2013 QCCQ 11609, 2013 QCCQ 11609

Simonian c. Guirguis 2013 QCCQ 11609 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-179633-113 DATE: September 4, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ HAGOP OHAN SIMONIAN Plaintiff v.

JOHN GUIRGUIS Defendant and SHERRY MANSOUR and L'OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE MONTRÉAL Impleaded parties JUDGMENT ______________________________________________________________________ [ 1 ] A business venture undertaken without a written contract is perilous. This case is an example of such risks. THE PARTIES [ 2 ] Hagop Ohan Simonian is an experienced businessman. He has capital available to invest. [ 3 ] John Guirguis is an engineer by profession.

In the past, he has imported salvaged cars from the United States and Canada for repair and resale. [ 4 ] Both of them are members of the same community and church. Mr. Guirguis' son and Mr. Simonian's grandson frequent the same daycare. [ 5 ] Sherry Mansour is married to Mr. Guirguis. She is the owner of the family domicile. On introducing these proceedings, Mr. Simonian obtained authorization to seize this immoveable before judgment. Mrs Mansour is therefore an impleaded party. THE PARTIES' POSITIONS [ 6 ] Mr. Simonian alleges that he and Mr. Guirguis agreed to "a joint venture" by which Mr.

Simonian financed the purchase and repairs of salvaged cars while Mr. Guirguis supplied the know-how and invested his time in order to import, repair, register and sell these cars. They were to equally share the profits. He alleges that Mr. Guirguis reneged on his part of the bargain. He claims $63,612.67 in damages. Mr. Simonian also asks that the Court confirm the seizure before judgment of the property belonging to Mrs. Mansour. [ 7 ] Mr. Guirguis does not deny that a venture of some sort existed to import and sell cars. However, he states that he was to receive a commission for his participation.

He alleges that he correctly withdrew from the venture after a violent altercation took place with Mr. Simonian. He is claiming his remuneration, as well as damages. He contends that the proceedings are abusive. [ 8 ] Sherry Mansour filed no formal proceedings but being an impleaded party, she retained counsel and testified at trial. She claims damages, in virtue of

article 54.1 and subsequent of the Code of Civil procedure, because, says she, the seizure was abusive. THE FACTS [ 9 ] The Court will summarise the facts that have been proven according to the preponderance of the evidence. When necessary, if the parties' view of the facts differs, the Court will explain why one version is preferred. The venture

[ 10 ] Mr. Simonian and Mr. Guirguis met in May of 2009 at a birthday party given for Mr. Simonian's grandson. A number of members of their church, as well as their children, were invited. [ 11 ] Mr. Simonian learned of Mr. Guirguis' activities in regard to the importing of salvaged cars. [ 12 ] Mr. Simonian and Mr. Guirguis met again at a church brunch after mass. The idea of a collaboration to import cars became a plan. In September 2009, the first purchase was made. [ 13 ] Mr. Simonian states that he was to be the financier. Mr. Guirguis was to supply the know-how. The salvaged cars were to be purchased in Mr.

Simonian's name. After repairs, they were to be registered to Mr. Simonian who would then sell them, with Mr. Guirguis' help. A 50/50 fifty split of the profits was decided. Mr. Simonian's son in law Ernest Isaac kept an accounting of the operations. [ 14 ] Mr. Guirguis denies, in part this point of view. He states that at the outset he was only helping out. He hoped Mr. Simonian would offer him something for his time, but did not ask for a specific fee.

However, he does admit that an agreement for a 50/50 split of profits came into being in January of 2010 after all of the cars had been purchased. [ 15 ] The Court concludes that there was, from the very start an agreement to collaborate as described by Mr. Simonian. Firstly, Mr. Guirguis does not deny the fact that there was such an agreement. He only states that it came into being at a later time. Mr. Isaac corroborates Mr. Simonian's testimony. Also, Mr. Guirguis states that he spent frequent evenings at Mr. Simonian's residence working on the project. It is not plausible that he was only "helping out".

Lastly, the parties kept a detailed accounting of their activities. This accounting was shared with Mr. Guirguis from the start. There would have been no need to do so if in fact he was only "helping out". [ 16 ] The object of the collaboration was to purchase salvaged cars from auctions outside of Québec, import, repair and sell them. The chosen model was a hybrid compact car ("Toyota Prius") because of its resale value. [ 17 ] Mr. Guirguis' past experience had put him in contact with individuals who had the required permit to import these cars. He also had a network of trades-people able to repair them. Mr.

Guirguis researched the internet in order to find the appropriate cars to purchase; recommended the specific purchases to be made; "borrowed" the licence from his acquaintances to purchase and import the cars; lastly, he did most of the follow-up on repairs. [ 18 ] Ernest Isaac, Mr. Simonian's son-in-law, prepared spreadsheets from the start of the collaboration to keep track of the purchase costs, the evaluations of repair costs as well as the anticipated sale prices. The information as to estimated costs and sale prices were provided exclusively by Mr. Guirguis. Mr.

Isaac states that he expected and repeatedly requested bills for repairs but never received any from Mr. Guirguis. [ 19 ] Although Mr. Guirguis attempted to minimise his implication in the venture, the Court does not agree. Clearly Mr. Guirguis was an essential actor. In fact, Mr. Guirguis could not keep himself, all through his testimony, from referring to "we" (including himself) when describing the work that was done and the attempts to sell the cars. [ 20 ] The spreadsheets used by the parties were filed in evidence and are virtually uncontested. They show that Mr.

Simonian invested approximately $60,000 in purchases and repairs. The cars [ 21 ] The cars were purchased beginning on September 3, 2009 until October 30, 2009. [ 22 ] In all five Prius hybrids were bought: three to be repaired and resold immediately; two to be used for parts for the initial three and for future purchases. [ 23 ] A sixth car was purchased: an Acura RSX. This car, according to Mr. Simonian is part of the venture. According to Mr. Guirguis, it was bought for him personally.

He states that this was the case because he had another car of the same model in his garage that could used for parts. [ 24 ] This is not convincing. Firstly, the Acura was included in the accounting exchanged by the parties from the start. The documents contain no indication that the Acura is not part of the same venture. Also, when Mr. Guirguis was asked what interest Mr. Simonian would have in financing the purchase of this car for him personally, the response was that the profit would be shared 50/50. [ 25 ] Mr. Guirguis's reasons are, in the view of the Court, an afterthought on his part. Clearly, Mr.

Simonian had no interest at all to finance a personal purchase for Mr. Guirguis. When Mr. Guirguis states that his incentive was a 50/50 split of the profits, he is simply confirming that, in fact, the Acura was part and parcel of the venture. As well, an e-mail sent by Mr. Simonian on September 18, 2010 (P-21 at page 24) convinces the Court of this. This e-mail reads: Dear Mr. John Since you got the 2 prius on the bigining of july you didn't let me know what's going on with this 2 cars plus the accura that I paid for it and even didn't see it yet. I called you daily and left you answer.

What's your intention ????? Is there anything that I don't know????? Waiting your answer Hagop [ 26 ] This was the perfect occasion for Mr. Guirguis to correct Mr. Simonian as to whether or not the Acura was part of the venture.

He did not. [ 27 ] The cars were purchased through "third parties" as Mr. Guirguis called them. Mr. Guirguis acted for each of these companies declaring on the import documents that he was their representative. He alone had any contact with these companies. He has had, at all times, in his possession the original title for five of these cars. However, at trial, without prior notice, he filed the title to three of them. A fourth title document was filed by Mr.

Simonian. [ 28 ] According to the evidence, the ownership of the cars is as follows: CARS OWNER ADDRESS Green 2009 Prius (P-15) 9183-4770 Quebec Inc. 18015 Meloche Street, Pierrefonds (the domicile of Mr. Guirguis) Charcoal 2006 Prius (P-16) 9183-4770 Quebec Inc. 18015 Meloche Street Pierrefonds (the domicile of Mr.

Guirguis) Golden 2007 Prius (P-17) 9183-4770 Quebec Inc. 2060 Chartier Avenue, Dorval Charcoal 2009 Prius (P-22) 2067304 Ontario Inc. 500 Tower Street West, Cornwall, Ontario Maroon 2005 Prius No title filed N/A Acura RSX 2005 No title filed N/A [ 29 ] The only car that is apparently roadworthy is the 2009 Charcoal Prius. It is presently in the possession of Mr. Simonian. This car is the property of 2067304 Ontario Inc. according to Exhibit P-22. Mr. Guirguis is the person who dealt with this numbered company to purchase the car.

It requires inspection and registration before it can be sold in Québec. [ 30 ] For each of the four cars for which title has been filed, the registered owner is a numbered company from which Mr. Guirguis "borrowed" permits. He is identified as the representative of these companies on all four titles. His home address appears as the domicile of these companies for the first two. As for the other two, the address indicated is that of the numbered company. The title to the Acura, according to Mr. Guirguis, was left with a repair shop as guarantee for a substantial unpaid fee. Mr.

Simonian has always stated that he never had any dealings with this repair shop. Therefore, the Court can only conclude that the title is in Mr. Guirguis' name or in that of one of the numbered companies. As for the 2005 Maroon Prius, the evidence supplies no information whatsoever. [ 31 ] At no time did Mr. Simonian have any power over these vehicles. It was, at all times impossible for Mr. Simonian to obtain title to these vehicles without Mr. Guirguis' collaboration. [ 32 ] Finally, the preponderance of the evidence shows that Mr. Simonian disbursed $37, 239.67 to purchase these six cars.

The repairs [ 33 ] Beginning in the fall of 2009, repairs began. [ 34 ] The accounting (Exhibit P-5) as well as numerous cheques (Exhibit P-6) over the period of October 2009 to March 2010, demonstrate that Mr. Simonian paid substantial amounts. Mr. Guirguis cashed all of the cheques made to him. [ 35 ] Some payments were made to a repair shop in cash or by cheque. The representative of one of these shops admitted receiving cash payments. When asked for bills, this witness stated that it would be difficult to supply bills three years after the facts. [ 36 ] Mr.

Isaac is adamant that he was expecting bills and receipts for all the repairs. Mr. Guirguis does not deny this. In fact, he states that bills were always available but failed to file any at trial. [ 37 ] Considering the testimony of Mr. Isaac, the uncontested accounting (Exhibit P-5); and the nature of the payments made, the Court is satisfied that Mr. Simonian has shown by preponderance of evidence that he disbursed $25,923 for the repairs to these cars. The largest part of this sum was paid to Mr. Guirguis ($19,112). The rest was paid to service suppliers by Mr. Guirguis or at his instruction.

In all cases however, the payments were made exclusively to repair the cars. The altercation [ 38 ] In March 2010 two cars were delivered to Mr. Simonian's residence. These cars were advertised on the internet. [ 39 ] The offers were not numerous, nor to Mr. Simonian's satisfaction. Mr. Guirguis tried to convince Mr. Simonian to sell at a modest profit, or none at all, in order to "turn over the inventory". Mr. Simonian did not agree. He would have preferred to use the cars while awaiting a better offer. [ 40 ] To register the cars in Québec to Mr. Simonian, they required inspection. Mr.

Guirguis began this process in July of 2010. Both cars were discovered to have electrical problems. Mr. Guirguis sent them to a Toyota dealership. [ 41 ] From then, Mr. Guirguis ignored Mr. Simonian's telephone calls, messages and e-mails. [ 42 ] Exhibit P-21 shows that most of Mr. Simonian's e-mails went unanswered or received non-committal and evasive responses. Mr. Guirguis began attempting to transfer all the responsibility to Mr. Simonian. However, at that time the title of the cars was in the name of the companies Mr. Guirguis declared to represent (9183-4770 Quebec Inc. and 2067304 Ontario Inc.).

[ 43 ] On October 29, 2010, Mr. Simonian and his wife went to Mr. Guirguis' home to confront him. On arriving, they saw one of the Prius cars in the driveway with a United States licence plate. [ 44 ] Mr. Simonian demanded his " papers " and " the cars ". Mr. Guirguis responded: " you have nothing and you will get nothing… even by the Court ". [ 45 ] The two men scuffled. Police were called to the scene. Mr. Simonian was advised to leave.

This scene is described essentially in the same fashion by all present; the only difference being that each blames the other. [ 46 ] Sherry Mansour, was present at the time of the altercation. She confirms that Mr. Simonian asked " for the keys and papers " to the cars. Although, she states that she was unaware of the dealings between her husband and Mr. Simonian, she admits having told her husband " give him what ever he wants ". Thereafter, parties no longer had any contact. THE SEIZURE BEFORE JUDGMENT [ 47 ] On March 4, 2011, Mr.

Simonian obtained the authorisation of the Court to seize before judgment the Guirguis / Mansour family home. [ 48 ] This property belongs to Sherry Mansour and has been her property since March 19, 2008. The home was transferred to her name alone after the couple had separated. Me Johanne Elizabeth O'Hanlon, Mrs. Mansour's divorce lawyer, testified that the transfer was made at her client's request to reassure her that if the couple's relationship disintegrated again, she would be protected. [ 49 ] Mrs. Mansour explained in detail the reasons for this act of partition.

She also testified that at the time of the seizure the couple was in the process of purchasing a larger home. This purchase was rendered impossible because of the seizure. She states that the seizure caused her financial strain and moral anguish because " it had nothing to do with me ". No documentary evidence is presented to corroborate her testimony. [ 50 ] Mrs Mansour presented no motion to quash the seizure. Her lawyer argued that the seizure was abusive. He argued that under articles 54.1 and subsequent C.C.P., his client was justified to claim $5,748.75 for the fees she has incurred in this matter.

ANALYSIS Nature of the relationship [ 51 ] For lack of a better expression, the Court has referred to the relations between Mr. Simonian and Mr. Guirguis as "a venture". [ 52 ] It is however, necessary to determine the applicable rules. [ 53 ] The evidence is that Mr. Simonian intended: 1. to invest all of the capital; 2. to purchase the cars, through Mr. Guirguis; 3. to have the cars registered in his name; 4. to sell the cars to potential clients; 5. to remit 50% of the profit to Mr. Guirguis for his efforts. [ 54 ] It is clear that all of the risks were to be taken by Mr. Simonian. He was the sole financier.

He alone would have been the vendor of the repaired cars, thereby being liable for any warranty or taxes. [ 55 ] Although Mr. Guirguis constantly referred to "we" when referring to this relationship, the Court considers that this does not create any sort of partnership. There was no investment other than his time on the part of Mr. Guirguis. He had no financial liability to service providers, nor to eventual purchasers. Most importantly, there was no intention on his part to become Mr. Simonian's partner. [ 56 ] Therefore, the "venture" was Mr. Simonian's alone. Mr. Guirguis acted as Mr.

Simonian's representative or mandatary: 1. to purchase cars through a third party; 2. to act as intermediary with repair shops; 3. to advise Mr. Simonian on the technical aspects of these dealings. [ 57 ]

Article 2130 of the Civil Code of Quebec defines mandate: 2130. Mandate is a contract by which a person, the mandator, empowers another person, the mandatary, to represent him in the performance of a juridical act with a third person , and the mandatary, by his acceptance, binds himself to exercise the power. The power and, where applicable, the writing evidencing it are called the power of attorney.

[Emphasis added] [ 58 ] Also, according to

article 2136 C.C.Q, Mr. Guirguis' powers include those "which are incidental to such powers and which are necessary for the performance of the mandate". [ 59 ]

Article 2138 C.C.Q. describes Mr. Guirguis' obligations as mandatary: 2138. A mandatary is bound to fulfill the mandate he has accepted , and he shall act with prudence and diligence in performing it. He shall also act honestly and faithfully in the best interests of the mandator, and avoid placing himself in a position that puts his own interest in conflict with that of his mandator. [Emphasis added] [ 60 ]

Article 2139 C.C.Q. is also relevant: 2139. During the mandate, the mandatary is bound to inform the mandator, at his request or where circumstances warrant it, of the stage reached in the performance of the mandate . The mandatary shall inform the mandator without delay that he has fulfilled his mandate. [Emphasis added] [ 61 ] On the other hand, Mr. Simonian also had obligations unto Mr. Guirguis: 2150. Where required, the mandator advances to the mandatary the necessary sums for the performance of the mandate.

He reimburses the mandatary for any reasonable expenses he has incurred and pays him the remuneration to which he is entitled. [ 62 ] There is however, a limit to such responsibility: 2154. Where the mandatary is not at fault , the mandator is bound to compensate him for any injury he has suffered by reason of the performance of the mandate. [Emphasis added] [ 63 ] The Court will analyse the parties' obligations according to these rules and decide the consequences of their dispute. Where lies the fault ? [ 64 ] Things did not go as expected for either of the parties. [ 65 ] Mr.

Guirguis invested more time than he wanted. Mr. Simonian was demanding. Two of the cars had electrical problems that seem to have belated their inspection and registration. The potential purchasers were not numerous. The potential sale prices were not as high as expected. [ 66 ] Mr. Guirguis began distancing himself from Mr. Simonian. In July, he sent the cars to a dealership for electrical work. He identified Mr. Simonian as the client and the owner of these cars. Although, strictly speaking, this is correct, Mr.

Guirguis' intention was to avoid any further work or implication with regard to these cars. [ 67 ] Mr. Guirguis began avoiding Mr. Simonian. He states that this was because Mr. Simonian was constantly trying to contact him on his cellphone and at the office. This is a feable excuse. Mr. Guirguis should have discussed the situation with Mr. Simonian to address the matter. Obviously, he should have felt responsible seeing as it was he who had advised Mr. Simonian in this business.

The cars were not roadworthy and were not selling. [ 68 ] The altercation of October 2010, at the Guirguis / Mansour home, is the inevitable conclusion of Mr. Guirguis' strategy of avoiding Mr. Simonian. [ 69 ] The description of the altercation leads the Court to conclude that the parties had a 'pushing match'. It is not necessary to decide if there was an aggressor or a victim. The police at that time saw no reason to intervene. The Court will not do so either. Mr Guirguis failed as a mandatary [ 70 ] Mr. Guirguis did not respect his obligations under

article 2138 C.C.Q. In particular, he has not acted "with prudence and diligence in the performance of his mandate". [ 71 ] Clearly, Mr. Guirguis did not complete his mandate, nor did he even attempt to withdraw from it in an orderly fashion. On the contrary, he abruptly abandoned his responsibilities unto Mr. Simonian as well ignoring him thereafter. [ 72 ] Also, Mr. Guirguis did not act "faithfully and honestly" (article 2138 (2) C.C.Q.) nor did he keep Mr.

Simonian "informed of the stage reached in the performance of the mandate" (article 2139 (1) C.C.Q.). [ 73 ] He should have been forthcoming and admitted the difficulties of the situation. These were after all his own fault. When the cars were not selling and required more repairs than expected, Mr. Guirguis should have explained the reasons why to Mr. Simonian.

Instead, he attempted to convince him to "sell cheap" in order to "turn over the inventory". Mr. Guirguis used the same line of defence at trial. The Court does not accept this argument. It is the Court's conclusion that Mr. Guirguis panicked and chose not to own-up to his own shortcomings. [ 74 ] When Mr. Guirguis could not convince Mr. Simonian to sell at a loss, he then began to ignore him. The emails exchanged by the parties (Exhibit P-21) over the summer of 2010 demonstrate this explicitly. [ 75 ] Mr. Guirguis also put himself in a situation of conflict of interest (article 2138 (2) C.C.Q.).

The contention that he purchased the Acura for himself, is an obvious example of this. Although Mr. Simonian never consented to this, the fact is that Mr. Guiguis acted as if he had. Mr Guirguis never advised Mr. Simonian of the whereabouts of the car. Even in the weeks leading up to the trial, Mr. Simonian had no way of tracing the car. The title to this vehicle was given to the repair shop by Mr. Guirguis as guarantee for its fees. Mr. Simonian was never asked, until the eve of the trial, to participate in these costs. [ 76 ] These reasons lead the Court to conclude that Mr.

Guirguis is liable for damages unto Mr. Simonian. Damages due to Mr. Simonian [ 77 ] The Court has concluded that Mr. Simonian invested $37,239.67 for purchasing the cars (see paragraph 32 above). As well, he disbursed $25,923 (see paragraph 37) for the repairs, most of this sum being paid to Mr. Guirguis. [ 78 ] The ownership of the cars is described at paragraph 28 of this judgment. Four (4) cars are registered to a company that Mr. Guirguis declares to represent. As for the two (2) others Mr. Guirguis had occasion to prove relevant facts to the Court, but failed to do so. [ 79 ] Mr.

Simonian contends therefore that his damage is equivalent to what he invested in the venture, and the full amount claimed must be allowed. [ 80 ] Mr. Simonian, during the trial, discontinued his conclusions concerning the forced transfer of registration to the cars. He also, if needed, filed a "désistment" and "offre-réelle", relinquishing to Mr. Guirguis any right he might have had in the cars. He also offered to remit to Mr. Guirguis the one car in his possession. This relinquishment of rights means that Mr. Simonian has no real right in the cars or in their value (if any). [ 81 ] Mr Guirguis argues that Mr.

Simonian failed to mitigate his damages. This is not founded. If Mr. Simonian never obtained title to the cars, it is clearly because of Mr. Guirguis' negligence in abandoning his mandate. He neglected to cooperate with Mr. Simonian, for instance by giving him the necessary documents. [ 82 ] Mr. Simonian's investment ($37,239.67 + $25,923) has been lost completely because of Mr. Guirguis' fault as a mandatary. These damages represent "the loss he has sustained" (article 1611 C.C.Q.). Damages due to Mr. Guirguis [ 83 ] Mr.

Guirguis is claiming: • $5,000 in moral damages; • $5,000 for services rendered; • $2,461.23 for costs incurred; • Judicial and extrajudicial costs. [ 84 ] No moral damages have been proven. In any case, Mr. Guirguis is at fault for his neglect and abandonment of the mandate. [ 85 ] No fees for services rendered are due. No evidence has been presented to allow the Court to evaluate such fees. [ 86 ] The claim for costs incurred (if such cost had been correctly proven at trial, which is not the case) cannot be granted. These costs were, according to Mr. Guirguis, for repairs to the cars.

These cars are under the control of Mr. Guirguis. Mr. Simonian has relinquished all rights in them. [ 87 ] Lastly, no evidence has been made concerning extrajudicial lawyer fees. As well, Mr. Guirguis acted without the aid of a lawyer at trial. In any case, subject to the Court's conclusions, concerning the legality of the seizure before judgment, no abuse of process has been committed by Mr. Simonian. The validity of the seizure before judgment [ 88 ] Mr. Simonian argues that the transfer of the family domicile by Mr. Guirguis to Mrs Mansour is a sham.

He submits that she is a prête-nom, in particular since although the home is in Mrs Mansour's name, Mr. Guirguis remains severally liable with Mrs Mansour for the hypothecary loan. The circumstances of the transfer of the property are uncontested. The parties were involved in divorce proceedings and were separated. As a condition of the reconciliation, Mrs Mansour insisted on the house being transferred to her. [ 89 ] The seizure was authorized in virtue of

article 733 C.C.P. with reads:

733. The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is reason to fear that without this remedy the recovery of his debt may be put in jeopardy . [Emphasis added] [ 90 ] It is Mr. Simonian's burden to prove that there was a reason for him to fear that "the recovery of his debt may be in jeopardy". The jurisprudence establishes that this fear must be objective. [ 91 ] Mr. Simonian insists in particular on the following:

i) That the immovable property seized was already on the market up for sale; ii) That the defendant despite the fact that he was no longer the registered owner of the immovable property was still responsible for the mortgage towards the CIBC Mortgage Inc.,; iii) That upon the signing of the deed of transfer of ownership to the impleaded party, the defendant and the impleaded party raised the mortgage up to $274,888.71 which was originally at $153,000.00 therefore diminishing the net equity and same contrary to the impleaded party's pretences to the effect that the parties had proceeded to the said transfer for her security; iv) That the defendant is implicated in another case of a similar nature;

v) It is also to be noted that the divorce proceedings between the defendant and the impleaded party were instituted one year prior to the signing of the deed of transfer; [ 92 ] None of these reasons are sufficient to validate the seizure. In fact, one of Mr. Simonian's own arguments confirms as much, namely that the house was for sale. [ 93 ] At trial, Mrs Mansour testified that if the house had been sold, the new property she and Mr. Guirguis wished to purchase would have been in both their names. Mr. Simonian argues that this confirms his point of view. The Court does not agree.

In fact, had the sale taken place, Mr. Simonian's eventual judgment would have been better protected. [ 94 ] Also, this testimony corroborates the Court's conclusion that neither Mr. Guirguis nor Mrs Mansour attempted to "hide" the property in order to avoid payment of an eventual judgment. There is nothing in the evidence to conclude that Mr. Guirguis will not respect his obligations. Mr. Guirguis is an engineer and has been a long-time employee in a management position at a large multinational corporation in the aviation industry. [ 95 ] The Court concludes that the seizure before judgment is unfounded.

It will not be validated. Can Sherry Mansour claim damages? [ 96 ] The quashing of this seizure before judgment does not suffice to give Mrs Mansour a right to damages. She had the burden of proving that the seizure was in fact an abuse of process on the part of Mr. Simonian. [ 97 ] She invokes

article 54.1 C.C.P.: 54.1. A court may , at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned . The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate. [Emphasis added] [ 98 ] The introductory paragraph of this

article allows the Court, of its own initiative, after having heard the parties, to declare that a pleading is improper and impose a sanction on the party concerned. [ 99 ] As stated, Mrs Mansour has filed no proceedings in order to claim the damages for the seizure. However, her lawyer clearly indicated at the start of the trial that he would be so claiming. Mr. Simonian had occasion to defend against this claim and to cross- examine Mrs Mansour. Since

article 54.1 C.C.P. allows the Court, even at its own initiative to condemn a party for damages in such a situation, it concludes that this verbal notice is sufficient to entertain the claim. Was the seizure abusive? [ 100 ] The Court concludes that it was. [ 101 ] The facts show that the seizure was "clearly unfounded" and "frivolous". It "causes prejudice to another party", namely Mrs Mansour. Also, the Court sees bad faith in the way Mr. Simonian obtained authorization of the seizure. [ 102 ] Firstly, the transfer of the property which was allegedly done to avoid Mr.

Guirguis' liability took place on March 19, 2008. This is 14 months prior to Mr. Simonian and Mr. Guirguis even meeting. It is patently unfounded to claim that the transfer was done with any regard to the facts of this case.

[ 103 ] Also, the affidavit to obtain authorization for this seizure is relevant to the Court's conclusion. Mr. Simonian states in his affidavit: 41.

In order to avoid reimbursing any of his creditors, the defendant's immovable property situated at 18015 Meloche St., Pierrefonds, district of Montréal, province of Quebec, H9K 1J5, known and designated as follows: Lot number ONE MILLION NINE HUNDRED SEVENTY-EIGHT THOUSAND EIGHT HUNDRED NINETY-NINE (1 978 899) upon the Cadaster of Quebec, registration division of Montreal . was transferred to the impleaded party, Sherry Mansour, being his wife (hereinafter referred to as " the impleaded party ") , the whole as appears more fully from a copy of the partition act registered under the number 15 058 954 in the Registre foncier du Québec , herein produced as Exhibit P-9 , 46.

It is clear that the defendant is selling the hereinabove mentioned immovable to avoid paying all his creditors, including me, and to render himself "judgment-proof" as I don't know any other property belonging to the defendant; [ 104 ] These allegations attempt to show that Mr. Guirguis is disposing of his assets. They refer to the transfer of the property. The affidavit however, does not refer to the date of this transfer whereas every other allegation in the affidavit specifically mentions the date of the events.

This method of drafting is inconsistent with the transparency that should prevail in such matters. [ 105 ] The Court concludes that seeing the time period that has elapsed between the transfer of the property and the events of this case, there was absolutely no objective fear on the part of Mr. Simonian that Mr. Guirguis was attempting to dispose of his property. The seizure before judgment is abusive. What damages are due? [ 106 ] Mrs Mansour has filed her attorney's statement of account for two days at Court, plus preparation.

In fact, the fees are a flat rate of $5,000 for preparation and three (3) days of trial. [ 107 ] No evidence of an hourly rate has been made. [ 108 ] Also, Mrs Mansour's attorney was also Mr. Guirguis' attorney until the eve of the trial. Me Leinhos then informed the Court that his client had revoked his mandate. Mr. Guirguis, in turn asked for the continuance of the trial in order to prepare. This continuance was refused since Mr.

Guirguis should have known that he would have to act on his own behalf, when, of his own volition, he revoked his attorney. [ 109 ] Me Leinhos while acting for Mrs Mansour at trial, nonetheless cross-examined Mr. Simonian and his witnesses at length on all the subjects in debate. This ultimately was to Mr. Guirguis' benefit. As well, Me Leinhos' presence was not required for three (3) full days.

The personal interests of Mrs Mansour could have been defended in much less time. [ 110 ] This leads the Court to conclude that it would have sufficed for Mrs Mansour's lawyer to be present for one day at Court, plus one half-day preparation. An amount of $2,000 is a reasonable fee for this work. [ 111 ] The Court will condemn Mr. Simonian to pay this amount in damages. Since extrajudicial fees are being ordered, Mr. Simonian will not be condemned to the payment of judicial fees. CONCLUSIONS [ 112 ] Mr. Guirguis is at fault and is liable to Mr.

Simonian for damages in the amount of $63,162.67 ($37,239.67 + $25,923). [ 113 ] Mr. Guirguis' cross-demand is unfounded and dismissed. [ 114 ] The seizure before judgment is abusive. Mr. Simonian is liable to Mrs Mansour for damages, in virtue of

article 54.1 C.p.c., in the amount of $2,000. FOR THESE REASONS, THE COURT: GRANTS, in part, the introductory Motion; TAKES act of Hagop Ohan Simonian's "offres réelles" dated March 1, 2013 by which he relinquished all his rights in the vehicles and accessories listed therein; CONDEMNS John Guirguis to pay to Hagop Ohan Simonian the sum of $63,162.67 plus legal interest as well as the additional indemnity provided for by

article 1619 C.C.Q since the date of service of the Introductory Motion, with costs; ANNULS the seizure before judgement; ORDERS the impleaded party, l' Officier de la publicité des droits de la circonscription foncière de Montréal, to cancel the inscription of the seizure before judgment published under the inscription number 17 960 172; DECLARES that this seizure was abusive;

CONDEMNS Hagop Ohan Simonian to pay to Sherry Mansour the sum of $2,000 with interest at the legal rate and the additional indemnity provided for in

article 1619 C.C.Q. as of this judgment, without costs. __________________________________ Scott Hughes, J.C.Q. Me Nagi Ebrahim Ebrahim, Macleode For the Plaintiff John Guirguis Represents himself Me James Leinhos Leinhos, Lalonde s.e.n.c.r.l. For Sherry Mansour Dates of hearing: November 21, 22, 23 and March 1 st , 2013