2017 QCCQ 1476, 2017 QCCQ 1476

Colida c. Lapolla 2017 QCCQ 1476 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155428-172 500-32-144873-140 DATE: February 6, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ TONY COLIDA Plaintiff v.

SABRINA LAPOLLA BUREAU D'AIDE JURIDIQUE DROIT CRIMINEL MONTREAL Defendants ______________________________________________________________________ JUDGMENT ON REVIEW OF THE CLERK'S DECISION ______________________________________________________________________ [ 1 ] The Court is seized with an Application for review of a decision of the Clerk of the Small Claims Division pursuant to

article 545 Code of Civil Procedure (C.c.p.) . [ 2 ] The Clerk ruled that the Application presented to him in this matter was inadmissible referring to

section 321 of the C.c.p. , the

article that establishes that a judgment of the Court is final and constitutes res judicata . [ 3 ] The Clerk refers to the judgment rendered in case No. 500-32-144873-140 by the Honourable Armando Aznar J.C.Q. on November 7, 2016. The judgment, given from the bench, dismisses the Application in that file between the same parties. When the text of the Application in the present matter is compared with the object of the Application decided by judge Aznar, it is obvious that the case arises from the same object and the same cause. In both cases, Mr.

Colida is suing Maître Lapolla and the Bureau d’aide juridique, Droit criminel, de Montréal for their handling on his behalf of a case in which he was Defendant, namely La Reine c. Tony Colida, case No. 500-01-057634-112. In both cases, the remedy sought is moral damages for prejudice allegedly resulting from the conduct complained of. The elements of identity of parties, object and cause are therefore present. [ 4 ] The decision of the Clerk is therefore correct. [ 5 ] In his Application, Mr.

Colida raises the issue that the Court, though judge Aznar’s decision, did not give its opinion on the merits or the truth of the lawsuit. An examination of the file reveals that Mr. Colida was not present at the hearing and that he did not make any evidence, which resulted in the dismissal. No other reasons were required. Judge Aznar had previously dismissed a Motion for postponement on November 3, 2016 and proceeded to the trial on November 7, 2016 with the Plaintiff failing to attend.

The Plaintiff did not challenge the decision on the postponement nor did he take any proceedings with respect to the judgment on the merits. The application for review must therefore fail. FOR THESE REASONS: THE COURT: DISMISSES the Application for review. CONFIRMS the decision of the Clerk that the Application in this file is inadmissible. __________________________________ DAVID L. CAMERON, J.C.Q. File referred for review: February 1 st , 2017