2011 QCCQ 10481, 2011 QCCQ 10481

Ryshpan c. Tarhini 2011 QCCQ 10481 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-02-180814-118 DATE: September 21, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ MICHAEL RYSHPAN et. CHERYL RYSHPAN Plaintiffs -c- ALI TARHINI Defendant et.

SPIEGEL SOHMER Garnishee ______________________________________________________________________ RECTIFIED JUDGMENT ON MOTION IN OPPOSITION TO SEIZURE ______________________________________________________________________ [ 1 ] By virtue of a ''motion in opposition to seizure'', Plaintiffs, Michael Ryshpan and Cheryl Ryshpan, demand that this Court order the stay of execution of the writs of seizure by garnishment after judgment issued at the request of Defendant, Ali Tarhini.

Furthermore, by virtue of the said motion, Plaintiffs demand that this Court quash the said writs of seizure. [ 2 ] In support of their motion, Plaintiffs allege the following: « 1. The Plaintiffs/Cross-Defendants and the Defendant/Cross-Plaintiff filed their Applications before the Régie de logement on May 20, 2008 and June 27, 2008 respectively; (…) 3. The Applications were joined and heard together over six days before Me Claudine Novello; 4. The Decision awarded the Plaintiffs/Cross-Defendants $3,000.00 plus interest and an additional indemnity pursuant to

Article 1619 C.C.Q. and costs of $70. The Decision awarded the Defendant/Cross-Plaintiff $6,350 plus interest and an additional indemnity pursuant to

Article 1619 C.C.Q. and costs of $70; 5. The Plaintiffs/Cross-Defendants advised Me Sirhan, attorney for the Defendant/Cross-Plaintiff in July of their intention to apply for a WRIT OF EVOCATION of the Decision on serious grounds; (…) 9. On August 18 th , 2011 the Plaintiffs/Cross-Defendants were served by Bailiff with TWO WRITS OF SEIZURE, Exhibit P-4; 10. The Writ of Seizure received on August 18 th , 2011 divides the amounts owed to Me Sirhan' client without effecting

compensation of the amounts awarded to the Plaintiffs/Cross-Defendants; 11.

The costs claimed in the two Writs of Seizure are wrong; (…). » [ 3 ] Regarding the request by Plaintiffs that the execution of the writs of seizure by garnishment be stayed until the final decision on the motion for judicial review before the Superior Court, Plaintiff, Michael Ryshpan, acknowledges that the said motion for judicial review of the decision rendered by the Régie du Logement has not yet been issued and served upon Defendant. [ 4 ] This in itself is sufficient reason to dismiss Plaintiffs request for (…) stay of execution. [ 5 ] Furthermore, even if the said motion for judicial review had been issued and served upon Defendant, pursuant to

article 834.1 C.p.c., the request for stay of execution must be filed before the Superior Court. [ 6 ] However, this being said, in view of the fact that the writs of execution involved in this case are writs of seizure by garnishment after judgment, pursuant to article 599 (1) C.p.c. the service of the motion to oppose does not stay the execution but suspends only the distribution of the sums seized. [ 7 ] Regarding Plaintiffs request to quash the writs of seizure by garnishment after judgment, the said request is based on two allegations namely those contained in paragraphs 10 and 11 of the motion which, as mentioned previously, read as follows: « 10.

The Writ of Seizure received on August 18 th , 2011 divides the amounts owed to Me Sirhan' client without effecting compensation of the amounts awarded to the Plaintiffs/Cross-Defendants; 11. The costs claimed in the two Writs of Seizure are wrong. » [ 8 ] In the present matter, by the decision of the Régie du Logement rendered on May 13, 2011, Defendant was condemned to pay to Plaintiffs the sum of $3,000.00 with interest at the legal rate plus the additional indemnity provided for by

article 1619 of C.C.Q. plus the judicial costs in the amount of $70.00. In the same decision, the Régie du Logement condemned Plaintiffs to pay to Defendant the sum of $6,350.00 with interest at the legal rate plus the additional indemnity provided for by

article 1619 of C.C.Q. plus the judicial costs in the amount of $70.00. [ 9 ] Considering that the obligation of the Plaintiffs towards Defendant is joint ($6,350.00 in capital plus interests, additional indemnity and costs), they may only be compelled by Defendant to perform the obligation separately and only up to their respective share of the debt.

Furthermore, as the obligation of Defendant towards Plaintiffs ($3,000.00 plus interest, additional indemnity and costs) is also joint, they can only exact the performance of their respective share of the obligation from Defendant, their common debtor. [1] [ 10 ] The writs of seizure by garnishment after judgment issued at the request of Defendant on August 18, 2011 are each for an amount of $3,175.00 plus interests, additional indemnity and costs. [ 11 ] It appears from the contents of the said writs that Defendant did not operate compensation with the amounts that he owes to each of the Plaintiffs pursuant to the decision of the Régie du Logement inasmuch as the writs do not mention any ''amount paid'' by them to him on this basis. [ 12 ] In this regard, articles 1672 and 1673 C.C.Q. reads as follows: « 1672.

Where two persons are reciprocally debtor and creditor of each other, the debts for which they are liable are extinguished by compensation, up to the amount of the lesser debt. Compensation may not be claimed from the State, but the State may claim it. 1673. Compensation is effected by operation of law upon the coexistence of debts that are certain, liquid and exigible and the object of both of which is a sum of money or a certain quantity of fungible property identical in kind.

A person may apply for judicial liquidation of a debt in order to set it up for compensation. » [ 13 ] Consequently, it is manifest that there is an irregularity in the writs of seizure by garnishment after judgment issued on August 18, 2011 and more particularly, as concerns the amount of the balance owed to the Defendant by each Plaintiff. [ 14 ] Article 596 (1) C.p.c. reads as follows: « 596 .

The debtor may by opposition demand the nullity in whole or in part of a seizure in execution: (1) on the ground of an irregularity in the seizure, which causes him a serious prejudice, saving the power of the court to authorize the seizing creditor to remedy the irregularity, if possible. » [ 15 ] As permitted by article 596(1) C.p.c., the Court deems it appropriate, in the circumstances, to authorize Defendant to remedy the irregularity in the writs by issuing and serving amended writs of seizure by garnishment after judgment which must indicate precisely the amounts owed by each Plaintiff in capital, interest, additional indemnity and costs after compensation in conformity with the conclusions of the decision rendered the Régie du Logement on May 13, 2011.

The amended writs of seizure by garnishment after judgment are to be issued and served within a delay of fifteen (15) days from the date of this judgment. FOR THE FOREGOING REASONS, THE COURT:

DECLARES that the writs of seizure by garnishment after judgment issued on August 18, 2011, contain an irregularity. AUTHORIZES Defendant to issue and serve amended writs of seizure by garnishment after judgment to remedy the irregularity within a delay of fifteen (15) days from the date of this judgment.

DECLARES that the amended writs of seizure by garnishment after judgment to be issued and served must indicate precisely the amounts owed by each Plaintiff to Defendant in capital, interest, additional indemnity and costs after compensation in conformity with the conclusions of the decision rendered the Régie du Logement on May 13, 2011.

IF DEFENDANT fails to act in accordance with the terms of the present judgment within the specified delay, the Court DECLARES that the writs of seizure by garnishment after judgment issued on August 18, 2011, will, ipso facto , become null and void and the seizure made pursuant to these writs quashed. THE WHOLE , without costs. ________________________________ ARMANDO AZNAR, J.Q.C. Mr. Michael Ryshpan Plaintiff (personally) Mrs. Cheryl Ryshpan Plaintiff (absent) Me Daniel K. Sirhan Attorney for Defendant Date of hearing: September 1, 2011.