2018 QCCQ 2534, 2018 QCCQ 2534

Teixteira c. Fuentes 2018 QCCQ 2534 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-22-240699-176 DATE: April 16, 2018 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ ARMENIA TEIXTEIRA Plaintiff v.

CARLOS FUENTES Defendant ______________________________________________________________________ JUDGMENT ON Application for Revocation of judgment ______________________________________________________________________ [ 1 ] Defendant makes an Application for Revocation regarding a default judgment obtained by Plaintiff on October 30, 2017. [ 2 ] Plaintiff rendered legal services to Defendant. [ 3 ] At the time the default judgment was rendered, Defendant states that he was under the impression that the Court file of Plaintiff against him was still active and that, as a Defendant, he had filed the necessary procedures to contest Plaintiff’s proceedings. [ 4 ] The default judgment is for the amount of $57,999.63, in addition to interest, additional indemnity and legal costs. [ 5 ] Defendant states to the Court that he did not understand that a judgment had been rendered until he received, on February 16, 2018, a notice for examination after judgment and came down to the Courthouse to check the Court file on February 19, 2018. [ 6 ] It is to be noted that the notice of judgment from the Court was in French, a language that Defendant states that he does not understand or fully understand. [ 7 ] Defendant is not a jurist or an attorney.

Legal proceedings can be complicated and difficult to understand for such a person. [ 8 ] After a special mode of service was authorized, it was only effected on August 17, 2017. Defendant was outside the Province of Quebec at the time and worked in a remote area in Ontario without Internet service. It is understandable that Defendant only took cognizance of the e-mail of service 11 days later, on August 28, 2017. [ 9 ] Defendant then diligently tried to inform himself of his rights and how to contest Plaintiff’s legal proceeding.

On September 3, 2017, Defendant informed the Bailiff of his intention to contest by way of “procedure” (P-8). [ 10 ] On September 6, 2017, Defendant served his answer announcing his intention to contest and to “determine a protocol of the proceeding with the Plaintiff” (P-9). Unfortunately, Plaintiff had, one day earlier (September 5, 2017), filed an inscription for judgment

by default to answer. [ 11 ] In the Court’s view, in light of the testimony heard, Defendant’s allegations which are taken at this stage as being true, as well as the exhibits filed in support of Defendant’s Application for Revocation, there were valid grounds of Defendant not having knowledge of the originating Application when served initially. That justifies him not filing his answer within the prescribed deadline. [ 12 ] After Defendant served an answer to the proceeding, he was, actively and in good faith, trying to move the case forward.

On October 23, 2017, he did so by filing a Defence and a Cross-Application. [ 13 ] The default judgment was rendered on October 30, 2017 since Defendant did not make a judicial demand to be relieved of default to answer. Plaintiff did not advise Defendant that his answer was filed outside the delays and was contested. [ 14 ] On November 15, 2017, Defendant wrote to Plaintiff by e-mail (P-12) confirming that Defendant had contested the proceedings and had filed a Cross-Application.

Defendant asked Plaintiff to cooperate in the preparation of a joint case protocol. [ 15 ] The reply (R-1) of Plaintiff was confusing and misleading in the circumstances. [ 16 ] It stated that there was “no protocol” to be prepared “at this time”. Instead of stating clearly that a surprise default judgment had been obtained, despite Defendant having filed an answer, defence and contestation, the e-mail reply unhelpfully and confusingly stated that the “ball is in your court to do what is necessary”.

The reply did not state Defendant was required to immediately make a judicial demand to ask to set aside the default judgment if Defendant intended on asserting his rights. By this lack of clarity and transparency, Plaintiff added to the confusion of Defendant. [ 17 ] Furthermore, the e-mail reply R-1 was not sent by an attorney but by a paralegal employed at Plaintiff. This reduced the importance and significance accorded to it by the Defendant.

That was understandable also on the part of Defendant. [ 18 ] In the circumstances, it was unclear for a non-legally trained person that the “judgment” referred to in the e-mail reply was a judgment on the merits of the claim. It could well have been referring to an interlocutory or accessory judgment on a minor issue, similar to the judgment authorizing the service by special mode. The Defendant alleges and states that he did not understand when he received that e-mail that a judgment on the merits had been granted.

In the circumstances, the Court is of the view that that misunderstanding was understandable and legitimate for someone who did not understand or was not versed in the intricacies of the rules of civil procedure. [ 19 ] As stated, Defendant affirms by affidavit and testimony that he only learned of the judgment on the merits on February 19, 2018. On February 26, 2018, he served the present Application for Revocation of judgment. On that basis, the Application was notified and filed within the required deadlines. [ 20 ]

Article 2805 of the Civil Code of Quebec states that good faith is always presumed . [ 21 ] The allegations in support of Defendant’s Application for Revocation are taken as true at this stage, including when he became aware of the default judgment. Defendant’s testimony is consistent with those allegations. The Court believes Defendant neither understood nor knew that a default judgment was rendered before February 19, 2018.

All of his behaviour is consistent with that assertion. [ 22 ] The Court is troubled by the fact that Plaintiff insisted on proceeding by default when the Special Clerk advised Plaintiff of Defendant’s filing of an answer (September 6, 2017) when said filing was only one day after the filing of the inscription by default by Plaintiff (September 5, 2017). Plaintiff was well aware at the time (October 17-23, 2017) of Defendant’s intentions and measures taken to contest the proceedings. [ 23 ]

Article 20 of the Code of Civil Procedure (C.C.P.) requires the parties to cooperate and to keep one another informed at all

times in order to ensure a fair debate.

The respect of that duty may include, according to the circumstances, a pro-active obligation on the part of one party to inform an opposing party of an important fact or situation. [ 24 ] In order to be transparent, not misleading and favour a fair debate, Plaintiff should have scanned and attached the judgment rendered with the e-mail reply so Defendant could have understood the real facts and responded immediately. [ 25 ] It is not a question of Plaintiff giving Defendant legal advice but instead a question of not taking advantage of Defendant’s ignorance of the legal situation. [ 26 ] The reasons given in support of the Application for Revocation of Defendant are sufficient in accordance with

Article 348 C.C.P. The deadlines for the Application for Revocation have been respected. [ 27 ] Defendant should have his day in Court, as he has always demonstrated his intention to seek, and the matter should be referred to and decided by a judge on the merits. FOR THESE REASONS, THE COURT: STAYS the execution of the judgment of October 30, 2017; RESTORES the parties to their former state; ORDERS the parties to file a case protocol within 30 days of the present date; LEGAL COSTS TO FOLLOW in accordance with the judgment on the merits. __________________________________ Jeffrey Edwards, J.C.Q.

Me Mohammed Ali Sbai O’Hanlon Sanders Teixeira Attorneys for Plaintiff Mr. Carlos Fuentes Representing himself Date of hearing: April 16, 2018