2023 QCCQ 4249, 2023 QCCQ 4249

Bourget c. Inskip 2023 QCCQ 4249 JG2338 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No. : 760-22-012705-227 DATE : JULY 3, 2023 BEFORE THE HONOURABLE PHILIPPE DE GRANDMONT, J.C.Q. COLLÈGE BOURGET Plaintiff v. MICHAEL INSKIP and JENNIFER MICHELLE INSKIP BEATTY Defendants JUDGMENT ON APPLICATION FOR REVOCATION OF JUDGMENT 1.

FACTUAL BACKGROUND [ 1 ] Plaintiff is an education institution located in Rigaud. [ 2 ] Defendants are residents of Ontario who contracted with Plaintiff for the provision of educational services to their minor child. [ 3 ] On May 31, 2022, a letter drafted in English by Plaintiff’s lawyer, Mtre Faubert, is served on Defendants. It demands that they pay to Plaintiff the sum of $7,478.69 owing in respect of said services. [ 4 ] On June 10, Mr.

Inskip replies by email to this letter, denying that any monies are owed by Defendants. [ 5 ] On July 18, Plaintiff files an Originating Application, drafted in French, claiming from Defendants the sum of $6,369.16. Such application is served on Defendants on July 19. [ 6 ] Defendants fail to answer the summons. [ 7 ] On September 26, the Special Clerk renders judgment by default (the “ Judgment by Default ”) and condemns Defendants to pay to Plaintiff the sum of $6,963.16 plus interest. [ 8 ] On or about October 19, Defendants become aware of the Judgment by Default . [ 9 ] On November 14, Mr.

Inskip files, under his sole name, a first Application for Revocation of the Judgment by Default . Same is heard before the Hon. Céline Gervais, J.C.Q., on November 22. [ 10 ] Judge Gervais grants leave to amend the procedure to add Ms. Inskip Beatty as Applicant thereof and as Co-Defendant to the Originating Application . [ 11 ] On December 8, Mtre Gaulin initiates his representation of Defendants. [ 12 ] On December 19, Mtre Gaulin files on behalf of both Defendants a new Application for Revocation of the Judgment by Default . [ 13 ] The hearing of such Application for Revocation is set for January 31, 2023.

On this date, Plaintiff moves orally for the dismissal thereof, on the grounds of it being served on Plaintiff outside of the timeframe prescribed by law. [ 14 ] On February 8, the undersigned dismisses Plaintiff’s oral motion, allowing the Application for Revocation to be heard on its merits. The hearing is held on April 11 and May 3.

2. PARTIES’ POSITIONS [ 15 ] Defendants are seeking revocation of the Judgment by Default and dismissal of the Originating Application. [ 16 ] In essence, they plead not having understood the Originating Application served on them because same was drafted in French. Such inability to understand amounts, according to them, to a situation of superior force. [ 17 ] Their Application for Revocation is based on Sections 346 and 347 of the Code of Civil Procedure [1] .

To paraphrase from the language of said provision, they allege having been “prevented from” answering the summons owing to another “cause considered sufficient”. [ 18 ] Plaintiff contends that Defendants did have sufficient understanding of the French language to enable them to understand the summons and Originating Application. [ 19 ] In its view, the situation in which Defendants found themselves does not constitute superior force. [ 20 ] Plaintiff pleads that Defendants did not act in a diligent and reasonable manner by failing to answer the summons, as they had the time, knowledge and resources to seek and obtain information and assistance that would have enabled them to timely file such an answer. 3.

QUESTION AT ISSUE [ 21 ] The question at issue is the following: Were Defendants prevented to answer the summons owing to a sufficient cause ? 4. LEGAL FRAMEWORK [ 22 ] The relevant provisions of the Code of Civil Procedure are as follows: TITLE III REVOCATION OF JUDGMENT

CHAPTER I REVOCATION ON APPLICATION BY PARTY 345. A judgment may, on a party’s application, be revoked by the court that rendered it if letting the judgment stand would tend to bring the administration of justice into disrepute. The judgment may be revoked, for instance, if fraud was committed by another party, if the judgment was based on false exhibits or if the production of decisive exhibits was prevented by superior force or by the act or omission of another party.

As well, a judgment may be revoked if (1) the judgment adjudicated beyond the conclusions set out in the application or did not rule on one of them; (2) no valid defence was produced in support of the rights of a minor or of a person of full age under tutorship or for whom a protection mandate has been homologated; (3) a ruling was made on the basis of invalid consent or following an unauthorized tender that was subsequently disavowed; or (4) evidence was subsequently discovered that would probably have led to a different judgment if the party concerned or its lawyer had become aware of that evidence in sufficient time, although they acted with due diligence. 346.

A party against which a default judgment has been rendered following failure to answer the summons, attend the case management conference or defend on the merits but that was prevented from doing so owing to fraud, surprise or any other cause considered sufficient may apply to the court that rendered the judgment for the revocation of the judgment and the dismissal of the original application. The application for revocation must contain the reasons justifying the revocation as well as the grounds of defence raised against the original application. 347.

An application for revocation must be served on all parties to the proceeding within 30 days after the day on which the cause preventing the party from filing a defence ceased to exist, or after the day on which the party became aware of the judgment, evidence or fact that constitutes grounds for the revocation. In the case of a minor, the 30-day period only begins to run as of notification of the judgment after the person reaches full age. The application for revocation must be presented before the court within 30 days after service, as if it were an application in the course of a proceeding.

It cannot be presented if more than six months have elapsed since the judgment. These are strict time limits. 348. If, when the application for revocation is presented, the reasons given are found to be sufficient, the parties are restored to their former state and the court stays execution of the judgment; it continues the original proceeding after agreeing with the parties on a new case protocol.

If circumstances permit, the court may decide the application for revocation and the original application at the same time. 5. ANALYSIS [ 23 ] The right to use French or English before the courts of Québec is a constitutional right. [2] [ 24 ] The right to use French or English before the courts of Québec is also enshrined in the Charter of the French Language . [3] [ 25 ] Plaintiff was therefore at liberty to file its Originating Application in either language.

As a matter of fact, both parties have availed themselves of this right, having used French and English alternatively in their proceedings and pleadings in the present case. [ 26 ] With regards to Defendants’ linguistic argument, the Court of Appeal has held that insufficient or inexistent knowledge of French does not constitute a valid excuse for failing to act (notably by consulting a lawyer) upon being served with legal proceedings. [ 27 ] This principle was stated as such: « […] en vertu des règles régissant le système judiciaire québécois, il peut être librement fait usage du français ou de l'anglais, oralement ou par écrit, devant les tribunaux, au choix du témoin ou du plaideur.

La responsabilité revient alors à l'autre

partie de prendre les mesures nécessaires ou de faire les demandes appropriées en vue de faire face à la situation sur le plan linguistique. » [4] [ 28 ] In Alexandris v. Express Finance Investissement Inc ., the Court of Appeal held as follows: “A lack of sufficient knowledge of the French language may excuse the inability of the appellant to fully understand the content of the prior notice and the motion for forced surrender that was served personally on her.

However, it does not justify a failure to seek counsel and act accordingly within the shortest delay.” [5] [ 29 ] The Court of Appeal addressed this issue again in Caï v. Yang , a case with which parallels can be drawn with the case at hand . [ 30 ] The appellant argued that she failed to appear because she was unable to read the French-language motion to institute proceedings and, as a result, did not understand that she had to appear or even that she was being sued personally.

She claimed it was thus impossible for her to act and that she should be relieved of her default by way of revocation of the default judgment. [ 31 ] In that case, the initial letter of demand was drafted in English. When the appellant received the French-language motion to institute proceedings, from the same lawyer who sent the demand letter, she already knew that she was likely to be sued. [ 32 ] The Court of Appeal wrote: “It was grossly negligent of [the appellant] not to obtain legal advice or to seek out a translation.

Whether or not she could read the document, it was plainly addressed to her and it named her and the company on its title page and in its conclusions.” [6] [ 33 ] The Court went on as follows: “Even if one accepts as true [the appellant’s] inability to read French, the exhibits convinced the judge that [she] should have understood the imperative to have the legal documents she received translated or presented to a lawyer.” [7] [ 34 ] In Deveau Avocats v. Kupelian , this Court summarized the state of the law as follows: « La jurisprudence est constante sur cette question.

La méconnaissance de la langue française n’est pas une excuse valable pour ne pas consulter un avocat et obtenir des conseils juridiques lorsqu’une

partie reçoit signification d’une procédure judiciaire. » [8] [ 35 ] In that case, the Court concluded that the defendant could not ignore the importance of the legal proceedings served on him, and could not adopt a rather passive, “wait and see” posture; he had to act and solicit counsel’s advice. [9] [ 36 ] In the present case, what did Defendants do upon being served with the Originating Application? [ 37 ] According to their respective testimonies, they glanced at the Originating Application, just enough to grasp – incorrectly – that it was about a case to be heard before the Small Claims Division. [ 38 ] They then set the Originating Application aside, waiting, according to them, for a hearing date to be notified to them, while preparing their defence. [ 39 ] Defendants’ actions raise questions. [ 40 ] For one, Defendants represent that they have very little to no knowledge of the French language, and that they do not possess notions of either Québec or Ontario law.

Which means that they either made imprudent (and factually incorrect) assumptions about the content and meaning of the Originating Application, or that they in fact understood the content thereof, but voluntarily chose not to act upon it. Either proposition amounts to a lack of diligence as to the conduct of Defendants’ personal affairs. [ 41 ] In addition, Mr. Inskip testifies that he set about to prepare the defence to the case.

Which begs the question: how did Defendants intend to prepare, unassisted, a defence against legal proceedings of which, by their own admission, they barely understood a few words? [ 42 ] Moreover, Defendants did not contact a lawyer, although they had previously been in contact with one regarding their interactions with Plaintiff.

[ 43 ] Ms. Inskip testifies that she didn’t think it necessary to seek external assistance (be it a family member, friend, legal professional or Court clerk) because she “glanced” at the Originating Application and “didn’t see a court date”. [ 44 ] On or about October 19, upon receiving the Judgment by Default written in French, Mr. Inskip used an application on his mobile phone to obtain an English translation of some portions of the document.

It is reasonable to assume that Defendants could have used the same technology three months earlier to decipher the content of the Originating Application, but they did not do so. [ 45 ] At trial, the parties devoted much debate and evidence to assessing the specific degree of Defendants’ knowledge of the French language, in oral and written forms. [ 46 ] With respect, the issue of “how much” French Defendants knew is not fundamentally dispositive in this case. [ 47 ] The dispositive issue is whether, in these circumstances, the Defendants acted in a diligent manner. [ 48 ] After reviewing the essential facts of the case, the Court finds that they did not. [ 49 ] On July 19, while present in their residence, Defendants were served, by a process server, with papers. [ 50 ] They understood these papers to be about a legal case. [ 51 ] They had previously received from Plaintiff’s lawyer, about six weeks earlier, an explicit letter of demand, drafted in the English language. [10] [ 52 ] Ms.

Inskip testifies that she knew the Originating Application to be connected to that letter of demand. [ 53 ] Furthermore, Defendants were already aware of the possibility of a forthcoming court case against them by Plaintiff, as evidenced by Mr.

Inskip’s email to Mtre Faubert on June 10 (thus prior to the Originating Application), in which he wrote: “(…) we will defend ourselves in your legal proceeding and we will begin our own legal action against [Plaintiff] (…)”. [ 54 ] The papers served on Defendants were drafted in a language – be it French or any other language – of which Defendants had little or no command. [ 55 ] At that point, Defendants did not m ake a meaningful attempt to diligently pursue the protection of their legal interests, by ensuring their understanding of the Originating Application (through translation, if need be) and by soliciting legal advice. [ 56 ] Finally, the Court disagrees with Defendants’ contention that Plaintiff’s use of French at various stages of the judicial process somehow constitutes a disloyal or uncooperative approach. [ 57 ] First of all, Defendants have not demonstrated that principles of civil procedure trump Plaintiff’s constitutional right. [ 58 ] In addition, the case law invoked in support of this contention is distinguishable from the present case. [ 59 ] The Cléroux [11] case dealt with a public body’s statutory duty to assist an unrepresented citizen with the drafting of an application for review.

Plaintiff was not bound by such a duty towards Defendants. [ 60 ] In La Fabrique à Glacier [12] , the party against which a motion was sought was in fact represented by a lawyer, who happened to be unavailable on the day of the hearing. In contrast, upon being served with the Originating Application, Defendants voluntarily decided not to seek legal advice or representation. Mtre Faubert was available to speak with Defendants, who knew how to contact him; they decided not to reach out. [ 61 ] This absence of communication also explains why the Iceberg Finance [13] case must be distinguished.

In that case, the Court’s decision was premised in part on the fact that the parties had ongoing discussions while the judicial process was unfolding. In deciding to grant a revocation, the Court considered the omission of one party to fully provide relevant information to the other party in the context of such discussions.

In the case at hand, the evidence does not point to the parties having discussions in the context of which misleading or partially inaccurate information was provided. [ 62 ] In conclusion, Defendants have failed to show sufficient cause to disturb a judgment legally rendered following their failure to answer the summons. WHEREFORE, THE COURT: DISMISSES Defendants’ Application for Revocation; WITH LEGAL COSTS awarded in favour of Plaintiff. Philippe de Grandmont, J.C.Q. Mtre Xavier Faubert

INFRALEX AVOCAT For the Plaintiff Mtre Alain M. Gaulin AVOCAT ABORDABLE For the Defendants NOTICE TO THE PARTIES FILING OF PLEADINGS AND DOCUMENTS Code of Civil Procedure (CQLR, c. C-25.01 ), Art. 108 , 2 nd par.: Any document or real evidence that is filed in the record as an exhibit must remain in the record until the end of the proceeding, unless all the parties consent to its being removed.

Once the proceeding has ended, the parties must retrieve the exhibits they have filed; otherwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading terminating the proceeding. In either case, the chief justice or chief judge, if of the opinion that the exhibits can still be useful, may stay their destruction .