2013 QCCQ 11561, 2013 QCCQ 11561

Richard Venor & Co. c. 4360982 Canada inc. 2013 QCCQ 11561 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-126023-102 DATE: September 19, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ RICHARD VENOR & CO. , 5757 Cavendish, # 409, Montreal (Quebec) H4W 2W8 Plaintiff v. 4360982 CANADA INC. , 5375 Pare, # 140, Montreal (Quebec) H4P 1P7 and JIMMY ISRAËL , […] , Dollard-des-Ormeaux (Quebec) […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized of the merits of the Motion to revoke a judgment dated December 21, 2012 (Judge André Renaud), that dismissed Richard Venor & Company's Motion for contempt of Court against 4360982 Canada Inc. and Jimmy Israël. [ 2 ] At the hearing, both defendants were absent although duly served with the proceedings and notice of hearing. [ 3 ] Richard Venor argues that he discovered new evidence after the first trial and requests revocation of the judgment rendered by Judge Renaud.

The facts attested to in the trustee's report of January 14, 2013, came to Mr. Venor's knowledge after the hearing before judge Renault. The Court, therefore, concludes that the revocation is justified under article 483 (7) of the Code of Civil Procedure . The facts [ 4 ] On June 2 nd , 2011 4360982 Canada Inc. was condemned to pay the sum of $5,043.74 to Richard Venor and to the services rendered; [ 5 ] On July 19, 2011 an examination after judgment (article 543 CCP) took place. Mr.

Israël, an officer of 4360982 Canada Inc. undertook to provide documents to Richard Venor. [ 6 ] On January 31, 2012 Judge Lareau ordered 4360982 Canada Inc. to provide bank statements to Richard Venor; [ 7 ] In June 2012, a special order for contempt of Court was issued against 4360982 Canada Inc. and Mr. Israël to explain why the bank statements were not provided; [ 8 ] Thus, the case was heard on December 19, 2012 by Judge Renaud. [ 9 ] Defendants were then acquitted since Mr.

Israël testified that 4360982 Canada Inc.'s trustee in bankruptcy detained all the documents requested and that he could therefore not provide them. [ 10 ] This in fact is not true since, according to the evidence discovered after the first trial, Mr. Israël also refused to remit such documents to the trustee. Both 4360982 Canada Inc and Jimmy Israël are now bankrupt and, are under investigation by the police and subject to criminal proceedings. Analysis [ 11 ] At Trial, the Court questioned Mr. Venor as to what sentence he would suggest against defendants if in fact they were found guilty. [ 12 ] Mr.

Venor responded that his goal was to obtain payment on the original judgment against 4360982 Canada Inc. His argument was that if defendants had promptly provided bank statements, he would have had ample time to execute his judgment against 4360982 Canada Inc. prior to its bankruptcy. He suggested that the Court was empowered to order such a payment in these proceedings for contempt of Court.

[ 13 ] In a written submission, Mr. Venor changed his position somewhat. In his letter of May 23, 2013, he wrote: Should you see fit to render a judgement of contempt against Defendant company and Jimmy Israël, I would appreciate it you would make reference to the grievous actions as aforementioned which constitutes a fraud against the Court and myself. I require this reference in order that I may oppose to discharge of Mr. Israël in virtue of

article 178 (i) (

d) of the bankruptcy act. [ 14 ] A contempt of Court judgment is not:

a) A means of execution of a civil judgment;

b) A prerequisite to oppose the discharge of a bankrupt; [ 15 ] The Court of Appeal has had occasion to remind judges of first instance: [67] […] This Court has rightly warned against the notion of contempt being debased if used where more suitable remedies exist.

The problem of trivializing the seriousness of contempt through inappropriate or overzealous use – the risk of contempt becoming "galvaudé" – was highlighted by the Law Reform Commission of Canada which noted that "[t]here is a very serious danger that contempt might eventually turn against those using it, and in the final analysis, involving it too frequently might do more harm than good in the interests of justice." [1] [ 16 ] More specifically, justice Monet in an earlier judgement of the Court of Appeal wrote: 23. Malheureusement, la notion d'outrage au tribunal est trop souvent avilie.

C'est à tort, à mon avis, qu'on assimile une requête en outrage au trivunal aux voies d'exécution. [2] [ 17 ] Both of Mr. Venor's arguments amount to using contempt of Court proceedings as leverage to obtain payment. [ 18 ] In contempt of Court proceedings, the Court is required to properly exercise its discretion under sections 49 and subsequent C.C.P. Such exercise, rather than being "an unbending rule" is "sound judicial policy" [3] . Thus, the Court concludes that this is not a case that justifies finding 4360982 Canada Inc. and Jimmy Israël guilty of contempt of Court.

FOR THESE REASONS, THE COURT: GRANTS the Motion to revoke the judgment of Judge André Renaud, j.c.q. rendered on December 21, 2012 and CANCELS the judgment; ON THE MERITS: DISMISSES the petition for contempt of Court against Defendants 4360982 Canada Inc. and Jimmy Isräel; WITHOUT costs. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: May 13 th , 2013