2014 QCCQ 4871, 2014 QCCQ 4871

Lothian c. Association Versant Côte d'Azur 2014 QCCQ 4871 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-021072-134 DATE: June 4, 2014 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN, J.C.Q. ______________________________________________________________________ SANDRA LOTHIAN , […], Gatineau (Québec) […] Applicant v.

ASSOCIATON VERSANT CÔTE D'AZUR , 46 de Beausoleil, Gatineau (Québec) J8T 7H5 and LARRY THÉRIAULT , […], Gatineau (Québec) […] and JACQUES NOËL , […], Gatineau (Québec) […] Defendants ______________________________________________________________________ JUDGMENT ( RENDERED ORALLY AND EDITED ) ______________________________________________________________________ [ 1 ] The Court will deliver its judgment based on the one ground of the contestation of the defendants, regarding the prescription of the claim of the plaintiff. [ 2 ] Mrs Lothian pursues the defendants, Association Versant Côte d'Azur, MM.

Larry Thériault and Jacques Noël, based on contractual and non-contractual fault originated from the wrong

interpretation of a servitude concerning the definition of a pre-built house « maison pré-usinée ». [ 3 ] The facts start on October 14, 2009, with the service of a main letter from the defendant Association Versant Côte d'Azur asking Mrs Lothian to stop to build a house on a lot that she purchased on 183 St-Vallier Street, Gatineau. She wants to build a house purchased from Modulex Outaouais. According to the Association, the house was a pre-built house « maison pré-usinée » and according to Mrs Lothian it was not the case because only the walls were pre-built.

And after that, she decided to ask Modulex to build the walls on the site and that increased the cost of the building and postponed the end of the work. [ 4 ] She reduced her claim to the amount of $7,000 in damages (the maximum of this Court's jurisdiction for small claims). [ 5 ] The demand was issued on April 24, 2013, more than three years after the main letter dated October 14, 2009. [ 6 ] To justify her impossibility to act, Mrs Lothian testifies and also, her husband, Mr.

Alexanian, about the incapacity to issue the claim because Mrs Lothian had multiple sclerosis and was diagnosed in 2004; in December 2009, her husband, Mr. Alexanian, fell at home, had multiple fractures and was unable to help her for a certain period of time; also, her father was sick. She took care of him and he died; and finally, she had to take care of her mother who is suffering of dementia. [ 7 ]

Section 2925 the Civil Code of Québec , states that: 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established. [ 8 ] It is a kind of claim, which involves personal right or movable right. [ 9 ] Moreover,

Section 2904 C.c.Q. applies and it reads as follows:

2904 . Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others. [ 10 ] Also, it is on the shoulders of the person, who invokes the impossibility to act personally or by others, to demonstrate it, according to the balance of probabilities. That means the burden of proof is on the applicant's shoulders. [ 11 ] It exists cases rendered in the same matter. The case Catudal c. Borduas [1] , from the Court of Appeal states that « L'ignorance des règles de prescription ne constitue pas une impossibilité d'agir ».

This means that even if an applicant does not know the law or the rule of the three years prescription, it is not a ground to demonstrate the impossibility to act. [ 12 ] Also, in R emer c. Remer [2] and Nadeau c. Nadeau [3] two cases from the Court of Appeal, it is stated that: « Il ne peut y avoir impossibilité d'agir au sens de la présente disposition que si un véritable obstacle empêche l'action » . [ 13 ] In the case of Olivier c. Canada (Procureur général) [4] , also from the Court of Appeal, « l'impossibilité psychologique d'agir doit être appuyée par une preuve d'expert ».

It means that you had demonstrated that you have a physical impossibility or a psychological impossibility by an expert during the three years to act. [ 14 ] The Court understands that during that period, you and your husband had sickness, injuries and death in your family, but it was for a certain period of time and not all the period of three years. The Court concludes that the Applicant did not demonstrate, according to the balance of probability, that she was in the impossibility in fact to act by herself or to be represented by others.

FOR THOSE GROUNDS, THE COURT: ACCEPTS the contestation based on the prescription that you issued your action after the delay of prescription of the three years and that you did not demonstrate that you were in the impossibility to act during that period; REJECTS THE ACTION with judiciary fees, in the amounts of $204 for the Defendant Association Versant Côte d'Azur and $156 for each of the other defendants. Thériault and Noël. __________________________________ Serge LAURIN, J.C.Q. Date of hearing: May 20, 2014