2014 QCCQ 8097, 2014 QCCQ 8097

Bourbonnière c. Van Schendel 2014 QCCQ 8097 COURT OF QUEBEC (Practice division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-198848-130 DATE: August 20, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MICHEL BOURBONNIÈRE Plaintiff vs. NICOLAS VAN SCHENDEL and VINCENT VAN SCHENDEL Defendant / Plaintiffs in Warranty vs. DENIS RIEL Defendant in Warranty / Plaintiff in Sub-Warranty vs.

JEAN-JACQUES POISSON Defendant in Sub-Warranty / Plaintiff in Sub-Sub-Warranty vs. SYNDICAT DE LA COPROPRIÉTÉ LOT 219 QUARTIER EST Defendant in Sub-Sub-Warranty and LES CONSTRUCTIONS GROUPE GAZAILLE INC. Defendant in Sub-Sub-Warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Michel Bourbonnière, presents a motion to be relieved of his default to inscribe on the merits within the peremptory 180-day time limit alleging impossibility to act as contemplated in the third paragraph of

article 110.1 C.C.P. [ 2 ] The case began on January 7, 2013 with an action related to alleged hidden defects in the wall of a residential immovable property that the Plaintiff had purchased from the Defendants in March 2008.

The timetable provided for the inscription for proof and hearing no later than June 19, 2013. [ 3 ] This principal action was followed by a cascade of warranty proceedings bringing into the case, in turn, the previous owner, Denis Riel, the person from whom Riel had purchased, Jean-Jacques Poisson, the syndicate of co-owners of the immovable of which the Plaintiff's property is a part, and, in the same action in sub-sub warranty as the syndicate, the constructor of the condominium project. [ 4 ] The first owner involved, Jean-Jacques Poisson, acquired the property from the constructor, Les Constructions Groupe Gazaille Inc., in July 1999. [ 5 ] Because the case has four levels, there are four deadlines for inscribing that have been missed, the last of which was November 30, 2013, though none of the other parties in the case has, as of yet, brought a motion to be relieved of default.

[ 6 ] The only real activity in the file prior to the present motion consisted in examinations before plea of the Plaintiff conducted by the Principal Defendant and by the Defendant in Warranty on March 8, 2013. [ 7 ] As was to be expected, these examinations led to a number of undertakings to search for and to communicate documents.

Though listed as a total of twenty undertakings in the two examinations combined, many of the requests are vast and open ended, which could have resulted in a voluminous compilation of the documented history of the building since the work was carried out by the constructor many years earlier. [ 8 ] The Plaintiff testified that he had very few of the documents in his possession, these documents being in the archive of the manager acting for the syndicate, Hélène Vallières. [ 9 ] On March 12, 213, Mme Vallières sent an email to the Plaintiff, with a copy to his attorney Mtre Judah Lyan Wolofsky, attaching some 13 documents in pdf format. [ 10 ] This was in reply to a request Mr Bourbonnière sent to Mrs Vallières on March 11, 2013 by email asking her to scan and send the documents to Mtre Wolofsky and to " please respond to the requests of Mtre.

Lolfsy as if I had asked ". [ 11 ] Up until that point, both the Plaintiff and his attorney had been acting in an exemplary fashion, by submitting to the examination, undertaking to seek and disclose documents, and by promptly making the necessary requests to the person under whose control the documents were, presumably, kept. [ 12 ] Mr Bourbonnière testified that he has known Mtre Wolofsky for many years, relied on him entirely for the management of the file, and that he had no reason to doubt his competence.

Mtre Wolofsky, admitted to the Bar in 1959, still has an active practice though he is quite advanced in years. [ 13 ] Mr Bourbonnière, however, was not aware of the existence of a 180-day peremptory time limit in civil actions. Because of his limited knowledge of the practice of the courts, based anecdotally on comments made to him in the past by his former wife who worked in the office of the clerk of the Quebec Court of Appeal, he presumed, accurately, that it could take more than a year for a case such as his to go to trial.

Thus the idea that the case could be fatally time barred because of an arbitrary deadline having no real connection to the realities of the case escaped his limited knowledge, and, naturally, he never thought to ask. [ 14 ] Mr Bourbonnière is a member of the Chamber of Notaries, but has not actively practiced for many years. He works for the Canadian Space Agency as a legal advisor in matters pertaining to international air and space law.

Apart from his divorce, which occurred some time ago, his dealings with civil procedure have been limited to providing documents to lawyers acting for his employer in litigation files. [ 15 ] He was not aware that the Defendant's attorney had written to Mtre Wolofsky on April 5 and again on April 29, 2013 (R-4) reminding the latter of the deadline for providing the undertakings which was March 28, 2013, and expressing the expectation that the deadline for providing her defence would be extended as a consequence of the failure to meet the March 28 deadline. [ 16 ] After these letters, no further communication ensued between these two attorneys. [ 17 ] Mr Bourbonnière testifies that he is aware that the manager, Mrs Vallières provided less than full collaboration.

He also attempted, through her, to obtain a disclosure of documents in another context, as he was contemplating selling his unit. (R-1, email of September 4, 2013). [ 18 ] Mrs Vallières replied that she had passed on the request to the syndicat's lawyer.

This was followed up by of acrimonious but courteous exchanges of emails involving as well Mtre Wolofsky and an attorney acting for the syndicate's insurer, with the net result that no documents were provided. [ 19 ] Mtre Bourbonnière testifies that he believed that the matter was in the hands of the lawyers and that his duty to try to provide documents was fulfilled to the best of his abilities. He communicated a few times over the following months, agreeing with Mtre Wolofsky's suggestion to initiate communications with the other attorneys with a view to settling the entire matter.

In the last of these communications the Plaintiff stated to Mtre Wolofksy that, if the parties were not settling, then the case should proceed to trial. [ 20 ] It was at that point that Mtre Wolofky informed him that he had made a mistake by failing to serve and file an inscription for proof and hearing, and that it was necessary to make a motion to be relieved of default.

Mtre Bourbonnières attended at Mtre Wolofsky's office to sign an affidavit in support of the present motion which was promptly served for presentation. [ 21 ] Throughout this process, none of the other attorneys made a move, letting sleeping dogs lie, as the saying goes, preferring the prospect of the Plaintiff's action being deemed abandoned to the onerous task of fulfilling their respective timetables. [ 22 ] The Defendant's attorney had long since ceased any request for compliance with the undertakings, did not file a defence, and let the action in warranty remain dormant.

In short, all of the parties were acting in the non proactive way that often characterised the conduct of proceedings before the last procedural reform. [1] [ 23 ] Mtre Wolofsky indicated to the Court that he was quite active during this time, albeit for his other clients. He readily admits his fault in allowing the peremptory time limit to elapse. His mind was elsewhere.

The consequences for his client, if there is no relief from default, are catastrophic in a way that is disproportionate to the simplicity of the fault on the part of the attorney. [ 24 ] Ironically, in a multi-party case where expert reports are required, it would have been a simple matter for him, as it would be for the Plaintiffs in the successive warranty actions, to obtain the necessary extensions to the time limit. To say that that type of extension is granted as a routine matter by the Practice Division would be a gross understatement.

The procedure is so routinely done that a practice has been developed whereby the motion can be made jointly by the parties on a consent basis and endorsed by the Court without the

necessity of the attorneys attending in person. [25] It seems absurd then, that in a case where there is no prejudice to the other parties, who were willing to bide their time, thePlaintiff should be precluded from obtaining, nunc pro tunc, the extension that he could have obtained as a routine matter within the timeallotted for him under the timetable.

There is no practical difference in what is now being requested, only a formal difference. [26] It is against this factual backdrop that I must consider the application of the principle enunciated by the Supreme Court in Citéde Pont Viau[2]. [27] Dealing with the application of the expression "impossibility to act" in similar contexts, namely that of the time limit for amotion in revocation of judgment or for inscribing in appeal: It is impossible to specify in advance every situation that might constitute a relative impossi​bility.

Each case must be decided accordingto its own particular circumstances, since the impossibil​ity in question is really one of fact. In the case at bar foreclosure .as due solely to the error of appellant's counsel. The party itself acted with diligence and I do not see whatmore it could have done in order to "act sooner". It is argued, however, that the impossibility referred to in art. 523 C.C.P. is not that of the party but rather that on the party's counsel. I donot agree with this submission.

The last part of art. 523 C.C.P. was enacted in favour of the party itself in order to temper the strictness ofthe automatic forfeiture of the right of appeal when the holder of this right—the party itself—was unable to act in time. The impossibilityto act must therefore be assessed from the point of view of the person who will have to bear the consequences of the foreclosure if he isnot relieved from it. Moreover, by choosing the criterion of impossi​bility "in fact" the legislator has indicated that the impossibility should be assessed inactual fact, irrespective of any fiction.

However, it is solely on the basis of a legal fiction that counsel's possibility to act can be said to bethat of the party.

This is clearly not what is intended by the latter part of art. 523 C.C.P.: the existence of a real impossibili​ty, "in fact",cannot be denied because of a fiction whereby the possibility to act of the agent would be held to be that of the principal. [28] This has led to the general application in cases of impossibility to act of the notion that the fault of the attorney in which theclient has not participated will be considered an impossibility to act. [29] The Court of Quebec has continued to adhere to this approach[3]. It is worthwhile citing at length the development of theanalysis in the Tremblay c.

Jonquière case: 26 Tout d'abord, l'arrêt Têtu prononcé en 1998. Dans cette affaire, un demandeur poursuit en dommage un policier et son employeur[la Ville], suite à un échange musclé dans un bar, lors d'une rencontre sociale non reliée au travail. L'avocat du demandeur négliged'inscrire dans le délai de 180 jours, soi-disant en raison d'une objection non tranchée lors d'un interrogatoire hors cour. Le premier jugerefuse de prolonger le délai puis la Cour d'appel, majoritairement, rejette l'appel : - Les juges Dussault et Letarte (ad hoc) font état de la négligence de l'avocat dans le contexte suivant.

D'une part, la prescription n'était pas acquise lors du premier jugement et une action de bene esse18 a été entreprise contre le policier, afin d'interrompre la prescription aucas où l'appel serait rejeté.

D'autre part, la poursuite contre la Ville est "à sa face même, futile et dénuée de tout fondement juridique, les paroles reprochées [au policier] ayant été prononcées alors que, de toute évidence, il n'était pas dans l'exécution de ses fonctions"19. - Dans une importante dissidence, le juge Gendreau affirme que "la sauvegarde des droits de la partie, même et peut-être surtout, si sonavocat fut négligent, [devrait] demeurer le souci premier d'un juge si le redressement recherché ne cause aucun préjudice à l'adversaire"20. (caractère gras ajouté) 27 Subséquemment, dans Autobus Auger métropolitain inc. c.

Autocar connaisseur inc.21, la Cour d'appel fut saisie d'une questionanalogue. Le premier juge, après analyse, avait refusé de prolonger le délai de 180 jours, soulignant "l'inaction inexcusable" de l'avocat et sa "négligence manifeste"22. Cette décision fut par la suite cassée en quelques lignes, décision consignée dans un procès-verbal : Nous sommes unanimement d'avis que le juge n'a pas appliqué les principes de la Cour suprême dans les arrêts : Bowen c. Montréal(Ville de) (SCC), [1979] 1 R.C.S. 511, Construction Gilles Paquette Ltée c.

Entreprises Végo Ltée (SCC), [1997] 2 R.C.S. 299 (J.E. 97-1194) et Québec (Communauté urbaine de) c. Services de santé du Québec (SCC),[1992] 1 R.C.S. 426, et que par conséquent le jugement doit être réformé. 28 Selon cette logique, la négligence de l'avocat peut, selon les circonstances, constituer en fait une impossibilité d'agir de la

partie ausens de l'article 110.1 C.p.c. De plus : - Comme l'écrit le juge Pratte dans Pont-Viau, cette impossibilité doit s'apprécier du point de vue de celui qui aura à supporter lesconséquences du défaut s'il n'en est pas relevé.

Dans le présente affaire, le demandeur risque de perdre des droits, la prescription ayant fait son oeuvre23. - Aucun préjudice n'est ici causé aux défendeurs, même s'ils perdent l'argument de la prescription. 29 Au bout du compte, comme le suggère le juge Gendreau dans Têtu, pourquoi remédier à l'erreur et non à la négligence de l'avocat?Vu sous l'angle du justiciable et du préjudice qu'il risque de subir, quelle est la différence entre ces deux situations? Poser ces questions,c'est y répondre. [References omitted]

[ 30 ] A frequently-cited case of the Superior Court [4] is referred to by the Defendant as authority for the proposition that only minor errors of an administrative character can be considered impossibilities to act, that more serious neglect should not be, for fear that the peremptory nature of 110.1 be diluted such that a motion to be relieved of default will be granted in all cases where a client is represented, and this could not have been the intention of the legislator.

The Honourable Carole Julien cites a judgment of the Court of Quebec in regard to that distinction [5] . [ 31 ] A closer analysis of the reasons for judgment reveals that it was also a clear case of the client having participated in the grossly faulty conduct of the lawyer which was not only a question of missing this particular time limit and not moving quickly to correct it, but a general attitude of inertia and inaction: 31 Le comportement du procureur de la demanderesse en l'instance ne peut être assimilé à une impossibilité en fait d'agir.

L'écoulement d'un délai de cinq mois entre le défaut d'inscrire et le dépôt de la requête pour être relevé de ce défaut n'est pas justifié et constitue une négligence flagrante. Au surplus, l'attitude de ce procureur, en regard du respect des règles de procédure, de l'étirement des délais et du non respect de l'entente sur le déroulement de l'instance, est inacceptable en regard des objectifs de l'article 110.1 C.p.c. 32 Cette attitude démontre un laisser-aller proche de l'inertie ou un manque de conviction de sa cliente à l'égard de son recours introduit au dernier jour du délai de prescription.

Sa cliente est pourtant une justiciable ayant l'habitude des tribunaux et qui doit connaître l'importance de respecter les délais.

Le Tribunal ne peut endosser une telle conduite préjudiciable aux parties défenderesses ayant acquis le bénéfice de la prescription extinctive. [soulignement ajouté] [ 32 ] The case was confirmed on appeal, but without analysis of the legal principles, except those relating to non intervention of the Court of Appeal in the exercise of judicial discretion by the judge of first instance. [ 33 ] Essentially, cases such as these can be considered as examples of a degree of neglect that are patent and that include the client as a participant.

Otherwise, it is impossible to reconcile them with the binding authority of the Supreme Court of Canada in Cité de Pont Viau . [ 34 ] As a question of fact, the Court finds that the neglect in the present matter was benign and that the client was in no way involved in it. The client should be considered to have been in a situation of impossibility to act. [ 35 ] As a question of judicial management of the case, there should relief as well for all of the plaintiffs in warranty who neglected to act in their respective files as well.

Besides, because warranty actions are dependent for their object on the existence of a related principal action, one possible course of action for the plaintiffs in warranty down the chain was to do nothing and await the outcome of the present motion. BY THESE REASONS, THE COURT: RELIEVES the Plaintiff of his default to inscribe the case for proof and hearing on the merits within the 180-day time limit; GRANTS an extension of the said time limit until November 30, 2014 to avail as well to the benefit of all the parties having a duty to inscribe their respective warranty proceedings.

COSTS to follow suit. __________________________________ DAVID L. CAMERON, J.C.Q. Me Judah Lyon Wolofsky Wolofsky & Associates Attorneys for Plaintiff Me Catherine Beauséjour-Picotte Janson, Larente, Roy Attorneys for Defendant / Plaintiffs in Warranty

Me Lionel Liber Attorney for Defendant in Warranty / Plaintiff in Sub-Warranty Me Christian Dubé Rousseau Attorney for Defendant in Sub-Warranty / Plaintiff in Sub-Sub-Warranty Me Nicolas Sdicu Harvey, Leduc Attorneys for Defendant in Sub-Sub-Warranty, Syndicat de la Copropriété Lot 219 Quartier Est Me Jean-Sébastien Beaulileu Crochetière Pétrin, s.e.n.c.r.l. Attorney for Defendant in Sub-Sub-Warranty, Les Constructions Groupe Gazaille Inc. Date of hearing: August 14, 2014 [4] Maritime Insurance Co. c. Transport Fafard inc., .