2012 QCCQ 1470, 2012 QCCQ 1470

Industrial Textile Savage Co. Ltd./ Recyclage de textile industriel ltée c. North American Wool Stock Inc./Laine Amérique du Nord (Québec) inc. 2012 QCCQ 1470 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115431-092 500-32-125519-100 500-32-127282-111 500-32-127459-115 500-32-129104-115 DATE: January 25, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ INDUSTRIAL TEXTILE SALVAGE CO.

LTD/ Recyclage de textile industriel Ltée. 5648 Melling Côte-St-Luc, Quebec H4W 2C2 Plaintiff v. NORTH AMERICAN WOOL STOCK INC./ Laine Amérique du Nord (Québec) Inc. 61 Hymus Blvd. Pointe-Claire, Quebec H9R 1E2 Defendant ______________________________________________________________________ INTERLOCUTORY JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized of five cases between the same parties that were joined for common hearing. [ 2 ] In each case, Industrial Textile Salvage Co.

Ltd. ("Industrial Textile") sues North American Wool Stock Inc. ("North American") for arrears of $1,500 per month allegedly owed in connection with textile clippings that Industrial allowed North American to pick up at the premises of a third party, Jack Victor Ltd. [ 3 ] The only difference in the cases, whether in the claim or in the defence, is that each case deals with a different period. [ 4 ] The Court began hearing evidence in the first case (500-32-115431-092) on February 21 st , 2011.

The case was continued to permit the production of further evidence and, in the meantime, before the continuation of the hearing could take place, the undersigned was advised of the existence of four additional files alleging substantially the same facts with respect to different time periods. [ 5 ] The four new cases were joined to the existing one and a second hearing took place on November 14, 2011.

This hearing was adjourned to permit the serving of a subpoena on Mr Vince D'Agostino, the general manager and VP operation of Jack Victor Ltd. and the case was continued to complete the hearing with Mr D'Agostino's presence on January 23, 2012. He failed to appear, however, despite being served with a subpoena. [ 6 ] At the hearing of November 14 th , the Court ascertained the time periods relating to the various invoices that are the subject matter of the five files.

Based on this evidence and upon reflection, the Court decided to raise, of its own motion, the issue whether the Plaintiff had divided a claim exceeding $7,000 into several claims not exceeding that amount in order to avail itself of the small-claims

procedure, contrary to

article 955

c) of the Code of civil procedure. [ 7 ] Having raised the issue, the Court directed itself according to the decision of the Court of Appeal in SSQ, société d'assurances-vie inc . c. Coallier [1] . [ 8 ] To illustrate the problem more readily, the Court reproduces a table that it prepared in order to show for each action the date of the institution of the case and the dates for to which the claim relates.

Court number: Date of the institution of proceedings: Period for which arrears are claimed: 500-32-115431-092 February 26, 2009 August, September, October and November 2007 500-32-125519-100 October 18, 2010 December 2007, January and February 2008. 500-32-127282-111 February 21, 2011 March, April, May and June 2008 500-32-127459-115 March 28, 2011 July, August, September and October 2008. 500-32-129104-115 June 21, 2011 November and December 2008. [ 9 ] As can be seen by the table, when the first action was initiated on February 26, 2009, all of the amounts claimed in all five actions, which span the period from August 2007 to December 2008, were already due and owing. [ 10 ] According to the reasoning of the Court of Appeal, which is binding on this Court, the Plaintiff should have included in his claim all amounts that were due and payable at that time. [ 11 ] Since that amount was greater than the $7,000 limit of the Small Claim Division the Plaintiff would have opted to reduce his claim, calculated globally, to $7,000 or it would have instituted a global claim of $31,581.35 before the Court of Quebec, Civil division. [ 12 ] The Plaintiff would have the option of bringing a series of $7,000 claims, so long as he had done so as the amounts became due. [ 13 ] Because he waited and instituted his proceeding only after all of the monthly amounts were due and owing, he was forced to choose between reducing the claim to $7,000 for Small-Claims purposes or bringing his claim in the ordinary manner for the full amount. [ 14 ] The Court advised the parties of this finding at the hearing of January 23 rd , 2012. [ 15 ] Rather than dismissing the claims because of this procedural irregularity, it was, in the Court's view, more consistent with the proper administration of justice to put the Plaintiff to the option of amending the first claim to include all of the amounts claimed in the five actions and to consider the other claims as a nullity, subject to the return to the parties of their filing fees both for the Applications and for the Contestations. [ 16 ] In amending the first action, the Plaintiff would have the option of reducing the amount claimed to the limit of $7,000 or to claim the global amount. [ 17 ] In the case where he opted not to reduce the claim, it would be transferred to the regular Civil division of the Court of Quebec and continue with the undersigned Judge being seized of the case for case management. [ 18 ] The Court advised the parties that if the case proceeds in the regular Civil division of the Court of Quebec, both parties will have to be represented by attorneys because they are corporations. [ 19 ] Mr Frisch of Industrial Textile agreed to inform the Court of which option would be pursued within three weeks of the present decision.

FOR THESE REASONS, THE COURT:

PRONOUNCES the irregularity of the proceedings because of the principle prohibiting the division of a claim, contrary to

article 955 C.C.P.; PERMITS the Plaintiff to remedy this procedural irregularity, as outlined in the present decision by amending the first action in file number 500-32-115431-092; ORDERS the Plaintiff to advise the Clerk of the Small-Claims Division in writing of his decision to either in the Civil Division reduce the global claim to $7,000 in order to remain in the Small-Claims Division or to proceed for the global amount of the five claims, no later than February 15, 2012. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: February 21, 2011, November 14, 2011 and January 23, 2012.