2014 QCCQ 9143, 2014 QCCQ 9143

Fenton Benjamin c. Allan Memorial Institute 2014 QCCQ 9143 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-132386-121 DATE: August 11, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ FENTON BENJAMIN Plaintiff v.

ALLAN MEMORIAL INSTITUTE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff sues Defendant for items lost while he was a patient at Defendant as well as for alleged damages resulting from an incident which occurred at the Montreal Courthouse with respect to which Plaintiff states excessive force was exercised on his person by Defendant’s employees. [ 2 ] Despite being duly advised of the hearing, Defendant did not send a representative to the Court hearing in the present matter. [ 3 ] However, Defendant did file a defence stating that the Plaintiff was treated in accordance with the applicable rules, protocols and good and professional practice in the medical field. [ 4 ] Regarding the items of property lost, this occurred when Plaintiff was discharged from the hospital and were a watch and rechargeable batteries.

Plaintiff acknowledges that such items were returned to him after instituting the present legal proceedings. [ 5 ] As these items were returned to Plaintiff, he can no longer claim as damages the loss thereof. This part of Plaintiff’s claim will therefore be dismissed, without costs. [ 6 ] Regarding the incident at the Montreal Courthouse under the supervision of Defendant’s employees, Plaintiff first advised the Court that he was dropping or abandoning this claim. He afterwards changed his mind and requested to reinstate the claim.

Plaintiff states that his left arm was pulled with excessive force causing him to fall to the ground on his right shoulder from a shoulder height position where he was sitting at the time at the exterior of the Courthouse. He claims $500 for pain and suffering. Plaintiff states that he did not have any permanent injury but that his right shoulder was sore for approximately three (3) months. [ 7 ] At the time, Plaintiff was under psychiatric care at the Defendant hospital. He had been charged for assault by the Montreal police and his Court appearance coincided with his stay at the hospital.

Therefore, the hospital staff took Plaintiff down to the Court proceeding at the Courthouse and afterward brought him back to the hospital. Based upon the evidence heard, the Court is not convinced that excessive force was used by the staff of the Defendant. The Plaintiff has not discharged his burden of proof that Defendant’s staff acted in such a way that it constituted a civil fault giving rise to its civil liability. Therefore, that claim will also be dismissed.

[ 8 ] Given that no representative of Defendant appeared at the Court hearing, no costs will be granted to Defendant. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s motion; WITHOUT COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: July 30, 2014