2011 QCCQ 9914, 2011 QCCQ 9914

Nordic Development Corp. c. Alliance of Communities of South Asia 2011 QCCQ 9914 COUR DU QUÉBEC CANADA PROVINCE DE QUÉBEC DISTRICT DE MONTRÉAL « Chambre civile » N° : 500-22-181378-111 DATE : 6 septembre 2011 ______________________________________________________________________ SOUS LA PRÉSIDENCE DE L’HONORABLE MARIE MICHELLE LAVIGNE, J.C.Q. ______________________________________________________________________ NORDIC DEVELOPMENT CORP. Demanderesse c.

ALLIANCE OF COMMUNITIES OF SOUTH ASIA Défenderesse ______________________________________________________________________ JUDGEMENT on a Motion to revise the decision of the greffier spécial ordering the transfer of the file to the Small claim division ______________________________________________________________________ [ 1 ] The plaintiff, Nordic Development Corp. presents a «Motion of revision of the decision of the greffier adjoint (971 C.c.p.)» (sic ). [ 2 ] The decision to be revised orders the transfer of the file to the Small claims division of the Cour du Québec.

The decision to transfer the file was rendered by Me Martine Bouchard, greffier adjoint, on July 12, 2011. [ 3 ] The introductory motion, relating to this case, was filed on July 27, 2011 against Bashir Hussain and Abul Lais Sher, carrying on business under the name on Alliance of Communities of South Asia. Nordic Development Corp. is seeking the annulment of a lease and the condamnation of Defendants to pay the sum of $4 552,78 in rental arrears. [ 4 ] On June 30, 2011, the introductory motion was amended to replace Defendants, Bashir Hussain et Abul Lais Sher, with Alliance of Communities of South Asia.

This amended motion was served upon Alliance of Communities of South Asia on June 8, 2011 and was to be presented on July 13, 2011. [ 5 ] Alliance of communities of South Asia is an incoprated association with less than 5 employees. It asked for the transfer of the file to the Small claims division of the court.

On July 12, 2011, Martine Bouchard, greffier adjoint, ordered the transfer of the file to the Small claims court division. [ 6 ] As it stands today, the claim seeks a condamnation from Alliance of Communities of South Asia for an amount of $4 552,78, the annulment of the commercial leese entered into by the parties and, should Alliance of Communities of South Asia fail to pay said amounts, an order that it be forced to vacate the leased premises. [ 7 ] Plaintiff contests the decision to transfer the file to the Small claims division.

It submits that, although the amount claimed is less than $7000, the Small claims division does not have jurisdiction over a claim seeking the cancelation of a commercial lease and the expulsion of the lessee. [ 8 ]

Article 953 C.p.c. states : 953. The money claimed in an action involving a small claim, that is, (

a) a claim not exceeding $7,000, exclusive of interest,

(

b) for a debt owed to a person, partnership or association in the name of and for the account of that person, partnership or association, to a tutor, a curator or a mandatary in the execution of a mandate given in anticipation of the mandator's incapacity or to any other administrator of the property of another, may only be recovered before the courts pursuant to this Book. The same applies to any action which seeks the dissolution, resiliation or cancellation of a contract where neither the value of the contract or, where applicable, the amount claimed exceeds $7,000.

A legal person, partnership or association may, as creditor, avail itself of the provisions of this Book only if, at all times during the 12- month period preceding the application, not more than five persons bound to it by contract of employment were under its direction or control. 1971, c. 86, s. 1; 1975, c. 83, s. 57; 1977, c. 73, s. 36; 1982, c. 32, s. 53; 1984, c. 26, s. 23; 1984, c. 46, s. 7; 1992, c. 63, s. 1; 1992, c. 57, s. 412; 1999, c. 40, s. 56 ; 2002, c. 7, s. 178 ; 2002, c. 7, s. 148; 2002, c. 54, s. 5 . [ 9 ]

Section 955 C.p.c. also reads as follows : 955. Persons, partnerships or associations may not, even indirectly, divide a claim exceeding $7,000 into two or more claims that do not exceed that amount in order to avail themselves of this Book, on pain of dismissal of the action. However, this

article shall not operate to prevent the recovery of (

a) a claim voluntarily reduced by the plaintiff to $7,000 or less; (

b) a claim arising from a credit contract providing for repayment by instalments, or (

c) a claim arising from a contract involving the sequential performance of obligations such as a lease, a work contract, a disability insurance contract or the like. 1971, c. 86, s. 1; 1975, c. 83, s. 59; 1984, c. 26, s. 24; 1992, c. 57, s. 414; 1999, c. 40, s. 56 ; 2002, c. 6, s. 125 ; 2002, c. 7, s. 148 . [ 10 ] Where a claim only concerns the payment of rent in arrears of less than $7000, the Small claims division could, in certain circumstances, have jurisdiction.

However, in cases where the cancellation of a commercial lease is requested and an expulsion order is sought, the value of the contract is at stake. The cancellation of a commercial lease between the parties has a value exceeding $7 000. Therefore, the Small claims division does not have juridiction. FOR THESE REASONS, THE COURT : QUASHES the decision of the greffier adjoint ordering the transfer of the file to the Small claims division of this court ; THE WHOLE with costs to follow.

__________________________________ MARIE MICHELLE LAVIGNE, J.C.Q. Me Hershie Frankel Procureur de la demanderesse Bashir Hussain Pour la défenderesse Date d’audience : 9 août 2011