2018 QCCQ 3115, 2018 QCCQ 3115

Saffran c. Estate of Kuropatwa 2018 QCCQ 3115 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-141357-147 DATE: May 9, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ IRVING SAFFRAN Plaintiff v.

THE LATE MAURICE KUROPATWA -and- JARED KUROPATWA, in his capacity of Liquidator to the Estate of Maurice Kuropatwa Defendants -and- GESTION ALETYN INC. -and- ARKADI BINYAMINI Impleaded Parties ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Irving Saffran, a pharmacist doing business under the name of I. Saffran Pharmacist, claims $376.13 from the Estate of the late Maurice Kuropatwa (the “ Estate ”) for unpaid prescription drugs and incontinence pads provided in 2013 while Mr.

Kuropatwa was a resident of Tirat Carmel, a private residence for seniors. [ 2 ] Mr. Kuropatwa passed away on January 11, 2014. His Estate is represented by Mr. Kuropatwa’s son, Jared Kuropatwa, its liquidator (the “ Liquidator ”) [1] . [ 3 ] The Estate refuses to pay the amount claimed, alleging that the prescription drugs and incontinence pads at issue were requested fraudulently. [2] Subsidiarily, it claims that no amount is due because: (

a) during two of the four months at issue, Mr. Kuropatwa was exempted from payment of any premium under Québec’s public prescription drug insurance plan; and (

b) the amount charged for incontinence pads is exaggerated. [ 4 ] The Estate has impleaded the owner of the seniors’ residence, Gestion Aletyn Inc. (“ Aletyn ”), and its principal, Mr. Arkadi Binyamini (together the “ Impleaded Parties ”), whom it states are responsible for the alleged fraud. It asks the Court to hold them responsible for any amount it may be ordered to pay to Plaintiff. [ 5 ] In addition, the Estate has filed a cross-application seeking $1,127.59 from Plaintiff. This amount includes punitive damages of $1,000 for exploitation of an aged person within the meaning of

Section 48 of the Charter of Human Rights and Freedoms [3] (the “ Quebec Charter ”) and the payment of $127.59 in reimbursement of amounts allegedly overpaid to Plaintiff earlier in 2013 or in damages. questionS in dispute [ 6 ] The case calls for the resolution of the following questions:

a) Was Plaintiff complicit in a fraud against Mr. Kuropatwa and, if not, is he entitled to the amount claimed?

b) Are the Impleaded Parties responsible for payment of the amount claimed by Plaintiff?

c) Is the Estate entitled to the amounts claimed in its cross-application? FACTUAL CONTEXT [ 7 ] In July 2012, Mr. Kuropatwa was placed in the care of the Tirat Carmel residence, owned by Impleaded Party, Aletyn. [ 8 ] A lease agreement was entered into between Mr. Kuropatwa and Aletyn, which provided, in addition to the rental of a room, for various services, including food, nursing and personal care services and the distribution of medication by authorized personnel. [4] [ 9 ] During the time that Mr. Kuropatwa was a resident of Tirat Carmel, he was under the care of Dr.

Eva Stasiak, who prescribed different drugs to be administered to him. [5] Dr. Stasiak’s prescriptions were sent to Plaintiff, who provided the medication and the incontinence pads needed by Mr. Kuropatwa, upon the instructions of Aletyn.

[ 10 ] From August 2012 until he left Tirat Carmel in August 2013, Mr. Kuropatwa was provided with the necessary medication and incontinence pads by Plaintiff, who invoiced him monthly. His invoices were paid by cheques signed by Mr.

Kuropatwa until May 2013, [6] but subsequent invoices remained unpaid. [ 11 ] The following amounts were invoiced, but remained unpaid: Date Description Amount May 2013 Prescription medication 50.97$ May 14, 2013 Supplies (incontinence pads) 80.00$ June 3rd, 2013 Prescription medication (June 2013) 50.97$ July 9, 2013 Supplies (incontinence pads) 80.00$ July 23, 2013 Prescription medication (July 2013) 50.97$ August 20, 2013 Prescription medication (August 2013) 43.22$ August 20, 2013 Supplies (incontinence pads) 20.00$ Total 376.13$ [ 12 ] In August 2013, the Liquidator was provisionally designated to ensure his father’s protection, to represent him in the exercise of his civil rights and to administer his property, pursuant to a judgment rendered by the Honourable Michel Delorme, j.c.s. [7] He did not see to the payment of Plaintiff’s invoices. [ 13 ] On December 12, 2013, Plaintiff formally demanded payment from Mr.

Kuropatwa within 7 days. [8] The amount claimed having remained unpaid, Plaintiff filed his claim on January 1 st , 2014. ANALYSIS

a) Was Plaintiff complicit in a fraud against Mr. Kuropatwa and, if not, is he entitled to the amount claimed? [ 14 ] Plaintiff has proven on a balance of probabilities [9] that the prescription drugs and incontinence pads for which payment is sought were supplied on the instructions of Mr. Binyamini or another representative of Aletyn, on behalf of Mr. Kuropatwa, and that they were duly provided to him. [ 15 ] The Estate does not deny that the said medication and pads were duly supplied, nor that Mr. Kuropatwa needed them.

It alleges, however, that Plaintiff was complicit with the Impleaded Parties in a fraud against Mr.

Kuropatwa, stealing his money and writing fraudulent cheques, including the cheques totalling $977.45 provided to Plaintiff to pay his invoices for the period of August 2012 to April 2013 inclusively. [10] [ 16 ] To succeed in having Plaintiff’s claim dismissed on this basis, the Estate bears the burden of proving the alleged fraud on a balance of probabilities. [11] To meet this burden, the evidence offered must be clear and convincing; [12] the alleged facts must not only be possible, but probable. [13] [ 17 ] The Estate has not met this burden of proof. [ 18 ] No evidence whatsoever of Plaintiff’s involvement in a fraud was offered; in the absence of proof of any such involvement, the alleged fraud cannot constitute a valid ground to deny Plaintiff’s claim.

Moreover, no direct evidence of the alleged fraud on the part of the Impleaded Parties by stealing money from Mr. Kuropatwa or writing fraudulent cheques was offered. In the absence of any contrary evidence, the Court accepts Mr. Binyamini’s explanations that Plaintiff’s invoices were discussed with Mr. Kuropatwa and that the cheques in payment of said invoices were signed by him after such explanations and on his instructions. [ 19 ] What of the Estate’s subsidiary arguments? [ 20 ] The Estate argues, firstly, that for the months of July and August 2013, Mr.

Kuropatwa was exempted from paying any premium pursuant to Québec’s public drug insurance plan because he received monthly guaranteed income supplements (GIS) under the Old Age Security Act [14] representing more than 94% of the maximum amount that may be paid. Consequently, the Estate claims that Mr. Kuropatwa should not have been charged anything for prescription drugs for those months. [15] [ 21 ] The Estate relies on a letter issued by Service Canada which establishes that the GIS payments received by Mr.

Kuropatwa represented 89.35% of the maximum allowable amount from January to June 2013 inclusively, and that they increased to 94.67% for the remainder of 2013. [16] [ 22 ] This argument must fail. [ 23 ] Although the Estate is correct that the level of GIS payments received by a person affects what that person may be charged by a pharmacist for prescription drugs, the necessary analysis in the case of someone in Mr. Kuropatwa’s position must be done on annual – rather than monthly – basis. This is provided for in

Section 24.1 of the Act respecting prescription drug insurance , [17] which reads as follows: 24.1. The following persons are exempted from payment of the premium for a calendar year : (1) persons 65 years of age or over throughout the year who receive monthly guaranteed income supplements in the year under the Old Age Security Act (R.S.C. 1985, c. O-9 ), the aggregate of which supplements represents at least 94% of the maximum amount that may

be paid in that respect annually ; and (2) persons who reach 65 years of age in the year, if paragraph 2 of

section 15 applies to them for each of the months in the year that precede the month following the month in which they reach that age and if they receive, for each of the months in the year that follow the month in which they reach that age, at least 94% of the maximum amount of monthly guaranteed income supplement under the Old Age Security Act . For the purposes of subparagraphs 1 and 2 of the first paragraph, an amount received by a person as a monthly guaranteed income supplement under the Old Age Security Act and the maximum amount that may be paid in that respect must be determined without taking into account the amount that may be added to the amount of the supplement under

section 12.1 or 22.1 of that Act. [Emphasis added] [ 24 ] Clearly, Mr. Kuropatwa does not meet the requirement for an annual exemption, as his GIS payments on an annual basis for 2013 were not in excess of 94% of the maximum allowable amount. [ 25 ] Exemption for a given month is possible under the Act, but in situations that do not apply Mr. Kuropatwa: 24. The following persons are exempted from payment of the premium for a given month: (1) a child in whose respect parental authority, during that month, was exercised by a person to whom paragraph 1, 3 or 4 of

section 15 applies, or would have been exercised had the child been a minor; (2) a person suffering from a functional impairment who, during that month, was domiciled with a person to whom

section 15 applies; (3) a person to whom paragraph 2 or 3 of

section 15 applies; (4) (paragraph repealed). [ 26 ] In any event, the Court accepts Plaintiff’s testimony that the premium to be charged to a person is governed by the government system and that he has no way of determining whether a patient’s GIS is or is not in excess of 94%. On the basis of the evidence adduced, the Court concludes that if there was any irregularity in the premium that Mr.

Kuropatwa was charged, the Estate must take it up with the Régie de l’assurance maladie or Revenue Québec and not the pharmacist. [ 27 ] The Estate’s second argument, that the amounts charged for incontinence pads was excessive, must also fail. The fact the Liquidator was able to provide his father with incontinence pads at a lower cost after he moved out of Tirat Carmel is irrelevant. The amount charged is the standard amount and was accepted by Mr. Kuropatwa from August 2012 to April 2013. [ 28 ] Plaintiff is therefore entitled to the payment of the amount claimed ($376.13).

He is also entitled to the payment of interest at the legal rate and the additional indemnity provided for in

article 1619 C.C.Q. from the date that Mr. Kuropatwa was placed in default, namely December 20, 2013. [18]

b) Are the Impleaded Parties responsible for payment of the amount claimed by Plaintiff? [ 29 ] As previously stated (paragraph 17), the Estate had not proven, on a balance of probabilities, that the Impleaded Parties were involved in a fraud against Mr. Kuropatwa. [ 30 ] In the absence of any evidence establishing fraud, bad faith or any other wrongdoing on the part of the Impleaded Parties, and given that there is no other valid legal ground to hold them responsible for the amount due to Plaintiff, the claim against them must be dismissed.

c) Is the Estate entitled to the amounts claimed in its cross-application? [ 31 ] The Estate claims punitive damages of $1,000 for violation of

article 48 of the Quebec Charter , which reads as follows: 48. Every aged person and every handicapped person has a right to protection against any form of exploitation. Such a person also has a right to the protection and security that must be provided to him by his family or the persons acting in their stead. [ 32 ] The Estate’s position is based on the argument discussed above of overcharging of a premium under the Québec public drug insurance plan in July and August 2013. The Court has already concluded to Plaintiff did not overcharge Mr. Kuropatwa (see paragraphs 19 to 25).

Accordingly, the claim for punitive damages must be dismissed. [ 33 ] The Estate’s claim for overpayments to Plaintiff earlier in 2013 or damages ($127.59) [19] must also be dismissed. [ 34 ] The Estate seeks to recover a portion of the amounts charged for incontinence pads, but as stated previously, the Court concludes on the basis of the evidence that these amounts are standard and were accepted by Mr. Kuropatwa from August 2012 to April 2013.

If the Liquidator wished to provide his father with the pads he needed at a lower cost, he could have done so, but this does not justify reimbursement. [ 35 ] As to the bank charges of $70 for which the Estate seeks compensation, no basis was provided to conclude that Plaintiff should be held responsible for them. [ 36 ] The Estate’s cross-application must therefore be dismissed.

FOR THESE REASONS, THE COURT: GRANTS Plaintiff’s action; CONDEMNS Jared Kuropatwa, in his capacity of Liquidator to the Estate of Maurice Kuropatwa, to pay to Irving Saffran an amount of $376.13, together with interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec from December 20, 2013; DISMISSES the action against the impleaded parties Gestion Aleytin inc. and Arkadi Binyamini; DISMISSES the cross-application; HE WHOLE WITH COSTS in favour of Plaintiff in the amount of $74.25 representing the judicial fees on the application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: March 21, 2016 and December 4, 2017