2016 QCCQ 11243, 2016 QCCQ 11243

Goikhberg c. Bissonnette 2016 QCCQ 11243 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-147954-152 DATE: October 19, 2016 ______________________________________________________________________ BEFORE THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ YAFIM GOIKHBERG Plaintiff v. MARC BISSONNETTE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Goikbergh claims $ 15,000 from Me Marc Bissonnette. [ 2 ] Mr. Goikhberg’s demand is drafted as follows: The Defendant violated the verbal agreement to pay for services, which were not rendered and see exhibit P-1 for more explanation . (exact reproduction) [ 3 ] Exhibit P-1 states: [...] In the end of December 2009 I hired you in order to represent me before the Appeal Court of Quebec. You agreed to do it before January 02, 2010 in order to meet a delay of 30 days required for this kind of procedure. At the time you informed me that your fee is $ 1,000.00 (one thousand dollars).

I paid you $ 500.00 and I was supposed to pay you the rest after the file is opened. This verbal agreement was achived during our 10 minute conversation in Bordeaux detention centre. Since then I never heard from you again. As a result, the prescribed delay was not met and eventually my applicaiton for an extension of delay was rejected. Moreover, you interfered in my personnal life by introducting my fiancée at that time Miss Kiryanova Svetlana to your boyfriend, also, a lawyer Me Jean-Francois Boudreaux, who might have started to prostitute her using her unstable state of mind – (her fiancée was detained).

This letter constitutes formal notice to pay me the sum of $ 20.500.00 (twenty thousand five hundred) dollars within ten days. This amount of money consists from 3 parts: 1. $ 500.00 (the money that I gave you) 2. $ 10,000.00 (punitive damages for not giving me the opportunity to file the Appeal within the delay). 3. $ 10,000.00 (punitive damages for not giving me the opportunity to get married with Miss Kiryanova Svetlana). (…) (exact reproduction) [ 4 ] On July 18, 2015, Me Bissonnette demanded the dismissal of the action, alleging that it was unfounded in law, even if the facts alleged were true. [ 5 ]

Article 2925 of the Civil Code of Quebec (“ C.c.Q .”) reads as follows : 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined.

[ 6 ] Mr. Goikhberg’s action was instituted on October 16, 2015. Clearly, all the facts that are alleged in his demand occurred before October 16, 2012. [ 7 ] On September 24, 2015, Mr. Justice Alain Breault granted a 45 day delay to Mr. Goikbergh to amend his proceedings in order to add and allege facts to establish that between January 2010 and 2015, it was impossible for Mr. Goikhberg to act in order to institute legal proceedings or appear in Court. Mr. Justice Breault wrote: Nous sommes en matière de petites créances. Le juge doit apporter une aide équitable aux deux parties. De plus, le législateur permet, lorsque cela est possible, qu’une

partie puisse obtenir un délai aux fins de redresser ou corriger sa procédure judiciaire (Art. 166 C.p.c.). Dans ces circonstances, sachant que le demandeur ne peut pas présenter de témoins pour contrer la requête en irrecevabilité, le Tribunal estime qu’il y a lieu de lui accorder un délai afin qu’il puisse amender sa demande judiciaire pour que soient ajoutés et allégués tous les faits pertinents permettant d’expliquer l’impossibilité d’agir dans laquelle il prétend s’être retrouvé entre janvier 2010 et juillet 2015. Le Tribunal lui accordera un délai de 45 jours pour le faire.

Le Tribunal réservera entre-temps le droit du défendeur de présenter sa requête en irrecevabilité ou toute autre requête par la suite, que le demandeur, en tout ou en partie, ait ou non satisfait au présent jugement. [ 8 ] Mr. Goikhberg did not amend his proceedings. Therefore, the Court proceeded to hear Me Bissonnette’s Motion on June 21, 2016. At that time, Mr. Goikhberg argued that he had sent a modified demand to the court office. The plumitif doesn’t mention it. Me Bissonnette did not receive it, either from the court office or from Mr. Goikhberg. Mr.

Goikhberg doesn’t have a copy of it with him. [ 9 ] Nevertheless, considering its duty to provide fair and impartial assistance to each party so as to bring out the substantive law and ensure that it is carried out [1] , the Court gave Mr. Goikhberg a second chance. He modified his demand to add the following facts:

a) he was incarcerated between December 2009 and November 27, 2014;

b) during that period, despite his numerous requests, the authorities did not allow him to go to the court office to file the action;

c) he wanted to appeal Mr. Justice Falardeau’s judgment of December 2, 2009 sentencing him to 6 months in prison and asked Ms. Svetlana Kiryanova ( “Ms. Kiryanova” ) to find him an attorney and she found Me Bissonnette.

d) While Mr. Goikhberg was in prison, Me Bissonnette introduced Ms. Kiryanova to Me Boudreau.

e) Me Boudreau (who is not a party to the action) convinced Ms. Kiryanova to act as a semi-nude model for a well-known jewellery store.

f) Mr. Goikhberg complained about Me Boudreau to the Syndic of the Barreau du Quebec, who replied the following [2] : By letter dated July 1, 2012, received at the Barreau du Québec on July 31, 2012, you required that an inquiry be carried out concerning Me Jean-François Boudreau. The undersigned has been designated to proceed to the inquiry, and to determine if a complaint for breach to the Code of Ethics of Advocates should be laid against this attorney. You reproach Me Boudreau of having raped your girlfriend in the company of another attorney. […] [ 10 ] Further to said modifications to Mr.

Goikhberg’s demand, Me Bissonnette requested permission to modify his Motion to dismiss in order to allege that the judicial demand was abusive and asked for its dismissal under

section 51 and following of the C.C.P. which read as follows : 51. The courts may, at any time, on an application and even on their own initiative, declare that a judicial application or a pleading is abusive. Regardless of intent, the 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, particularly if it operates to restrict another person’s freedom of expression in public debate. 52. If a party summarily establishes that a judicial application or pleading may constitute an abuse of procedure, the onus is on the initiator of the application or pleading to show that it is not excessive or unreasonable and is justified in law.

The application is presented and defended orally, and decided by the court on the face of the pleadings and exhibits in the record and the transcripts of any pre-trial examinations. No other evidence is presented, unless the court considers it necessary. […] 53. If there has been an abuse of procedure, the court may dismiss the judicial application or reject a pleading, strike out a conclusion or require that it be amended, terminate or refuse to allow an examination, or cancel a subpoena. [ 11 ] The Court concludes that the additional facts alleged by Mr.

Goikhberg confirm that his action against Me Bissonnette is prescribed. [ 12 ] Assuming that the facts are true [3] , the $ 500 retainer fee was paid to Me Bissonnette in 2009 and the failure to appeal Justice

Falardeau’s judgment occurred in 2010. Futhermore, the exchange of correspondence between Mr. Goikhberg and the Syndic of the Barreau du Quebec [4] confirms that as of July 2, 2009, Mr. Goikhberg was able to pretend that Me Bissonnette had introduced Mrs. Kiryanova to Me Boudreau. Therefore, this action was instituted more than 3 years after M. Goikhberg’s alleged right of action as a result of these alleged faults on the part of Me Bissonnette arose. [ 13 ] Mr. Goikhberg’s imprisonment did not constitute an impossibility in fact to act within the period of time prescribed by law [5] .

On this issue, the Court shares the opinion expressed by Judge Jeffrey Edwards in his decision of November 11, 2015 in the action instituted by Mr.

Goikhberg against two immigration attorneys, Wilerne Bernard and Serge Lamontagne, for alleged unpaid translation services rendered on their behalf between January 2005 and December 2009 [6] . [ 14 ] Judge Edwards wrote: [9] However, according to established jurisprudence, incarceration in a Canadian prison cannot constitute a cause of impossibility in fact to act for purposes of prescription [7] under the Civil Code of Quebec . [10] Quebec legal doctrine has expressed and confirmed the same rule. […] [13] Therefore, it is only in extreme circumstances of incarceration in a foreign jurisdiction, where basic human and civil rights cannot be exercised, that Quebec Courts will consider that circumstances may constitute an impossibility in fact to act in accordance with

Article 2904 C.C.Q. [14] Furthermore, apart from the physical impossibility to have access to attorneys to prepare and represent the rights of a litigant in Court, the Courts also require a mental state that the litigant was unable to act and objectively feared exercising his rights [8] . [15] According to Mr. Goikhberg’s testimony, he was in constant contact with his attorneys throughout his criminal trial. There was no reason why he could not have retained the same or other attorneys to exercise his rights for a civil cause of action at that time. […] [19] But the relevant criterion which must be satisfied under the rule of

Article 2104 C.C.Q. is one of impossibility in fact to act, not one of a level of difficulty to act which is higher than the normal and standard level for the exercise of civil rights. [ 15 ] The letter sent to the Syndic du Barreau du Québec [9] , accusing Me Boudreau of professional misconduct, confirms Mr. Goikhberg’ capacity to exercise his judicial rights while incarcerated. [ 16 ] This letter also reveals how Mr. Goikhberg’s story concerning Ms. Kiryanova’s relationship with lawyers evolved throughout the years. It underlines the frivolous nature of Mr.

Goikhberg’s claim with respect to the loss of opportunity to marry Ms. Kiryanova. There is not a shred of evidence that Ms. Kiryanova had the intent of marrying Mr. Goikhberg and, in any event, the mere fact of introducing someone to a lawyer is not a fault. Furthermore, the law does not provide for punitive damages for the loss of an opportunity to get married [10] . FOR THESE REASONS, THE COURT: DISMISSES Mr. Yafim Goikhberg’s action. ________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: June 21, 2016