2011 QCCQ 11790, 2011 QCCQ 11790

Morris c. Abi-Malhab 2011 QCCQ 11790 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-121233-102 DATE: September 30, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ PETER MORRIS Plaintiff v.

ANDRO ABI-MALHAB -and- CHLOE SUSAN PERRY Defendanst ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Revocation of judgment [ 1 ] Peter Morris files an application for revocation of judgment, pursuant to

Article 989 of the Code of Civil Procedure : " 989 . If a party against whom a judgment by default is rendered was unable to contest the action or attend the hearing owing to surprise, fraud or any other sufficient cause, the party may apply for the revocation of the judgment. A party may also apply for the revocation of the judgment in any case described in

article 483 that is not inconsistent with the provisions of this Book." [ 2 ] On June 14, 2011, a judgment is rendered in the absence of Mr Morris, dismissing his action against Andro Abi-Malhab and Chloe Susan Perry. [ 3 ] To support his application for revocation of judgment, Mr Morris alleges never having received the notice of convocation for the hearing held on June 14, 2011. [ 4 ] The Court has no choice but to rely on Mr.

Morris' allegations and his wife's testimony, Ms Judith Morris, since said notice of convocation is sent by ordinary mail, without any proof of reception in the Court's file. [ 5 ] This being, Mr Morris was unable to produce the evidence in support of his claim owing to surprise, not having received the notice of convocation. [ 6 ] Consequently, the Court grants Mr Morris' application for revocation of judgment and revokes, for all legal purposes, the judgment rendered by default in the present file on June 14, 2011.

Merit [ 7 ] Peter Morris claims from Defendants an amount of $1,128.75 for the front glass window of his commercial premises broken on May 15, 2009. [ 8 ] At hearing, Mr Andro Abi-Malhad does not attend and neglected to contest Mr Morris' action. [ 9 ] Chloe Susan Perry contests said action alleging not being responsible for the damages to the window and adding: "In fact, I believe I was fortunate not to have sustained injury as a result of the dangerously weak glass installed in this commercial property".

[ 10 ] No evidence establishing the weakness or the illegality of the glass does support this allegation. [ 11 ] Ms Perry explains to the Court the circumstances surrounding the breakage of the window. She falls on it after giving or receiving a big hug from the other Defendant, Andro Abi-Malhab. She insists that nothing was done on purpose and did collaborate with the police officer to who she voluntarily gave her name and address. [ 12 ] Mr Morris' action is based on

Article 1457 of the Civil Code of Québec : " 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody." [ 13 ] In our law, it is not relevant to establish if the alleged fault is intentional or not. In both cases, the civil liability is retained, even though Defendant did not act deliberately to cause damages to Plaintiff. [ 14 ] Given all of the above, the Court has no choice but to grant Mr Morris' action.

THEREFORE, the Court: REVOKES , for all legal purposes, the judgment rendered in the present file on June 14, 2011; GRANTS Peter Morris' claim; CONDEMNS solidarily Andro Abi-Malhab and Chloe Susan Perry to pay to Peter Morris the amount of $1,128.75 with interest at the annual rate of 5 % and the additional indemnity provided for under

Article 1619 of the Civil Code of Québec , as from September 13, 2009, with costs ($99). __________________________________ Henri Richard, J.C.Q. Date of hearing: September 26, 2011