2023 QCCQ 4167, 2023 QCCQ 4167

Ferary c. Hackshaw 2023 QCCQ 4167 JG2338 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No. : 760-32-019074-212 DATE : MAY 5, 2023 BEFORE THE HONOURABLE PHILIPPE DE GRANDMONT, J.C.Q. GARVIN FERARY Plaintiff v. OVETA HACKSHAW Defendant JUDGMENT [ 1 ] The P laintiff, Mr. Garvin Ferary, claims the sum of $15,000 from the Defendant, Ms. Oveta Hackshaw, as compensation for expenses allegedly incurred in providing accommodation to Ms.

Hackshaw and her son in his house, as well as for legal fees. [ 2 ] The parties are in a conjugal relationship from December 2018 until Christmas Day 2020, at which time the relationship ends abruptly in the context of a violent altercation between them. [ 3 ] Mr. Ferary is arrested on suspicion of assault and uttering threats. As part of conditions for his release from police custody, he voluntarily undertakes not to return to his house (of which he is the sole owner), expect in the presence of police agents. [ 4 ] Mr. Ferary is subsequently acquitted of all charges. [ 5 ] From December 25 onward, Ms.

Hackshaw actively searches for new accommodation (including at a shelter for abused women) where her son and herself can be safely housed, if only temporarily. [ 6 ] On January 18, 2021, Mr. Ferary files in Superior Court a motion for injunction against Ms. Hackshaw, seeking her expulsion from his house. [ 7 ] On January 29, 2021, Ms. Hackshaw and her son voluntarily vacate the premises, and the motion for injunction is struck the same day. [ 8 ] On March 4, 2021, the present case is transferred to the Small Claims Division. [ 9 ] On September 30, 2022, a case management conference is presided by the Hon.

Céline Gervais, J.C.Q. Mr. Ferary is then granted a one-month delay to file exhibits in support of his claim, in addition to Exhibits P-1 to P-6 already filed. He later files Exhibit P- 7. Analysis [ 10 ] Mr. Ferary now claims from Ms. Hackshaw a sum of $2,784.08, representing fees and disbursements paid to RG AVOCATS INC., the law firm whose services he retained for the injunction proceedings. [ 11 ] He submits that Ms.

Hackshaw’s conduct throughout such proceedings amounts to abuse of procedure, in that she had no grounds of defence to raise, and that she uselessly prolonged the judicial debate, thereby forcing him to incur the aforementioned fees and disbursements. [ 12 ] For the following reasons, this Court finds that Mr. Ferary’s claim is unfounded. [ 13 ] The Code of Civil Procedure [1] provides that abuse of procedure may consist in a judicial application or pleading that is clearly unfounded, frivolous or intended to delay or in conduct that is vexatious or quarrelsome.

It may also consist in a use of procedure that is excessive or unreasonable or that causes prejudice to another person, or attempts to defeat the ends of justice. [ 14 ] It is Mr. Ferary who carries the burden of proving how Ms. Hackshaw’s conduct amounts to abuse of procedure. He fails to meet that burden, as he does not demonstrate any unfounded, frivolous or dilatory conduct on her

part in the judicial forum.

[ 15 ] Given that the proceedings did not reach the stage at which Ms. Hackshaw’s defence could be argued, one would find it difficult to establish that such defence was without merit. Furthermore, on prima facie review of proceedings filed in the Superior Court case, including Mr. Ferary’s own affidavit in support of his motion, and considering the housing and family circumstances in which Ms. Hackshaw and her son found themselves before and after December 25, 2020, it is not apparent that her intent to contest the motion was so devoid of merit as to be frivolous. [ 16 ] When, on January 20, 2021, Ms.

Hackshaw, then self-represented, requests a postponement of the hearing so that she may seek and retain legal counsel, said postponement is granted by the Superior Court, which immediately sets a new hearing for January 29. Such conduct is neither dilatory nor abusive on her part. [ 17 ] The same can be said about Ms. Hackshaw’s conduct in this Court, in view of her detailed contestation and relevant exhibits filed in response to Mr. Ferary’s claim. [ 18 ] As to the remainder of Mr. Ferary’s claim of $15,000, being an amount of $12,215.92, Mr.

Ferary proffers no evidence, despite being granted a delay to file additional exhibits. [ 19 ] The Court is therefore deprived of means to assess the merits of such portion of the claim, and the same must consequently be dismissed. WHEREFORE, THE COURT : ALLOWS the contestation; DISMISSES the claim; WITH LEGAL COSTS awarded in favour of the Defendant . Philippe de Grandmont, J.C.Q. 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 .