2017 QCCQ 1745, 2017 QCCQ 1745

Deb c. Halder 2017 QCCQ 1745 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division DATE: March 3, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ 500-32-150030-155 SHANKAR DEB Plaintiff / Cross-Defendant v. SUDHABRATA (SUDHA) HALDER Defendant / Cross-Applicant ______________________________________________________________________ 500-32-150047-159 SHIPRA HALDER Plaintiff / Cross-Defendant v.

SUDHABRATA (SUDHA) HALDER Defendant / Cross-Applicant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Shankar Deb (known as “ Deb ”) and Shipra Halder (“ Shipra ”) are suing in separate proceedings Sudhabrata Halder (known as “ Sudha ”). [ 2 ] Deb sues Sudha for $2,700 on the basis of unpaid rental payments under an agreement of lease for a garage used for storage. [ 3 ] Shipra sues Sudha for $2,714.26 on the basis of unpaid amounts on a supplementary MasterCard credit card issued for him and under which she agreed to assume responsibility as holder of the principal credit card account. [ 4 ] In each of the proceedings, Sudha takes a Cross-Application for the amount of $14,660.

With regard to the case of Deb, the amount claimed as a Cross-Application was amended to that amount five (5) days before the date of hearing. [ 5 ] With regard to the case of Shipra, the Cross-Application for that amount was only instituted five (5) days before the hearing. [ 6 ] At the same time, Sudha filed thirty additional (30) exhibits comprising several hundred pages of various documentation, including contracts, receipts and photographs, in support of his Cross-Applications.

Sudha alleges that these documents support a claim of $29,320 and he claims one half, namely $14,600 against each of the Plaintiffs. [ 7 ] Both Deb’s and Shipra’s claims were instituted on November 30, 2015. [ 8 ] This is a family dispute. Deb and Shipra are married. Shipra is the older sister of Sudha.

[ 9 ] The Assistant Coordinating Judge of Montreal of the Civil Division of the Court of Quebec ordered that both cases proceed in the same morning or afternoon. [ 10 ] As the claims of Sudha against both Plaintiffs are identical, have the same judicial basis and raise the same points of law and fact, the undersigned joined both matters for common hearing pursuant to Articles 210 and 540 of the Code of Civil Procedure ( C.C.P. ).

Questions in issue 1) Is Deb’s claim against Sudha for unpaid rental for storage space valid? 2) Is Shipra’s claim against Sudha for unpaid credit card amounts valid? 3) Are Sudha’s claims against Deb and Shipra valid? 4) Are the claims of Sudha prohibited by application of the rule of Res Judicata in that they have already been claimed and dismissed in another legal proceedings? 5) Is Sudha’s claim in part or in whole barred by the application of extinctive prescription?

Context [ 11 ] The parties are originally from Bangladesh. [ 12 ] Deb and Shipra cannot read or write in English or French. [ 13 ] Deb has limited ability to speak English and Shipra has less. [ 14 ] Sudha understands English and French and is at ease in writing, especially in English. [ 15 ] This is not the first time that the parties have been in Court.

In 2014, Sudha sued Deb and Shipra in matter 500-17-083926-140 before the Superior Court. [ 16 ] Sudha petitioned the Court to judicially recognize the existence of a partnership between the parties regarding a rental property situated at 6825, 6825A, 6827 and 6829 Beaubien Street in Montreal (“ Building ”). [ 17 ] In 2006, the Building was acquired by Deb and Shipra. [ 18 ] In 2007, Deb, Shipra and Sudha entered into a Management Agreement under which Sudha would act as janitor, collect the rents and carry out maintenance at the Building [1] .

[ 19 ] All expenses would be paid by Deb and Shipra. In exchange, Sudha would be able to have rent-free use of an office in the basement and of two garages next to the Building for storage and workshop purposes for his own renovation and maintenance business.

Superior Court Proceedings and the Background Facts of the Present Matters [ 20 ] In Superior Court, Sudha requested that the tribunal declare the existence of a partnership regarding the Building and then order the dissolution of the partnership, the sale of the property and the distribution of the proceeds of the sale to the three alleged partners, namely Deb, Shipra and Sudha. [ 21 ] Alternatively, Sudha claimed refund of expenses allegedly incurred by him for maintenance and repairs to the Building during the period from 2007 to 2011. [ 22 ] He claimed $17,885 for such expenses. [ 23 ] Sudha also claimed $10,500 for unpaid work (300 hours x $35). [ 24 ] The trial took place over five (5) days from January 4, 5, 6, 9 and 10, 2017, before Justice Wilbrod Claude Décarie, J.C.S. [ 25 ] On January 16, 2017, Justice Décarie rendered judgment [2] .

He dismissed all of Sudha’s claims, including the alternative conclusions, with legal costs against him. [ 26 ] It was after that judgment that Sudha amended his Cross-Application in the Small Claims case involving Deb and added the Cross-Application in the Small Claims case involving Shipra. [ 27 ] In the present matter, at the hearing, all of the parties state to the Court that they have no intention of appealing Justice Décarie’s judgment which now has the effect of Res Judicata (“chose jugée”). [ 28 ] The facts are laid out in great detail in the judgment of Justice Décarie [3] . [ 29 ] To summarize, further to the conclusion of the Management Agreement, Deb and Shipra had a bank card issued to Sudha.

He was authorized to deposit rents and withdraw amounts from the mortgage account set up to pay the mortgage payments, including all maintenance expenses. [ 30 ] In 2010, the bank called Deb to inform him that there were insufficient funds in the mortgage account to pay the mortgage payments. Deb confronted Sudha who admitted that amounts were used from the rentals obtained from the Building to pay for expenses of Sudha’s own business activities. Deb and Shipra were shocked. [ 31 ] The financial situation was grim.

Deb and Shipra had no money in the mortgage account despite the receipt of the rental payments from the lessees. Deb and Shipra were in default to pay the mortgage amounts due. [ 32 ] Deb and Shipra immediately cancelled the Management Agreement with Sudha and canceled Sudha’s debit card on the mortgage account.

[ 33 ] Since that time, Deb and his daughter collect the rents and administer the Building themselves. [ 34 ] Deb and Shipra went through a difficult financial situation and risked losing the Building as a result. But they obtained refinancing and managed to get payments under control and remain owners of the Building. [ 35 ] Sudha still needed the two garages for his business.

Deb and Shipra allowed him to stay there rent free until further notice. [ 36 ] Sudha’s view was that he had worked hard on the Building and should be entitled to an ownership interest in it. [ 37 ] On October 28, 2011, he submitted an agreement to that effect to Deb who vigorously rejected it. [ 38 ] On December 11, 2011, Sudha had Deb and Shipra sign a document referring and attesting to various obligations between them [4] .

The document includes the following sentences: “If the 6825-6829 Beaudoin is sold before the investment, Sudha Halder will have 24%. …. 6825-6829 Beaudoin garages will be used by Sudha Halder without a rent and all maintenance will be done by Sudha Halder.” [ 39 ] Deb and Shipra, and their daughter who also attended that meeting, are categoric that the first clause mentioned above was never read or stated to them.

They state that they relied on Sudha’s representations as to the content of the text and that they were tricked to sign it under false pretenses and representations. [ 40 ] In the proceedings before the Superior Court, Deb and Shipra however do not contest their knowledge and agreement regarding the clause on use by Sudha of the garages next to the Building, without charge.

Analysis and Decision 1) Is Deb’s claim against Sudha for unpaid rental for storage space valid? [ 41 ] Deb invokes a signed Lease Agreement dated January 1, 2010 between him and Sudha stating that the latter agrees to pay rent for the two (2) garage storage buildings of $150 per month. In the present instance, Deb therefore claims the rent of $75 for one of the garage buildings for the period of July 1, 2012 to July 15, 2015 when the premises were vacated by Sudha. The other garage building was not used by Sudha for a long time and no claim is made in that regard.

[ 42 ] According to Sudha, the Lease Agreement is a false document only prepared by himself and Deb to assist Deb to obtain financing for the Building. According to Sudha, the real agreement was that no rent would be charged. [ 43 ] Sudha refers to the clause in the December 11, 2011 Agreement (Exhibit D-1) to that effect. That agreement is subsequent to the January 1, 2010 Lease Agreement. [ 44 ] Sudha filed into the Court Record the defence of Deb and Shipra in the legal proceeding in Superior Court [5] .

At paragraph 104 of the Defence, Deb and Shipra state that Deb “eventually agreed to give Plaintiff [Sudha] the free use of the two garages”. [ 45 ] At paragraph 114 of the Defence, Deb and Shipra state that they allowed Sudha “to make use of the two garages located in the rear of said immovable”. [ 46 ] This is confirmed in Justice Décarie’s judgment where he writes: “Sudha exige que Deb lui permette d’avoir accès à deux des garages de l’immeuble et cela sans frais.

Deb accepte.” [6] [ 47 ] It is therefore clear that Deb and Shipra agreed to give free use of the garages and Deb’s claim for rental is unfounded in fact and in law. Deb’s claim will be dismissed. 2) Is Shipra’s claim against Sudha for unpaid credit card amounts valid? [ 48 ] Shipra claims a refund of $2,417.26 for credit card charges on the supplementary account that she opened and the supplementary card that she remitted to Sudha.

She also claims the amount of $297 paid for a lawyer in order to send a demand letter to Sudha claiming the requested refund amount. [ 49 ] With regard to the demand letter charge, legal fees are not claimable unless exceptional grounds exist, which are not pleaded. [ 50 ] Furthermore, an invoice for such amount is not even filed as proof. [ 51 ] With regard to the credit card amounts, Sudha states that these relate to charges incurred for the maintenance of the Building in the context of the Management Agreement. [ 52 ] Shipra has no proof as to what the actual purchases were. [ 53 ] That is strange in that, since 2010 at least, and the cancellation of the credit card for the Building expenses, Shipra has had every occasion to obtain from the credit card authorities the details of these charges. [ 54 ] From 2010 to the time of institution of these proceedings, Shipra never inquired or requested to obtain those details.

She states that when she did inquire in 2015, the credit card agency responded that it was too late and that they no longer had the records for those purchases. [ 55 ] For Sudha’s part, he submits a great many receipts for materials charged on the credit card which he states were exclusively for the Building.

[ 56 ] As it is acknowledged that Sudha was entitled to incur expenses for the Building, and to obtain refund from either Shipra or Deb for such expenses, Shipra had the burden of proof to show that the amount charged did not relate to the Building. [ 57 ] As Shipra has failed to make any proof in that regard, she has not discharged her burden and her claim will be dismissed. 3) Are Sudha’s claims against Deb and Shipra valid? [ 58 ] Sudha makes many claims against Deb and Shipra, including for damages and for refund of expenses as follows: (

a) Damaged tools and equipment inside the garage $3,650 (

b) Damages caused by Deb for not respecting 2011 agreement $2,627.73 (

c) Loan paid in cheque to Deb for Building $11,686.50 (

d) Materials paid by Sudha for the Building $4,231.54 (

e) Work carried out by Sudha on the Building from 2017 to 2011 $7,124.25 Total: $29,320.02 [ 59 ] This amount is divided by one half ($14,660.01) which is claimed against Deb and Shipra in the two Cross-Applications which total the amount of $29,320.02. Illegal Attempt to Divide Amount Claimed [ 60 ] Sudha is dividing the same claim, based on the exact same figures and damages, into two smaller amounts in order to demand the enforcement of the entire claim in two separate legal proceedings before the Small Claims Division of the Court of Quebec.

In doing so, Sudha is attempting to circumvent the monetary judicial limit of $15,000 of the Small Claims Division. [ 61 ] That is prohibited and contrary to Article 528 (1) C.C.P. which reads as follows: 538 (1). Un demandeur peut, volontairement, réduire sa demande à un montant d’au plus 15 000 $, mais il ne peut diviser une créance supérieure à ce montant en plusieurs créances ne l’excédant pas, sous peine de rejet de la demande. 538 (1).

A plaintiff may voluntarily reduce the amount claimed to $15,000 or less, but cannot divide a claim exceeding that amount into two or more claims not exceeding that amount, under pain of dismissal of the application. Therefore, the Court will consider that only one claim of $14,660.01 is admissible before the Court, and the other claim for that amount is dismissed. [ 62 ] In order for the Court to decide in Sudha’s favour, the latter would have to discharge his burden of proof to show that the amounts claimed by him ((c), (

d) and (

e) above) for the Building and work performed have in fact not been paid already by Deb and Shipra. [ 63 ] Sudha has produced many receipts, invoices and other documents to support such work. But these documents are old and date from 2007 to 2010 for materials [7] and from 2007 to 2011 for work. As will be examined later, as Deb’s and Shipra’s claims were only instituted on November 30, 2015, only amounts incurred before November 30, 2012 are claimable. The remainder are prescribed in accordance with

Article 2925 of the Civil Code of Quebec ( C.C.Q. ).

[ 64 ] Deb and Shipra state that all amounts incurred by Sudha for the Building have already been fully refunded, and more, by them. [ 65 ] Deb and Shipra also state that these charges were already refunded to Sudha by himself during the time that he had the bank debit card on the mortgage account.

Furthermore, they state that Sudha unlawfully and without authorization withdrew and kept for himself funds from the mortgage account during that period which were far in excess of what he was entitled to keep. [ 66 ] It is true that a great many of the claimed invoices filed by Sudha to support his claim are already stamped “paid” [8] . [ 67 ] Sudha’s testimony at Court and responses regarding this documentation was not credible.

He did not discharge his burden of proof to demonstrate that these amounts were either really paid by him and that he had not already been refunded them. [ 68 ] At this point, it is relevant to refer to Justice Décarie’s evaluation of the evidence and the credibility of the parties. [ 69 ] After five (5) days of trial and review of the testimony and exhibits, Justice Décarie concluded that:

i) Sudha had tricked Deb and Shipra into signing the December 11, 2011 Agreement allegedly regarding the sharing of the sale price after the sale of the Building; and ii) Sudha’s testimony was without credibility, not honest and in contradiction with the verifiable and documented evidence before the Court. [ 70 ] In particular, in his judgment, Justice Décarie stated as follows: [50] Ne connaissant pas très bien la langue anglaise écrite, les défendeurs ont demandé à [Sudha] Halder de leur faire lecture du document qu’il venait de rédiger avant de le signer. Ce qu’il a fait.

Cependant, en s’exécutant il a pris soin de ne pas lire le premier paragraphe, celui par lequel les défendeurs [Deb et Shipra] lui concèdent un intérêt dans l’Immeuble. [51] La preuve est on ne peut plus claire. Lorsque les défendeurs [Deb et Shipra] ont apposé leur signature au bas de l’entente du 11 décembre, ils ignoraient tout du premier paragraphe et en conséquence ne pouvaient y consentir. […] [53] Vu l’absence de consentement, l’entente du 11 décembre est nulle à tout le moins quant à l’obligation qui se trouve au premier paragraphe. […] [68] Tout d’abord sur la crédibilité des parties.

Le Tribunal a eu le bénéfice de voir le comportement des témoins lors de leur témoignage et il n’accorde aucune crédibilité au témoignage de [Sudha] Halder et cela pour plusieurs raisons. En voici quelques-unes pour illustrer le propos.

[69] Au paragraphe 28 de sa demande en justice, [Sudha] Halder fait état de travaux de réparation pour un montant de 17 885 $ pour les années 2006 à 2011. À l’exception de l’année 2009, il n’a envoyé aucune facture et il n’est pas en mesure de fournir quelque détail que ce soit sur les travaux effectués. [70] Au paragraphe 29, il allègue qu’il a consacré 300 heures de son temps pour effectuer des travaux de rénovation et réclame 35 $ de l’heure. Or, il n’est pas en mesure d’être plus précis et il n’existe aucun décompte des heures travaillées et à quoi elles ont servi. Cette réclamation contredit également sa prétention à l’effet qu’une

partie de son apport était en service. [71] Lorsqu’interrogé avant défense, on demande à [Sudha] Halder de produire les factures pour les travaux effectués en 2009 et totalisant 4 597,40 $. En réponse à cet engagement, il produit au dossier les factures 0032 et 0033 respectivement datées des 25 et 28 juin 2009. Ces états de compte révèlent que les montants facturés n’ont pas été payés par les défendeurs. Les deux factures ont, de toute évidence, été modifiées dans le but d’étayer sa réclamation et tromper le Tribunal.

En effet, [Sudha] Halder avait oublié que les défendeurs avaient en leur possession ces deux factures. Comme le montre la Pièce D-4, les défendeurs ont produit les factures reçues de BCM qu’ils ont acquittées. La seule différence entre D-4 et D-9 est la date et le fait que ces factures portent la mention « Paid » au lieu de « Unpaid ». [ 71 ] The Court agrees with the assessment of Justice Décarie with regard to the credibility of Sudha.

His version of events is not believable and the documentation filed by him does not support his version of the events. [ 72 ] He has failed to discharge his burden of proof with regard to his claim in accordance with Articles 2803 and 2804 C.C.Q. [ 73 ] This finding applies to all his headings for alleged damages ((a), (b), (c), (

d) and (e)) claimed, including his claim for (

a) alleged damage to tools and equipment; (

b) alleged damages for non respect of the December 11, 2011 Agreement (declared null and void by Justice Décarie); (

c) alleged loan to Deb; (

d) alleged materials paid; and (

e) alleged work on Building. 4) Are the claims of Sudha prohibited by application of the rule of Res Judicata in that they have already been claimed and dismissed in another legal proceedings? [ 74 ] Article 168 (1) C.C.P. reads as follows: 168. Une

partie peut opposer l’irrecevabilité de la demande ou de la défense et conclure à son rejet dans l’une ou l’autre des circonstances suivantes: (1) il y a litispendance ou chose jugée; 168. A party may ask that an application or a defence be dismissed if (1) there is lis pendens or res judicata; [ 75 ] Article 2848 (1) C.C.Q. reads as follows: 2848.

L’autorité de la chose jugée est une présomption absolue ; elle n’a lieu qu’à l’égard de ce qui a fait l’objet du jugement, lorsque la demande est fondée sur la même cause et mue entre les mêmes parties, agissant dans les mêmes qualités, et que la chose demandée est la même. 2848. The authority of res judicata is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same. [ 76 ] With regard to Sudha’s claim for damages at (c), (

d) and (

e) above, these are of the same nature and content as the amounts claimed in alternative conclusions for damages in the Superior Court case heard by Justice Décarie.

[ 77 ] In that proceeding, Sudha claimed $17,885 for work and materials and an additional amount of $10,500 for unpaid work [9] . [ 78 ] Those claims were entirely dismissed on the merits as being unfounded in fact and in law. [ 79 ] Justice Décarie’s judgment is final and benefits from the authority and rule of Res Judicata . [ 80 ] Sudha claims that there was a procedural omission by himself or his counsel at the trial before Justice Décarie and that the rules of procedure prevented him from filing additional exhibits at the last minute to support his monetary claims. [ 81 ] That does not make any difference.

These claims were presented and rejected by a Court of law whose judgment is final. Sudha cannot choose to “retry” or “re-litigate” those claims before the present Court. [ 82 ] In accordance with

Article 2848 C.C.Q., Sudha is prohibited from making the same claim based on the same cause against the same persons in the present legal proceedings. [ 83 ] Yet, he does so by amendment or filing a Cross-Application nine (9) days after Justice Décarie rendered his judgment and when all the parties declare to the Court that they do not intend to appeal that judgment. This is a supplemental ground to dismiss Sudha’s claim. 5) Is Sudha’s claim in part or in whole barred by the application of extinctive prescription? [ 84 ] The present legal proceedings were both instituted on November 30, 2015.

Therefore, Sudha, as a result of his Cross- Applications, benefits from the interruption resulting from the filing of legal proceedings (Article 2892 C.C.Q.) from that date. Only damages suffered on or after November 30, 2012 are admissible for consideration in the present matter as they are subject to the three (3) year period of extinctive prescription set out at

Article 2925 C.C.Q. [ 85 ] In virtue of the previous proceedings instituted before the Superior Court, Sudha could have claimed for a previous period and in fact did. [ 86 ] The claims made at paragraph (c) (loans), (d) (materials) and (e) (work), are specifically alleged to relate to the time period between 2007 and 2011. [ 87 ] According to the evidence, the relationship between the parties had deteriorated from at least April 2012. [ 88 ] Sudha had no reason to wait a further 3 ½ years before instituting legal proceedings (and even more so, almost five (5) years to do so in the present matter). [ 89 ] He was fully able and in fact made these claims in the earlier legal proceedings before the Superior Court. [ 90 ] With regard to claims (a) (alleged damaged tools and equipment) and (b) (alleged damages for not respecting the December 11, 2011 Agreement, declared null and void by Justice Décarie), these claims also appear in general prescribed. [ 91 ] To the extent that they are not, as previously stated, Sudha has not discharged his burden of proof to show that they are well

founded in fact or in law. [ 92 ] In addition to the major issue of believability and credibility of his testimony, the only alleged proof of damaged tools are photographs of tools. This is not probable or sufficient proof of Sudha’s allegations. [ 93 ] With respect to alleged damages to his business as a result of not having timely access to his garage spaces, there is again no credible proof to support that claim. [ 94 ] As all parties have failed to prove their claims before the Court, their respective proceedings will be dismissed, without legal costs.

FOR THESE REASONS, THE COURT: DISMISSES Shankar Deb’s judicial demand, WITHOUT COSTS ; DISMISSES Shipra Halder’s judicial demand, WITHOUT COSTS ; DISMISSES Sudhabrata (Sudha) Halder’s two Cross-Applications, WITHOUT COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: February 6, 2017