2020 QCCQ 1716, 2020 QCCQ 1716

Amesos Plumbing Inc. c. Roch 2020 QCCQ 1716 COURT OF QUÉBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-700877-170 DATE: April 6, 2020 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ AMESOS PLUMBING INC. Plaintiff v. ME STEVEN ROCH - and - STEVEN ROCH AVOCAT LTÉE - and - COLBY MONET S.E.N.C.R.L.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In February 2010, Mr. John Hasiotis retained the services of Me Steven Roch [1] to register legal hypothecs for unpaid bills owed to his plumbing company, Amesos Plumbing Inc. ( Amesos ).

They met several times afterwards, always in the same context. [ 2 ] On February 16, 2017, Amesos filed a Demand against Me Roch, his former law office, Steven Roch Avocat Ltée and his actual one, Colby Monet s.e.n.c.r.l. claiming $15,000.00 in damages ( Demand ) [2] . [ 3 ] Amesos' Demand pertains to 6 different matters [3] for which Me Roch allegedly failed to register legal hypothecs within the prescribed delay, allowing its right of action to lapse in each case and thereby breaching an obligation of result. Amesos also contends that Me Roch forged Mr.

Hasiotis’ signature on several documents. [ 4 ] In addition to a prescription argument that Me Roch and the law offices both raise, Me Roch denies having committed any professional fault in the execution of the mandate entrusted to him. He also argues the absence of any causal connection between the alleged faults and the damages claimed by Amesos.

QUESTIONS IN DISPUTE [ 5 ] The Court needs to first address the issue of prescription. [ 6 ] Thereafter, the Court must determine whether Amesos has demonstrated, by a preponderance of evidence, that Me Roch did not act as a reasonably competent, prudent and diligent lawyer placed in the same circumstances, or that he forged Mr. Hasiotis’ signature. ANALYSIS [ 7 ] Before analyzing the evidence, the Court must stress that in civil matters, any person wishing to assert a right must prove the facts on which their claim is based [4] .

In the same way, any person claiming that a right is extinguished must prove the facts supporting their contention. [ 8 ] The evidence will be weighed on a balance of probabilities [5] .

However, where the evidence is contradictory or not sufficiently convincing and the Court is unable to determine where the truth lies, the party with whom the burden of proof lies loses its case. [ 9 ] In the present matter, the burden of proof rests on Me Roch and the law offices who must present compelling evidence to prove that Amesos’ claim is time-barred. [ 10 ] On the other hand, it is Amesos’ burden to show that Me Roch’s professional services were poorly executed. The prescription issue [ 11 ]

Article 2925 C.C.Q. provides that an action to enforce a personal right is prescribed by 3 years. Consequently, if a lawsuit or judicial application is not filed before the expiry of the 3 year limitation period, unless prescription has been suspended [6] , the creditor’s right is extinguished. [ 12 ] Extinctive prescription begins running on the day the right of action arises [7] . The right of action arises on the first day that a

plaintiff or creditor becomes aware of the existence of a fault and damages [8] . [ 13 ] When did Amesos’ right of action arise in the present case? [ 14 ] On October 21, 2013, Mr. Hasiotis received a letter from Me Julie Savonitto requiring the radiation of the inscription Amesos had registered on Ms. Teresa Kibarian’s property. Me Savonitto claimed that the inscription was illegal and abusive because it was registered more than 30 days after the work was completed, and it was not followed by the filing of an action against Ms.

Kibarian within the next 6 months, or a prior notice of exercise of a hypothecary right [9] . [ 15 ] The content of the letter raised suspicions in Mr. Hasiotis’ mind as to the quality of the services rendered by Me Roch in the Kibarian file, to the point where he decided to retain the services of another lawyer, Me Leila Azizi, to sort things out. [ 16 ] Although Mr. Hasiotis was convinced that he had retained the services of Me Roch to register the hypothec within the prescribed delay, Me Azizi informed him that it had been done almost a year later. As such, on November 12, 2013, Mr.

Hasiotis accepted to strike the hypothec registered on Ms. Kibarian’s property, while at the same time asked Me Azizi to analyze Amesos’ other pending matters to assess Me Roch’s work. [ 17 ] Me Azizi requested a copy of all documents pertaining to the matters, proceeded with their analysis and then met with Mr. Hasiotis. [ 18 ] At trial, Mr.

Hasiotis testified that it was only upon his meeting with Me Azizi on February 24, 2014 that he discovered that Me Roch had not fulfilled the mandate he had given him with respect to 5 other matters, in addition to forging his signature on certain documents. [ 19 ] On February 16, 2017, Amesos filed its Demand. [ 20 ] Amesos’ filing of proceedings interrupted the prescription period that had not yet expired for the 5 matters for which he was made aware of a potential problem on February 24, 2014. [ 21 ] However, at the time of the filing of the Demand, Amesos’ right of action concerning the Kibarian matter was already extinguished.

Indeed, more than 3 years had elapsed since November 12, 2013, when Mr. Hasiotis was first informed that Me Roch had not followed the instructions he allegedly gave him with respect to the Kibarian matter. [ 22 ] For these reasons, the Court concludes that Amesos’ claim is time-barred only with respect to the Kibarian matter. The quality of Me Roch’s professional services [ 23 ]

Article 2138 C.C.Q. and following, as well as the doctrine [10] on the basis of numerous court decisions, establish the principles that must guide the Court with regards to the professional liability of a lawyer. [ 24 ] The lawyer must fulfill the mandate entrusted to him with prudence, diligence, loyalty, honesty and in the best interest of his client. [ 25 ] The burden of establishing the lawyer's fault rests on the client. To entail the professional liability of a lawyer, the client must also establish a causal connection between the fault he is accusing him of and the damages he claims.

In order to do so, he must prove, by a preponderance of evidence, that a better result would have been obtained had it not been for the fault committed by the lawyer. [ 26 ] For the reasons set out below, the Court finds that Amesos did not discharge its burden of demonstrating that Me Roch committed any fault with regard to the mandate it entrusted him over the years, nor that he has counterfeit Mr.

Hasiotis’ signature. [ 27 ] For a better understanding, the Court will address these subjects separately. • Mandate entrusted to Me Roch by Amesos [ 28 ] The Court must stress that the factual evidence presented by Mr. Hasiotis and Me Roch is completely contradictory.

Indeed, each of them testified as to the chronology pertaining to the different matters and justified their respective positions on the basis of facts that the other challenges. [ 29 ] That being said, the Court prefers the testimony of Me Roch that was not only more precise and convincing, but also supported by documentary evidence that he prepared in a contemporary manner to the events in dispute. [ 30 ] As such, Me Roch explained that he first met Mr. Hasiotis on May 18, 2010. During that meeting, he specifically informed Mr.

Hasiotis of the rules applicable to legal hypothecs and the exercise of hypothecary rights, while insisting on the deadlines to be complied with and the consequences of not doing so. [ 31 ] Afterwards, 8 different matters were discussed, including the ones concerning Ms. Stavropoulos and Ms. Vassilakopoulos [11] . Me Roch informed Mr. Hasiotis that the delay to inscribe a legal hypothec for those 2 matters was already expired as the work was performed in 2007 and 2008 [12] . Nevertheless, Mr.

Hasiotis insisted to proceed with the registrations, believing, for various reasons, that this would possibly still have the desired effect, as it had been the case with some of his former clients. [ 32 ] In June 2010, Mr. Hasiotis called Me Roch concerning Mr. Fokoefs’ matter. Me Roch asked the required details to register the hypothec but he only received the information a few weeks later, upon Mr. Hasiotis’ return of the construction holidays [13] . Again, Me Roch informed Mr. Hasiotis of the consequences of filing a hypothec outside the prescribed delay, but the latter insisted that he proceeds anyway.

[ 33 ] As concerns the Rex Pizzeria matter, Me Roch proceeded to prepare the documentation to register the hypothec [14] . However, Mr. Hasiotis then asked him to suspend the process as he was negotiating with his client to obtain payment of the outstanding invoice. Me Roch was never instructed to reactivate the file. [ 34 ] In light of Me Roch’s convincing explanations, the Court concludes that if the legal hypothecs in the files pertaining to Ms. Stavropoulos, Ms. Vassilakopoulos, Mr. Fokoefs and Rex Pizzaria were filed in a belated manner or never filed, it was because of Mr.

Hasiotis’ own tardiness in instructing Me Roch, or providing the required information to do so. [ 35 ] But there is more. [ 36 ] To succeed against Me Roch, Amesos would have to demonstrate that there is a causal connection between the alleged misconduct and the damages it claims. The burden in this regard is particularly demanding.

Indeed, Amesos must show, with a preponderance of evidence, that had it not been for Me Roch’s conduct, it would have recovered from the debtors the amount it is now claiming. [ 37 ] Not only has Amesos presented no evidence demonstrating that it could have recovered any money whatsoever, but it has itself failed to institute legal proceedings in the Rex Pizzeria matter whereas this claim was not yet time-barred when he met Me Azizi in February 2014. [ 38 ] Finally, as concerns the Demos matter, the legal hypothec was registered within the legal delay. However, it was cancelled after Mr.

Demos agreed to pay $600.00 out of the $2,874.38 invoice [15] . Although Amesos contends that it never received the $600.00, Me Roch convincingly testified that not only the said amount was received by Amesos but it was applied towards the payment of the fees owed to Me Roch’s firm, with Mr. Hasiotis’ consent. • Counterfeit signature [ 39 ] Amesos claims that Me Roch forged Mr. Hasiotis’ signature on two documents: one entitled Mainlevée et Quittance in the Demos matter, and the other one named Avis d’inscription d’une hypothèque légale pertaining to the Fokoefs matter.

Those documents are signed John Hasiotis , while Mr. Hasiotis submits that he always signs J. Hasiotis . [ 40 ] Amesos had the burden of proof and it failed to prove, with compelling evidence, the veracity of its contentions. Indeed, its evidence is limited to Mr. Hasiotis testimony, which is completely contradicted by Me Roch’s.

It never filed any expert report, which is essential in such matter, as the Court is not an expert in calligraphy. [ 41 ] For all these reasons, Amesos failed to present compelling evidence establishing that the damages it claims to have suffered are the result of a professional fault committed by Me Roch. FOR THESE REASONS, THE COURT: DISMISSES the Demand of Amesos Plumbing Inc. against Me Steven Roch, Steven Roch Avocat Ltée and Colby Monet s.e.n.c.r.l., without judicial fees. __________________________________ MARIE-JULIE CROTEAU, J.C.Q.