2022 QCCQ 12925, 2022 QCCQ 12925

Felsher c. Hilel 2022 QCCQ 12925 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-710508-195 / 500-32-710509-193 DATE : November 15, 2022 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ 500-32-710508-195 MELVYN FELSHER Plaintiff c. MENACHEM HILEL Defendant 500-32-710509-193 MELVYN FELSHER Plaintiff c.

TZVI SPIEGELMAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE OUTLINE [ 1 ] The Plaintiff Melvyn Felsher ( Felsher ) claims the damages suffered following the false accusations lodged with the SPVM by the Defendant Menachem Hilel ( Hilel ) supported by the Co-Defendant Tzvi Spiegelman ( Spiegelman ) which accusations were eventually dismissed. [ 2 ] The Co-Defendants deny any responsibility alleging that the criminal complaint was not lodge by them but by the Crown Prosecutor. [ 3 ] Felsher instituted his recourse against Hilel claiming damages of $15,000 in court number 500-32-710508-195.

In a separate court file number 500-32-710509-193, Felsher also claim $15,000 in damages from Spiegelman. The Court concluded that both recourses had the same juridical basis, consequently both files were joined and proceeded on the same evidence. THE CONTEXT [ 4 ] Felsher is the shareholder and the administrator of Mayco Financial Corporation, who in October 2015, lent $35,000 to Hilel and his then spouse Ms. Feige Gurkov, which loan was guaranteed by a hypothec on the family residence owned exclusively by Ms. Gurkov. [ 5 ] In November 2015 divorce proceedings began between Hilel and Ms.

Gurkov followed by the issuance of a Safeguard Order against Hilel, in January 2016, resulting from a charge of assault lodged by her [ 6 ] one month later, in December 2015, Mayco served a Prior Notice of the Exercise of the Hypothecary Right following the debtors’ failure to pay the monthly instalment on the mortgage. [ 7 ] In February 2016, Mayco instituted its hypothecary recourse. Hilel represented himself and because he failed to file the protocol, in January 2017, a judgment by default was rendered ordering Ms.

Gurkov and Hilel to surrender the property. [ 8 ] In March 2017, the Default Judgment was served on Hilel, followed by the latter’s Application for Revocation of a Judgment. [ 9 ] In May 2017, Justice Granosik, of the Superior Court dismissed Hilel’s Application, on the grounds he had no valid defence [1] . [ 10 ] In July 2017, Felsher sold the property to a neighbour. [ 11 ] Certain items belonging to Hilel were left in the residence that he could not retrieve because of the Safeguard Order to prevent him from entering the family residence. [ 12 ] It would appear that Ms.

Gurkov told Felsher to keep whatever was left in the house, namely items relevant to the Jewish religion, that Felsher had appraised.

[ 13 ] Following this, Felsher contacted Spiegelman and not Hilel and offered to sell him the items for $2,000, which offer was accepted and the items retrieved by Spiegelman. [ 14 ] In August 2017, Hilel filed a complaint with the SPVM on extortion charges [2] and theft. In the sworn declaration, Hilel discusses the divorce proceedings, the Safeguard Order, the Judgment in the Superior Court, the fact that he was forced to pay $2,000 to Felsher, although his debt had been completely repaid following the Superior Court Judgment. [ 15 ] Hilel listed the items that would have been stolen by Felsher .

He also accused Felsher of having a romantic liaison with Ms.

Gurkov. [ 16 ] In a separate sworn declaration, Spiegelman essentially confirms Hilel's version of events. [ 17 ] Accusations were lodged against Felsher for extortion and a theft of goods exceeding $5,000. [ 18 ] In March 2018, as Felsher was returning to Canada from the United States, where he had been skiing, he was arrested. [ 19 ] He immediately contacted his lawyer Isabelle Lamarche, who was able to have him released and on April 30, 2018, he signed a Promise to appear for his appearance on May 24, 2018 [3] . [ 20 ] On November 21, 2018, Felsher was acquitted of all charges against him [4] . [ 21 ] Felsher claims $8,123.64 representing the reimbursement of the legal fees he had to pay, plus $6,876.36 for moral and punitive damages for a total of $15,000.

THE ANALYSIS [ 22 ] In his testimony Spiegelman does not really deny that the criminal complaint filed against Felsher was unfounded: Menachem Hilel is a friend since 40 years, witnessing from my side what was happening, seeing the state of Menachem Hilel who was financially broke, divorced from his wife, losing his son from cancer and losing his house. We do what we can for our friend. [ 23 ] From the evidence presented, the Court concludes that Felsher was not justified in keeping the items he knew belonged to Hilel.

However, this cannot be described as extortion or theft and should have been settled in a civil court not by criminal court proceedings. [ 24 ] Because of these accusations, Felsher had to retain the services of Me. Lamarche who represented him from his arrest on March 26, 2018, until his acquittal on November 21, 2018. [ 25 ] Felsher paid Me. Lamarche $5,245.75 in professional fees and disbursements [5] . [ 26 ] There is no justification for the amount of $2,802.52 paid to Me.

Harout Haladjian [6] who rendered services to Felsher between April 17 and May 15, 2018, most probably in another matter, as there is no clear description of the services provided at the same time as those rendered by Me. Lamarche. [ 27 ] Hilel filed a criminal complaint because he was angry that Felsher exercised his hypothecary right, maybe because of the relationship between Felsher and Ms. Gurkov or maybe because he was angry with his personal situation.

He filed a criminal complaint on extortion and theft as vengeance. [ 28 ] Clearly, if Hilel believed he was forced to pay $2,000 for his belongings, a claim in reimbursement of this amount was the appropriate course of action to take and not criminal accusations. [ 29 ] As for Spiegelman, the Court understands he knew that the information provided to the SPVM was false. He did it out of his friendship for his friend Hilel. [ 30 ] Felsher in addition to the legal fees paid, claims moral and punitive damages of $6,876.36.

He claims that this business is selling real estate and lending money, which following the false defamation by Hilel he lost business opportunities. [ 31 ] No evidence was provided by Felsher of the actual damages suffered. In addition, in accordance with

article 537 of the Civil Code of procedure , defamation is not admissible in Small Claims Court. FOR THESE REASONS, THE COURT: GRANTS in part the Plaintiff's recourse; CONDEMS Menachem Hilel and Tzvi Spiegelman solidarely to pay to the Plaintiff Melvyn Felsher the sum of $5,245.75 plus interest at the legal rate and the additional indemnity provided at

article 1619 of the Civil Code of Québec as of October 30, 2019, date at which the claim was filed; WITH COSTS in the amount of $205 representing the judicial stamp of the Demand.

_________________________ DIANE QUENNEVILLE, J.C.Q.