2023 QCCQ 2917, 2023 QCCQ 2917

Rokonuzzaman c. O'Donnell 2023 QCCQ 2917 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-712992-207 DATE: May 8, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ MOHAMMAD ROKONUZZAMAN Plaintiff/Cross-Defendant v.

ANNE O’DONNELL Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, in damages, for $11,555,00.

THE FACTS [ 2 ] Plaintiff had a long-standing lease with one Olivier Rousseau, from 2014 to 2019 (lease, exhibit P-7). [ 3 ] On December 24, 2018, Rousseau’s dwelling sustained major water damage due to a pipe which burst in the dwelling above his. [ 4 ] As a result of this occurrence, a judicial saga ensued. [ 5 ] On September 19, 2019, the Régie Du Logement rendered a decision canceling the lease and condemning plaintiff to pay Rousseau damages in the amount of $1,774.93 (decision, exhibit D-3). [1] [ 6 ] Plaintiff asked for a revocation of this judgment, which was denied on February 28, 2020.

A lengthy decision was rendered in this regard (decision, exhibit D-3). [ 7 ] Plaintiff then asked for a revocation of this judgment, and lost again (decision rendered by Judge Luk Dufort, on October 30, 2020, exhibit D-3). [ 8 ] Refusing to accept the Tribunal’s decision, plaintiff unbelievably filed a third application for revocation of judgment, which was denied once again (decision rendered by Judge Marie-Ève Marcil, on January 19, 2021, exhibit D-3). [ 9 ] Unable to accept reality, plaintiff filed another lawsuit, in damages, against Rousseau, this time for $3,679.20 plus $1,440.00.

On July 6, 2021, Judge Luce De Palma partially granted plaintiff’s demand, and awarded him $500.00. However, in her judgment, she stated, inter alia , as follows: [52] De toute évidence, le locateur cherchait ainsi à contrer les dommages octroyés au locataire à cet égard.

Cette affaire est maintenant définitivement close et le locateur ne peut, encore là, espérer récupérer cette somme en tentant de démontrer que ce logement était exempt de moisissure au départ du locataire. (judgment, exhibit D-3) [ 10 ] In the midst of the above proceedings, namely on September 17, 2020, plaintiff filed the lawsuit at bar, against defendant. The following paragraphs of his claim are telling: 1. The Plaintiff is suing the Defendant for the following reasons: The defendant is responsible for the damages caused by drawing up an erroneous report.

The address of the inspected building is incorrectly indicated and the report states that dogs were used for inspection, which is not according to reality. 2. The facts occurred on or around January 21,2019, at Montréal (Quebec). 3. The amount of the claim is $11,555.00. 4.

The total amount claimed by the Plaintiff is broken down as follows: 2118,49$ - jugement decision, 234,00$ case against Oliver Rousseau (the tenant), hearing at the court 368,00$(Regie du logement - 23$ * 16 working hours of the defendant), rent for 2 months (1 140,00$), house damages Oliver Rousseau 3 679,20$, renovation 800,00$, legal fees 1 200$, other 2 000$, mail 15,31$.

5. The Plaintiff makes the following clarifications to the facts set out above: The defendant caused me damage by incorrectly drawing up an inspection report on a building belonging to me, located at [...], Montréal, Québec, [...]. The defendant's report is wrongly drawn up and damages me in the dispute I have with the tenants of the building at Regie du logement. The tenants left the building causing me a loss of income. The defendant's report is contradicted by another report made by BioVac System Inc. in july 03, 2020, a report ordered and paid for by the plaintiff.

The conclusions of this last report state that there is no mold in the apartment, especially since the apartment is new. The plaintiff carried out additional work on the interior (in June 2019) for various repairs required after the tenants left the apartment. All these repairs were due to the tenants and as can be seen do not indicate the existence of the so-called mold invoked by the tenants. […] [ 11 ] The Court must now decide upon the merits of said proceedings. ANALYSIS AND CONCLUSIONS APPLICATION [ 12 ] Plaintiff has absolutely no contractual relation with defendant.

Defendant, who is an expert in industrial hygiene, acted as Rousseau’s expert, for the purposes of his claim against plaintiff before the Régie du Logement . [ 13 ] Accordingly, plaintiff’s only possible recourse against defendant herein, must be based on extracontractual liability under s. 1457 of the Civil Code of Quebec , which reads as follows: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [ 14 ] Plaintiff presented no evidence whatsoever, proving that defendant did not abide by the rules of conduct incumbent on her. [ 15 ] The fact that defendant admittedly made a “copy-paste error”, in her report, which was later corrected, does not constitute any such fault or omission vis-à-vis plaintiff. [ 16 ] Furthermore, the fact that plaintiff hired another expert, who came to different conclusions a year and a half after the fact (report, exhibit P-4), is of no relevance to the present matter. [ 17 ] By suing defendant, plaintiff is merely trying to recuperate the monies he was ordered to pay Rousseau, in the above judgments.

This is not only wrong, it is abusive, as the application is clearly unfounded, frivolous, excessive and unreasonable ( s. 51 of the Civil Code of Procedure).

Plaintiff, indeed, has all of the hallmark characteristics that make of him a quarrelsome litigator. [ 18 ] In fact, here is what Judge Marcil wrote in her decision dated January 19, 2021: [20] Le locataire mentionne que le locateur en est à sa troisième demande de rétractation et que celui-ci dépose une rétractation dès qu’il tente d’exécuter, par huissier, le jugement rendu en septembre 2019. [21] En l’espèce, il apparaît clair pour le Tribunal, selon les propos tenus par le locateur à l’audience, que le locateur continuera de produire des demandes en rétractation car il se dit en désaccord avec la décision rendu en septembre 2019 et se dit frustré par celle-ci. [22] Ainsi, dans ce contexte, le Tribunal considère qu’il est opportun que le demandeur ait à justifier la recevabilité d’une éventuelle demande de rétractation.

En effet, il apparaît flagrant que le demandeur utilise de façon abusive le présent recours dans le but d’empêcher l’exécution de la décision rendue en septembre 2019. [ 19 ] The Court heard plaintiff on this topic, and he had nothing of value to argue in this regard. [ 20 ] Accordingly, the Court prohibits plaintiff from instituting another judicial application relating to this matter, except with the authorization of and subject to the conditions determined by the chief justice, in virtue of s. 55 C.P.C.

CROSS-APPLICATION [ 21 ] At trial, defendant declared that she wished to amend her contestation with a view to present a cross-application in damages, against plaintiff, that which the Court allowed. [ 22 ] Defendant stated that, as a result of plaintiff’s abusive claim and behaviour, she sustained stress, emotional distress, trouble, inconvenience and loss of time, which she then credibly proved, according to a preponderance of evidence ( s. 2803 et 2804 of the Civil Code of Quebec ). [ 23 ] Defendant is claiming damages in the amount of $3,229.00, from plaintiff, which damages are outlined in Table, exhibit D-4. [ 24 ] Given the abusive nature of plaintiff’s claim and behaviour (including harassing phone calls), the Court grants defendant the sum of $1,000.00, plus the legal costs incurred, as reparation for the injury she sustained.

WHEREFORE THE COURT HEREBY:

DISMISSES Mohammad Rokonuzzaman 's application; GRANTS Anne O’Donnell’s cross-application in part; CONDEMNS Mohammad Rokonuzzaman to pay Anne O’Donnell the sum of $1,000.00, plus $432.00 representing the legal costs incurred for the contestation and the cross-application; PROHIBITS plaintiff from presenting a pleading or instituting further judicial applications relating to this matter, except with the authorization of and subject to the conditions determined by the chief justice. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: April 4, 2023