2015 QCCQ 2680, 2015 QCCQ 2680

Hubmar international inc. c. Sabbah 2015 QCCQ 2680 COURT OF QUEBEC (Practice division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-197543-120 DATE: March 20, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ HUBMAR INTERNATIONAL INC. Plaintiff vs. DAVID SABBAH and BORIS KRANCBERG and 9201-4984 QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT on a Motion to Reopen the Hearing (Art. 465 CCP) ______________________________________________________________________ The proceedings [ 1 ] The Plaintiff, Hubmar International Inc. (" Hubmar "), a manufacturer of diffusers of essential oil vaporisers and aromatherapy accessories, sues the Defendants, David Sabbah, Boris Krancberg and 9201-4984 Québec Inc. (" Québec Inc.

"), for a reimbursement of $ 7,323.41, representing the purchase price of computer and lab equipment and software sold by Québec Inc. to the Plaintiff, for damages of $ 2,000 representing loss time and additional expenses, as well as $ 2,500 for extrajudicial legal fees. [ 2 ] The conclusions of the action also pray act of Plaintiff’s tender to the Defendants of the equipment in question, consisting chiefly of a computer work station and monitor, and some electronic laboratory equipment. [ 3 ] Because of the nature of the allegations and the inclusion of the tender, the Introductory Motion should be considered to be an action in resolution of a contract of sale in which the two individuals associated with the seller are being treated as being solidarily liable to restitute the purchase price as well as an action in damages against the Defendants solidarily. [ 4 ] In their defence, the Defendants deny there is any ground for the reimbursement of the price of the equipment, deny any fault on their part, and contest the claim for reimbursement of extrajudicial costs. [ 5 ] In the most recent version of the Amended Defence, the Defendants claim payment of one week of unpaid salary in the amount of $ 198.

This is in fact a claim by the Defendant David Sabbah only. [ 6 ] There is also a solidary claim for a condemnation of $ 4,000 described in the Amended Defence as extrajudicial legal fees incurred as a result of the Plaintiff’s action, a proceeding without legal foundation. [ 7 ] The underlying situation that serves as a backdrop to these claims was a relationship between David Sabbah personally and the Plaintiff, whereby Mr Sabbah was engaged to provide certain design services in relation to the Plaintiff’s product.

The services related to the development of new electronic circuits for use in one of the Plaintiff’s aromatherapy diffusers to meet certain production objectives and to respond to certain safety concerns. [ 8 ] The allegation is that David Sabbah and Boris Krancberg made certain representations concerning the capacity of Québec Inc. to provide the appropriate hardware and software, and that in reliance on these representations, the Plaintiff agreed to purchase from

Québec Inc., the computer hardware, software, and other elements of the sale, that were to be used as design tools by Mr Sabbah to carry out the work. [ 9 ] The other essential line of allegations is that Mr Sabbah misrepresented himself as having the necessary qualifications and skills required for the design project. [ 10 ] Plaintiff’s allegation is that Mr Sabbah was not qualified to do the intended work, that he misrepresented himself as being an engineer, when, as it turns out, he is not a member of the Order of Engineers of Quebec, and, that as a matter of fact, he did not carry out any meaningful work at the time when he was in the Plaintiff’s employ. [ 11 ] Finally, The Plaintiff asserts that, despite the Defendant’s representations, Québec Inc. did not include in the sale the necessary software licences to run the applications that would be useful in the engineering design work. [ 12 ] The combined effect of these allegations is to assert that the Plaintiff is entitled to remit the equipment purchased and to be reimbursed the sale price, not only by the vendor, Québec Inc., but also by the two individual Defendants who participated in the representations.

The Motion to reopen the hearing. [ 13 ] After the case was taken under advisement, the Plaintiff brought a Motion to reopen the hearing. The essential allegation of this motion is that Mr Sabbah, during his cross-examination, failed to disclose that at the relevant time, he had been found guilty by the Court of Quebec, Criminal and Penal Division, of two distinct counts of infraction of article 22(2) of the Engineers Act, CQLR c. I-9 and

article 32 of the Professional Code, CQLR c. C-26 . [ 14 ] The operative text drawn from the Engineers Act reads as follows: DIVISION V PENAL PROVISIONS 1992, c. 61, s. 345. Illegal practice. Penalty. 22. Any person not a member in good standing of the Order who: […] (2) assumes the title of engineer alone or qualified, or makes use of any abbreviation of such title, or of any name, title or designation which might lead to the belief that he is an engineer or a member of the Order. [ 15 ] This must be read in conjunction with

article 32 of the Professional Code : 32.

No person shall claim in any manner to be an advocate, notary, physician, dentist, pharmacist, optometrist, veterinary surgeon, agrologist, architect, engineer, land-surveyor, forest engineer, chemist, medical imaging technologist, radiation oncology technologist or medical electrophysiology technologist, denturologist, dispensing optician, chiropractor, hearing-aid acoustician, podiatrist, nurse, acupuncturist, bailiff, midwife, geologist or chartered professional accountant, or use one of the above titles or any other title or abbreviation which may lead to the belief that he is one, or initials which may lead to the belief that he is one, or engage in a professional activity reserved to the members of a professional order, claim to have the right to do so or act in such a way as to lead to the belief that he is authorized to do so, unless he holds a valid, appropriate permit and is entered on the roll of the order empowered to issue the permit, unless it is allowed by law.

The prohibition relating to the use of any titles, abbreviations or initials mentioned in the first paragraph or in

an Act constituting a professional order extends to the use of such titles, abbreviations and initials in a feminine form. [ 16 ] The Motion asserts that the admission of these judgments as evidence could have a determining influence upon the decision to be rendered by the Court on the merits and that the Plaintiff could not reasonably have known of this evidence at the time of the trial, among other reasons, because of the Defendant’s lack of candour. [ 17 ] Subsidiarily, the Plaintiff submits that the Court may take judicial notice of the judgment in the Criminal and Penal Division, even if it does not reopen the hearing. [ 18 ] The Defendants contest the Motion and a hearing took place at which the Plaintiff’s principal, Joseph Behamor, testified on issues relating to his knowledge of the evidence in question. [ 19 ] In order to be able to resolve the issues raised in this motion, it is useful to take a closer look at the issues joined.

[ 20 ] The Defendants make a very precise allegation in the re-amended Defence and Cross-demand of June 16, 2013 that " […] David Sabbah never represented himself as a member of the Ordre des ingénieurs du Québec […]” and that […] the Plaintiff’s representative filed an unjustified complaint to the Ordre des ingénieurs du Québec". [ 21 ] Thus, the positions of the parties are as follows: the Plaintiff alleges that Mr Sabbah held himself out as an engineer, that he is not and that a complaint to the Ordre des ingénieurs du Québec has been initiated while the Defendants assert that he never made such an assertion and the complaint is therefore unjustified. [ 22 ] One rather significant part of this evidence on issue of a business card (P-9) where Mr Sabbah present himself as: David Sabbah, ECET Design Engineer SQ. […] Montréal, Qc […] [ 23 ] The

Avis de jugement that is now in issue in the Motion relates to two counts on which Mr Sabbah pleaded guilty : • Le ou vers 8 décembre 2011, au 5875 Cavendish à Montréal, sans être membre en règle de l’Ordre des ingénieurs du Québec, a pris le

titre d’ingénieur en faisant suivre son nom du

titre « Design Engineer » sur une carte professionnelle, commettant ainsi l’infraction décrite à l’ article 22(2) de la Loi sur les ingénieurs (L.R.Q. c. I-19) et à l’

article 32 du Code des professions (L.R.Q. c. C-26) se rendant passible des sanctions prévues à l’

article 188 du Code des professions. • Le ou vers 24 janvier 2012, à Montréal, sans être membre en règle de l’Ordre des ingénieurs du Québec, a pris le

titre « Electronic Design Engineer » dans un courriel adressé à Madame Maria A. Correa de l’institution financière HSBC, commettant ainsi l’infraction décrite à l’ article 22(2) de la Loi sur les ingénieurs (L.R.Q. c. I-9) et à l’

article 32 du Code des professions (L.R.Q. c. C-26) se rendant passible des sanctions prévues à l’

article 188 du Code des professions . [ 24 ] The first count is directly relevant, because it relates to a business card bearing exactly the same expression: " Design Engineer ". The second count is about the use of a similar and more precise expression: “Electronic Design Engineer”. The dates of the infractions to which Mr Sabbah pleaded guilty are contemporaneous to the facts of the case. The guilty pleas were made on May 29, 2013.

The re-amended Defence and Cross-demand is dated June 16, 2013, another instance of temporal proximity. [ 25 ] The pleas led to a sentence of a fine of $ 1,500 on each of the two counts. [ 26 ] Thus, had the guilty pleas been discussed at trial, they would have had a bearing on credibility and they would have come up in a manner that would have permitted the Defendants to address the question of the probative value of the guilty plea as an extrajudicial admission.

Mr Sabbah could have given his thoughts on the matter, which may have had a positive or negative impact on the factual issue of Mr Sabbah's competency, and on the credibility of the denial we read in the Defence and on Mr Sabbah’s credibility as a witness. [ 27 ] Relevance is not however in itself a sufficient criterion to permit the presentation of new evidence after the case is closed. [ 28 ] A certain threshold must be reached as to the importance of the evidence to the outcome of the case and the degree to which it can be found that this evidence could not have been brought forward at trial. [ 29 ] We will begin with the second of these questions which is answered through the testimony of Joe Benamor, the principal of Hubmar, given at the hearing on the motion. [ 30 ] Mr Benamor's testimony that he first learned of the outcome of the complaint he lodged in March 2012 through a communication with the Ordre des Ingénieurs du Québec (" OIQ ") confirmed in an email communication of June 26, 2014 of the president of the OIQ, Robert Sauvé: […] Following the complaint you lodged in March 2012, an investigation was opened by our Service de la surveillance de la pratique illégale .

That investigation led to the OIQ filing complaints against Mr. Sabbah on the 28 th of February 2013. On the 29 th of May 2013, Mr. Sabbah pleaded guilty to two (2) charges and was fined 1,500$ for each of those two charges. The notice of this judgement was made available on our website shortly afterwards.

It can be found here: http://www.oiq.qc.ca/Documents/DAJ/Decisions jugements/Prat ill/AVIS jugement David Michael Sabbah.pdf As court proceedings and judgments are on the public record and available to all; We do not generally do a follow-up with the person having made the complaint, nor is there an obligation or Policy to do so. However we do occasionally make updates to the person making the complaints on a case by case basis. This is done by the investigator assigned to the case as he is the one who had previous contact with that person.

In this case, Mr Dupuis was still on sabbatical when the judgement was rendered and was thus unable to do that follow-up with you. We apologize for the resulting situation. […] [ 31 ] Despite several phone calls Mr Sabbah had been unsuccessful in obtaining news of the OIQ's progress in the file. [ 32 ] It would have been normal for Mr Benamor to expect to hear from the investigator if anything had occurred, though strictly speaking, the OIQ is, apparently, not obliged by law or by its policy to keep a complainant informed.

[ 33 ] Mr Sauvé explains: […] As for your phone calls, our records show that you did leave one message in early March 2014 to the Service de la Surveillance de la Pratique illégale, Our record also show that we left a returned message to you after receiving your message.

Due to the volume of calls we receive, we do not make further follow-up on returned messages left on voicemail. […] [ 34 ] Mr Benamor could have checked the plumitif or the registry of the OIQ, but, it appears, he relied upon the person charged with the investigation to let him know what had occurred. [ 35 ] Hubmar's attorney might have thought to check the plumitif, but his omission to do so before the trial cannot be imputed to Hubmar, who acted reasonably in trying to be in touch with the OIQ. [ 36 ] Hubmar cannot be faulted for acting in reliance on what an ordinary person would have taken for granted: that the OIQ would have the courtesy, if not the strict duty, to inform the complainant of something as important as the closure of a complaint file with a guilty plea and substantial fines. [ 37 ] Under a more classic concept of the judge’s discretion pursuant to

article 463 CCP, the criterion of impossibility, despite diligence, to know evidence before the trial, is applied rather rigorously. [ 38 ] The Defendants gave the example of Wolfe c. Maroulis [1] . [ 39 ] The Court of appeal confirmed the principle in a more nuanced way in Groupe Champlain inc. c.

Chateauguay (Ville de) [2] by approving of the trial judges approach, when he applied the test in a rather liberal way: Même s'il s'agit d'une preuve qui était connue de l'intimée quand les parties ont déclaré leur preuve close, il estime que celle-ci est « de nature à faire plus de lumière sur le litige » [ 40 ] The reference is made by the trial judge to Beaver Foundations Limited [3] . [ 41 ] It should be pointed out, though, that the judge was looking at the problem from the point in time prior to the case having been taken under advisement, applying

article 463 CCP by analogy. [ 42 ] In Milunovic [4] the Court of Appeal reconfirmed the principle as applying to limit the judge's discretion to refuse the reopening of the hearing in those cases where there is a true impossibility to act: [3] Il convient de rappeler que le pouvoir du juge de refuser la réouverture des débats est plus limitée lorsque la preuve n’aurait pas pu être faite davantage de diligence. [ 43 ] This way of stating the principle underscores the reality of the appeal process that must allow the exercise by the trial judge of a broad discretion.

In this process, a more compelling case is made for reopening the hearing in cases where additional diligence would not have made it possible to know of the evidence at the time of the trial, and the trial judge's discretion is thus more circumscribed. [ 44 ] It is interesting to note that, in

article 463 CCP, there is no mention of these classic criteria which are attributed by Mr Justice Durocher to the authors Ferland and Emery [5] . However the criteria are expressed and applied, it is really a question of judicial culture: how will the opposing interests of efficient use of the courts' time and the interest of justice in having the fullest possible factual demonstration be reconciled? [ 45 ] In a recent judgment [6] Madam Justice Carole Therrien pointed drew attention to

article 292 CCP which authorises the Court to draw the parties' attention to gaps in evidence and proceedings: Art. 292 En tout temps avant jugement, le juge qui préside le tribunal peut signaler aux parties quelque lacune dans la preuve ou dans la procédure, et leur permettre de la combler, aux conditions qu'il détermine. [ 46 ] Although this provision has been part of the Code of civil procedure since the reform of 1965, and was seen as permitting judicial intervention, of late, it has become almost incumbent on a judge to apply this discretion: the authorisation to intervene has become, in practice, a duty [7] to intervene. [ 47 ] The culture of civil procedure has evolved now to the point where the test of the determinative nature of the evidence is described through the expression " de nature à faire plus de lumière sur le litige ".

That is the test that was applied by Justice Therrien and we find a similar degree of liberalism in L’Écuyer c. Quebec (Attorney General) [8] , .though in this case Mr Justice Peackock was applying articles 2 and 292 CCP. He refers nonetheless to the Milunovic case quoted above. [ 48 ] This is perhaps an illustration that the criteria for the application of

article 292 CCP are merging with those of with those of

article 463 CCP.

Why, it could be argued should the parties have less of a right to bring additional evidence before judgment, on their own initiative, than they would have had just prior to the case being taken under advisement by virtue of the judge’s initiative, so long as the matter is brought to the court's attention with diligence once the additional evidence comes to light? [ 49 ] In both cases, justice will not only be done, but will appear to have been done if the Court obtains more, rather than less, of the relevant evidence having a bearing on an important issue. [ 50 ] In the present matter the Court is therefore satisfied, on the precise circumstances described, that there were adequate reasons for this evidence having not been brought out in trial by the Plaintiff. [ 51 ] The other criterion relates to the impact this evidence could have on the outcome of the trial.

It will not be necessary to include this evidence if it is simply redundant. The use of the metaphor " sheds more light " implies that there must be a good reason to reach for

the additional evidence, short of it being absolutely critical to the outcome. It must be more than just technically relevant: it must be useful. [ 52 ] In our case, Mr Sabbah admits in the proceedings that he is not a member of the OIQ, but he denies that he made any representation to the effect that he was.

It is on that basis that he, along with the other Defendants, alleges that the complaint made to the OIQ is without merit. [ 53 ] The fact that he nevertheless pleaded guilty and accepted a fine of $ 1,500 to a count based on the use of that business card, as an application of article 22(2) of the Engineers Act takes on a certain importance for evaluating Mr Sabbah’s credibility. [ 54 ] The door would have been open for Mr Sabbah to testify during the trial as to his position on the matter more fully. He did not. [ 55 ] Once the proof of the guilty pleas is put into evidence, the door is once again open.

It would not be appropriate to admit the evidence without giving the Defendants the opportunity of calling Mr Sabbah as a witness should they wish to complete their proof.

As well, since credibility is still a live issue in a deliberation that is ongoing, it should be permitted for the Plaintiff to reopen the cross- examination of Mr Sabbah to question him about the guilty pleas if that is the Plaintiff's intention. [ 56 ] In fact, credibility is a key issue in the trial on issues other than professional qualifications, and the parties may wish to have issues of credibility dealt with in a more complete way before the case goes back under advisement. They should both then have an equal right to submit Mr Sabbah to examination in chief or cross-examination, as the case may be.

Or, each of them could consider that the case is ready to proceed to judgment without additional testimony. [ 57 ] The Court will write nothing more on the issues of the case, so as not to prejudice the debate at this stage except to conclude that the criterion of the relative necessity of including the evidence has been met. [ 58 ] The parties will be afforded ten days from receipt of the present interlocutory decision to advise the Court of their intention to proceed or not to this additional testimony.

If they do, an additional half-day hearing will be scheduled as soon as possible. [ 59 ] Mr Krancberg was not called as a witness at trial. If the evidence of the guilty pleas had been adduced at trial, he might have testified on that issue at the instance of either side.

He was present at the trial and was therefore a compellable witness. [ 60 ] The parties will have the right to call him now, but, if he is called at this stage by either party, the subject matter of his testimony will be limited to questions related to the new evidence. [ 61 ] Costs on the motion will be deferred to the final decision on the merits of the case.

FOR THESE REASONS, THE COURT: PERMITS the reopening of the hearing to produce the exhibits referred to in the motion as R-I, Notice of Judgment; ALLOWS the parties 10 days from receipt of the present judgment to advise the Court of their intentions as to additional testimony of David Sabbah and/or Boris Krancberg; THE WHOLE with costs deferred to the decision on the merits. __________________________________ DAVID L. CAMERON, J.C.Q.

Me Jay Turner OIKNINE & ASSOCIÉS Attorneys for Plaintiff Me Mihai Evi DUPUIS PAQUIN Attorneys for Defendants Date of hearing: On the merits: June 12, 13 and 19, 2014 On the motion: January 14, 2015