2017 QCCQ 14919, 2017 QCCQ 14919

Zienni c. City of Pointe-Claire 2017 QCCQ 14919 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-701020-176 DATE: December 13, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ RIYAD ZIENNI Plaintiff v.

CITY OF POINTE-CLAIRE Defendant ______________________________________________________________________ JUDGMENT ON EXCEPTION TO DISMISS AND OPPOSITION TO AN AMENDMENT ______________________________________________________________________ [ 1 ] The City of Pointe-Claire seeks the dismissal of a claim brought by Riyad Zienni on the grounds that it is prescribed because it was filed after the 6 month prescription period provided for in

section 586 of the Cities and Towns Act , R.S.Q., ch. C-19. QUESTION IN DISPUTE

a) Is Mr. Zienni’s claim prescribed? CONTEXT [ 2 ] On February 28, 2017, Mr. Zienni filed a claim against the Attorney General of the Province of Québec (AG Québec) in which he claims $10,000 in damages following an accident that caused damages to his vehicle. [ 3 ] According to his Claim, on March 8, 2016, Mr. Zienni was driving his vehicle within the city limits of the City of Pointe-Claire when his car hit a pothole in the road. [ 4 ] He alleges that this accident caused damage to his vehicle, including the tires, rims, hub caps and the vehicle’s alignment system.

Furthermore, he alleges that the accident caused him emotional distress, anxiety, pain and suffering and 2 days of lost wages. [ 5 ] The claim was notified on the AG Québec on March 10, 2017. On May 11, 2017, Mr. Zienni signed a discontinuance of his claim against the AG Québec. [ 6 ] On the same day, Mr. Zienni modified his Claim to add a new defendant, the City of Pointe-Claire.

The modified Claim was notified to the City of Pointe-Claire on May 17, 2017. [ 7 ] On June 1, 2017, the City filed an Opposition to the Amendment in which it notably argues that the amendment of the Claim to add the City as a co-defendant is unlawful because the claim is time barred. [ 8 ] At the hearing of the City’s Opposition to the Amendment, the City asked for and obtained the permission to amend its Opposition to add an additional grounds, namely that the Claim should be dismissed pursuant to

article 168 of the Code of Civil Procedure (C.C.P.) because it is unfounded in law even if the facts alleged in it are true. ANALYSIS AND DECISION

a) Is Mr. Zienni’s claim prescribed? [ 9 ]

Section 586 of the Cities and Town Act provides 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. [ 10 ] Based on

section 586 of the Act , a person filing a suit or claim against a municipality such as the City of Pointe-Claire must file the claim before the six month prescription period provided for in the statute. [1]

[11] If a lawsuit is not filed before the expiry of the 6 month prescription period, then unless the prescription period has beensuspended,[2] the creditor’s right against the municipality is extinguished. [12] The underlying purpose of the rules of prescription was recently expressed as follows by the Supreme Court of Canada: [1] In Quebec civil law, court actions have always been subject to prescriptive periods that vary in length depending on the nature of acase or the identities of the parties. [2] In the most recent reform of the Civil Code of Québec (“C.C.Q.” or “Code”), the legislature aimed to simplify the rules on theprescription of actions by harmonizing them and thereby promoting access to justice.

Such rules are essential in a democratic society thatwishes to preserve public order, sanction the negligence of creditors or ensure social peace (C. Gervais, La prescription (2009), atpp. 4-5). These are some of the purposes behind the obligation imposed on litigants to act and to bring an action within a specific period,without which they will no longer be able to obtain a remedy.[3] [13] The prescription period begins to run on the day on which the right of action arises.[4] [14] In Pellerin Savitz LLP v.

Guindon[5], the Supreme Court of Canada provided the following explanation for the notion of “thearising of the right of action”: [11] The beginning of the period of extinctive prescription is the “day on which the right of action arises” (art. 2880 para. 2 C.C.Q.).As this Court has stated, “the prescription of an action cannot begin to run before the right to institute it originates” (Morin v. CanadianHome Assurance Co., (SCC), [1970] S.C.R. 561, at p. 565).

The arising of the right of action and the beginning of theprescription period are highly factual questions; how they are answered varies from case to case depending on the circumstances andcalls for great deference on the part of an appellate court (C. Gervais, La prescription (2009), at p. 106; Mignault, at p. 522; Beaulieu v.Paquet, 2016 QCCA 1284, at para. 20 ; Dupuy v. Leblanc, 2016 QCCA 1141, at para. 22 ; on the standard of review,see also Benhaim v.

St Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at paras. 36 39). [12] In contract, the creditor’s right of action arises once the debtor’s obligation has arisen and is exigible (Re 9022 8818 Québec inc.,2005 QCCA 275, at para. 51 ; J. L. Baudouin and P. G. Jobin, Les obligations (7th ed. 2013), by P. G. Jobin and N. Vézina, atNo. 1127; Martineau, at para. 247).

When this occurs varies with the circumstances, and especially with the terms of the contract itself. [15] The right of action arises on the first day that the plaintiff or creditor of a claim is aware of the existence of a fault anddamages.[6] [16] When did Mr. Zienni’s right of action arise in the present case? [17] Based on Pellerin Savitz LLP v. Guindon, Mr. Zienni’s right of action arose on March 8, 2016. The 6 month prescription periodof

article 586 Cities and Towns Act must be calculated as of that date. [18] Considering that the right of action arose on March 8, 2016, and considering the applicable 6 month prescription period, Mr.Zienni’s claim against the City of Pointe- Claire had to be filed with the Court before September 8, 2016. [19] Mr. Zienni filed his Claim on February 28, 2017.

He identifies the defendant as follows in the Claim: Attorney General of Québec Municipalité Pointe-Claire Ministère de la Justice Direction générale des affaires juridiques et législatives [20] He explains that he meant to sue the City of Pointe-Claire, but he when he used the on-line application form to complete theclaim, the computer program generated the name “AG Québec” as the name of the City of Pointe-Claire. [21] The Claim was served on the AG Québec and not the City.

It is only when he attended a mediation session in mid-April 2017and spoke to a representative of the AG Québec, that he realized that his lawsuit was erroneously filed against this entity. [22] Hence, Mr. Zienni discontinued his Claim against the AG Québec on May 11, 2017, and on the same day, amended the Claimto correct the designation of the defendant to reflect the City of Pointe-Claire and added the City’s address. [23] On May 17, 2017, the Amended Claim was notified to the City of Pointe-Claire. [24] However, be that as it may, the fact remains that Mr.

Zienni’s original Claim was only filed on February 28, 2017. By thatdate, even if he committed an excusable error in the designation of the defendant’s name, it was already too late to file a claim againstthe City as his claim against the City of Pointe-Claire was prescribed considering

section 586 of the Cities and Towns Act.

[ 25 ] When the Claim was notified to the City of Pointe-Claire on May 17, 2017, it was well beyond the expiry of the 6 month prescription period. [ 26 ] Moreover, Mr. Zienni has not proven that he was under any impossibility to act following the March 8, 2016 incident. While

article 2904 C.C.Q. provides that prescription is suspended when someone is under an impossibility to act, a person invoking suspension of prescription has the burden of proving facts which demonstrate that he or she was under an impossibility in fact to act. [ 27 ] Courts have recognized that a person may be under an impossibility to act where that person for example, has a physical or psychological ailment which prevents him/her from exercising his/her rights. [7] [ 28 ] Mr.

Zienni explains that he filed his lawsuit beyond the prescription period because he was unaware of the existence of the 6 month prescription period of the Cities and Towns Act . He was under the impression that he had twelve months to file his claim. [ 29 ] However, that is not a valid excuse. As Justice Cameron stated in Gaucher v. Montréal (Ville de ): The rules of prescription, like other rules concerning the generation or extinction of rights, apply notwithstanding the knowledge or understanding of any specific member of the public.

According to a well-known maxim, ignorance of the law is not an excuse. [8] [ 30 ] Mr. Zienni adds that he works full-time on a high stakes project and did not have the luxury to take time off from work to file his claim. That too is not a valid excuse. [ 31 ] Mr. Zienni has failed to demonstrate that there is any cause which constituted either a renunciation, interruption or suspension of prescription and the Court has no choice but to come to the conclusion that the Claim is prescribed. [ 32 ] Accordingly, the City’s Exception to Dismiss pursuant to

article 168 C.C.P. is well founded because even if the facts alleged in Mr. Zienni’s Claim are true, the claim is unfounded in law because it is plain and obvious [9] that it is prescribed. [ 33 ] Considering the Court’s decision on the Exception to Dismiss, the City’s Opposition to the Amendment becomes moot. FOR THESE REASONS, THE COURT: [ 34 ] GRANTS the City of Pointe-Claire’s Exception to Dismiss based on

article 168 C.C.P.; [ 35 ] DISMISSES Plaintiffs’ application against the City of Pointe-Claire; [ 36 ] WITHOUT LEGAL COSTS. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: December 11, 2017.