2017 QCCQ 11369, 2017 QCCQ 11369

JB4545 Gandhi c. Landry 2017 QCCQ 11369 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU No. 550-32-023497-164 DATE: August 7, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE PATSY BOUTHILLETTE J.C.Q. ______________________________________________________________________ VIREN GANDHI , […] , Val-des-Monts (Québec) […] Plaintiff v.

DENIS LANDRY AND DIRECTION DU RÉTABLISSEMENT, SÉCURITÉ PUBLIQUE QUÉBEC, AND DIRECTION DE LA SÉCURITÉ CIVILE ET INCENDIE 100-455, rue du Marais, Québec (Québec) G1M 3A2 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Viren Gandhi is claiming $15 000 from the Québec government (ministère de la Sécurité publique) and from Denis Landry (a director at the Ministère in question) further to an earthquake that allegedly damaged his well. [ 2 ] The Ministère refused to compensate the plaintiff because he did not satisfy the compensation criteria provided for in the decree.

CONTEXT [ 3 ] On May 17, 2013, there was an earthquake in the Val-des-Monts sector of the Outaouais region. [ 4 ] The plaintiff declared that his well stopped working immediately after the disaster. [ 5 ] The documentary evidence shows that the initial claim made to the ministère de la Sécurité publique for $13 457.75 (D-6) was signed on December 30, 2013, that is, seven months after the event. [ 6 ] On June 8, 2016, the plaintiff filed a claim against the defendants for the cost to build a new well, i.e. almost $50 000, which he reduced to $15 000 so that it would fall within the jurisdiction of the Court of Québec, Small Claims Division.

QUESTIONS IN DISPUTE [ 7 ] The questions in dispute are: I. Did the defendant Denis Landry commit a fault?

II. Does the Court of Québec have jurisdiction to hear the dispute? III. If so, is the plaintiff entitled to the claimed damages? ANALYSIS [ 8 ] To succeed in his application, Mr. Gandhi must prove by preponderant evidence the facts on which his claim is based, in accordance with articles 2803 and 2804 of the Civil Code of Québec , which read as follows: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. Did the defendant Denis Landry commit a fault? [ 9 ] Mr. Landry is the director of the Direction du rétablissement at the ministère de la Sécurité publique. Under

section 32 of the Public Service Act , t he Attorney General takes up Mr. Landry’s defence . [ 10 ] The evidence did not show any fault on the part of Mr. Landry. Moreover, the plaintiff admitted that he instituted proceedings against the former simply because he held the title of director, and did not hold him liable for anything whatsoever. [ 11 ] The action against Mr. Landry is therefore dismissed. I.

Does the Court of Québec have jurisdiction to hear the dispute? [ 12 ] On December 7, 2011, the Québec government issued decree 1272-2011 creating the Programme général d’aide financière lors de sinistres réels ou imminents (General Financial Assistance Program regarding Actual or Imminent Disasters). [ 13 ] Under

section 100 of the Civil Protection Act , [1] the Québec government may establish general financial assistance programs, such as programs in respect of actual or imminent disasters or other events that compromise human safety, and fix the applicable requirements, scales and terms and conditions of payment. [ 14 ] Further to the disaster on May 17, 2013, the plaintiff Viren Gandhi submitted a claim to the defendant on January 3, 2014, that is, over seven months after the event. [ 15 ] Letters were exchanged and telephone calls took place between the plaintiff and the defendant’s representatives. [ 16 ] More specifically, on March 21, 2014 and on May 8, 2014, the defendant wrote the plaintiff asking for proof that the residence located at […] in Val-des-Monts was indeed his principal residence.

He was asked to provide [TRANSLATION] “a photocopy of his driver’s licence or any other identification or proof (such as correspondence from a government department) that made it possible to establish Mr.

Gandhi’s address at the time of the disaster ”. [ 17 ] The plaintiff ignored the two letters. [ 18 ] On June 5, 2014, the defendant rendered its decision and rejected the plaintiff’s claim for the following reason: [TRANSLATION] “Since the damages on which your claim is based took place at […] in Val-des-Monts, which was not your principal residence at the time of the disaster, we cannot grant you financial assistance”. [ 19 ] Mr.

Gandhi did not apply for a review in writing. [2] [ 20 ] On June 8, 2016, the plaintiff instituted a proceeding before the Court of Québec, Small Claims Division, in which he alleged he sustained $50 000 in damages, which he agreed to reduce to $15 000 in order to comply with the court’s jurisdiction. [ 21 ] As in Québec (Procureure générale) c. Lenard , [3] the plaintiff’s claim was filed further to an administrative decision not to grant compensation following a disaster (earthquake). [ 22 ] What is more, in the case at bar, the plaintiff did not even exhaust his recourses for review provided for under

article 84 of the decree, which reads as follows: Application for review 84. Pursuant to

section 121 of the Civil Protection Act , individuals, businesses, municipalities or organizations that provided help and assistance to applicants concerned by a decision regarding eligibility, the amount of assistance granted, a condition imposed under

section 106 or a claim for overpayment may, within two (2) months of the date on which the person is notified of the decision, apply in writing for a review, except in the case of a decision under

section 113 of the Civil Protection Act . The application for a review may not be refused on the ground that the time limit has expired if the applicant proves that it was impossible to act earlier.

The review is performed by a person designated for such purpose by the Minister. An application for a review does not suspend the decision made, unless the person designated for the purpose of the review decides otherwise. [ 23 ] The Court subscribes to the comments of its colleague in Québec (Procureure générale) c. Lenard : [4] [TRANSLATION] [17] The defendant’s only argument to counter this claim is that the decision on the application for review is ill-founded.

Moreover, he vigorously attacks the decision and asks the Court to overturn it, confirming that he has provided all the relevant supporting documents. [18] The Court cannot grant the defendant’s request, as it is being asked to do, without ruling on the legality of the decision on an application for review. [19] Decisions made further to an application for review are final and without appeal, as there are no legislative provisions that provide for an appeal.

In fact, none of the decrees authorizing the financial assistance program that was implemented specifically for the flooding that occurred from April 10 to May 6, 2011 in Québec municipalities [5] [2] give the Court jurisdiction to rule on the contestation of a decision rendered in the context of that program. The same is true for the Civil Protection Act , which is the enabling legislation, [6] [3] and the Act respecting administrative justice . [7] [4] [20] The Court of Québec cannot sit in appeal from a decision unless the enabling legislation gives it the jurisdiction to do so.

Moreover, the defendant’s contestation does not fall under the context of an appeal from the decision made by the Tribunal administratif du Québec on October 19, 2005. [8] [5] [21] The arguments raised by the defendant stem from a simple difference of opinion and do not constitute a “substantive defect”.

If such had been the case, the Court of Québec could not have issued a ruling, as only the Superior Court has superintending and reforming power with respect to such a decision . [9] [6] [ 24 ] There are no provisions in the law or the decree that allow the Court of Québec to sit in appeal from an administrative decision.

Moreover, this principle has been reiterated since. [10] Under the decree, the plaintiff could have applied for a review, but chose not to exercise this recourse. [ 25 ] In the circumstances, the Court of Québec does not have the required subject-matter jurisdiction to hear the dispute at bar. [ 26 ] Consequently, the Court does not have to rule on the amount of damages. However, the Court wishes to point out that, after hearing the evidence, if it had jurisdiction, the claim for damages would be dismissed. [ 27 ] The plaintiff was a co-owner with his mother and father at the time.

He could not institute proceedings for someone else. [ 28 ] First of all, the plaintiff had to provide preponderant evidence that he lived full time at the address where the disaster occurred, which he did not do. [ 29 ] He was unable to provide any official government documents to show that he was living at the address in question on a permanent basis. [ 30 ] The only documents that could have been relevant were submitted in 2017; these were notices of assessment and income tax returns filed retroactively by the plaintiff.

They are of no value, however, because they were filed [to tax authorities] in 2016, thereby establishing the address as of 2016. [ 31 ] The Court does not accept the plaintiff’s explanations as to the reasons why his driver’s licence indicates an address in Ontario. Under law, the plaintiff was required to change his address to one in Québec if he was residing in Québec.

According to his testimony, the defendant prefers to obtain all the advantages he can by indicating the addresses he chooses on his various documents. [ 32 ] The plaintiff’s testimony is far from conclusive with respect to his place of residence. [ 33 ] Regarding the claimed damages, to begin with, no evidence was provided as to the cause of the malfunction of the well. [ 34 ] In addition, the evidence shows that the well was between 70 and 100 years old, that it was used to supply water to at least eight homeowners, and that, according to the contracts, it did not belong to the plaintiff or his parents.

He had only a right of use. [ 35 ] The action should have been brought by the actual owner of the well, or at least have been reduced to reflect the proportional use of the well by each party. [ 36 ] In addition, even if the Court had accepted the liability of the defendant, which it in no way does, after applying depreciation for the normal service life of a 70- to 100- year-old well, the value of the damages would have been reduced to zero. THEREFORE, THE COURT: DISMISSES the application;

EACH PARTY paying their respective costs. __________________________________ PATSY BOUTHILLETTE J.C.Q. Hearing date: July 4, 2017