2015 QCCQ 14872, 2015 QCCQ 14872

Goikhberg c. Bernard 2015 QCCQ 14872 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147547-154 DATE: November 11, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ YAFIM GOIKHBERG Plaintiff v.

WILERNE BERNARD -and- SERGE LAMONTAGNE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Yafim Goikhberg sues two immigration attorneys, Wilerne Bernard and Serge Lamontagne, for alleged unpaid translation services rendered on their behalf between January 2005 and December 2009 [1] . [ 2 ] Mr. Goikhberg institutes his claim in the Small Claims Division of the Court of Quebec and accepts to reduce his claim to the monetary limit of $15,000.

The claim was instituted on June 8, 2015. [ 3 ] Me Bernard and Me Lamontagne deny the merits of the claim but make preliminary Motions to Dismiss on the basis that, in any event, the claim is inadmissible for reason of extinctive prescription (Articles 165 (4) and 976 (2) of the Code of Civil Procedure (“C.C.P.”) and

Article 2925 of the Civil Code of Quebec (“C.C.Q.”)). [ 4 ] Mr. Goikhberg states that he was held in detention after fraud charges relating to immigrants were laid against him and that, after conviction of those and other charges, he was then incarcerated in a Canadian prison. He states that this whole period of detention and incarceration took place between approximately January 2010 to February 2015, when he was released. [ 5 ] Mr. Goikhberg claims that during that period it was impossible for him to act in order to institute legal proceedings or appear in Court. Question in issue [ 6 ] As Mr.

Goikhberg was held in detention and incarcerated in Canadian detention facilities from January 2010 to February 2015, is this sufficient to constitute a legal impossibility to act in accordance with

Article 2904 of the Civil Code of Quebec (“C.C.Q.”), thereby suspending the running of prescription and preventing his claim from being prescribed?

Analysis and Decision [ 7 ] The normal procedural rules would have required Mr. Goikhberg as Plaintiff to allege in his proceedings that the circumstances of his detention and incarceration constituted a cause of impossibility in fact to act and suspended the applicable prescription period. Defendants argue that his omission to do so prevents him from invoking this ground to contest the Motions to Dismiss. [ 8 ] As the present matter is instituted in the Small Claims Division of the Court of Quebec, the Court considers it appropriate to take a more flexible approach. As such, the Court allowed Mr.

Goikhberg to invoke this ground of contestation to the Motions to Dismiss. [ 9 ] However, according to established jurisprudence, incarceration in a Canadian prison cannot constitute a cause of impossibility in fact to act for purposes of prescription [2] under the Civil Code of Quebec . [ 10 ] Quebec legal doctrine has expressed and confirmed the same rule. [ 11 ] Professors J.-L. Baudouin, P. Deslauriers and B.

Moore, in La responsabilité civile write as follows: “À l’inverse, la simple ignorance de l’étendue exacte du dommage qui peut être réclamé n’est pas une cause de suspension valable, ni la négligence du procureur d’inscrire une action en justice, pour la victime, sans autre allégation concernant son impossibilité d’agir.

En outre, l’emprisonnement, la faillite de la victime ne suspend pas la prescription au motif qu’elle était dans l’impossibilité en fait d’agir. ” [3] [Emphasis added, references omitted] [ 12 ] Professor Edith Lambert expressed the same view in the following terms: “De même, les tribunaux ont décidé qu’il n’y avait pas impossibilité en fait d’agir au sens de l’

article 2904 C.c.Q. dans les cas suivants : … - incarcération du demandeur, sous réserve de circonstances exceptionnelles.” [4] [ 13 ] Therefore, it is only in extreme circumstances of incarceration in a foreign jurisdiction, where basic human and civil rights cannot be exercised, that Quebec Courts will consider that circumstances may constitute an impossibility in fact to act in accordance with

Article 2904 C.C.Q. [ 14 ] Furthermore, apart from the physical impossibility to have access to attorneys to prepare and represent the rights of a litigant in Court, the Courts also require a mental state that the litigant was unable to act and objectively feared exercising his rights [5] . [ 15 ] According to Mr. Goikhberg’s testimony, he was in constant contact with his attorneys throughout his criminal trial. There was

no reason why he could not have retained the same or other attorneys to exercise his rights for a civil cause of action at that time. [ 16 ] Furthermore, after he was convicted, Mr. Goikhberg continued to exercise his rights to consult with attorneys and take motions regarding his efforts, ultimately unsuccessful to date, to contest and appeal his criminal conviction. [ 17 ] Mr. Goikhberg stated that he brought up with one of his attorneys his request to sue defendants while he was incarcerated and that that attorney advised him to wait until he was released to do so.

If that did occur, that was faulty advice and obviously inconsistent with the course of action pursued by Mr. Goikhberg and his attorneys to exercise his rights with respect first to the contestation of the charges laid against him and then second with respect to the crimes of which he was found guilty. [ 18 ] There is no doubt that the incarceration of Mr. Goikhberg made it more difficult for him to exercise and pursue in Court any civil claim including one against the Defendants. He would have been required to authorize his attorneys to issue proceedings.

He would have to have obtained authorization from the prison warden to appear for a Court date. However, he did not do these things or prove to the Court that he had tried to take these steps in order to attempt to exercise his rights to institute legal proceedings. [ 19 ] But the relevant criterion which must be satisfied under the rule of

Article 2104 C.C.Q. is one of impossibility in fact to act, not one of a level of difficulty to act which is higher than the normal and standard level for the exercise of civil rights. [ 20 ] In the circumstances, Mr. Goikhberg has not proven to the Court that he was either unable from a mental and psychological standpoint or from a representation and logistic standpoint from exercising his civil rights to institute legal proceedings during his detention and incarceration. Accordingly, he has not established that his circumstances of detention and incarceration in a Canadian prison constituted an impossibility in fact to act within the meaning of

Article 2104 C.C.Q. [ 21 ] In these circumstances, under

Article 2925 C.C.Q., his legal claim for alleged unpaid translation services was required to be instituted within three years from the time the services were rendered, namely between January 2008 and December 2012. [ 22 ] As Mr. Goikhberg’s legal proceeding was instituted only in June 2015, his claims against both Defendants are prescribed. FOR THESE REASONS, THE COURT: GRANTS Wilerne Bernard’s Motion to Dismiss; GRANTS Serge Lamontagne’s Motion to Dismiss; DISMISSES Yafim Goikhberg’s Motion to Institute Proceedings; WITH COSTS in favour of Wilerne Bernard and Serge Lamontagne. __________________________________ Jeffrey Edwards, J.C.Q.

Mr. Yafim Goikhberg Plaintiff Representing himself Me Wilerne Bernard Defendant Representing herself Me Serge Lamontagne Defendant Representing himself Date of hearing: August 28, 2015