2014 QCCQ 9383, 2014 QCCQ 9383

Kotylev c. Montréal (Ville de) 2014 QCCQ 9383 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-174324-106 DATE: September 8, 2014 ______________________________________________________________________ BY THE HONOURABLE MADAM JUSTICE MARIE MICHELLE LAVIGNE, J.C.Q. ______________________________________________________________________ SERGEY KOTYLEV Plaintiff v. VILLE DE MONTRÉAL and 9193-1634 QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT ON PLAINTIFF'S MOTION FOR REVOCATION OF JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized with Plaintiff's Motion requesting the revocation of a judgment rendered by the Honourable Justice François Bousquet, on June 21, 2013 rejecting his claims against Defendants. [ 2 ] The facts are as follows. [ 3 ] On September 15, 2010, Plaintiff served Defendants with an Introductory Motion claiming damages of $60,000.00, the whole as appears from the Court record. [ 4 ] The presentation of this introductory Motion and many of the subsequent proceedings were postponed on numerous occasions.

Three attorneys successively represented Plaintiff as appears from the Court record. [ 5 ] On March 12, 2013, a Notice of Intention to cease representing Mr. Kotylev was deposited in the Court record by his latest attorney, Mr. Norman Goldberg. [ 6 ] Following this Notice, Defendant City of Montréal served upon Mr. Kotylev a "Notice to appoint another attorney or to file a written Appearance on his own behalf". This Notice was served to Mr. Kotylev on April 23, 2013. Mr.

Kotylev did not file an appearance within the delay and "Motions to dismiss the action for failure to appear" were filed by Defendants. [ 7 ] Mr. Kotylev then communicated with Mr. Goldberg and asked that he continue representing him in relation with this litigation. On the eve of the presentation of the Motion to dismiss the action, on June 6, 2013, Mr. Kotylev asked the attorney for the City of Montreal to postpone the presentation of his Motion, alleging he needed time to retain the services of an attorney. This request was granted by the attorney of the City of Montreal until June 21, 2013.

The attorney mentioned his intention to proceed at that date. [ 8 ] In paragraph 29 of this Motion, Mr. Kotylev alleges that he informed his attorney Me Norman Goldberg on June 12, 2103 that he was faced with a Motion to dismiss the action. Me Goldberg informed Mr. Kotylev that he would be on vacation for the next 2 weeks. [ 9 ] On June 12, 2013, Mr. Kotylev sent an email to the attorney of the City of Montreal informing him that he had an agreement with Me Goldberg and that the latter would continue representing him. He stated that Mr.

Goldberg would be away and could not be present on June 21, 2013. [ 10 ] On June 18, 2013, the attorney for the City of Montreal asked for a confirmation from Mr. Goldberg that he would be representing Mr. Kotylev, failing which he would proceed with the Motion to dismiss the action. [ 11 ] Having received no reply from Mr. Goldberg or Mr. Kotylev on the morning of June 21, 2013, the Defendants proceeded with their Motions to dismiss the action. Mr. Goldberg and Mr. Kotylev were absents. Mr. Justice Bousquet rendered a judgment and dismissed the claim. This judgment was not sent to Mr.

Kotylev nor his attorney, since neither of them had filed an Appearance. Mr. Kotylev did not follow up on the proceedings. It is only on February 20, 2014 that he was informed through Me Goldberg, that a judgment dismissing his claim had been rendered [1] .

[ 12 ] Me Goldberg suggested that Mr. Kotylev presents a Motion to obtain the revocation of the judgment. [ 13 ] On February 27, 2014, Me Goldberg informed Mr. Kotylev that due to allegations of malpractice made by Mr. Kotylev, he would not represent him in the future. However, he had prepared a Motion for the revocation of the judgment with an affidavit that he attached to the correspondence. He informed Mr. Kotylev that the Motion should be served "by no later than Tuesday of next week" [2] . [ 14 ] On March 3, 2014, Me Goldberg wrote again to Mr.

Kotylev and recommended that he served his Motion for the revocation of the judgment the latest on March 4, 2014 to be within the 15 days delay to act provided for by

section 483 C.p.c. Mr. Kotylev did not do so. [ 15 ] On April 1, 2014, Mr. Kotylev filed a legal action against Me Goldberg alleging his negligence in handling the case and claiming damages. [3] [ 16 ] On July 14, 2014, Mr. Kotylev served a Motion for the revocation of the judgment rendered by the Honourable Justice Bousquet. This Motion is presented today to be decided at the stage of the reception. Analysis [ 17 ] Articles 482 and 482 of the Code of Civil Procedure state that: 482.

A party condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, by fraud or by any other reason considered sufficient, request that the judgment be revoked and that the action be dismissed. The motion, addressed to the court which rendered the judgment, must contain not only the grounds for revocation of judgment, but also the grounds of defence to the action … 484.

The motion in revocation, served on all the parties in the record with notice of the day when it will be presented to a judge for reception, must be filed within 15 days counting, according to the circumstances, from the day when the party acquired knowledge of the judgment, when the cause preventing production of the defence was removed, when he acquired knowledge of the new evidence, of the falsity of the document or of the fraud of the opposite party, when the conclusive document was discovered, or when the judgment was rendered disavowing the unauthorized act. … The time limit of 15 days is peremptory ; nevertheless the court may, on motion and provided that not more than six months have elapsed since judgment , relieve from the consequences of his default the party who shows that, in fact, it was impossible for him to act sooner. [ 18 ] Mr.

Kotylev learned of the judgment rejecting his claim on or about February 27, 2014 [4] . He only filed his Motion on July 14, 2014, outside the 15 days delay. The judgment rejecting Mr. Kotylev's claim was rendered on June 21, 2013. More than 6 months had elapsed when Mr.

Kotylev served his Motion for the revocation of the judgment. [ 19 ] Hence, not only was the Motion in revocation filed after the expiration of a delay exceeding 6 months from the judgment (in fact, more than one year) but it is obvious from the Plaintiff's own allegations that he did not act within 15 days from the date he acquired knowledge of the judgment. [ 20 ] To justify an extension of the 15 days delay and his failure to act within 6 months of the judgment, Mr. Kotylev alleges: 48. That on February 27 th , 2013 Plaintiff's lawyer Me Goldberg suddenly had ceased representation of me for the second time.

At this time not because he wanted more money, but because of my refusal to sign a wrongful and incorrect and misrepresenting Affidavit letter prepared by him on my behalf to supplement my Motion for Revocation; 49. That on April 1 st , 2014 Plaintiff had filed a legal actions against Me Goldberg at Quebec Court – Small Claims Court for breach of ethics and breach of contract (Fee Agreement Dated: April 8, 2011) with me as well as damages; 50.

That I did not have sufficient funds, nor do I have them now to hire a new lawyer right after I discovered on March 3 rd , 2014 that Me Goldberg ceased my representation without delivering the required results, but rather being paid $10,000 plus tax by me; 51.

That on June 25 th , 2014 I (Sergey Kotylev) obtained the knowledge from email communication with Barreau de Quebec that I, as a Plaintiff do not have to be represented by a lawyer and can represent myself for all aspects of my file; [ 21 ] The jurisprudence shows that the impossibility to act within a legal delay cannot be justified by the lack of financial means [5] . Moreover, the fact that Mr.

Kotylev acted without an attorney for the presentation of the present Motion is a proof that he should have been able to do so within the 15 days delay. [ 22 ] The fact that he learned only after the delay that he could represent himself personally is not supported by documentation from the Bar or any proof other than Mr. Kotylev's own allegation. The ignorance of this fact does not constitute a valid excuse for the delay [6] and is difficult to understand considering the service of a "Notice to appoint another attorney or to file a written Appearance on his own behalf" served by the Defendant City of Montreal.

FOR THESE REASONS, THE COURT: DISMISSES Mr. Sergey Kotylev's Motion for the revocation of the judgment rendered by the Honourable François Bousquet on June

21, 2013; THE WHOLE with costs. __________________________________ MARIE MICHELLE LAVIGNE, J.c.Q Mr. Sergey Kotylev Representing himself Mélissa Bergeron-Champagne Dagenais, Gagnier, Biron Stagiaire for Respondent Ville de Montréal Me Paola Tiranardi Bardagi Sénéchal Inc. Attorney for Respondent 9193-1634 Québec Inc. Date of hearing: August 4, 2014