2017 QCCQ 14346, 2017 QCCQ 14346

Stationnement Centrale inc. c. Ville de Montréal 2017 QCCQ 14346 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL (Practice Division) No: 500-32-156336-176 DATE: November 15, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Stationnement Centrale inc. Plaintiff v.

Ville de montréal Defendant ______________________________________________________________________ JUDGMENT (on a Motion to Dismiss the Claim) ______________________________________________________________________ [ 1 ] On June 5, 2017, Plaintiff brought a claim against Ville de Montréal (the “ City ”) in the instant file seeking damages for lost income as a result of road work carried out by the City from November 25 to December 7, 2016 inclusively. [ 2 ] The Court is now seized with a motion to dismiss the claim based on

article 168 of the Code of Civil Procedure , which provides: 168 . A party may ask that an application or a defence be dismissed if (1) there is lis pendens or res judicata; (2) one of the parties is incapable or does not have the necessary capacity to act; or (3) one of the parties clearly has no interest. The party may also ask that an application or a defence be dismissed if it is unfounded in law even if the facts alleged are true.

Such an exception may pertain to only part of the application or defence . […] [Emphasis added] [ 3 ] The City argues that the claim is unfounded in law even if the facts alleged are true, as it was not filed within six months from the day that the cause of action accrued, as required by

Section 586 of the City and Towns Act [1] (“ CTA ”). FACTUAL CONTEXT [ 4 ] For the purpose of the motion to dismiss, the Court must assume that the facts alleged in the claim and supporting documents are true. These facts can be summarized as follows. [ 5 ] Plaintiff operates a public parking facility at […] in Montréal. [ 6 ] From November 25 to December 7, 2016 inclusively, road work was carried out by the City on Bleury St. to repair broken pipes. For the full duration of this work, no access to Plaintiff’s public parking facility from the street was possible.

As a result, Plaintiff lost income from daily and monthly customers. [ 7 ] On December 7, 2016, Plaintiff emailed a notice of claim to the City, [2] which provided Plaintiff’s coordinates, indicated the place and dates of the road work at issue, and described the alleged damages. [3] It filed the claim on June 5, 2017. ANALYSIS [ 8 ] The analytical framework applicable to preliminary motions to dismiss is well established. [4] [ 9 ] A key principle of this analytical framework is that a Court must be prudent and avoid discontinuing a recourse prematurely except in clear and obvious situations.

A claim should not be dismissed unless all relevant factual elements are clear on the face of the introductory proceeding and supporting exhibits and the application of relevant legal principles to said facts is not debatable. [5] If there is any doubt, the case should proceed to trial.

[ 10 ] The City submits that Plaintiff’s claim is clearly and obviously prescribed because it was not filed within the prescription period of six months provided in

Section 586 CTA , which reads as follows: 586. Every action, suit or claim against the municipality or any of its officers or employees, for damages occasioned by faults, or illegalities, shall be prescribed by six months from the day on which the cause of action accrued , any provision of law to the contrary notwithstanding. [Emphasis added] [ 11 ] The City’s reasoning is as follows:

a) Plaintiff’s alleged right of action arises from injury “ appearing progressively ” within the meaning of

article 2926 of the Civil Code of Québec (“ C.C.Q. ”), which reads as follows: 2926. Where the right of action arises from moral, bodily or material injury appearing progressively or tardily, the period runs from the day the injury appears for the first time.

b) Consequently, the prescription period started to run from the day that the alleged injury (the loss of income) appeared for the first time, namely on the first day of the work on November 25, 2016;

c) Taking into account both

article 2926 C.C.Q. and

Section 586 CTA , the claim had to be filed within six months of that initial manifestation, i.e. no later than May 25, 2017. As it was filed on June 5, 2017, any right of action that Plaintiff could have had is extinguished by prescription. [ 12 ] The Court cannot conclude at this early stage that Plaintiff’s claim is clearly and obviously prescribed. [ 13 ] The issue of the date upon which Plaintiff’s right of action accrued and from which the prescription period started to run is far from clear and obvious.

The City qualifies the alleged injury as progressive injury to argue that prescription started to run on the first day of work, but the injury could just as well be qualified as continuous injury or injury that perpetuates itself because of the repeated conduct of the party at fault. [6] In the case of continuous injury, prescription starts to run again each day, so that Plaintiff’s claim may be partially prescribed. [ 14 ] It is not the role of this Court, on a motion to dismiss, to qualify the alleged injury to determine, out of potential dates, the date on which prescription began to run.

This issue involves questions of fact to be decided by the trial judge after hearing all relevant evidence. [ 15 ] Moreover, in response to questions from the Court, Mr. Mitchell Labell, Plaintiff’s principal, declared at the hearing that a City official represented to him that the legal delay to file the claim expired on June 7, 2017. If this is proven at trial, it could (but may not) lead the Court to conclude to a fin de non-recevoir precluding the City from invoking prescription. [7] [ 16 ] Under the circumstances, it is best to allow the matter to proceed to trial.

FOR THESE REASONS, THE COURT: DISMISSES the motion to dismiss. WITHOUT LEGAL COSTS as none were incurred by Plaintiff as a result of the motion. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: November 6, 2017