2011 QCCQ 8253, 2011 QCCQ 8253

Gottsegen c. Atelier A Bellavance inc. 2011 QCCQ 8253COURT OF QUEBEC CANADAPROVINCE OF QUEBECDISTRICT OF ST-FRANÇOISTOWN OF SHERBROOKECivil divisionNo: 450-22-009538-118 DATE: July 21, 2011______________________________________________________________________ BYTHE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ ROBERT GOTTSEGENPlaintiffv.ATELIER A.

BELLAVANCE INC.Defendant ______________________________________________________________________ JUDGMENT______________________________________________________________________ [1] The Court is seized with a Motion to dismiss the action of the plaintiff, presented by the defendant, Atelier A. BellavanceInc. [2] In the Motion, the defendant is submitting that the action against him should be dismissed since the company is sued foractions that took place around 1994, when Atelier A. Bellavance Inc. was only constituted in 2004.

Not being in existence clearlyrenders impossible that the claim against the defendant could be granted. [3] It should be noted that the plaintiff is not represented. [4] During the course of the discussion in Court regarding the defendant's Motion, the plaintiff expressed his desire to amend hisproceedings to add, as a defendant, Alan Bellavance, the president of the defendant, as well as the architect with whom he dealt in 1994. The defendant opposes that amendment. [5] There is wide support in the jurisprudence to allow this kind of amendment (Remax du Mont-Royal Inc. c.

Botnick Gellis2005 QCCA 961 , JE 2005-1968, Dorval c. Lakeshore Villa (QC CA), 1994 RDJ 53, Ladouceur c. Howarth (SCC), 1974 RCS 111, Boily c. Poulin (QC CA), 1984 RDJ 232, Larouche c. Lamothe JE 95-1752,Archambault c. Tellier (QC CA), 1990 RDJ 106, Dupuis c. Rosa 1955 BR 413, Promutuel Lévisienne-Orléans c. St-Romuald AE/PC 2003-2643, Cournoyer c. Hydro-Québec 1981 RP 272, Gagnon c. Tremblay 1979 CS 250, Succession de Perreault c.Lavoie AE/PC 2003-2124).

Therefore, the Court will allow the amendment, however, will order the plaintiff to produce a properlyamended motion to institute proceedings. [6] Allowing the amendment could render the defendant's motion to dismiss obsolete. But does it? [7] The company remains a party to the action but was not in existence in 1994.

The argument of the plaintiff, to claim that the corporate body should remain a party to the action, is derived from the following passage of a letter dated April 12th 2010, on which thename of the company appears: During the design process, we complied with our client's wishes and requests and insured that the house, which we designed, met allthe pertinent municipal bylaws and regulations, which applied to the site. Mr. and Mrs. Gottsegen were valued clients and their requests were treated with utmost diligence and attention. In spirit ofcooperation, I would be happy to meet with Mr. Et Mrs.

Gottsegen to discuss your request further. [8] Although doubtful, maybe a valid argument could be made by which the corporate body has accepted to assume the formerobligations of the architect firm that realized the plan of the plaintiff's house. [9] For that reason, the Court will dismiss the motion. [10] Finally, on a provisional basis, the Court extended the peremptory time limit of 180 days for inscription for proof and hearinguntil the present judgment. It is now time to give the parties a new time limit.

[ 11 ] Considering the fact that the motion to institute proceedings was served in January 2011, but that the file shows very little progress in it so far, an additional delay of 4 month is granted from the judgment. [ 12 ] Within 30 days, the parties shall file a new agreement as to a proceedings timetable and abide by it. [ 13 ] In the event any difficulties would arise, the parties shall file an appropriate motion as soon as possible in order to resolve any such difficulties. [ 14 ] The plaintiff chose not to by represented by an attorney.

It is his right, but this fact likely caused unnecessary proceedings and possibly delays. Although, in the end, the defendant's motion is dismissed, the Court cost should be awarded to the defendant, as if the motion would have been granted.

FOR THESE REASONS, THE COURT : [ 15 ] DISMISS the defendant's motion. [ 16 ] GRANT the verbal motion of the plaintiff to add Alan Bellavance as defendant. [ 17 ] ORDER the plaintiff to file an appropriate amended motion to institute proceedings accordingly within 30 days of this judgment. [ 18 ] EXTEND the time limit to produce the inscription for proof and hearing by 4 months from this judgment. [ 19 ] ORDER the parties to produce a new timetable within 30 days of the judgment. [ 20 ] THE WHOLE WITH COSTS AGAINST THE PLAINTIFF . __________________________________ Serge Champoux, J.C.Q.

Date of hearing: July 19 th , 2011