2013 QCCQ 4737, 2013 QCCQ 4737

Timex Realty Inc. c. 4308450 Canada inc. 2013 QCCQ 4737 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-197924-122 DATE: May 10, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ TIMEX REALTY INC.

Plaintiff v. 4308450 CANADA INC. and MICHAEL GREEN and KAMILIYA KATABEAVA Defendants ______________________________________________________________________ JUDGMENT ON A MOTION FOR REVOCATION OF JUDGMENT ______________________________________________________________________ [ 1 ] Defendants [1] request that the Court receive their amended Motion for revocation of a judgment rendered March 4, 2013.

This judgment, rendered by default to appear, resiliated their lease, condemned them solidarily to pay 19,709.10 $ and ordered their expulsion. [ 2 ] Timex Realty Inc. (Timex) argues that no serious grounds of revocation are alleged and that no grounds of defence are included in the amended Motion. THE RULES CONCERNING REVOCATION OF JUDGMENT [ 3 ] Defendants invoke

article 482 of the Code of civil procedure : 482. A party condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, by fraud or by any other reason considered sufficient, request that the judgment be revoked and that the action be dismissed.

The motion, addressed to the court which rendered the judgment, must contain not only the grounds for revocation of judgment, but also the grounds of defence to the action. [ 4 ] At the stage of receipt of a Motion for revocation, the Court verifies whether it has been filed within a peremptory time limits and whether it contains, prima facie , serious grounds of revocation, as well as serious grounds of defence. The question of delays is not in debate here. [ 5 ] At this stage, the Court must also accept the allegations contained in the Motion as true.

If the Motion is received, Defendants will have the burden of proving the veracity of these allegations and Timex will have the opportunity to prove the contrary. [ 6 ] Two important principles oppose each other in this type of Motion. On the one hand, the irrevocability of judgments; and on the other hand, the right of Defendants to have their day in Court. [ 7 ] In cases where a defendant has acted with gross negligence, as Timex argues, the judgment should stand. GROUNDS OF DEFENCE [ 8 ] The Motion for revocation states: 8. The defendants have a defense against the original action which goes as follows : 9.

There was no outstanding rent due, the Plaintiff did cash several cheques covering the rents due;

10. The Plaintiff is claiming an amount of 16,901.28$, representing an additional 12 months, when the lease is terminating in August. Therefore the amounts claimed are highly incorrect and should reflect effective term of the Lease, an additional 4 moths instead of twelve; 11. When the action was taken against the Defendant, no prior written notice was sent to the Defendant stating the alleged rent due; 12. Since the action was taken, the Plaintiff has been recurrently cashing the Defendants cheque; (Reproduced as drafted) [ 9 ] Timex argues that these allegations do not constitute a defence to the claim.

It alleges that for these means of defence to be considered serious, Defendants should have filed the cancelled cheques. [ 10 ] At this stage, these allegations must be accepted as drafted. They do, at first glance constitute a defence to the claim; alleging that the rent has been paid is certainly a defence. Timex is confusing the sufficiency of these allegations with the strength of the evidence that might eventually be adduced at trial. [ 11 ] This argument is not founded. GROUNDS FOR REVOCATION [ 12 ] The amended Motion states: 3.

On December 12, 2012, Me Beaubrun did notify defendants that he would no longer represent defendants claiming in the same notice (email 10:42 am December 08, 2012) annexed hereto as Exhibit R-1 that he had applied on December 6, 2012, for a job at the firm representing Timex's legal interests. In the same email, he also advised that […] it was not the time to answer the action. 4. We, the defendants, were advised to appear personally on December 27, the date of the notice of presentation; 5.

On December 27, 2012, the Defendant Michael Green did attend court after 9am given the inclement weather ( a snow storm ), to be advised by the court clerk in the room 2.06 that the action had been set aside given that the Plaintiff's attorney did not either attend to the court, that a new notice for another date would be sent and the defendants would be advised of that Fact. (Reproduced as drafted) [ 13 ] The e-mails from Defendant's previous attorney alleged in the amended Motion state (in part): E-mail: December 8, 2012 As for Timex, I already told you that now is not the time to answer to the action.

What you need to do at the present time is to file an appearance in court and pay the legal fee associated with such appearance. Moreover, be informed that I applied on Thursday, the 6th for a job at the firm representing Timex's legal interests. E-mail: March 27, 2013 […] You claimed earlier today in a phone conversation that I did not file an appearance in the Timex file. Please note that I informed you in writing, after having done so orally numerous time, that you had to file an appearance and to pay the legal fees in the Timex file.

On December 9 2012, you came to my house and I gave you back the entire Timex file in order for you to file an appearance and no be able to take care of this matter in prevision of the court date. It appears from our two last conversations held today and yesterday that you did not. (Reproduced as drafted) [ 14 ] Defendants were not specifically advised that 4308450 Canada Inc. was required to file an appearance through an attorney.

In fact, paragraph 4 of the amended Motion specifically alleges that Defendants understood that it was sufficient for them to be present at Court on December 27, 2012 to contest Timex's claim. Mr. Green was present at Court and alleges the clerk told him that he would receive further notice from Timex's lawyer. This allegation also, must be taken at face value at this point. [ 15 ] These allegations, contained in the amended Motion, constitute « any other reason considered sufficient » in accordance with

article 482 C.C.P. [ 16 ] Considering the facts alleged in the amended Motion, the Court is unable to conclude that Defendant's were grossly negligent in the conduct of their affairs. FOR THESE REASONS, THE COURT: RECEIVES the amended Motion for revocation of a judgment; SUSPENDS the execution of the judgment rendered by the special clerk of this Court on March 4, 2013;

ORDERS that the case continue according to the rules of the original suit; ORDERS Defendants to pay all the costs resulting from their default according to

article 487 C.C.P. __________________________________ Scott Hughes, J.C.Q. Me Sheryl S. Miller Greenspoon Perreault For the Plaintiff Me Marie Eve Plante-Hébert For the Defendants Date of hearing: May 3, 2013