2017 QCCQ 78, 2017 QCCQ 78

Fortin c. Norwegian Cruise Line 2017 QCCQ 78 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Civil Division No: 505-32-035334-169 DATE: January 19th, 2017 ______________________________________________________________________ BY THE HONOURABLE J. SÉBASTIEN VAILLANCOURT, J.C.Q. ______________________________________________________________________ JEAN-LOUIS FORTIN -and- FRANCINE GARIÉPY Plaintiffs v.

NORWEGIAN CRUISE LINE -and- VACATIONS TO GO Defendants ______________________________________________________________________ JUDGMENT ON NORWEGIAN CRUISE LINE’S MOTION TO BE AUTHORIZED TO BE REPRESENTED BY LAWYERS AND APPLICATION FOR DISMISSAL ______________________________________________________________________ [ 1 ] Jean-Louis Fortin and Francine Gariépy claim from Norvegian Cruise Line ( NCL ) and Vacations To Go ( VTG ) the sum of $14,235.56 on the grounds that they did not fully honour their contractual undertakings. [ 2 ] VTG filed an Application for dismissal which was referred to the judge who will hear the case on its merits by the Honourable Madam Justice Chantal Sirois, J.C.Q., on June 7 th , 2016. [ 3 ] NCL filed its own Application for dismissal which has not yet been ruled upon and an Application for authorization to be represented by lawyers according to

Section 542 of the Code of civil procedure ( C.C.P. ). [ 4 ] NCL’s Application for authorization to be represented by lawyers was argued by the parties via conference call on December 6 th , 2016. [ 5 ] Mr. Fortin and VTG do not contest NCL’s Application. [ 6 ] Although the Application is not contested, it must be remembered that such authorization will only be granted exceptionally, when the case raises “a complex issue on a point of law”:

542. Les personnes physiques doivent agir elles- mêmes; elles peuvent cependant donner mandat, à

titre gratuit, à leur conjoint, à un parent, à un allié ou à un ami de les représenter. Ce mandat est constaté dans un document identifiant le mandataire, indiquant les motifs pour lesquels la personne est empêchée d’agir et signé par le mandant. L’État, les personnes morales, les sociétés ou les associations ou les autres groupements sans personnalité juridique ne peuvent être représentés que par un dirigeant ou un salarié à leur seul service qui n’est pas avocat. L’avocat ne peut, malgré l’

article 34 de la Charte des droits et libertés de la personne (chapitre C- 12 ), agir comme mandataire, non plus que l’agent de recouvrement, à moins qu’il ne s’agisse pour eux de recouvrer les honoraires qui sont dus à la société dont ils sont membres. Exceptionnellement, lorsqu’une cause soulève une question complexe sur un point de droit, le tribunal peut, d’office ou à la demande d’une partie, autoriser la représentation des parties par avocat; il doit préalablement obtenir l’accord du juge en chef de la Cour du Québec. Dans ce cas, sauf pour les parties non admissibles à

titre de demandeur suivant le présent titre, les honoraires et les frais des avocats sont à la charge du ministre de la Justice; ils ne peuvent cependant excéder ceux que prévoit le tarif d’honoraires établi par le gouvernement en vertu de la

Loi sur l’aide juridique et sur la prestation de certains autres services juridiques (chapitre A-14 ). Tant les personnes physiques que les personnes morales peuvent consulter un avocat, notamment afin de préparer la présentation de leur dossier. 542. Natural persons must self-represent; they may, however, give their spouse, a relative, a person connected to them by marriage or civil union or a friend a non-remunerated mandate to represent them. The mandate must be recorded in a document identifying the mandatary and stating the reasons why the mandator is unable to self- represent, and be signed by the mandator.

The State, legal persons, partnerships and associations and other groups not endowed with juridical personality can only be represented by an officer or employee in their sole service who is not a lawyer. Despite

section 34 of the Charter of human rights and freedoms (chapter C-12 ), lawyers or collection agents cannot act as mandataries except to recover professional fees owed to the partnership to which they belong. By way of exception, if a case raises a complex issue on a point of law, the court, on its own initiative or on a party’s request, after obtaining the consent of the chief judge of the Court of Québec, may authorize the parties to be represented by lawyers.

In such a case, except for parties who do not qualify as plaintiffs under this Title, the lawyers’ professional fees and costs are borne by the Minister of Justice but cannot exceed those set in the tariff of fees established by the Government under the Act respecting legal aid and the provision of certain other legal services (chapter A-14 ).

Both natural persons and legal persons may consult a lawyer, including for the purpose of preparing the presentation of their case. [ 7 ] In order to rule on NCL’s Application, the Court therefore has to determine if this case raises a complex issue on a point of law. [ 8 ] NCL describes as follows Mr. Fortin and Mrs.

Gariépy’s Application: Plaintiffs are claiming from Norwegian the amount $14,235.56, which represents the price paid for a cruise upon which they were to embark on the Norwergian Gem cruise ship in Manhattan, New-York, but were denied boarding by Defendant Norwegian Cruise Line because Plaintiffs did not have their passports with them. [ 9 ] NCL submits that according to the Athens Convention which has force of law in Canada under

Section 37 of the Marine Liability Act, the Court has no jurisdiction in this matter. [ 10 ] NCL alternatively pleads that Mr. Fortin and Mrs. Gariépy’s Application is unfounded in law according to the US Code of Federal Regulations and the 1982 United Nations Convention on the Law of the Sea. It adds in its contestation that “A valid passport was required by all passengers embarking on the cruise.” [ 11 ] VTG contests Mr. Fortin and Mrs. Gariépy’s Application on the grounds that its “terms and conditions require all disputes to be filed in Harris County, Texas” and that “Mr.

Fortin was aware that a passport was required to board the cruise”. [ 12 ] NCL asks that the parties be authorized to be represented by lawyers for the following reasons [1] : Norwegian also filed an Application for dismissal in the above-mentioned Court file on the basis that this Honourable Court has no jurisdiction to hear Plaintiff’s demand.

Norwegian will submit that the contract which governs the relationship between the parties is a contract of carriage by water that triggers the application of Canadian maritime law and that the terms of the contract shall be interpreted in accordance with Canadian maritime law. This will require this Honorable Court to examine complex questions of law, and interpret, inter alia , the Marine Liability Act and the provisions of the Athens Convention .

Moreover, in the event this Honourable Court rules that it has jurisdiction to adjudicate Plaintiff’s demand, Norwegian intends to plead that the action is unfounded in law, even if the facts alleged are true. (sic)

[ 13 ] With respect to contrary opinion, this case does not raise a complex issue on a point of law as required by

Section 542 C.C.P. [ 14 ] Madam Justice Annie Breault, J.C.Q., recently wrote that: [9] By the adoption of Title II of the Code of civil procedure dealing with the Recovery of Small claims, the legislator wants to provide a simplified, easily accessible, more expeditious and less costly access to justice. The representation by lawyers was the excluded, except on exceptional circumstances. The words used – “By way of exception” – must therefore have a restrictive

interpretation. […] [11] The complex issues raised relate both to the issue of jurisdiction of the Court of Quebec as well as the merit of the claims that triggers the application of the Canadian maritime law as well as the Athens Convention. [12] The Court is of the opinion that the issues raised by these cases are not complex issues. Even though there are fewer decisions dealing with the Canadian maritime law, the Marine Liability Act and the Athens Convention , this does not by itself qualified the issues as complex ones. The courts have regularly dealt with similar conventions or treaties.

One only has to think about the Convention of Montreal which similarly governs air carriers’ liability. […] [15] At the Small claims division, it is the judge’s duty to identify the applicable substantive law and to insure that it is carried out.

As in any other case, the judge who will hear these cases will have to make sure to carry out this duty and prepare herself or himself accordingly. [16] As for the parties and the witnesses, their duty is to state facts when examined by the judge that are relevant to solve the issues of law and facts raised by the cases. [2] [References omitted] [ 15 ] The Court fully shares its colleague’s opinion all the more so the matter in Sauvé vs Oceania Cruises Inc. [3] involves similar principles of law. [ 16 ] The judge who will hear this case will identify the applicable substantive law and apply it to the facts of this case as it is his or her duty to do so.

NCL’s Application for dismissal [ 17 ] As stated above, NCL also asks the Court to dismiss Mr. Fortin and Mrs. Gariépy’s Application on the basis that this Court has no jurisdiction in this matter and on the basis that the Application is unfounded in law even if the facts alleged are true. [ 18 ] According to

Section 547 C.C.P., the Defendant may ask the Court to dismiss an Application, before trial, in clear cases of dismissal. [ 19 ] As it was decided by Madam Justice Sirois, J.C.Q., on June 7 th , 2016, with respect to VTG’s Application to dismiss, it is appropriate and in the best interests of justice to refer NCL’s Application to dismiss to the judge who will hear the case on its merits.

FOR THESE REASONS, THE COURT: [ 20 ] DISMISSES Norwegian Cruise Line’s Application for Authorization to be represented by lawyers; [ 21 ] REFERS Norwegian Cruise Line’s Application to dismiss to the judge who will hear the case on its merits; [ 22 ] THE WHOLE without costs. __________________________________ J. SÉBASTIEN VAILLANCOURT, J.C.Q. Date of hearing: December 6 th , 2016