2015 QCCQ 5586, 2015 QCCQ 5586

S.K. c. Burelle 2015 QCCQ 5586 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No. 500-32-141472-144 DATE: May 22, 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE DANIEL DORTÉLUS J.C.Q. ______________________________________________________________________ S. K. Plaintiff v. MARION BURELLE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1. THE DISPUTE [ 1 ] The plaintiff, Mr. S.

K., is claiming the sum of $6000 as reimbursement for fees that he paid in 2007 for the defendant to represent him, in order to secure his release after an unfavourable judgment at his bail hearing. [ 2 ] He complains that the defendant did not secure his release and did not represent him properly because he omitted to present evidence to the judge. [ 3 ] The defendant, Mtre. Burelle, disputes the claim. He puts forward prescription as a ground of inadmissibility. [ 4 ] Alternatively, he argues that the amount that Mr. K.’s brother gave him for legal fees was $2000.

He received an additional $1000 to pay the cost of the transcriptions of the recording of the bail hearing, which were used at the bail review before the Superior Court. 2. THE FACTS 2.1 Plaintiff’s evidence [ 5 ] In 2007, the plaintiff was in detention pending trial. He was facing criminal charges of domestic violence and assault on his children. [ 6 ] He obtained Mtre. Burelle’s telephone number from an inmate. He retained the services of Mtre. Burelle to represent him and obtain his release. [ 7 ] On his behalf, his brother paid Mtre. Burelle $6000. [ 8 ] Mr. Sw.

K., the plaintiff’s brother, states that he made a first payment of $2000 in cash to Mtre. Burelle and a second payment of $4000 two (2) to three (3) days before the Court hearing. [ 9 ] He submits Mtre. Burelle’s business card, on the back of which the two (2) sums received are noted. [ 10 ] The plaintiff, Mr. K., argues that the defendant did not submit evidence that Mr. K.’s former spouse was not credible and that she possessed forged passports. [ 11 ] He suggests that Mtre.

Burelle did nothing, that he did not provide the services for which the sum of $6000 was paid and that, as a result, the plaintiff remained in prison until his trial in 2008. He was sentenced to four (4) years of imprisonment. [ 12 ] He was represented by other lawyers after he revoked Mtre. Burelle’s mandate in 2007. [ 13 ] In 2013, when he demanded that Mtre. Burelle reimburse the sum of $6000, Mtre. Burelle promised to repay half the amount and agreed to represent him to have his criminal record erased. [ 14 ] On October 6, 2013, the plaintiff sent a formal notice to Mtre.

Burelle in which he indicated the following: I am writing to inform you that I am claiming to remind you to complete the work which you had promised to finish. I already paid you form the work to be finished and such this reminder.

If you are unable to finish the work then I will like you to refund my money and return my files within ten days. Otherwise I may take legal action against your without any notice and inform Barreau du Québec. I have witnesses. Please act accordingly. [ 15 ] On January 23, 2014, he filed this action against Mtre. Burelle. 2.2 Defendant’s evidence [ 16 ] Mtre.

Burelle says that he accepted the mandate to represent the plaintiff in 2007, when he was detained at Rivière-des-Prairies. [ 17 ] The plaintiff was accused of sexual assaults on his children and of domestic violence against his spouse. [ 18 ] When he accepted the mandate to represent him, the plaintiff was refused bail.

He filed an application for review of bail before the Superior Court and went to the Court with the plaintiff to present the application. [ 19 ] Counsel for the prosecution received information from the RCMP and from the social worker as to the overwhelming evidence against the plaintiff who, among other charges, had been accused of many serious offences against his former spouse.

The plaintiff’s family had arranged for her to return to her country on a one-way ticket, in order to prevent her from testifying against him. [ 20 ] His former spouse managed to get back to Canada via the United States and demanded that the criminal charges against the plaintiff for the assaults on her and her children go ahead. [ 21 ] Mtre. Burelle reassessed the situation and spoke about it with the plaintiff, who agreed to withdraw his application for review of bail, which was doomed to fail. [ 22 ] Mtre.

Burelle states that the sums noted on the back of his business card were $2000 for his fees and $1000 for the transcriptions. [ 23 ] He rendered his services for the $2000 by meeting with the plaintiff and members of his family, preparing the application for review of bail and attending the Court for the hearing of the application. [ 24 ] At their meeting in 2013, the plaintiff gave the defendant a new mandate to re-examine the transcribed testimony of his former spouse in his file at the Criminal Division and the testimony of his children in the Youth Division in order to find grounds for filing a private complaint against her for perjury. [ 25 ] Mtre.

Naomie Tellier was present at the meeting between Mtre. Burelle and the plaintiff, which took place on June 20, 2013, in a cubicle at the Montréal courthouse. [ 26 ] She corroborates Mtre. Burelle’s account and adds that she worked on the case during the summer of 2013. [ 27 ] On November 9, 2013, the plaintiff took back his file. There was no discussion about reimbursing the fees for the previous case and no agreement was made. 3.

ANALYSIS AND REASONS [ 28 ] The first question to address is the ground of inadmissibility, because if the right of action is prescribed, this is sufficient to dispose of the dispute. [ 29 ] The Court notes from the evidence that the sum paid to Mtre. Burelle in 2007 was for the criminal case of the plaintiff, who revoked Mtre. Burelle’s mandate in 2007. [ 30 ] The plaintiff had three (3) years to institute proceedings against Mtre. Burelle for the sums paid in 2007. [ 31 ] It is obvious that the proceedings instituted in 2014 fall outside the prescriptive period of three (3) years, set out in

article 2925 of the Civil Code of Québec (CCQ), [1] which states: 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 32 ] The fact that the plaintiff was in prison from 2008 to 2012 did not make it impossible for him to act. Moreover, he was represented by several lawyers. The prescriptive period was not interrupted. [ 33 ] The plaintiff’s assertion that in 2013, Mtre.

Burelle agreed to reimburse half the amount he received is rejected, because the evidence submitted by the plaintiff, which is contradicted by Mtre.

Burelle’s evidence, is plainly insufficient to establish, on a balance of probabilities, that such an agreement existed. [ 34 ] The Court concludes that the ground of inadmissibility is well founded, as the plaintiff’s right of action is prescribed. [ 35 ] GIVEN that the plaintiff’s right of action is prescribed, there is no need to examine the merits of the dispute, other than to say that, with regard to the evidence presented, the plaintiff’s action was doomed to fail, because on the one hand, there is no conclusive evidence that the plaintiff paid more than $2000 in fees.

[ 36 ] On the other hand, there is sufficient evidence that Mtre. Burelle rendered his services for the amount received and that he discharged his obligation, which is an obligation of means and not of result. The fact that the plaintiff was not released is not grounds to reimburse the fees paid. [ 37 ] FOR THESE REASONS, THE COURT: [ 38 ] DISMISSES the action with costs against the plaintiff. (

s) DANIEL DORTÉLUS J.C.Q. Date of hearing: May 19, 2015 JD 2273