2018 QCCQ 7028, 2018 QCCQ 7028

Aziz c. Messier 2018 QCCQ 7028COURT OF QUEBEC (Practice Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-22-248431-184 DATE: September 21, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE DANIEL BOURGEOIS, J.C.Q. ______________________________________________________________________ KARIM AZIZ Plaintiff v.

RONALD MESSIER Defendant ______________________________________________________________________ JUDGMENT (on an application to amend proceedings and add defendants) ______________________________________________________________________ INTRODUCTION [ 1 ] The plaintiff, Mr. Karim Aziz (“Mr.

Aziz”), has brought an application to amend (Permission to Amend Plaintiff’s Claim (Lawsuit) and/or Originating Application) before the Court in order to add three defendants, namely, Restaurant Brands International Inc., The TDL Group Corporation, and Tim Horton’s Inc., and also to reduce the amount of the original claim, which was $100,000, to $20,000. BACKGROUND [ 2 ] On August 28, 2017, at about 3:40 a.m., Mr. Aziz arrived at the Tim Horton’s located at 2081 Guy Street in order to use the free wireless internet. [ 3 ] As soon as Mr. Aziz sat down at one of the tables, Mr. Ronald Messier (“Mr.

Messier”), a Tim Horton’s employee, called out to him to leave immediately. [ 4 ] Mr. Messier had recognized the plaintiff, who, several days earlier, had tried to enter the Tim Horton’s with his rollerboard scooter. On that occasion, the police intervened in order to remove Mr. Aziz from Tim Horton’s premises. [ 5 ] Mr. Messier thus tried to eject Mr. Aziz, this time without waiting for law enforcement, and, according to the police report on the incident (paragraph 20 of the application), it appears that a fight broke out between Mr. Aziz and Mr. Messier. While they were both outside the restaurant, Mr.

Messier allegedly pushed Mr. Aziz to the ground and kicked and punched him. [ 6 ] Further to this incident, Mr. Messier was charged with assault, and on March 21, 2018, he pleaded guilty to charges of assault causing bodily harm (

section 267 (

b) of the Criminal Code ) (see paragraph 24 of the application). PROCEDURAL HISTORY [ 7 ] On November 23, 2017, Mr. Aziz filed an originating application against Mr. Messier and the Tim Horton’s franchisee, namely 7252617 Canada Inc. (“Canada Inc.”). This lawsuit, in which he claimed $100,000, was also directed against Mr. Richard Espinos and Ms.

Alexandria Dass, directors of Canada Inc., as well as the Service de police de la Ville de Montréal, the Ville de Montréal, the “Montreal Municipal Court Crown Attorney Prosecutor Office”, and finally, the “Attorney General of Canada and Minister of Justice of Canada”. [ 8 ] The ledger of Superior Court file number 500-17-101172-172 indicates that all the defendants responded to the application. [ 9 ] After various case management notices, the law firm Lapointe Rosenstein Marchand Melançon, representing Canada Inc., Mr. Richard Espinos, and Ms.

Alexandria Dass, presented an application for homologation of a transaction between these three defendants and Mr. Aziz. [ 10 ] This application for homologation was presented before Benoît Emery, J.C.S., on March 8, 2018. [ 11 ] The minutes of the hearing before Justice Emery disclose troubling events during the hearing on the homologation of the transaction. The Court finds it useful to reproduce the text of the minutes below: [ translation ] 9:56 a.m. Representations by Mtre N’Garane Representations by Mr. Aziz The Court suspends the hearing; Mr.

Aziz is escorted out by constables in view of his refusal to leave the courtroom 9:59 a.m. Suspension

11:06 a.m. Resumption Mr. Aziz addresses the Court The Court asks Mr. Aziz to be seated and remain silent, several times; he refuses The Court asks the constables to remove Mr. Aziz from the courtroom The Court will proceed in the absence of Mr. Aziz Representations by Mtre N’Garane Order: Considering that at the call of the case this morning, the plaintiff Karim Aziz was present in the courtroom. He refused to comply with the Court’s requests.

Pursuant to art. 14 C.C.P. and s. 37 of the Regulation of the Superior Court of Québec in civil matters , the judge has the duty to enforce respect and order in the courtroom. With the assistance of special constables, the judge must ensure the security of personnel and members of the public. In this regard, the Court notes that unfortunately, eight students were there to witness the plaintiff’s actions. The Court thus warned Mr. Aziz that if he continued to refuse to comply with the Court’s requests, the Court would proceed by default.

Since the plaintiff refused, the Court asked the special constables to remove the plaintiff from the courthouse. In this context, the Court proceeded by default. The Court notes, however, that before his expulsion, the plaintiff submitted a sworn statement contesting the application for homologation of a transaction concluded on December 22, 2017. In this case, the plaintiff made a complaint about an altercation that took place at a Tim Horton’s in Montreal. In addition to the police, he also sued the owner and the directors of the Tim Horton’s for $100,000.

After reviewing the file and the evidence submitted, the Court finds that a transaction was indeed concluded on December 22, 2017, for $1,000. Incidentally, the Court notes that the plaintiff in his sworn statement claims that the agreement was instead for $2,000. FOR THESE REASONS, THE COURT: Homologates the transaction concluded on December 22, 2017, in the amount of $1,000 in full and final settlement of this matter. The whole without costs. The Honourable Benoît Emery, J.S.C. [ 12 ] On April 3, 2018, Mr.

Aziz submitted an application for revocation of Justice Emery’s judgment order. [ 13 ] On April 19, 2018, a notice of appeal of this decision was also filed (Court of Appeal file No.: 500-09-027464-189). [ 14 ] In his application for revocation of judgment, Mr. Aziz submits the following as grounds for the revocation of Justice Emery’s order: 5. [...] 6. [...] (Unedited reproduction.) [ 15 ] On June 15, 2018, Gregory Moore, J.S.C., dismissed the application for revocation of judgment, noting that Mr.

Aziz had filed an appeal of Justice Emery’s judgment before the Quebec Court of Appeal and that he had also made a complaint to the Canadian Judicial Council about Justice Emery’s conduct on March 8, 2018. [ 16 ] In other respect, the ledger of the Superior Court file does not specify if there was a discontinuance of the claim against the other defendants, namely, the Service de police de la Ville de Montréal, the Ville de Montréal, the “Montreal Municipal Court Crown Attorney Prosecutor Office”, and the “Attorney General of Canada and Minister of Justice of Canada”.

However, the Court understands that further to the homologation of the transaction, which applied only to the defendants Canada Inc., Richard Espinos, Alexandria Dass, and Mr. Aziz, the original application is maintained only against Mr. Messier. In fact, the amended application now refers only to Mr. Messier and the three defendants named in the present application to amend.

COMPLAINTS TO THE JUDICIAL COUNCIL [ 17 ] While the events that follow are not relevant to deciding whether the present application is well-founded, the Court wishes, for reasons of transparency, to acknowledge that after the present matter was taken under advisement, Mr.

Aziz made a complaint against the undersigned judge before the Judicial Council. [ 18 ] During the presentation of the application to amend the proceedings, the plaintiff did not comply with the requests of the undersigned judge to refrain from talking. [ 19 ] At the end of the hearing, the Court was obliged, just as Justice Emery had been, to remove Mr. Aziz from the courtroom, since he persisted in asking the undersigned judge the precise date on which judgment would be rendered. [ 20 ] Furthermore, complaints to the Quebec Bar were also registered by Mr.

Aziz against Mtre N’Garane and against Mtre Bazinet, who represented the companies Restaurant Brands International Inc., The TDL Corporation, and Tim Horton’s Inc. at the hearing of the application to amend. THE APPLICATION TO AMEND [ 21 ] Essentially, Mr. Aziz alleges that the three companies failed provide proper training to the franchisee (Canada Inc.) and its employees. He claims that the various videos and training documents are inadequate because they do not address issues concerning the prohibition of criminal behaviour by employees of the franchisees.

It is worth reproducing paragraph 36 of the amended application: 36.

Moreover Restaurant Brands International INC- 906066-9 Canada INC. & TDL Group Corp & Tim Horton’s Inc, failed their duties and responsibility and are negligent and at fault because under the law & under their own company internal agreement with the franchisee Tim Hortons store coffee shop they were the ones (franchisor) who were in charge and responsible for providing the instructional video training material to the franchisee and they are at fault and are negligent because they provide to the franchisee with Bad & inadequate and insufficient and faulty video training materials on the subject of prohibition against outlaw behaviors and conduct by the employees in the workplace (Tim Hortons store coffee shop) Furthermore they are at fault and negligent for following additional reasons: A.

They have no internal established policy directive and guidance, guideline and disciplinary system for the employees of the franchisee to follow on the subject of prohibition against outlaw behaviors and conduct by the employees in the workplace (Tim Hortons store coffee shop) … D.

The training that the employee Ronald Messier received was inadequate and insufficient, the training video is much to short for the employee Ronald Messier to seriously and fully appreciate and comprehend the seriousness of his, responsibility and duty at the workplace regarding the prohibition against outlaw behaviors and conduct by the employees in the workplace (Tim Hortons store coffee shop) (Unedited reproduction.) [ 22 ] Finally, because the plaintiff reduced his claim from $100,000 to $20,000, the case was transferred to this Court on July 9, 2018.

THE LAW [ 23 ] The Code of Civil Procedure (“ C.C.P. ”) provides the following at articles 206 and 207: 206. At any time before judgment, the parties may withdraw or amend a pleading without it being necessary to obtain an authorization from the court, provided doing so does not delay the proceeding and is not contrary to

the interests of justice. However, the amendment of a pleading must not result in an entirely new application having no connection with the original one. An amendment to a pleading may be made, for instance, to replace, correct or complete statements or conclusions, allege new facts or assert a right accrued since the notification of the judicial application. 207. A party that intends to withdraw or amend a pleading must notify the intended withdrawal or the amended pleading to the other parties, which have 10 days to notify their opposition. If no opposition is notified, the withdrawal or amendment is accepted.

If opposition is notified, the party that intends to withdraw or amend the pleading presents its application before the court for a decision. If any of the other parties must respond following the withdrawal or amendment of a pleading, the time limit for responding is set by the parties or, if the time limit is not already specified in the case protocol, by the court. If, as a result, a new defendant is brought into the proceeding, the judicial application must be notified to that party without delay.” (Emphasis added.) ANALYSIS [ 24 ] Mr. Aziz’s lawsuit against Mr.

Messier, and formerly against the franchisee Canada Inc., is based on

article 1457 of the Civil Code of Quebec (“ C.C.Q. ”), which provides the following: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature. He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [ 25 ] It is also useful to cite

article 1463 C.C.Q. concerning the liability of principals: 1463. The principal is bound to make reparation for injury caused by the fault of his subordinates in the performance of their duties; nevertheless, he retains his remedies against them. [ 26 ] The author Alicia Soldevila (as she then was; now a judge of the Superior Court) stated the following on the nature of the presumption with respect to employers: [ translation ]

Article 1463 C.C.Q. establishes liability for another in the strict sense of the term in that a fault of the principal is not necessary to engage his or her liability. Demonstration of fault by the subordinate alone is sufficient. The criteria of [ 27 ] Thus, to avail himself of the absolute presumption set out in

article 1463 C.C.Q. in his argument against the franchisee Canada Inc. (the employer of Mr. Messier), Mr. Aziz would have had to demonstrate on a balance of probabilities that Mr. Messier’s wrongful act occurred in the performance of his duties. [ translation ] ... by way of example, the commission of a criminal or penal offence does not imply per se that the employee is outside the scope of his duties. This offence, this crime, may indeed have been perpetrated even though the employee was performing a task for his employer.

Another question can arise when the employee deliberately or inadvertently disobeys clear orders from his or her employer. The doubt raised by an employee’s express disobedience or the unusual nature of his or her fault is not in itself determinative of whether the employee remains within the scope of his or her duties, but it can become so; to answer the question above in the negative, when determining the scope of the exercise of the duties of an employee, it is the purpose of the acts committed that must actually be considered. [2] [ 28 ] Here, to the extent it was admitted that Mr.

Messier acted in the scope of his duties (which is far from obvious given the police report and the criminal charges filed against him), then his employer Canada Inc. would undoubtedly have been liable. [ 29 ] Yet, through a transaction, Mr.

Aziz settled his action against the franchisee Canada Inc. and its directors . [3] [ 30 ] In this case, the Court must decide whether the addition of the three new defendants is necessary, whether it is not contrary to the interests of justice or whether it would result in an entirely new application having no connection to the original application. [ 31 ] At the outset, as already indicated, the originating application filed in the Superior Court referred to eight defendants. Mr.

Aziz, for reasons known only to him, wanted to aim in all directions, which led him to serve his action against the directors of the franchisee (despite articles 298, 301 and 309 C.C.Q. ) and against the Service de police de la Ville de Montréal, the Ville de Montréal, the “Montreal Municipal Court Crown Attorney Prosecutor Office”, and the “Attorney General of Canada and Minister of Justice of Canada”. [ 32 ] Further to the homologation of the transaction, only Mr.

Messier now appears as a defendant, which is logical considering the fact that he pleaded guilty to criminal charges following the events. [ 33 ] In any event, the plaintiff now seeks the liability of the franchisor Tim Horton’s Inc., Restaurant Brands International Inc., and The TDL Group Corporation.

However, the connections between these three companies were neither explained nor demonstrated by the plaintiff during the hearing, nor are they clear from the amended proceeding, besides the fact that the plaintiff refers to the three companies as being the “franchisor” (see paragraph 36 and following of the amended application). [ 34 ] In the circumstances, the Court does not see how a criminal act by an employee of the franchisee Canada Inc. can implicate the liability of the franchisor(s), since they are distinct companies from the franchisee Canada Inc., which is in this case the only “principal” and employer within the meaning of

article 1463 C.C.Q . [ 35 ] The Court understands from the statements made by Mr. Aziz during the hearing that the training videos and all the documentation should have made specific reference to the fact that it is prohibited for employees of the franchisees to commit criminal offences. [ 36 ] According to Mr. Aziz, because the videos and training material supplied by the franchisor are silent and indicate nothing in this regard, the franchisor(

s) should therefore be held liable for the damages the plaintiff suffered from the physical assault. [ 37 ] In the Court’s opinion, the addition of the three new defendants would not only be contrary to the interests of justice, but such an application is excessive and unreasonable, if not borderline abusive, since it has no chance of success. [ 38 ] In any event, and if the Court is incorrect with respect to the foregoing, the Court finds subsidiarily that the transaction between the plaintiff and the franchisee Canada Inc. concerning Mr.

Messier actions, must, by necessity, apply equally to the three “franchisor” companies, to the extent of course that it could have been demonstrated that Mr. Messier acted in the scope of his duties (which is what we have to understand from the claims of Mr. Aziz, explained more fully at the hearing and in paragraphs 36 and following of the application). [ 39 ] Thus, the amendment to add Restaurant Brands International Inc., The TDL Group Corporation, and Tim Horton’s Inc. as defendants is pointless and must be dismissed.

FOR THESE REASONS, THE COURT: Dismisses the application for permission to amend the originating application to add three additional defendants. THE WHOLE , with legal costs against the plaintiff. __________________________________ DANIEL BOURGEOIS, J.C.Q. Mr. Karim Aziz Self-represented Mtre Pierre Bazinet ROBINSON SHEPPARD SHAPIRO Counsel for Restaurant Brands International Inc. et al. Date of hearing: August 1, 2018