2012 QCCQ 13539, 2012 QCCQ 13539

Garderie ABC du village inc. c. Shepherd COURT OF QUEBEC 2012 QCCQ 13539 CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-174247-109 DATE: November 28, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GARDERIE ABC DU VILLAGE INC Plaintiff v.

Tara SHEPHERD and Ricardo REBELO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I Parties and Proceedings [ 1 ] The Plaintiff, Garderie ABC du Village Inc. (Garderie ABC), a corporation that operates a daycare in Vadudreuil-Dorion, sues its former clients, the Defendants Tara Shepherd and Ricardo Rebelo for daycare fees for their child Miguel. [ 2 ] The claim is composed of the fees for the entire year 1990 totalling $ 8,370, plus interest at the alleged contractual rate of 24% per annum. [ 3 ] The Plaintiff added to the action, by amendment, a claim in defamation of character for $ 13,000 in connection with a statement made by Tara Shepherd to the Sûreté du Québec concerning alleged fabricated documents.

This statement led to the Sûreté questioning the principal of the Plaintiff, Mrs Christina Milonas Ward (hereinafter Christina Milonas) concerning the matter. [ 4 ] The Defendants do not admit the Plaintiff's calculation of the fees and deny owing interest at the alleged rate of 24 %.

They deny owing the daycare charges as well on the ground that the obligation was extinguished by release. [ 5 ] They deny any liability with respect to the claim in damages, asserting that Tara Shepherd's statement to the Sûreté did not constitute a fault. [ 6 ] They also formulate a cross-demand for $ 6,000 in psychological damages and $ 5,000 in punitive damages. II Issues [ 7 ] The Plaintiff's case is advanced, to a large extent, on a letter, P-4, in which Tara Shepherd writes that she will pay a remaining balance of $ 3,835.

Tara Shepherd maintains that she signed the document under moral duress. [ 8 ] The Court must answer the following questions: 1. What is the amount of the obligation arising for daycare fees? 2. Is this amount subject to interest at 24% per annum? 3. Did the Plaintiff release, in whole or in part, the obligation with respect to daycare fees?

4. What is the effect of the letter, P-4 on the rights of the parties? 5. Did Tara Shepherd's declaration to the Sûreté generate liability toward the Plaintiff and, if so, what is the measure of the Plaintiff's prejudice. III Factual material [ 9 ] Tara Shepherd and Christina Milonas became acquainted in June 2005 when Tara Shepherd enrolled her two children, in the Garderie ABC. In September she began working part time replacing daycare workers. She gradually took on more responsibilities. [ 10 ] In December 2006 Mrs Milonas suffered a nervous breakdown, experiencing panic attacks and an anxiety disorder.

She went on an indefinite leave. Thus it became necessary for the Plaintiff to find a replacement for her as day-do-day manager of the business. [ 11 ] Tara Shepherd was considered to be the best candidate for this job. [ 12 ] Although she was on maternity leave, having given birth to Miguel in January 2007, Mrs Shepherd became the full-time manager of the daycare as of March 2007. [ 13 ] This relationship continued as Mrs Shepherd became responsible for all aspects of the daycare. The two women had become close friends and confidents.

They established a strong family-like connection, assisting each other with their respective children. [ 14 ] In fact, Mrs Shepherd speaks of Christina Milonas as a role model or a mother figure. She had recently lost her mother. She states that the relationship with Christina Milonas filled that void and led to a strong emotional bond. [ 15 ] Mrs Shepherd was working long hours. This lead to fatigue and eventually she had a breakdown in December 2008, taking 11-12 weeks off to deal with her condition.

The reason cited in a medical certificate issued on a Service Canada form dated December 16, 2008 (D-5) is "major depression". [ 16 ] She testifies that she came back to the job too soon, and required more time off in the summer of 2009. But she continued to help out despite being on leave. In January 2010 she suffered from a severe case of laryngitis. At this time she felt that she was under too much pressure, that too much was expected of her. She had made a banking error in her administration of the daycare's affairs.

She felt she was letting the business down. [ 17 ] Throughout this process, her husband, the Defendant Ricardo Rebelo became opposed her working at the daycare and keeping the children enrolled there. He felt that the small amount she earned, at approximately ten to twelve dollars per hour, did not justify the cost of having the children in daycare. In fact, he thought that she was losing money. [ 18 ] As well, he felt that his wife was under too much stress as a result of the job and her relationship with Christina Milonas. In 2009 this led to problems of communication within the couple.

He testified about being present when Mrs Milonas had violent outbursts at parents who had not paid their fees. He also overheard telephone conversations where she was angry with his wife. [ 19 ] Mrs Shepherd confirmed in her testimony this view of Christina Milonas' temperament. She stated that all of the employees would be "walking on eggshells" in fear of Mrs Milonas' temper. After yelling at the employees, she would later apologise. [ 20 ] Mrs Milonas had been angry about Mrs Shepherd's pregnancy in 2006. Then she had apologised.

This cycle of anger and apology was part of the relationship that Mrs Shepherd related to the Court that led in the beginning of 2010 to her being in fear of Milonas and desperate to end the relationship, needing to get her "out of her life". The loan and its repayment [ 21 ] As various times, Tara Shepherd experienced financial difficulty, while the daycare also had financial concerns. [ 22 ] On May 6, 2009 Garderie ABC loaned her $ 1,000 so that she could meet current family expenses.

Again, on July 31, 2007, it loaned her $ 1,755 (P-6) so that she could reinstate Hydro-Québec service that had been cut off for non payment of her account. [ 23 ] A ledger from Garderie ABC's records (D-11) shows a series of payments retained from payroll from August to December 2009 reducing the debt from $ 2,705 to $ 1,380. [ 24 ] Then it records a payment of 4% amounting to 499.65, presumably holiday pay, applied to reduce the loan from $ 1,390 to $ 890. 35.

A final entry dated February 2010 shows an amount of $ 783.60 "from pay" reducing the balance of the loan to $ 106.75. [ 25 ] Both parties testify to their belief that the loan was reimbursed in full. Difficulty in paying daycare fees [ 26 ] During that period she was also unable to pay all of the fees associated with her children's presence at the daycare.

Mrs Milonas testifies that she was in arrears for her daughter Ashley's fees in previous years as well as in 2009. [ 27 ] Garderie ABC had renounced fees for the oldest child, Marco in the last two months he was enrolled in the daycare in 2007 before he started school. Mrs Milonas testifies that Mrs Shepherd had come to her in tears because she could not afford the fees for both children, Marco and Ashley, and would have to leave the daycare altogether.

Mrs Milonas told her she would not have to pay for the last two months of Marco's stay. [ 28 ] Up until 2007, the fees per child were $ 30 per day for babies aged six months to 17 months, and $ 25 per day for children 18 months and older. [ 29 ] In 2008, the Quebec government initiated a system of advanced payments of a tax credit to the parents amounting to approximately $ 20 per day.

A new fee structure was initiated whereby parents entitled to the tax credit would made payments to Garderie ABC equivalent to the advance payment received from Quebec, plus a cash payment of $ 15, for a total fee of $ 35 dollars per day. Some parents who were not entitled to the tax credit negotiated to keep, for one year, the fee of $ 25 per day. [ 30 ] In 2009, Mrs Shepherd could not make all the payments that would ordinarily be due for Ashley and Miguel. She would pay amounts

equal to the advance payment of her tax credit for each child. She believes that payments of the cash portion for Ashely were coming out of her pay, in arrears, although she was never provided with a statement of account. [ 31 ] She testifies that she spoke to Mrs Milonas on several occasions in 1990 about her incapacity to pay specifically for the cash portion of Miguel's fees amounting to $ 15 per day, and that each time Mrs Milonas said words to the effect of "don't worry-just give me the advance payments". [ 32 ] The Court accepts Tara Shepherd's testimony on this point.

Mrs Milonas does not admit to having waived the fees owing for Miguel, stating that the only renunciation she made on behalf of Garderie ABC was for the last two months of fees that would normally have been charged for Marco. The resignation [ 33 ] By the beginning of 2010 Tara Shepherd decided to resign at a time when she had been quite ill with laryngitis. [ 34 ] But, so as not to leave the daycare without her support, she agreed to stay on for what amounted to a significantly-long notice period.

She was taken off the payroll with effect on Jan 1, 2010, the last day for which she was paid according to the record of employment (D-10).

She stayed on however until April, working part time, but not being paid through the payroll. [ 35 ] The parties both state that the services were compensated with an additional amount that was still in arrears for the fees relating to Ashley, who had left to go to school in the late summer 2009. [ 36 ] Both parties believe that the amount that remained and that was compensated with the part-time services was $ 2,100. [ 37 ] The rest of the loan, or most of it, was also paid off at this time according to the ledger (D-11). [ 38 ] As well as the difficulty related to the payment of these amounts from pay that would otherwise have been received, Mrs Shepherd had the additional emotional difficulty in leaving a relationship that had become very stressful.

She testified that she "felt completely controlled". The claim for payment [ 39 ] In the context of her departure as an employee and the withdrawal of her youngest child Miguel from the daycare, Mrs Shepherd received, for the first time, a claim for payment of fees related to Miguel. [ 40 ] Her last encounter with Christina Milonas was on May 10, 2010. She states that she left the meeting hurriedly after Christina had given her a handwritten note, saying "here, this is what you owe me". The amount written was $ 3,835.

The attempt to end the dispute [ 41 ] The next day, Tara Shepherd wrote to Mrs Milonas in an uncharacteristically formal way (P-4): Mrs Milonas, This letter is to inform you that I will be abiding by the original contract that was signed with your daycare where the fee was 15$/day plus the advanced payments. Under that contract you are entitled to charge me interest on the amount owed but there is nothing stated that you may charge the rate to suit your needs. I will as discussed on the morning of the 10 th of May 2010 pay the daycare the remaining balance $ 3835.00.

I will as I told you that morning start bringing as of the 18 th of May 2010 these payments will be made by Money order or certified cheque. I will continue to bring these payments increasing in amount until I have paid off my debt to you in full by the 31 st of August 2010. Any further communication concerning these charges are to be sent to myself in writing. Respectfully Tara Shepherd [ 42 ] Mrs Shepherd testifies that she did not know what the contract contained concerning price or interest on arrears, not having been provided with a copy.

She is aware that the unnumbered page setting out in French and in English a clause entitled "Manquements et recours/Defaults and remedies" had come into use with contracts signed as of a certain period, but she does not know that it was part of any contract she signed. [ 43 ] She notes that the versions produced as P-2 are not initialled by her.

She authenticates the signature pages, but not the body of the text. [ 44 ] She explains that she referred to the amount claimed by Mrs Milonas in the manuscript note, hoping that her stated willingness to pay this amount would permit her end the relationship and to avoid any further pressure from Mrs Milonas who she feared would otherwise be unrelenting. [ 45 ] Mrs Milonas, replying in an even more formal way, send a letter of demand addressed to both Defendants claiming, for daycare services for Miguel in 2009, $ 8,025.00 and for interest at 24%, $ 1,926.00.

The letter refers to the contract "which explains our services and payment requirements. I do have a copy of the contract if you require a copy." [ 46 ] There were also informal demands. In a communication directly with Ricardo Ribelo, the latter, unaware of the claim, asked for the written proofs of the contract and amounts owed. No statement of account was sent, only a version of the contract similar to P-2. [ 47 ] There was also a telephone conversation with Ricardo Ribelo's mother. According to the Defendants, she was quite upset about the call which, according to this hearsay, was threatening.

The fabricated documents and the statement made to la Sûreté [ 48 ] The Plaintiff's attorney responded to the Defendant's attorney July 23, 2010. After specifying that his client's claim is for the fees of the male child for the year 2009, he adds:

In addition to the foregoing Tara Shepherd borrowed two thousand seven hundred and fifty five dollars ($ 2,755.00) from my client, copy of the acknowledgements are annexed to my letter. Consequently the amount now claimed is eleven thousand one hundred and twenty five dollars ($ 11,125.00).

Failure to pay within the date of the second Mise en demeure will lead to an action against your client for recovery. [ 49 ] The attachments to the letter consist in two documents addressed to Garderie ABC dated May 6, 2009 referring to the loan of $ 1,000 and dated July 31, 2009 referring to the loan of $ 1,755. [ 50 ] The documents have signature lines for Christina Milonas and Tara Shepherd.

In the place of Tara Shepherd's signature, the name is written out in detached cursive letters in what is apparently Tara Shepherd's handwriting. [ 51 ] In scrutinising the documents, which are photocopies, Mrs Shepherd realised that they were fabrications, because she would not have signed a document by printing her name. [ 52 ] Faced with a claim to reimburse loans that she had already paid, and realising that the claim was based on what appeared to be a forgery, she worried that she would have to pay again.

After seeking advice from her attorney who recommended that she bring the matter to the attention of the police. This resulted in her making a complaint to the Sûreté du Québec. [ 53 ] In a statement written down by the investigator and signed by her, Mrs Shepherd explains the context in which the loans were made and the fact that they were reimbursed. The statement goes on: J'ai ensuite terminé mon emploi à la garderie et nous avons eu peu de contact depuis. Au mois de juin 2010, j'ai reçu deux documents disant que je devais les 2 montants déjà remboursé.

C'est là que je trouve la situation louche parce que ces deux lettre sont supposéments signés de ma main mais je n'ai jamais vu ces documents avant et les ai encore moins signés. Les deux documents sont daté de 3 mois de différence (ce qui correspond aux emprunts) mais ma « signature » est en tout point identique sur les deux documents contrairement à la signature de Mme Milonas, ce qui est impossible et prouve qu'elle a fabriqué les deux document.

C'est mon avocat civil qui m'a conseillé de voir la police à ce sujet [sic]. [ 54 ] The investigator referred the documents to an expert, Denis Cimon, working for the Laboratoire de sciences judiciaires et de médecine légale. His study of the documents (D-8) led to the conclusion that the had written name Tara Shepherd and the signature line on which it appears, were constructed from another document, probably by a process of photocopying. In other words, they were fabrications. [ 55 ] The fabrication is a curious one because of the use of the printed name rather than the signature.

In his testimony, the expert pointed out that the signature could not be copied without copying the other elements that would be traceable to the source. That may be why the person fabricating the document opted to use the printed form of the name but the result was also detectable as a fabrication. [ 56 ] The investigator questioned Mrs Milonas about the matter. The meeting lasted two hours according to Mrs Milonas' testimony. She felt distraught and embarrassed.

She thinks that some co-workers and parents know about the matter, but none were called to testify. [ 57 ] Asked by her attorney what she thought the claim was worth (the claim is stated at $ 13,000 in the amended motion to institute proceedings), she stated that at the time she felt it was worth making a monetary claim but that now she would have accepted an apology. She feels that Mrs Shepherd made the police complaint knowing that she suffers from anxiety and panic attacks. III Analysis 1.

Amount owed [ 58 ] To establish what amount remains unpaid with respect to Miguel, it is necessary to determine the price chargeable for each child and to show how payments received were imputed to the account of one or another of the two children. [ 59 ] The authenticity of the contract forms of which photocopies were produced as P-1 is not established by their production as the Defendants provided an affidavit pursuant to

article 89 of the Code of Civil Procedure. [ 60 ] At trial, pursuant to an undertaking given during her testimony, Christina Milonas produced several originals from Garderie ABC's files (D-16, D-17, D-18). [ 61 ] The one that would seem to apply to 2009 is D-17 but it covers the period from June 12, 2009 to June 11, 2010, with a prolongation to December 9, 2010. Strangely, some of the pages are photocopies over which certain manuscript writings have been re-written. There are various colours of ink and handwriting. [ 62 ] The

section setting out the price has an x on the box indicating the text "With advanced payments from Revenu Québec". Then there is a reference to a tariff of $ 15 per day with a manuscript "$ 3,900" in the margin. The next paragraph reads "The total cost of the contract is $ 8,100.00 plus the advanced payments of Revenu Québec…" In the margin is written "4 X $ 1,050". [ 63 ] This is confusing, because the total contract should, according to the testimony of Mrs Milonas, cost $ 9,100 with the advance payment, i.e. 260 days X $ 35 per day.

At $ 8,100, the cost would be approximately $ 31.15 per day. [ 64 ] It certainly could not be, as the contract reads $ 8,100 plus the advance payment, because this would be equal to $ 12,300, or $ 47.30 per day for a 260 day year. This is an absurd result that the parties could not have intended. [ 65 ] Mrs Shepherd's testimony was to the effect that the price per child was $ 15 per day plus the advance payments, whatever they were. According to this approach, the price would vary, depending on the amount that the taxpayer was entitled to receive for the tax credit.

This was inconsistent with the evidence of both witnesses that the fees were to be based on $ 35.00 per day from the period when the tax credit advances were instituted by the government. [ 66 ] The matter is further complicated in that Mrs Shepherd did pay the amounts she received for the tax credit, and believed that these were applied to the respective obligations for both children.

Garderie ABC takes the position in the proceedings that these entire advance payments were applied to reduce the indebtedness for Ashley, whose fees were in arrears and that none of them were applied to the obligations of Miguel. [ 67 ] The amount of these arrears and how payments were imputed is not established, however, because Garderie ABC failed, even after the Court imposed an undertaking on the witness, to produce a statement of account.

[ 68 ] Without proper evidence of a financial character, it is not possible to conclude that the Plaintiff has fulfilled its burden of proof of establishing the basis of pricing and the amounts owed 2. Interest [ 69 ] D-17, which is produced as being the original of the contract for the period June 12, 2009 to June 12, 2010 does not include the page entitled "Manquements et recours/Defaults and remedies" that contains a 24% per annum interest obligation.

This page is however inserted between pages 1 of 7 and 2 of 7 of the photocopy of the same contract that is the first part of P-2. [ 70 ] That page is, however, a photocopy of the one that is found stapled at the end of D-16 ostensibly for the period December 10, 2009 to December 9, 2010 after appendix I dealing with cancellation.

This is evident because the title "Defauts and remedies" is circled in manuscript in the original and therefore in the copy. [ 71 ] The page is not found as part of the contract for the period December 10, 2007 to December 10, 2008 (2 nd part of D-2 and D-18). [ 72 ] Thus the documents taken as a whole do not establish the probable inclusion of this Manquements et recours/Defaults and remedies clause as part of any of the would-be originals. The Plaintiff has not proved that interest is owing. 3. Release [ 73 ] The Civil Code of Quebec includes release as one of the causes of extinction of obligations: 1671.

Obligations are extinguished not only by the causes of extinction contemplated in other provisions of this Code, such as payment, the expiry of an extinctive term, novation or prescription, but also by compensation, confusion, release, impossibility of performance or discharge of the debtor. 1687. Release takes place where the creditor releases his debtor from his obligation. Release is complete, unless it is stipulated to be partial. 1688. Release is either express or tacit.

Release is either onerous or gratuitous, according to the nature of the act from which it derives. [ 74 ] The theory of the defence is that the fees that would otherwise be payable for Miguel, consisting in the advance payment of the tax credit plus $ 15 per day, were reduced to simply paying the advance payment. [ 75 ] Words to the effect of "don't worry-just give me the advance payments", spoken by Mrs Milonas each time Mrs Shepherd asked about the fees, have to be considered in the context in which they were spoken. [ 76 ] Mrs Shepherd had not paid any fees for the older son in the last few months of his stay at the daycare in 2007, because she could not afford it and would have had to remove the two children and give up her work at the daycare. [ 77 ] In 2009, Mrs Shepherd could not afford any more payments: she was in arrears with the payments for the older child, Ashley and amounts were being taken off her pay to reimburse the two advances totalling $ 2,705 made in May and July 2009.

These loans were given for current expenses, such as the payment of hydro, required to have the service restored. [ 78 ] So, if she had to pay the $ 15 per day portion of the fees that would normally be owing for Miguel, she would have had to quit the job, taking both children home. [ 79 ] Her services were of value to the business, she had been the manager during the time that Mrs Milonas was on sick leave. [ 80 ] There was also a strong personal bond between the two women who depended upon each other mutually for such matters as babysitting.

Mrs Shepherd's continued presence at the daycare was a key element in the maintenance of the arrangement. [ 81 ] In this context, the express meaning of the words was that, as long as she was remitting the amounts received because of the child's presence at the daycare as an advance tax credit, she did not have to pay the $ 15 fee. This was an express release. [ 82 ] The case may seem complicated because Garderie ABC is taking the position at trial that all of these payments made out of the advance payments for tax credits were accruing to the indebtedness for Ashley.

The position is advanced at trial, but the most basic evidence, the production of the business records, consisting in legers or other accounting records that would show this imputation of payment, is lacking. [ 83 ] Tax forms, the "relevé 24" from the years previous to 2009 were produced showing amounts apparently paid for Àshley. No forms were remitted for 2009, according to Mrs Milonas' testimony, because she could not issue a form that indicated amounts that were not actually received. [ 84 ] She did however issue three manuscript documents (P-8).

One is on a receipt form dated Feb 26, 2010 showing receipt of $ 6,300 for 140 days at $ 45 per day for Ashley.

The other two are written on sales slips showing 265 days at $ 25 for Miguel and 140 days at $ 25 for Ashley. [ 85 ] She states that these are not receipts, but rather an indication of what Mrs Shepherd ought to have paid for the two children. [ 86 ] She was utterly confused about her own documents, stating that the rates, $ 45 and $ 25 were not accurate. [ 87 ] At the time of the events there was not a clear expression of the idea that the advance payments for Miguel were applied to arrears for Ashley's fees.

Even if there had been such an understanding, the intention as expressed was that if the advance payments were handed over, there would be no other charge for Miguel, only for Ashley. [ 88 ] The net result of the confusion in documentation is that the Plaintiff has not established the amount of the indebtedness. Nor has it refuted the statement made by Tara Shepherd that the obligation for Miguel (whatever it might have been) was extinguished by the juridical act of release. 4. Effects of the letter P-4

[ 89 ] To grasp the effect of this letter on the issues of the case, it is useful to characterise the contents of the letter. [ 90 ] On one level, it is a documentary source of an admission of non-payment: "I will pay the daycare the remaining balance of $3,835." This is an admission that the amount has not previously been paid. [ 91 ] In the context, Tara Shepherd knew that Mrs Milonas was claiming this as the outstanding debt, but she did not know if it was an accurate amount.

She must have interpreted it as being equivalent to $ 15 per day, the amount she testifies was waived, but that the Plaintiff was now claiming, despite the earlier assurances that she did not have to pay. [ 92 ] On another level, it is a concession as to the

interpretation of the contract, of which she did not have a copy. It reflects the same understanding she has of the contract when testifying: the fee was based on $ 15 per day plus handing over the advance payment. It also concedes the principle that interest can be charged, "but there is nothing stated that you may charge the rate to suit your needs".

This shows a misunderstanding of the text of the Manquements et recours/Defaults and remedies clause, if in fact it was part of the contract as executed. [ 93 ] These concessions are not admissions of fact; they are expressions of belief or position about the nature and effect of the contract. They are opinions about the legal consequence of the relationship, not the proper subject matter of an admission. Léo Ducharme writes: Dans le droit actuel, l'aveu doit porter sur un fait et ne peut porter sur le droit. Il en sera de même en vertu du nouveau Code.

Il peut s'agir d'un fait materiel ou d'un acte juridique, c'est-à-dire de tout fait objet de preuve. [1] [ 94 ] It is, on yet another level, a statement of willingness to pay the stated amount, and that amount only, as opposed to being an admission that it is owed, and subject to terms of payment that will result in full payment by August 31, 2010. As a juridical act, this is a unilateral gesture in the nature of an offer to settle, an attempt to form a transaction agreement. On a psychological level it was an attempt to end the personal relationship with Christina Milonas.

From that angle, the theory of the defence is that, as a juridical act, it should be considered null because of a defect of consent. [ 95 ] It is not necessary to determine whether the expression of an intention to pay the amount is a valid juridical act from a consensual point of view: the offer was not accepted; it was met with a demand for the immediate payment of a much higher amount. It therefore does not bind Tara Shepherd. [ 96 ] If Garderie ABC had accepted, it would have limited its recourses. Since it did not accept, the document had no legal effect between the parties. 5.

The declaration to the Sûreté du Québec [ 97 ] The declaration to the police was accurate and made in the sincere belief that an amount that had already been reimbursed was being claimed again, on the basis of two fabricated documents. [ 98 ] They were in fact fabricated by the addition of a signature line bearing Tara Shepherd's name in her own handwriting taken from another document using a photocopy process. This is established in an uncontroverted way by the testimony of the expert witness. [ 99 ] Tara Shepherd stated to the police her belief that the author of the fabrication was Christina Milonas.

That was a logical inference for her to make in the circumstances though, the authorship of the fabricated documents remains unestablished. [ 100 ] In those circumstances, there clearly was no fault on the part of the Defendants. [ 101 ] An objection was made to the late disclosure of the expert report, but the Court is satisfied that the Defendants' attorney only learned of its existence latterly, and immediately disclosed it to opposing counsel. [ 102 ] The Plaintiff did not demonstrate any prejudice.

Mrs Milonas, who is not the plaintiff, said she suffered some stress, but admitted that her current hope was for an apology. It would have been better to make this clear through an amendment rather that mentioning it for the first time during her testimony at trial, because the claim for $ 13,000 was a source of concern for the Defendants. [ 103 ] They went to the expense of summoning the expert witness, who insisted upon a fee for his time in court. 6. The cross-demand [ 104 ] There is no valid case for psychological damages caused by a wrong committed by Garderie ABC.

There is no valid claim for punitive damages. The Defendant Ricardo Rebelo made a plea for an award of extra-judicial costs. While the Court sympathises with his sense of loss because of the expense incurred, the Plaintiffs case was not an abuse of procedure. The cross-demand will be dismissed without costs. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action against the Defendants; WITH COSTS, including expert costs, including any amount paid for reports and preparation and attendance at trial; DISMISSES the cross-demand, without costs. __________________________________ DAVID L. CAMERON, J.C.Q.

Maître Gordon M. Selig Attorney for the Plaintiff Maître Valérie Assouline

SOS AVOCATS INC. Attorney for the Defendants Date of hearing: October 18 and 19, 2012