2012 QCCQ 15283, 2012 QCCQ 15283

JH 5371 Fiederer c. Montréal (Ville de) 2012 QCCQ 15283 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-117975-096 DATE: June 27, 2012 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ BERNIE FIEDERER Plaintiff v.

VILLE DE MONTRÉAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Bernie Fiederer claims $7,000.00 in material and moral damages from the City of Montreal pursuant to his arrest by two City of Montreal police officers on February 28, 2007. [ 2 ] Bernie Fiederer alleges that the City is responsible for the damages he is claiming because: 1. The police made a false report; 2.

They intentionally tried to injure him. [ 3 ] The City contests the claim and pleads that the police officers did not commit any fault; that Mr. Fiederer committed three infractions to the Highway safety Code ; that the officers had no choice but to arrest M. Fiederer and to use handcuffs because of his aggressive behaviour towards them and; that if he has suffered damages, the City is not responsible. THE FACTS [ 4 ] On February 28, 2007, police officers Savard and Bégin are doing a seatbelt operation at the corner of Notre-Dame-de-Grâce and Claremont avenues in the City Westmount.

Their role is to verify that the occupants of all vehicles, when making their compulsory stop, are wearing their seatbelt. [ 5 ] At 10:02, the officers intercept a person who was not wearing his seatbelt. [ 6 ] At 10:08, while the officers are preparing a ticket in their patrol car, see Mr. Fiederer double-parked in his vehicle beside the vehicle of the person who they are ticketing. [ 7 ] Mr. Fiederer rolled down his window and, while double-parked, was having a conversation with the occupant. [ 8 ] Constable Savard testifies that Mr. Fiederer remained double-parked for approximately two minutes.

When other vehicles began blowing their horns because the traffic was blocked, Savard used the patrol car loudspeaker to order Mr. Fiederer to move his car. He explains that he gave this notice twice in French, and twice in English. [ 9 ] Mr. Fiederer would then have made a dismissive gesture through his open car window. When both police officers approached

the vehicle and asked for Mr. Fiederer's identification, he responded: "No way, I am doing nothing wrong, there's no way you can have my licence or my name or anything." [1] [ 10 ] Mr. Fiederer swore at the police officer, and when asked to park his car, refused to do so. He then began to speed down the street, apparently reaching a speed of approximately the 70 km/h in a 30 kilometres zone. The police officers pursued Mr. Fiederer for approximately 400 metres down Claremont avenue in order to intercept him. [ 11 ] According to the police officers, Mr.

Fiederer then abruptly exited his vehicle and rushed towards them, apparently out of control ("il est hors de lui"). Bernie Fiederer was waving his arms, had his fists closed, and was shouting incomprehensibly. [ 12 ] The police officers testify that because of this violent behaviour, they each grabbed one of Mr. Fiederer's arms and handcuffed him. The officers used two pairs of handcuffs in order to do so. [ 13 ] At 10:11, constable Savard read Mr. Fiederer his legal rights to which he responded "yes, yes it's ok!" [ 14 ] At 10:19, Mr.

Fiederer complained that his right arm hurt, saying that he thought it was broken. In his testimony, he adds that it hurt so much that he believed that the police officers had shot him in the elbow. An ambulance was immediately called. Mr. Fiederer then said to the police officers "you are corrupted, you are crooks, you have no rights to ask for my licence and to pull me over for no reason. I was just talking with my son's friend". [ 15 ] At 10:27, Mr. Fiederer asked that the handcuffs be removed to which the officers responded that they were sorry but could not do so because of his violent behaviour. Mr.

Fiederer responded: "ok, I understand, I will not complain about you guys, you are doing your job." [ 16 ] At 10:33, on arrival of the ambulance technicians, the handcuffs are removed. The technicians suggested that Mr Fiederer have his arm x-rayed although they did not believe that it is broken. There was no gun shot wound. [ 17 ] At 10:40, three infractions were served on Mr. Fiederer under the following sections [2] : •

Section 382: obstruction of traffic; •

Section 636: neglecting to stop his motor vehicle at the request of the police officer; •

Section 638.1: hindering the performance of duties of a police officer; [ 18 ] On service of these infractions, Mr. Fiederer said: "If you forget about the tickets or the criminal charges, I will not complain about my arm and I will let it go". When told that it was impossible, and that he could contest the infractions within 30 days, Mr. Fiederer repeated: "take the tickets and I will not complain, please". [ 19 ] Mr. Fiederer's version of the facts differs basically in so far as he denies each of the quotations contained in the police report.

Also, he contends that he did not remain double-parked for two minutes but for 35 seconds. Most importantly, he contends that he did not rush out of the car when he was intercepted but was forcibly removed from the car by the police officers. [ 20 ] Also, according to Mr. Fiederer's own testimony, on the following day, he spoke to an officer in charge at the Westmount police station and indicated that if the infractions were withdrawn, he would make no more trouble for the police officers. [ 21 ] Mr.

Fiederer testified that he was acquitted at Montreal Municipal Court because the judge considered that the police officers' testimony was not credible. No written reasons for judgment, nor transcripts of this trial were filed. Constable Savard stated that no trial was ever held at Municipal Court, thus the absence of transcripts. According to his testimony, the acquittal was entered because he was held up in traffic and arrived late at trial. He added that constable Bégin was on parental leave at the time of the trial and was not present. He was advised that the judge had refused a continuance and acquitted Mr.

Fiederer. ANALYSIS [ 22 ] Two questions need to be answered: 1. Prescription 2. Liability PRESCRIPTION [ 23 ] Simply stated, did Mr. Fiederer undertake his proceedings within the time period allotted by the Cites and towns act ?

Article 585 (paragraph 5) of the act states [3] :

(5) No action in damages shall lie unless such action be instituted within six months after the day on which the accident happened or the right of action accrued. [ 24 ] Bernie Fiederer claims $7,000.00 in damages composed of material and moral damages. As for material damages, he claims attorney's fees in the amount of $5,800.00 (Exhibit P-9), and ambulance fees for $134.73 (Exhibit P-10). The balance of the damages ($1,065.27) are moral damages to compensate Mr. Fiederer for the stress and pain that he claims to have suffered since the events of February 28, 2007. [ 25 ] This short prescriptive period applies only to the material damages claimed [4] .

[ 26 ] Mr. Fiederer filed his application on July 13, 2009, some 26 months after the events. The material damages claimed, are therefore prescribed. This portion of the claim must be dismissed. [ 27 ] The moral damages are not prescribed. The question of liability must now be answered. LIABILITY [ 28 ]

Article 2803 of the Civil Code of Quebec states: 2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. Mr. Fiederer therefore has the burden of proving on preponderance of evidence, that his allegations of fault are founded.

He must also prove his damages and the causation between the two. [ 29 ] The Court cannot conclude, according to the evidence, that the City has committed any fault. [ 30 ] The testimony is contradictory. [ 31 ] The preponderance of the evidence is not in Mr. Fiederer's favour. [ 32 ] Officers Savard and Bégin testified with clear recollection of the events. They stated that the situation was entirely out of the ordinary and remembered it well. Also, they signed a detailed report prepared on the very same day of the events. This report contains one factual error that they readily admitted.

This error, has no bearing on the gist of the their testimony. [ 33 ] On the other hand, Mr. Fiederer's memory of details is not good. His testimony contains numerous exaggerations, the most important being when he states that when handcuffed it hurt so much that he thought he had been shot by the officers. This statement is unrealistic. [ 34 ] There is also Mr. Fiederer's statement that the Municipal Court judge ruled that the officers were not credible in their testimony. This allegation is serious. If it had been true, it could have held considerable weight against the police officers credibility.

However, the preponderance of evidence shows that no trial was held. Therefore, the judge could not have commented in this fashion as to the credibility of the police officers. Mr. Fiederer's statement can not be true. This puts his credibility into question. [ 35 ] Lastly, Mr. Fiederer has denied every quotation contained in the police report. However, he has admitted that he did in fact attempt to negotiate his Highway safety Code violations with a police officer (paragraph 20 above).

This admission on his part renders the quotations made in the police report all the more credible. [ 36 ] It is also noteworthy that Mr. Fiederer admits that if he had acted in the way described by the police officers, he would have deserved to be arrested. [ 37 ] The Court, cannot conclude that the police report (Exhibit P-13) is false, nor that the police officers intentionally tried to injure Bernie Fiederer. [ 38 ] This application must be dismissed.

FOR THESE REASONS, THE COURT: DISMISSES the application of Bernie Fiederer, with judicial fees in the amount of $191,00. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: May 29, 2012.