q. Engel c. Spira 2020 QCCQ 336 COURT OF QUÉBEC “Civil Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL

“Civil Division” No.: 500-22-239952-172 DATE: February 24, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ AVIVA ENGEL Plaintiff/Cross-defendant v. SHALOM CHAIM SPIRA Defendant -and- ALEXANDER SPIRA BONNIE SPIRA Defendants/Cross-plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [1] Ms. Aviva Engel (Ms.

Engel) can no longer endure the harassment she has been suffering for several years at the hands of Mr. Shalom Chaim Spira (Mr. Spira). She wants him to leave her alone. She says that she has tried everything to put an end to this wrongful conduct, to no avail. She faults the defendants Mr. Alexander Spira and Ms. Bonnie Spira, Mr. Spira’s parents (the Spira parents), for their encouragement and even active participation in the commission of their son’s fault.

She alleges that she is a victim of this family and that she had no choice but to bring a civil action against them to recover the dignity and serenity of her private life. [2] The claim is based on

article 1457 of the Civil Code of Québec ( C.C.Q. ). [3] Ms. Engel claims compensation in the amount of $25,000 in non-pecuniary damages. She also seeks $2,312.40 in lost wages and $42,001.95 in reimbursement of her extrajudicial fees. [4] Mr. Spira argues that his communications with Ms. Engel were dictated by the highest of duties and his religious beliefs. He adds that the Court should condemn the Attorney General of Canada to pay the judicial fees for all parties since the federal government is ultimately responsible for Ms.

Engel’s damages because of the Divorce Act . [1] [ 5 ] The Spira parents, for their part, deny having participated in their son’s actions. They also deny having assured Ms. Engel that Mr. Spira would stop contacting her. They even consider that the suit against them is abusive within the meaning of

article 51 of the Code of Civil Procedure (C.C.P.). They bring a cross-application seeking $36,159.65, which is the amount of their extrajudicial fees. ISSUES [ 6 ] This case poses the following questions:

A) Do Mr. Spira’s statements and his conduct constitute civil faults against Ms. Engel?

B) Have the Spira parents committed a fault against Ms. Engel?

C) If so, has Ms. Engel established the damages she claims and a causal connection?

D) Have the Spira parents established that Ms. Engel’s claim is abusive within the meaning of

article 51 C.C.P.?

E) Have the Spira parents established that Ms. Engel’s proceeding is defamatory, and are they entitled to reimbursement of their extrajudicial fees? BACKGROUND [ 7 ] The facts of this case are numerous and took place over several years. A review of these facts, which form the backdrop to Ms. Engel’s action, is necessary for the analysis. [ 8 ] Ms. Engel and Mr. Spira have known each other since childhood. They attended the same primary school, their parents’ houses were practically neighbouring. The two families belong to the same synagogue.

Now both in their forties, they have not associated with each other for several years. Today, Ms. Engel is communications director at Hebrew Academy. Mr. Spira is an Orthodox rabbi. [ 9 ] In 2004, Ms. Engel wanted to divorce Mr. Marc Mydlarski, but he refused. According to what the parties agree are the rites of the Jewish Orthodox religion, the husband’s consent is necessary so that a couple can obtain a religious divorce [2] known as a “ get .” [ 10 ] When he became aware of the situation, Mr. Spira felt that he had to save the Mydlarski-Engel household. He made it his divine mission.

He wrote two letters to the plaintiff in which he begged her to stay with Mr. Mydlarski. She answered, telling him not to contact her again. [ 11 ] In the meantime, Mr. Mydlarski ended up agreeing about the get , and the religious authorities dissolved the couple’s marriage. A civil divorce was granted by the Superior Court of Québec. [ 12 ] On June 9, 2006, Mr. Spira wrote to Ms. Engel again, expressing his opinion that Mr. Mydlarski’s consent to the divorce was given under duress. He thus concluded that the get was invalid. [ 13 ] Ms. Engel was furious. She gave the letter to Ms.

Bonnie Spira, who responded that she would talk to her son. Ms. Engel alleges that Ms. Bonnie Spira also promised that her son would no longer contact her, which Ms. Spira denies. [ 14 ] From July 16, 2006, to August 1, 2006, Mr. Spira left six messages on Ms. Engel’s telephone answering machine. Among other things, he declared his love for her. [ 15 ] Ms. Engel alleges that, in the days after receiving these messages, the answering machine’s cassettes were given to Ms. Bonnie Spira, who apologized for her son’s actions. Ms. Engel threatened to obtain a restraining order from the courts if Mr.

Spira continued acting this way. Here again, the evidence is contradictory, as Ms. Bonnie Spira denies receiving the cassettes and repudiates the comments Ms. Engel attributes to her. [ 16 ] Nonetheless, Ms. Engel’s efforts bore fruit, since Mr. Spira turned silent for six years. However, this was only temporary. [ 17 ] On March 27, 2012, Ms. Engel sent a general invitation in the form of an email circular to all former Hebrew Academy students. The list of recipients included Mr. Spira, who interpreted the receiving of this email as permission to contact Ms. Engel again.

He therefore wrote her asking for her forgiveness for his reprehensible behaviour in 2006. [ 18 ] The next day, Mr. Spira wrote to Ms. Engel again. This time, he told her that she had inspired him to draft a prenuptial agreement. He asked for permission to give her credit for this work in the

article he intended to publish on the subject. Flabbergasted, Ms. Engel refused outright and repeated that she no longer wanted him to contact her. On March 29, 2012, Mr. Spira said that he consented to Ms. Engel’s request. [ 19 ] However, on August 20, 2015, Mr. Spira invoked his mandatory religious duty to resume contact with Ms. Engel. He did so in a very long letter of 71 pages wherein he essentially explained the reasons for his rabbinical conclusion that Ms. Engel is an agunah , that is, a woman who is still chained [3] to her husband. He continued to insist that Mr.

Mydlarski had never agreed to the couple’s separation and that the get was therefore invalid. He also told Ms. Engel that, since Mr. Mydlarski had remarried after the civil divorce was granted, her marital situation was that of a woman in a bigamist marriage because Mr. Mydlarski now had two spouses, which, he finally affirmed, the Torah permits in certain very rare cases, such as theirs. [ 20 ] Anger, frustration and humiliation are only a few of the emotions that washed over Ms. Engel at the time. They were also still very present at the time of the hearing. [ 21 ] Mr.

Spira sent other similar messages on August 27 and 30, 2015. [ 22 ] For the umpteenth time, Ms. Engel demanded that Mr. Spira cease “all communications with me or about me” orally or in writing. [4] [ 23 ] Mr. Spira did not comply. [ 24 ] On September 25, 2015, Mtre Jeffrey Schwartz, Ms. Engel’s attorney, sent Mr. Spira a formal notice to cease all contact with her. The other defendants were copied. [ 25 ] On September 27, 2015, Mr. Spira answered an email that Mtre Schwartz had sent earlier that day to his attorney, Mtre Lazar Sarna, whom his parents had hired to represent him.

The email asked him to sign a statement promising that he would no longer contact

Ms. Engel. [5] Mr. Spira refused, [6] writing: “...under no circumstances will I sign the statement that you sent”. He provided the following justification: Signing the statement would imply that I somehow retract one or more of the actions that I have taken during the past eleven years in order to help my friends Marc and Aviva. I cannot offer such an apology, as I stand by what I have done as a matter of religious conscience as representing the correct way to rescue agunot . … … Again, consider the ludicrous nature of this situation. Ms.

Engel is perturbed that I have identified her as being in a sanctified extended family , when her own synagogue rabbi is a judge on a conversion program [overseen by the RCA, one of whose vice-presidents is Ms. Engel's own brother] that de facto encourages bigamy in the Jewish People by converting three times as many ladies as gentlemen. Moreover, Ms. Engel's own co-worker at Hebrew Academy (viz. Mrs. Chaya Elias) is a de facto public supporter of bigamy , as explained in Appendix D of my 70-page letter.

And see the mystical Ushpizin prayer that will be recited by every Jew as he enters the sukkah tonight, inviting various the souls of several righteous individuals - some of whom are bigamists (Abraham, Jacob, David) - to join our company in the sukkah . So, once more, Ms. Engel will be best served by proceeding to a competent expert Beth Din that can help her with her agunah predicament , as I wrote in my 70-page letter [7] . [Emphasis added.] [ 26 ] Over a period of nine months, Mr. Spira wrote approximately nine emails to Ms.

Engel’s attorney, repeating more or less the same message. [8] [ 27 ] On September 30, 2105, seeing that her formal notices were not stopping Mr. Spira, Ms. Engel went to a police station and lodged a complaint for criminal harassment. [9] Her complaint was accepted. [ 28 ] On November 12, 2015, Mr. Spira went to see the police, accompanied by his parents. He signed an undertaking not to contact the complainant. [ 29 ] On February 24, 2016, Mr.

Spira sent an email where he wrote, notably, that he would comply with the conditions imposed on him at the police station on November 12, 2015, “until they will be voided by the court”. [ 30 ] A trial before the Municipal Court, presided by Boutros J., was held in November 2016. Mr. Spira was represented by an attorney hired and paid for by his parents. The Spira parents attended different stages of the proceedings, sometimes together and sometimes alone. [ 31 ] Mr. Spira was detained for a few days during the trial, and according to the testimony of his father, Alexander Spira, he was wasting away.

His son refused all food while in detention because it did not meet the strict requirements determined by his religious beliefs. This was all very upsetting for Alexander Spira. At the end of one of the hearing days at the Municipal Court, on November 2016, he insulted Ms. Engel as he was leaving the courtroom. According to her, Mr. Alexander Spira rushed towards her, shouting, “Are you happy now? He’s in jail! Your a moyser!!!” . The parties agree that “ moyser ” means [ translation ] “traitor”.

That is what the members within the Jewish community who denounced other members to the German Nazis during World War II were called, says Mr. Alexander Spira. [ 32 ] Mr. Alexander Spira denies that he insulted Ms. Engel in any such way. The evidence does not establish that anyone heard the words spoken by him. Regardless, the altercation was of sufficient intensity for the special constables to intervene and re-establish order. [ 33 ] The whole situation was starting to weigh on Ms. Bonnie Spira. She wanted to put a stop to it but did not really know how.

She sought counsel from the rabbi at her synagogue, who decided that he would speak with Ms. Engel. [ 34 ] That is why, in November 2016, Ms. Engel was invited to a meeting at the rabbi’s office. She came with her parents. The rabbi told them that the Spira parents were worried about the criminal trial. According to Ms. Engel’s father, this meeting was intended to pressure his daughter to withdraw her complaint. Ms. Engel and her father felt that it was a barely veiled threat from the Spiras and conveyed by their rabbi.

The rabbi, they explained, mentioned that the Spira parents would publicize the entire affair – in other words, they would publicly accuse Ms. Engel of having had their son imprisoned – if she did not withdraw her criminal complaint. [ 35 ] Ms. Engel and her father condemned this blackmail, telling the rabbi that they would never give in. Ms. Engel absolutely refused to withdraw the complaint. The Engels left the rabbi’s office quickly. [ 36 ] On December 2, 2016, Mtre Schwartz served a formal notice on the defendants, the Spira parents, detailing the allegations against Mr. Spira. Ms.

Engel warned the defendants that she would hold them liable for their son’s actions and that she would claim $5,000 in damages for moral prejudice if these actions continued. [10] [ 37 ] When Bonnie Spira read this formal notice in the hallway of her condominium, she collapsed, surprised by its contents, of which she says she had been entirely ignorant. [ 38 ] In April 2017, Ms. Engel was once again called in for a meeting with the rabbi of the synagogue. This time, the rabbi explained that she could put an end to this matter if she asked for – and, of course, obtained – a second get after Mr.

Mydlarski gave his consent again. [ 39 ] Ms. Engel refused to play this game, saying that the purpose of it was solely to satisfy Mr. Spira’s whims and feed his obsession. In her eyes, the get she had already obtained was perfectly valid. She therefore rejected the rabbi’s proposal. [ 40 ] On July 4, 2017, Ms. Engel had her originating application stamped. [ 41 ] On November 12, 2018, Mr. Spira was found guilty of criminal harassment by the Municipal Court of Montréal in a written

judgment thoroughly detailing the facts. [11] That judgment is final, since it was not appealed. ANALYSIS [ 42 ] Before discussing the issues in dispute, the Court will summarize the respective positions of the parties. AVIVA ENGEL [ 43 ] Ms. Engel believes that Mr. Spira has been harassing her for many years about her divorce. He has infringed on her privacy by constantly writing her, and he uses a tone with her that she perceived as menacing. Ms. Engel fears that Mr. Spira might become violent.

She raises the example of mass murderers who are completely unknown and calm one day, but who explode with rage the next. She describes Mr. Spira’s hesitant way of walking in the streets of the neighbourhood, as well as his clothing, which she finds bizarre. She is afraid of him. Mr. Spira’s behaviour towards her is such that it constitutes a civil fault for which he is liable for damages. [ 44 ] Ms. Engel further alleges that the Spira parents themselves also committed a civil fault by participating in their son’s civil fault. She refers to several passages from Mr.

Spira’s writings where he states that his parents endorse his position on the invalidity of the Mydlarski-Engel couple’s religious divorce. She emphasizes the following one in particular, from an email dated October 2, 2015, which Mr. Spira sent Mtre Schwartz: “My parents believe that these responses represent an appropriate token of appreciation to yourself and to your righteous client, and they feel that the proper etiquette would be for me to now conclude my arguments, in fulfillment of the counsel of Ecclesiastes 3 :7 that ‘that there is a time to be silent’”. [12] Ms.

Engel also refers to meals at the Spiras’ home, where her marital situation was raised in front of the guests. [ 45 ] Ms. Engel emphasizes that the Spira parents have done nothing to stop their son’s harassment. She draws attention to Bonnie Spira’s promises that she would make sure that Mr.

Spira stopped contacting her. [ 46 ] The following three events, when placed in the broader scenario related above, represent the three more important faults on which her claim against the Spira parents is based: - The altercation on November 10, 2016, when she was called a moyser by Alexander Spira; - Bonnie Spira contacting the rabbi in November 2016 to ask him to resolve the situation and the subsequent meeting at his office; - The second meeting with the rabbi in June 2017, when he suggested that she consider the possibility of obtaining another get . SHALOM CHAIM SPIRA [ 47 ] Mr.

Spira argues that his highest duty compels him to inform the plaintiff about her marital situation in light of what he believes are the religious precepts to which he adheres. [13] He says that his duty even goes so far as to warn any man who might spend time with Ms. Engel. He invokes sections 2 and 3 of the Charter of human rights and freedoms (the Charter ) to justify his actions, saying that he must publicize what he believes Ms.

Engel’s marital situation to be in order to protect the life of any man who might court her since, according to his religious beliefs, it is better for a man to commit suicide than to place a married woman in a situation of adultery. [ 48 ] During his testimony, Mr. Spira told the Court that he wanted to challenge the constitutional validity of certain federal provisions relating to divorce, although he did not specify which ones. The Court did not allow him to do so, since the prescriptions of

article 76 C.C.P. had not been followed and it was too late to do so, four days into the hearing. Nevertheless, Mr. Spira believes that the federal government is ultimately responsible for the situation because it is the Divorce Act that has placed the parties in the state they find themselves in today. [ 49 ] Finally, Mr. Spira warns the Court that a condemnation against him would have a deterrent effect on any rabbi placed in the same circumstances.

ALEXANDER AND BONNIE SPIRA [ 50 ] The Spira parents state that they were never informed of their son’s writings until after the fact, as they had lost all contact with Mr. Spira when the main facts at issue took place and that they had nothing to do with his conduct towards Ms. Engel. [ 51 ] As for the passages in Mr.

Spira’s writings where he states that his parents approved of his position on the invalidity of the get , they argue that these were merely their son’s words and further that they did not agree with him. [ 52 ] The Spira parents swear that they have talked about this story with only a limited number of people, a total of about twelve individuals, all of them being family members or close friends. [ 53 ] Whatever the actions of their son, the Spira parents argue that they are the actions of an adult – Mr.

Spira is now 41 years old – for which they cannot be liable. [ 54 ] They contest the amounts claimed in moral damages. They doubt that they could be as high as $25,000, since they were assessed at no more than $5,000 in the formal notice of December 2, 2016, and that nothing has happened between that date and the date

proceedings were instituted that could warrant this increase. [ 55 ] As for the extrajudicial fees, they believe that the plaintiff did not mitigate her damages. They argue in particular that Mtre Schwartz’s attendance at the Municipal Court was pointless, and they add that the invoices submitted were too vague to have any probative value. [ 56 ] Finally, the Spira parents believe that the suit against them is abusive. They add that Ms. Engel’s allegations against them in her proceedings are defamatory and were written with the sole purpose of damaging their reputation. They seek reimbursement of their judicial fees and $20,000 in moral damages.

A) Do Mr. Spira’s statements and his conduct constitute civil faults against Ms. Engel? [ 57 ] Through the civil proceeding that she has instituted, Ms. Engel is attempting to recover tranquility of mind and the peace she has lost since Mr. Spira began constantly contacting her about her divorce from Mr. Mydlarski. She believes that the numerous emails and letters that Mr. Spira has sent her, as well as those he has sent to her attorney, are nothing less than harassment and defamation, two civil faults that attract his liability. [ 58 ] She is correct.

Let us analyze these two faults separately. - Harassment [ 59 ] The many messages from Mr. Spira express and convey a fixation, a veritable unremitting obsession with Ms. Engel. [ 60 ] Ms. Engel has endured a great deal and has tried different strategies to stop this intrusion into her private life. She was somewhat reassured when Ms. Bonnie Spira promised that she would speak to her son. But on March 28, 2012, Mr. Spira sent Ms.

Engel an email in which he wrote: As you may have seen in the Canadian Jewish News or this past Jan, 19 (on p. 16), I wrote and published on the internet a 69-page prenuptial agreement to rescue ladies from becoming agunol. This essay stands as a credit to you since it was thanks and only thanks to the insights I received from you in our conversations that this essay was written. However, I did not mention you in the credits to the essay, since I did not receive your permission to do so . I fell really, really super-guilty about leaving your name out of essay when the nakarat ha-toy is completely due to you.

Yet at the same time I didn't want to infringe on your confidentiality either. So - in the end of the day – I decided to be passive (in favour of confidentiality) and you weren't mentioned in the essay credits I'm sorry for depriving you of the nakarat ha-toy you deserve, but at least I can express it in this e-mail. In the meantime, the prenuptial agreement was well received by the public over the past two months (-the zekhut in Heaven for this great Kiddush Ha-Shem being obviously awarded to you, since you inspired this essay; but no other human being knows this; even R.

J David Bleich, my main consultant in writing the essay, does not know your identify, as I have hidden it from him. All he knows is that you are an anonymous acquaintance who is also a zaddeket gemurah rest assured I emphasized that Iast point to him several times). [ sic ] (Emphasis added.) [ 61 ] In a panic, Ms. Engel answered the email, reminding him that she could not continue a correspondence with him. Mr.

Spira seemed to understand, since he answered, “I will resume radio silence”. [14] But he did not keep this promise for long, as evidenced by an email dated April 5, 2012. [15] [ 62 ] The Court therefore finds that, although Mr. Spira managed to control himself for long periods of time, his fixation always overcame him, and he would weaken and once again contact Ms. Engel. [ 63 ] Things came to a head on August 20, 2015, when Mr. Spira wrote Ms.

Engel a “lettre-fleuve” of 18-page letter plus four addenda of 63 additional pages – thus a missive of approximately 71 pages in total – filled with religious references and annotated with 103 footnotes, of which the following are extracted: … I want to congratulate you for the tremendous courage you have demonstrated over the, past 10.5 years that you have been an agunah. … Although my prenuptial agreement essay is new, the essential fact that you remain a married woman according to Torah law has been known to you since 2006. Namely, acting under the direct instructions of the eminent halakhic authority R. J.

David Bleich, I communicated to Marc and yourself in 2006 that your get is disqualified and that you should both seek shalom bayit . … … So since I am not halakhically allowed to encourage Marc to write you a get , I will now present you the information how you can be freed from your agunah predicament . In my opinion (not necessarily shared by R. Bleich), the question of how to proceed is really dependant on how you are feeling . If you are feeling more conciliatory toward Marc, I believe you can simply return to shelom bayit with him, as described in Appendix D of this letter .

On the other hand, if you are not feeling more conciliatory toward Marc, you are certainly most welcome to ask Marc for a get at a new Din Torah , and the Beth Din will evaluate whether your request is correct. … Again, I emphasize that Reb Deitcher is a tzaddik gammur, but for you, Ms. Engel, to be freed from your agunah predicament , you will need a Beth Din that is independent of conflict of interest? … Ms. Engel, I am your supporter, not your detractor. So, despite the emotionally harrowing circumstances, try to “chill out” and take this letter in stride.

Let’s celebrate the fact that you caused the composition of the prenuptial agreement essay, which can potentially save all

future ladies from becoming agunot. … A. Miller comments that there is no problem with bigamy under the special circumstances that R. Kotler has experienced, since Rabbeinu Gershom’s enactment of monogamy has already expired. [N.B. R. Miller has thus confirmed the truth of Appendix D of the present letter, that there are special circumstances where bigamy is halakhically appropriate. This further strengthens the message that was already broadcast at Congregation TBDJ on July 1, 2015 (see above).

In my opinion , these two developments (July 1 and July 24) imply that the bigamous marriage of Aviva, Claudine and Marc is worthy of celebration. [16] [ sic ] [ 64 ] Ms. Engel then wrote Mr. Spira a very firm email demanding that he cease contacting her or talking about her, either orally or in writing. [17] It went unheeded. On August 27 and 31, 2015, [18] Mr. Spira contacted Ms. Engel again by email. [ 65 ] As is apparent, nothing could stray Mr. Spira from his conclusion that Ms. Engel was still bound to Mr. Mydlarski. [ 66 ] At the end of the Municipal Court trial, Mr.

Spira was convicted of criminal harassment. Before that Court, Mr. Spira had also argued that his actions were commanded by his faith. [19] [ 67 ] Given Mr. Spira’s heedless and persistent attitude, Ms. Engel says that she has been living with the sword of Damocles hanging over her head: Mr. Spira has been unrelenting for years, unshakeable in his conviction that she is a member of a sanctified bigamist union. In his testimony, he said that he still stands by the contents of the “lettre-fleuve”. [ 68 ] From the evidence adduced at the hearing, the Court finds that Mr. Spira knew that Ms.

Engel no longer wanted him to contact her or talk about her matrimonial status, in any way whatsoever. Mr. Spira’s mother told him that what he was doing was wrong, to the point that he hid from them when he wrote the “lettre-fleuve”.

This is also what the Municipal Court concluded on the basis of the evidence adduced before it. [20] In this respect, even though the judgment convicting him does not bind the Court, it would take quite a bit not to consider the findings of fact made by that jurisdiction, which requires a much more onerous burden of proof than in this case, particularly where the evidence is essentially the same. The judgment rendered by the Municipal Court is an important juridical fact that the Court cannot ignore.

In several judgments, the Court of Appeal has ruled that civil courts cannot set aside the findings of fact reached by a criminal court, save in exceptional situations. [21] [ 69 ] Ms. Engel seeks peace on all fronts, while Mr. Spira stubbornly tries to worm his way into her private life and disobeys every order to cease contacting her or talking about her. Even a criminal conviction has no effect on him. Clearly blinded by his religious beliefs, Mr. Spira does not acknowledge having acted in any way contrary to the rules of civil liability. [ 70 ] Mr. Spira’s harassment of Ms.

Engel constitutes a fault within the meaning of

article 1457 C.C.Q. His conduct departs greatly from that of a reasonable person in the same circumstances. [ 71 ] Mr. Spira tried to justify his actions as a religious mission, a divine order. [ 72 ]

Section 3 of the Charter does not have the meaning or the scope that Mr. Spira assigns to it. [ 73 ] Freedom of religion is not absolute. [22] Rather, it consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. [23] [ 74 ] Mr.

Spira cannot impose his belief or infringe on the rights and freedoms, including the religious freedom, of others. The right to interpret and live according to religious precepts as he understands them does not confer on him the right to infringe on Ms. Engel’s sincere religious belief about the validity of the get she obtained or to infringe on her right to live her life with whom she chooses, without being denigrated in public or in private and without her reputation being damaged and her privacy infringed, as these rights are also protected by ss. 4 and 5 of the Charter . [24] [ 75 ] Mr.

Spira’s arguments do not justify his actions. No one may hide behind a statute, even a quasi-constitutional one like the Charter , to shield himself or herself from civil liability for a fault. The practice of a religion should never infringe on the fundamental rights of others [25] or on an individual’s privacy. [26] The Charter serves to protect the rights and freedoms of individuals, not to justify the violation of those rights and freedoms. The practice of a religion is not carte blanche to commit a civil fault. [ 76 ] Mr.

Spira also invokes s. 2 of the Charter , which provides that “[e]very human being whose life is in peril has a right to assistance”, arguing that he must save the life of any man who might enter into a romantic relationship with Ms. Engel. His theory is constructed thus: it is better for a man to commit suicide than to place a woman in a situation of adultery, which is Ms. Engel’s situation because she is still married to Mr. Mydlarski. Through his actions, then, Mr. Spira wants to save the life of such an individual. [ 77 ] This argument has no value.

It is so feeble that there is no point in writing more about it. [ 78 ] As stated above, Mr. Spira warned the Court that a civil condemnation against him could have a “chilling effect” on any other rabbi placed in the same circumstances. This warning is meaningless. This judgment is public, and any person, whether religious or lay, is free to draw from it the teachings that he or she deems appropriate to his or her conduct with a view to avoiding condemnation. [ 79 ] Finally, Mr. Spira’s claim that the real one liable for the damages to Ms. Engel is the Government of Canada is baseless. First, the challenge Mr.

Spira wishes to bring against the federal statute was not brought with the necessary notices to the Attorneys General of Canada and Québec, in accordance with the public order provisions in

article 76 C.C.P. This was clearly explained to the defendant at the hearing. Second, the Government of Canada, through its Attorney General, is not a party to this dispute. And third, it is difficult to see how the Attorney General of Canada could be liable for the damage caused by Mr. Spira’s actions.

- Defamation [ 80 ] As Professors Baudouin, Deslauriers and Moore have written: Toute atteinte à la réputation, qu’elle soit verbale (parole, chanson, mimique) ou écrite (lettre, pièce de procédure, caricature, portrait, etc.), publique (par voie d’articles de journaux, de revues, de livres, de commentaires à la radio, à la télévi​sion, ou sur des sites Internet, blogues ou médias sociaux) ou privée (lettre, tract, rapport, mémoire), qu’elle soit seulement inju​rieuse ou aussi diffamatoire, quelle procède d’une affirmation ou d’une imputation ou d’un sous-entendu, constitue une faute qui, si elle entraîne un dommage, doit être sanctionnée par une compen​sation pécuniaire. [27] [ 81 ] Are Mr.

Spira’s statements about Ms. Engel defamatory? [ 82 ] Normally, to answer this question, the remarks must be characterized, since the possible defences will depend on this characterization. [28] Here, however, it is not necessary to do so, since no one other than Mr. Spira contests the validity of Ms. Engel’s religious divorce from Marc Mydlarski. By relentlessly restating his position on the subject, Mr. Spira harangues Ms. Engel with what he believes her marital situation to be to protect her from herself, despite the constant requests from the main person concerned to cease all commentary on this subject.

In so doing, Mr. Spira clearly departs from the standard of conduct of a reasonable person in the same circumstances. [ 83 ] If the Court were to characterize Mr. Spira’s writings, it would describe them as unfavourable and disagreeable remarks made without valid reason. They even constitute the actus reus of an indictable offence. [ 84 ] There is no doubt that in this case, Mr. Spira’s writings are injuring Ms. Engel’s reputation and constitute defamation against her. - Conclusion on Mr. Spira’s faults [ 85 ] Mr. Spira’s faults constituting his harassment of Ms.

Engel and his defamation of her are established on a balance of probabilities, and none of his defences are successful.

B) Have the Spira parents committed a fault against Ms. Engel? [ 86 ] Ms. Engel makes the following seven arguments, to which the Court now turns. 1- Bonnie Spira contacted the rabbi of the synagogue to ask him to resolve the situation. [ 87 ] Bonnie Spira received a first call from Ms. Engel in June 2006. She was sorry for her and promised to speak to Mr. Spira but did not promise any results. She asked her son to stop bothering Ms. Engel. She does not remember receiving the cassettes from Ms.

Engel’s answering machine. [ 88 ] She was so surprised when she received the formal notice that she collapsed on the floor of the hallway leading to her home. [ 89 ] Finally, she had never seen the lengthy letter before the current judicial proceedings between the parties. [ 90 ] Feeling helpless, Ms. Spira sought counsel from her rabbi. [ 91 ] It is paradoxical that Ms. Engel faults her for this while simultaneously arguing that she did nothing about her son’s faulty conduct. In reality, Ms. Spira tried to resolve the situation but failed.

She cannot be faulted for her efforts to put an end to the damage suffered by Ms. Engel. Ms. Spira’s actions do not constitute a fault in the circumstances of this case. 2- The Spira parents hired and paid for the services of attorneys who advised and represented Mr. Spira. They accompanied their son on the various hearing days before the Municipal Court. Bonnie Spira contacted a psychiatrist, Dr. Brahms, so that he could meet with Mr. Spira further to a Municipal Court order to this end. [ 92 ] Bonnie Spira did indeed contact the psychiatrist Dr. Brahms.

She and Alexander Spira hired an attorney, Mtre Lazar Sarna, a family friend, after they received the formal notice from Mtre Schwartz. They paid his professional fees. They also hired a criminal defence lawyer to represent Mr. Spira before the Municipal Court and paid his fees as well. They went to the police station with their son, and they attended the hearings at the Municipal Court. [ 93 ] How can they be faulted? Are these not the actions of parents who are attentive to their child, despite the years that have passed and the fact that he is now an adult?

Although the Spira parents had no legal obligation in this respect, their support of Mr. Spira is certainly no indication that they participated in their son’s fault and even less that they committed any fault of their own. 3- Bonnie Spira made the matter public by talking about it with a dozen or so people, most of whom are members of the same synagogue, as well as professionals, namely three attorneys and one psychiatrist. [ 94 ] The Court cannot find that the Spira parents committed a fault when they discussed their son’s situation with close friends.

Here again, this attitude is consistent with the concern that parents have for their offspring. Admittedly, many of these people are members of the same synagogue, but it is normal that the people closest to us share the same faith and attend the same place of worship. Indeed, it would have been odd had they spoken of the matter with perfect strangers. The fact that they lightened their burden within a limited circle of people at private dinners at home does not, in the circumstances of this case, constitute carrying out a threat to make the matter public. Quite the contrary. [ 95 ] Ms.

Engel’s father testified that, during the first meeting with him, the rabbi relayed the threat from the Spira parents to “go public” if Ms. Engel did not withdraw her criminal complaint. He corroborated his daughter on this point. The testimony of Veeta Engel,

her mother, is to the same effect. [ 96 ] The Spira parents, for their part, affirm that they never made any such threat. The rabbi did not testify. When faced with contradictory versions, courts generally rule against the person bearing the burden of proof. [29] Therefore, with regard to this specific fact, the Court finds that the plaintiff has not proved it on a balance of probabilities. 4- The Spira parents asked the rabbi to relay to Ms. Engel their threat to publicize their accusation that she had their son put in prison. [ 97 ] The Court cannot choose between the witnesses’ versions.

They are both equally credible. It is probably true that the rabbi’s words are those reported by the Engels, but it is plausible that he coined them himself. The rabbi might have gone a bit too far, perhaps feeling authorized to speak on behalf of the Spira parents, and he might have believed that the spectre of a scandal would make Ms. Engel retreat. The Court is therefore faced with contradictory evidence that it cannot decide between, and finds that Ms. Engel has not discharged her burden on this point. 5- Mr. Spira used Ms. Bonnie Spira’s computer to contact Ms.

Engel. [ 98 ] With regard to the use of Bonnie Spira’s computer, the evidence is inconclusive. Ms. Engel submits Exhibit P-7, a computer screenshot. Ms. Engel claims that it is from Bonnie Spira’s computer and that this establishes her involvement in the sending of the “lettre-fleuve”. Counsel for the Spira parents, Mtre Ettedgui, raised an objection to the filing of this exhibit. He argued that the creation of this exhibit had not been established. The objection was taken under advisement at the time of the hearing, and a ruling is now required. [ 99 ] Counsel for the Spira parents is correct.

No witness was heard to file this exhibit, which is nonetheless central to the plaintiff’s claims. The document is also problematic in that the creation date it features is subsequent to the date it was printed. It is troubling that the title of the document is identical to the first four words of the “lettre-fleuve”. But the consequence of adducing this exhibit is such that proof of its creation should have been established according to the rules set forth in

article 2855 of the Civil Code of Québec . As Professor Royer writes: La preuve de l’authenticité d’une preuve matérielle est généralement faite par des témoins qui attestent l’identité et l’intégralité de l’élément materiel [30] . [ 100 ] Here, the authenticity of that real evidence has not been established by separate proof. The objection is therefore upheld, and the exhibit excluded from the evidence. 6- The Spira parents must have known what their son was doing. [ 101 ] Ms.

Engel states that the Spira parents were certainly aware of their son’s emails and other writings, as they paid the premiums for a home insurance policy issued in Mr. Spira’s name for a condominium located at […] in Côte-St-Luc, which took effect on January 23, 2012. The evidence does not reveal who was paying the monthly fees. [ 102 ] The Spira parents and Mr. Spira contradict Ms. Engel on this point. Mr. Spira added that he wrote the long letter in a hotel room, fearing his parents’ reaction if they realized what he was doing. [ 103 ] The Court accepts the testimony of the Spira parents.

Bonnie Spira, still shaken by the emotion that overwhelmed her at the time, related her emotional shock when she received a copy of the formal notice on September 25, 2015. She was so upset that a neighbour had to help her back home. She said that she learned of the existence of the long letter only then. The Court believes her. Bonnie Spira testified with great sincerity and did not seek to minimize Mr. Spira’s spoken or written words. She corroborated Ms.

Engel’s version of the facts on several points, in particular the fact that they met the day after the telephone messages – although on that point, she said that she does not remember receiving the cassettes. Bonnie Spira’s testimony was heartfelt, and during her appearance in the witness box, she cooperated in the search for the truth. [ 104 ] As for Alexander Spira, he was agitated, particularly in cross-examination. He was clearly uncomfortable.

His mood swings before the Court did not affect his credibility, however, when he stated that he was not aware of his son’s actions because he no longer lived with them. [ 105 ] It is true that the Spira parents were involved in this case. But not to the point of having committed a fault. [ 106 ] In this respect, the general obligation to behave as a prudent and diligent person is set out in

article 1457 C.C.Q. Authors Baudouin, Deslauriers and Moore write: […] le devoir général de se comporter en personne prudente et diligente contenu à l'article 1457 C.c. en respectant les règles qui s'imposent à elle, est suffisant pour fonder une faute d'abstention, en l'absence d'une disposition légale ou règlementaire touchant l'activité particulière que devait avoir le débiteur. C'est notamment le cas pour le défaut de veiller à écarter ou à avertir d'un éventuel danger.

Il convient donc, à cet égard, de se méfier de l'analogie avec la common law ou le droit pénal qui, pour sa part, prévoit plutôt une série de devoirs ou d'obligations spécifiques. [31] [ 107 ] The Spira parents’ knowledge of what Mr. Spira had done in past years did not mean that they could predict how things would unfold. How could they have known that Mr. Spira was still pursuing Ms. Engel with his attentions? The foreseeability of a wrongful act is one of the criteria that engages the liability of a person who fails to intervene to prevent its commission. [ 108 ] Mr.

Spira testified that he cannot swear that his parents knew about his emails. Later, he added that his parents did not read his emails but they knew that he was communicating with Mtre Schwartz. They were in fact “hysterical”- so he testified - because he was

continuing to write Mtre Schwartz. Mr. Spira does not have sufficient credibility for the Court to accept his testimony. He is certainly very polite and respectful towards the Court, but that is not enough. His testimony is evasive. He even goes so far as to say that all the parties are correct in their claims, whereas they are diametrically opposed. [ 109 ] In any event, even if the Spira parents were aware of Mr. Spira’s writings in 2015, they had no power over him at the time. They are not responsible for their son.

He is an independent adult who is not under protective supervision of any kind. [32] [ 110 ] Ms. Engel cites the judgment rendered in Succession de R.M. et al. c. Ro. B . et al . [33] In that case, a murderer’s spouse was convicted, not for failing to prevent the commission of the murder, but for failing to prevent her husband from continuing to harass his neighbours. [ 111 ] The facts of this case differ significantly. Here, far from encouraging their son, Ms. Bonnie Spira tried to dissuade him and wanted to find an acceptable solution. They never endorsed either Mr. Spira’s comments or his writings.

They simply did not take part. [ 112 ] Ms. Engel also raises several passages from the “lettre-fleuve” wherein Mr. Spira claims that he had his parents’ approval. [34] She also highlights Mr. Spira’s emails, in particular the one dated October 2, 2015, sent to Mtre Schwartz: My parents believe that these responses represent an appropriate token of appreciation to yourself and your righteous client … [35] . [ 113 ] The Court concludes that these passages, taken either in isolation or as a whole, are insufficient as evidence of any fault on the part of the Spira parents. At most, they represent Mr. Spira’s own

interpretation of reality. The fact that Mr. Spira wrote that his parents agree with him does not mean that this was necessarily true or that they become complicit in his fault. To the contrary, they expressly deny their son’s conclusions. 7- Alexander Spira insulted her and publicly called her a moyser . [ 114 ] The insult by Alexander Spira remains. [ 115 ] Alexander Spira denies the allegation. The Court rejects this portion of his testimony. How could Ms. Engel have invented such a story featuring such a serious and powerful insult, given its historical context. Moreover, the evidence establishes that Mr.

Spira’s conduct when leaving the courtroom at Municipal Court was such that special constables intervened. Without a shadow of a doubt, the Court believes the plaintiff, and concludes that she was insulted. [ 116 ] However, the evidence does not demonstrate the extent of the defamation. The invective was made publicly, but the evidence is not sufficient to show that the word “ moyser ” was heard by those who were nearby, apart from Ms. Engel herself.

This will have an effect on the damages she seeks under this head. - Conclusion on the Spira parents’ faults [ 117 ] The Court finds that the Spira parents did not commit a fault in connection with Mr. Spira’s faults. [ 118 ] However, Alexander Spira committed a fault by defaming Ms. Engel with his insult.

C) If so, has Ms. Engel established the damages she seeks and a causal connection? [ 119 ] Ms. Engel seeks reimbursement of the $42,001.95 in fees she has paid her attorney. She also seeks $25,000 for non-pecuniary damages. Finally, she claims $2,312.40 for lost wages. - Professional fees [ 120 ] Reimbursement of extrajudicial fees is not awarded. [ 121 ] The penalty for the person who loses a trial is the following: the losing party pays the legal costs. This is the traditional costs remedy granted to the victorious party.

Reimbursement of extrajudicial fees is awarded only in rare cases, for example situations involving abusive proceedings. [ 122 ] Admittedly, Ms. Engel spent large amounts of money on her proceeding. But the defendants had the right to defend themselves and did not draft abusive proceedings. The plaintiff’s situation is no different from that of any of the other litigants who come before the courts every day. Nothing here justifies the reimbursement of what she paid to her attorney. - Non-pecuniary damages [ 123 ] Ms. Engel has suffered – and still does – great stress as a result of Mr. Spira’s harassment.

She is exasperated, and this is easily understandable. She also asks for compensation for the defamation she suffered. [ 124 ] Counsel for the Spira parents correctly argues that whereas Ms. Engel assessed moral damages at $5,000 in her formal notice dated September 25, 2015, seven months later, when the judicial proceeding was instituted, they rose to $25,000. [ 125 ] Ms. Engel is entitled to reasonable compensation for her non-pecuniary damage, and this remedy is found somewhere between these two figures. It is necessary, however, to analyze the damage on the basis of the distinct faults committed by Mr.

Spira. ▪ Damage related to harassment [ 126 ] Ms. Engel says that she lives with a sword of Damocles dangling over her head, since Mr. Spira has not strayed from his conclusions about the validity of the get . This feeling of perpetual danger is quite understandable when one considers that Mr. Spira

intends to inform every man who might try to begin a romantic relationship with her. [ 127 ] Ms. Engel had to lodge a criminal complaint and testify before the Municipal Court. Mr. Spira was convicted, but he nonetheless continues to describe Ms. Engel as an agunah before the Court. [ 128 ] There is no end to it. [ 129 ] The Court finds that an amount of $20,000 will compensate Ms.

Engel for the non-pecuniary damage. [ 130 ] To arrive at this conclusion, the Court takes into account the plaintiff’s initial assessment ($5,000) of her suffering, which we can assume she increased due to the low chance of her extrajudicial fees being awarded. [ 131 ] The Court also takes into consideration the highly unusual facts of this case and Mr. Spira’s persistent intrusions in the plaintiff’s private life, giving rise to all kinds of stress, anxiety and fear. Ms. Engel testified about her considerable fear of Mr. Spira. Since August 2015, she has had trouble focusing at work. The fact that Mr.

Spira wrote about minor details that occurred in Ms. Engel’s childhood, which most people would have forgotten with time, [36] increases this anxiety. He even knows the names of the plaintiff’s work colleagues, even though she does not spend any time with him. [37] [ 132 ] The evidence shows that Mr. Spira has a genuine obsession with the plaintiff, which he can sometimes contain but then returns in full force. Like the Municipal Court, the Court clearly sees that Ms. Engel is afraid of him. Her mother, Veeta Engel, corroborated Ms. Engel’s state of mind in the days after she received the long letter.

She cried, was distraught and angry, and felt as though her private life had been violated. [ 133 ] However, it is difficult to put a number to Ms. Engel’s fear. She evokes the cases of certain serial killers who keep their violence in check and then, one day, act out. This fear is real, but is it founded? The fact that Mr. Spira walks hesitantly and wears clothing that frightens Ms.

Engel does not make him comparable to these criminals. [ 134 ] Considering all the aspects of that specific claim, $20,000 is awarded by the Court. ▪ Damage related to defamation [ 135 ] The scholarly commentary reminds us of the factors that the Courts use to assess non-pecuniary damages arising from defamation: 1-611 - Facteurs d’évaluation - Comme l’a bien montré un auteur, l’analyse des facteurs influant sur l’évaluation des pertes non pécuniaires est complexe. Le premier est la gravité de l’acte . S'agit-il d’un simple commentaire discourtois ou impoli, ou au contraire d’une attaque en règle ?

L’intention de l’auteur de la diffamation pour sa part, si elle n’a aucune importance sur le plan de l’établissement de la faute, peut en avoir une sur le plan de l’évaluation du préjudice. La jurisprudence est ainsi plus sévère lorsque l’auteur a réitéré ses propos pendant l’instance judiciaire ou s’est servi de la diffamation pour tenter de ruiner le demandeur ou de bloquer ses aspirations politiques. L’ampleur de la diffusion de la diffamation est également conséquente.

Une publicité large doit logiquement motiver un octroi plus généreux que celle restreinte à un petit cercle, sauf si le cercle s’avère bien ciblé. De même, l’ampleur des dommages peut varier en fonction du milieu dans lequel la diffamation s’est produite . Sont aussi à considérer : la condition des parties, la portée qu’a eue l’acte sur la victime et sur son entourage, la répétition des propos diffamatoires par leurs auteurs, la récidive par leurs auteurs, la durée de teinte, la permanence ou le caractère éphémère des effets sont aussi à considérer .

Des facteurs liés à la personne de la victime peuvent également entraîner une variation du montant octroyé à

titre de dommages, notamment s’il s’agit d’une personne physique ou d’une personne morale , cette dernière devant rece​voir une indemnité moindre, sa notoriété, la fonction qu’elle occupe et l’importance de l’intégrité professionnelle dans l’exercice de cette fonction, sa réputation préalable . [38] [Emphasis added.] [ 136 ] Ms. Engel believes that the members of her synagogue are aware of Mr. Spira’s remarks. She has the feeling that her private life has been exposed by Mr. Spira, who has defamed her by calling her an agunah . She complains that many people have been told about Mr.

Spira’s writings, including the members of the synagogue that she and her family attend and professionals such as the attorneys who represented the defendant and the psychiatrist Dr. Brahm. [ 137 ] It is true that the members of the synagogue might have been told about Mr. Spira’s remarks, but it is more likely that the knowledge came from the Municipal Court judgment. The Court notes that none of the members of the synagogue testified in this regard. Also, there is no evidence that anyone considers Ms. Engel to be an agunah . The Spira parents themselves do not believe that she is one. [ 138 ] Ms.

Engel cannot complain because the dissemination extended to the various professionals involved in the case. Moreover, these individuals are bound by professional secrecy. [ 139 ] Veeta Engel testified about an event in January 2017 in Boca Raton, Florida, that troubled her. In a shopping centre parking lot, she crossed paths with Eva and Paul Nadler, who said that they were astonished to learn that Mr. Spira was in prison. Neither Veeta Engel nor her husband had told anyone about their discussion with the rabbi.

According to Veeta Engel, knowledge of this story could only have come from the Spira parents. [ 140 ] The Nadlers did not testify on this issue. The Court cannot conclude as Veeta Engel has that the Spira parents spoke about these events indiscriminately or that they defamed the plaintiff. [ 141 ] Finally, Ms. Engel’s testimony, albeit sincere, on the sadness and great frustration caused by Mr.

Spira’s remarks is insufficient to establish the extent of the damage to her reputation. [39] [ 142 ] In short, excluding the filing of the judgment of the Municipal Court, the evidence shows only a very limited dissemination of

the defamatory remarks. [40] [ 143 ] In light of the preceding, and considering that the publication of this judgment will have a rehabilitative effect for Ms. Engel, [41] the Court awards a lump sum of $1,000 under this head. [42] [ 144 ] As for the insult by Mr. Alexander Spira, it caused no tangible damage to the plaintiff. She was insulted, of course, but no one heard the sentences voiced by Mr. Alexander Spira. Ms. Engel is not entitled to any amount under this head. - Lost wages [ 145 ] Ms. Engel is asking for $2,312.40 in lost wages.

The Court does not know whether this is a gross or net amount, [43] but none of the defendants have raised this point. [ 146 ] The plaintiff took time off work to appear before the courts and assert her rights, and she would not have suffered this loss but for Mr. Spira’s fault. [ 147 ] Letters from Ms. Engel’s employer were filed to establish this head of claim. The Spira parents argue that proof of the creation of these documents has not been made.

The Court believes that, on the contrary, it would violate the rules of proportionality to require a witness to travel to court solely to file these letters, particularly considering the amount at issue. [ 148 ] Ms. Engel has met her evidentiary burden under this head, and it is therefore awarded in its entirety.

D) Have the Spira parents established that Ms. Engel’s claim is abusive within the meaning of art. 51 C.C.P.? [ 149 ] Alexander and Bonnie Spira base their claim on

article 51 C.C.P. [ 150 ] Abundant case law has been rendered since Viel , and there is no longer any controversy regarding the applicable criteria. [44] To succeed, the Spira parents must prove that Ms. Engel has brought a judicial proceeding against them that was clearly unfounded, frivolous or intended to delay, that she abused her right to take

part in judicial proceedings, that she attempted to defeat the ends of justice – in short, that she has brought a proceeding that was clearly pointless. These are all variations of what the legislator sanctions under the Code of Civil Procedure . [45] [ 151 ] Alexander and Bonnie Spira have failed to meet their burden of proof. [ 152 ] First, even if bad faith is not required to establish abuse, Ms. Engel’s action is not clearly unfounded, frivolous or intended to delay. The evidence does not establish that Ms.

Engel used a judicial proceeding that is excessive, unreasonable or vexatious or that seeks to cause prejudice to the Spira parents. Ms. Engel has not attempted to defeat the ends of justice. As Mtre Raphaël Lescop, an author specialized in this subject matter, has noted, these are the types of cases set out in paragraph 2 of

article 51 C.C.P. and that give rise to its application. [46] [ 153 ] It is true that, in the circumstances of this case, the Spira parents are not liable for the actions of their adult son, who moreover, and we repeat, is not under protective supervision of any kind. If this were the only angle of attack, the action would be quite feeble, to say the least. [ 154 ] But Ms. Engel could have reasonably hoped to prevail over them if the Court had found that the Spira parents had participated in their son’s wrongful conduct or that they had committed a fault themselves causing damages.

This might have been the case, for example, had the Court found that the Spira parents themselves harassed or threatened Ms. Engel. In Ms. Engel’s mind, contact with the rabbi of the synagogue seeking to bring the criminal complaint to an end might have constituted an element establishing fault on the part of the Spira parents, although the Court, after the evidence stage, concludes otherwise. In this respect, it cannot be said that there was no need for a trial. [ 155 ] It is true that the Court dismisses Ms. Engel’s action against the Spira parents.

This outcome does not lead to the inescapable conclusion that the action against them was abusive, however. To cite Rochon J.A. in Veil , “il faut éviter de conclure à l’abus dès que la thèse mise de l’avant est quelque peu fragile (…)”. [ 156 ] Moreover, Alexander Spira’s fault when he insulted Ms. Engel has been established, even though no damage is associated with it. [ 157 ] It is obviously unpleasant to be sued: whole aspects of the parties’ private lives are made public, and appearing in Court brings a significant share of stress and inconvenience.

This is not, however, the criteria on which the Court may base a finding of abuse.

E) Have the Spira parents established that Ms. Engel’s proceeding is defamatory and are they entitled to reimbursement of their extrajudicial fees? [ 158 ] Abuse of right is a fault committed in the context of a legal action. It is the case, for example, when one party sues another party pointlessly and abusively. [47] [ 159 ] As the Court of Appeal stated in Berthiaume c. Carignan et al ., [48] defamation in pleadings can give rise to damages if the defamatory allegations are false, irrelevant to the dispute and were written with a recklessness tantamount to malice. [ 160 ] The Spira parents allege that Ms.

Engel’s sole objective in involving them in this case was to damage their reputation. Their attorney argues that most of the allegations in her proceeding has not been proved, adding that Ms. Engel knew full well that Mr. Spira did not live with them, since her September 25, 2015, formal notice to Mr. Spira was served at an address that was not the Spira parents’ residence. He also highlighted the lack of evidence supporting the following allegations:

- Mr. Spira’s mental health; - The Spira parents’ failure to care for their son in a timely manner; - More generally, the Spira parents do not take care of their son. [49] [ 161 ] It is true that proof of these specific allegations has not been made. They are even contradicted in some respects, as the Spira parents have each given their son all the love and care a child needs. [ 162 ] Nonetheless, Ms. Engel has not attempted to defeat the ends of justice. She has not used her right to take

part in judicial proceedings maliciously or exercise it in an abusive manner. She had a real hope that she would establish the parents’ active participation in Mr. Spira’s faults, despite the fact that some of the allegations in her pleading were not supported by the evidence. [ 163 ] The drafting of Ms. Engel’s proceeding does not equal to defamation. The fact that the Court dismisses Ms.

Engel’s action against the Spira parents certainly does not mean that the dispute was purely, and wrongfully, strategic. [ 164 ] From the evidence as a whole, the Court finds that the cross-application of the Spira parents should be dismissed. FOR THESE REASONS, THE COURT: GRANTS IN PART the action of the plaintiff AVIVA ENGEL against the defendant SHALOM CHAIM SPIRA; CONDEMNS the defendant SHALOM CHAIM SPIRA to pay the plaintiff AVIVA ENGEL $23,312.40, plus interest and the additional indemnity under

article 1619 C.C.Q. as of December 2, 2016 , with legal costs ; DISMISSES the application of the defendants ALEXANDER SPIRA and BONNIE SPIRA to declare the originating application abusive within the meaning of

article 51 C.C.P.; DISMISSES the action of the plaintiff AVIVA ENGEL against the defendants ALEXANDER SPIRA and BONNIE SPIRA, with legal costs ; DISMISSES the cross-application of ALEXANDER SPIRA and BONNIE SPIRA against AVIVA ENGEL, with legal costs . __________________________________ ÉRIC DUFOUR, J.C.Q. Mtre Jeffrey Neil Schwartz Counsel for the plaintiff Mtre David Ettedgui Counsel for the defendants Bonnie and Alexander Spira Shalom Chaim Spira Unrepresented defendant Dates of hearing: November 21, 22 and 23, 2018, June 19 and 20, 2019, and October 10, 2019. [6] Statement P-10 was nevertheless signed, but the evidence does not reveal by whom.

[19] Q. v. Spira (12 November 12 2018) 115-307-522, G. Boutros J., Exhibit D-5 at paras. 7 and 51. [21] Ali c. Compagnie d’assurance Guardian du Canada, (QCCA) at 16 and 17. See also Pierre-Louis c. Québec(Ville de), 2014 QCCA 1554.