2017 QCCQ 12449, 2017 QCCQ 12449

Simatos c. Latour 2017 QCCQ 12449 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151108-166 DATE: October 16, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ ROBERT SIMATOS and BLACK LION REAL ESTATE INC. and HOMEPUBCO INC. Plaintiffs v.

PHILIPPE LATOUR Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim from Philippe Latour $15,000 in damages on the grounds that he breached the conditions of his contract of employment. [ 2 ] Mr. Latour denies all liability and argues that the claim is without merit. Moreover, he adds that the claim is prescribed. Questions in Issue

a) Does the Court have jurisdiction to entertain the Plaintiffs’ claim?

b) Is the Plaintiffs’ claim prescribed?

c) Has Homepubco proved that Mr. Latour breached the terms of his Contract of Employment, and if so, what damages is it entitled to recover from him? Context [ 3 ] Homepubco inc. (Homepubco) operates a bakery, café and restaurant pub (“Restaurant”). The premises from which the Restaurant operates are owned by the co-plaintiff Black Lion Real Estate inc. (Black Lion).

Plaintiff Robert Simatos is an officer of both corporate entities and manages the Restaurant. [ 4 ] In the fall 2010, Philippe Latour entered into a contract of employment with Homepubco and began working as a kitchen manager at the Restaurant. [1] [ 5 ] On November 17, 2012, Mr. Latour’s employment was terminated following a dispute with Mr. Simatos. [ 6 ] The Contract of Employment notably provides that if the employee leaves “on bad terms”, he has the obligation to reimburse to the employer all the food he has consumed on the premises during the period of employment.

Homepubco relies on this provision of the contract of employment and argues that since Mr. Latour left on bad terms, it is entitled to recover from Mr. Latour the reimbursement of $15,000 in food and beverages he consumed while he was employed by Homepubco. [2] Analysis and Decision

a) Does the Court have jurisdiction to entertain the Plaintiffs’ claim? [ 7 ] A trial, the issue arose as to whether Homepubco had more than 10 persons bound to it by a contract of employment during the 12 months period preceding the application. The application was filed by plaintiffs with the Court of Québec, Small Claims Division, on February 12, 2016.

[8] Indeed,

article 536 of the Québec Code of Civil Procedure (CCP) provides that a legal person cannot act as plaintiff under therules governing the recovery of small claims[3] unless it has a maximum of 10 persons bound to it by an employment contract during the12-month period preceding the application. [9] Homepubco’s employment records reveal that it did not have more than 10 persons bound to it by an employment contractduring the relevant time frame.[4] Accordingly, it can act as a plaintiff in the instant case.

b) Is the Plaintiffs’ claim prescribed? [10] Homepubco’s claim is based on an alleged breach by Mr. Latour of the terms of the Contract of Employment. Specifically, theclaim is based on the following provision of the contract: “If you leave on bad terms expect to pay for all you have eating at full price and to have any and all discounted or otherwise you havereceived reverse and payable.” (sic) [11] The application alleges that Mr.

Latour left on “bad terms”[5] on November 17, 2012 and therefore, he must reimburse hisformer employer the value of the food and beverages he consumed while he was employed. [12] According to Mr. Simatos, the “bad terms” results from a number of events which culminated in a physical altercation betweenhim and Mr. Latour on November 17, 2012 after which Mr. Simatos fired Mr. Latour. [13] Mr. Latour agrees that there was a dispute on November 17, 2012, but claims that he quit and was not fired. Therefore, he didnot leave on “bad terms”. [14] Irrespective of whether or not Mr.

Latour left on “bad terms”, the parties do not dispute that Mr. Latour left the employ ofHomepubco on November 17, 2012. [15] Homepubco’s application was filed with the Court of Québec, Small Claims Division on Feb 12, 2016. [16]

Article 2925 of the Civil Code of Québec (CCQ) provides that an action to enforce a personal right is prescribed by three years.

If a lawsuit or judicial application is not filed before the expiry of the three year prescription period, then unless the prescription periodhas been suspended,[6] the creditor’s right is extinguished. [17] The underlying purpose of the rules of prescription was recently expressed as follows by the Supreme Court of Canada: [1] In Quebec civil law, court actions have always been subject to prescriptive periods that vary in length depending onthe nature of a case or the identities of the parties. [2] In the most recent reform of the Civil Code of Québec (“C.C.Q.” or “Code”), the legislature aimed to simplify therules on the prescription of actions by harmonizing them and thereby promoting access to justice.

Such rules are essential in a democraticsociety that wishes to preserve public order, sanction the negligence of creditors or ensure social peace (C. Gervais, La prescription(2009), at pp. 4-5). These are some of the purposes behind the obligation imposed on litigants to act and to bring an action within aspecific period, without which they will no longer be able to obtain a remedy.[7] [18] The three year prescription period begins to run on the day on which the right of action arises.[8] [19] In Pellerin Savitz LLP v.

Guindon[9], the Supreme Court of Canada provided the following explanation for the notion of “thearising of the right of action”: [11] The beginning of the period of extinctive prescription is the “day on which the right of action arises” (art. 2880 para. 2 C.C.Q.).As this Court has stated, “the prescription of an action cannot begin to run before the right to institute it originates” (Morin v. CanadianHome Assurance Co., (SCC), [1970] S.C.R. 561, at p. 565).

The arising of the right of action and the beginning of theprescription period are highly factual questions; how they are answered varies from case to case depending on the circumstances andcalls for great deference on the part of an appellate court (C. Gervais, La prescription (2009), at p. 106; Mignault, at p. 522; Beaulieu v.Paquet, 2016 QCCA 1284, at para. 20 ; Dupuy v. Leblanc, 2016 QCCA 1141, at para. 22 ; on the standard of review,see also Benhaim v.

St Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at paras. 36 39). [12] In contract, the creditor’s right of action arises once the debtor’s obligation has arisen and is exigible (Re 9022 8818 Québec inc.,2005 QCCA 275, at para. 51 ; J. L. Baudouin and P. G. Jobin, Les obligations (7th ed. 2013), by P. G. Jobin and N. Vézina, atNo. 1127; Martineau, at para. 247).

When this occurs varies with the circumstances, and especially with the terms of the contract itself. [20] The right of action arises on the first day that the plaintiff or creditor of a claim is aware of the existence of a fault anddamages.[10] [21] When did Homepubco’s right of action arise in the present case? [22] Based on Pellerin Savitz LLP v. Guindon, Homepubco’s right of action arose on November 17, 2012. The three yearprescription period of

article 2925 CCQ must be calculated as of that date. [23] Considering that the right of action arose on November 17, 2012, and considering the applicable three year prescription period,Homepubco’s claim against Mr. Latour had to be filed with the Court before November 17, 2015. [24] Homepubco filed its claim on February 12, 2016. Since the claim was filed after the expiry of the prescriptive period,

Homepubco’s claim against Mr. Latour is prescribed. [ 25 ] Moreover, Plaintiffs have not proven that Homepubco was under any impossibility to act to enforce its rights under the Contract of Employment following the November 17, 2012 incident. While

article 2904 CCQ provides that prescription is suspended when someone is under an impossibility to act, a person invoking suspension of prescription has the burden of proving facts which demonstrate that he or she was under an impossibility in fact to act. [ 26 ] Courts have recognized that a person may be under an impossibility to act where that person for example, has a physical or psychological ailment which prevents him/her from exercising his/her rights. [11] [ 27 ] Mr. Simatos explains that filing the lawsuit against Mr.

Latour was not a priority after November 17, 2012 because he was extremely busy running the Restaurant and he had « a lot of things on his plate ». He adds that he was not certain what his legal avenues were or whether he had resources to pursue his claim. [ 28 ] As Justice Cameron has stated: The rules of prescription, like other rules concerning the generation or extinction of rights, apply notwithstanding the knowledge or understanding of any specific member of the public.

According to a well-known maxim, ignorance of the law is not an excuse. [12] [ 29 ] The Plaintiffs have failed to demonstrate that there is any cause which constituted either a renunciation, interruption or suspension of prescription and the Court has no choice but to come to the conclusion that the application is prescribed. [ 30 ] In light of the Court’s conclusion on the issue of prescription, the Court need not address the remaining questions in issue. [ 31 ] Moreover, the Court will exercise its discretion and will not award legal costs to the Defendant. [13] FOR THESE REASONS, THE COURT: [ 32 ] DISMISSES Plaintiffs’ application against Philippe Latour; [ 33 ] WITHOUT LEGAL COSTS. __________________________________ ENRICO FORLINI, J.C.Q.

Date of hearing: July 7, 2017