2013 QCCQ 5056, 2013 QCCQ 5056

Myers Hall c. Watson 2013 QCCQ 5056 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-200524-133 DATE: April 12, 2013 ______________________________________________________________________ BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ LINDA MYERS HALL Plaintiff vs.

RHEMA JEAN WATSON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized with Plaintiff's Motion to Dismiss Defendant's Amended Plea in virtue of articles 54.1 to 54.6 and 165 of the Code of Civil Procedure (" C.C.P. "). QUESTION IN DISPUTE A.

Is Defendant's Plea aimed only at delaying what is alleged by Plaintiff to be the obvious outcome of the action, namely the condemnation of Defendant to reimburse loans and indemnify Plaintiff for the damages resulting from Defendant's conduct both at the time she obtained the loans and at the time she refused to reimburse them? THE PROCEEDINGS [ 2 ] In examining the file, there is an obvious need to clarify the proceedings.

Hopefully, it will be of some use to the judge who will ultimately rule upon the merits of this matter. [ 3 ] Plaintiff originally introduced her action before the Superior Court on October 15, 2012. Plaintiff's daughter was then a Co-Plaintiff. Contemporaneously with the introduction of their claims, Plaintiff and her daughter sought the issuance of a Writ of Seizure before Judgment of Defendant’s duplex, which was refused by Mrs. Justice Claude Dallaire, j.s.c. [ 4 ] Defendant filed a Plea, supported by her affidavit, on December 6, 2012.

She was examined on discovery on December 12, 2012. [ 5 ] On January 14, 2013, Plaintiff's second attempt to seize Defendant's duplex before judgment was dismissed by Mr. Justice Benoit Émery, j.s.c. [ 6 ] On January 22, 2013, Mr. Justice Jean-Yves Lalonde, j.s.c. was seized with Defendant's Motion for Declinatory Exception and Plaintiff's Motion to Dismiss Defendant's Plea, also in virtue of articles 54.1 C.C.P. and following and 165 C.C.P. Mr.

Justice Lalonde, j.s.c. allowed the disjunction of the recourses of Plaintiff and her daughter; ruled that Plaintiff's claim was of the jurisdiction of the Court of Quebec; granted Plaintiff thirty (30) days to amend her Introductory Motion and continued Plaintiff's Motion to Dismiss Defendant's Plea sine die . [ 7 ] Plaintiff amended her Introductory Motion on February 18, 2013.

Defendant served an Opposition to Amendment on February 26, 2013, obliging Plaintiff to present a Motion for Leave to Amend, which was granted on March 8, 2013. [ 8 ] On March 12, 2013, Plaintiff served an Inscription for Proof and Hearing and her Declaration of Readiness under

section 274.1 C.C.P., together with a New Notice of Presentation of her Motion to Dismiss Defendant’s Plea. On March 22, 2013, Madam Justice Vadboncoeur, j.c.q. allowed Defendant time to amend her Plea and reserved Plaintiff's right to present a Motion to dismiss the Amended

Plea, should she so desire. [9] On March 26, 2013, Defendant served an Amended Plea which was also supported by her affidavit. On April 3rd, 2013, Plaintiffserved the Motion to Dismiss which is the object of this judgment. THE CLAIM [10] Plaintiff alleges that Defendant borrowed $4,800 from her on December 29, 2010, (Exhibit P-14), and $6,600, on March 26,2011, (Exhibit P-18).

Plaintiff's personal line of credit at Scotiabank was used to fund the first loan, and the funds for the second loanwere obtained, thanks to Plaintiff’s credit card from National Bank of Canada. [11] Plaintiff, aged 80, also alleges that Defendant, who she describes as a "religious leader, a person of authority, supposedlysomeone respecting justice and truthfulness and whom she highly respected", took advantage of Plaintiff's frailty and kind heart in orderto obtain the loans, and that Defendant's conduct, both at the time she contracted the loans and at the time she was asked to repay them,amounts to elderly abuse and to violation of Plaintiff's right to be protected against financial exploitation under

article 48 of the Charterof Human Rights and Freedoms R.S.Q., c. C-12. To compensate the damages resulting from these abuses, Plaintiff therefore claims $25,000 in non-pecuniary damages; $ 10,000 in punitive damages; and $ 10,000 for extra-judicial fees. THE PLEA [12] According to Defendant, the outstanding amount on the first loan is $2,592.00. Therefore, with her Amended Plea, Defendantoffered and tendered $3,000 in payment, sauf à parfaire.

With respect to the second loan, Defendant contends that the document, ExhibitP-18, allows three years to repay it and that, therefore, Plaintiff's action is premature. [13] With respect to the claim for damages, Defendant denies that she, in any way, defrauded or deceived Plaintiff. She pleads thatshe always acted in good faith. At the time of the loan, she was seeking ways to become self-sufficient, with the idea of opening up asenior's residence, and acted honestly considering her difficult situation.

THE MOTION TO DISMISS THE AMENDED PLEA [14] Plaintiff argues that Defendant's admissions that she has borrowed the funds; the variations in the content of her original Pleaand of her Amended Plea as well as her various answers during the discovery demonstrate the frivolity of her Amended Plea. [15] With all due respect, the Court does not agree that a Defendant who admits to have borrowed money in her plea, would, as aresult, be deprived of contradicting Plaintiff's allegation concerning the terms and conditions of the loan and the circumstances in whichthe obligation was contracted and partially repaid. [16] In Grill Newman inc. c.

Demers, Beaulne, s.e.n.c., 2009 QCCS 5827, Mr. Justice Richard Mongeau, j.s.c., addresses the issue ofabuse of process and the burden of proof in these terms: « 90. La notion d'abus de procédure est compréhensive. C'est ce qui découle de l'analyse du libellé du nouvel

article 54.1 C.p.c. Onpeut y retrouver les énoncés des anciens articles 75.1 et 75.2 C.p.c. ainsi que l'interprétation jurisprudentielle donnée à l'article 46 C.p.c. 91 De plus, on y retrouve l'interprétation des articles 4.1 C.p.c. ainsi que 6 et 7 C.c.Q. sur l'aspect de mauvaise foi. 92 Un abus de procédure c'est en quelque sorte de faire appel aux tribunaux à mauvais escient selon l'expression utilisée par la Coursuprême du Canada à l'arrêt Société de la Place des Arts de Montréal référé à 2004 CSC 2 , 2004 CSC 2. 93 La

partie qui agit de manière abusive s'expose au prononcé d'une sanction. 94

L'article 54.1 C.p.c. énonce, entre autres, que l'abus peut résulter de la mauvaise foi, de l'utilisation de la procédure de manièreexcessive ou déraisonnable ou de manière à nuire à autrui. 95 Lorsque cette démonstration est faite d'une manière

sommaire, qu'un acte de procédure peut constituer un abus, il revient à l'autrepartie de démontrer que son geste n'est pas exercé de manière excessive ou déraisonnable et se justifie en droit. C'est ce qu'énonce entreautres l'article 54.2 C.p.c. » [17] According to the principles established by case law and doctrine, the Court of First Instance should exercise caution andwelcome a Motion to dismiss a plea or any pleading only when it is clear that it is frivolous or unfounded.

Reading the AmendedIntroductory Motion, the Amended Plea and the transcripts of stenographic notes, the Court concludes that it would be premature toconclude that Defendant’s Amended Plea is manifestly unfounded or that Defendant is using the judiciary improperly before hearing all

the evidence. FOR THESE REASONS, THE COURT : DISMISS Plaintiff’s Motion to Dismiss Defendant’s Amended Plea in order to allow Plaintiff to proceed by default to plead against Defendant; REFERS the issue as to whether there has been an abuse of process to the judge of the merits; DECLARES that Plaintiff’s Inscription for Proof and Hearing of March 12, 2013, was made within the delay foreseen by

article 274.3 C.C.P. and that there is no need for an additional one to be filed; ORDERS Defendant to file her Declaration under

article 274.2 C.C.P. on or before April 19, 2013. THE WHOLE , costs to follow suit. __________________________________ MARTINE L. TREMBLAY, J.C.Q. Me Allan J. Gold Plaintifffs' Attorney Me Warren Baer Defendants' Attorney Date of hearing: April 5, 2013