2015 QCCQ 4636, 2015 QCCQ 4636

Savard c. Worenklein 2015 QCCQ 4636 JP 2262 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CIVIL DIVISION No: 500-32-138426-137 DATE: April 15, 2015 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ CATHERINE SAVARD Plaintiff v. DR. ABRAHAM WORENKLEIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ms.

Savard claims the total reimbursement of the professional fees she paid to Dr. Worenklein for a psychological assessment, in the context of a judicial dispute with her former spouse over her son’s custody. She also seeks a condemnation in the amount of $2,000.00 against Dr. Worenklein for a portion of the legal fees she paid in the same context. [ 2 ] The question at issue is whether Dr. Worenklein acted negligently in the conduct of his mandate [1] , which was to provide an expertise to the Superior Court in these custody proceedings. ANALYSIS [ 3 ] On March 9, 2012, Dr. Worenklein was appointed by Ms.

Savard’s attorney to act as joint expert to the Superior Court along with another psychologist, Dr. Jack Hirschberg. [ 4 ] Dr. Worenklein was to contact Dr. Hirschberg and start working on the file with him immediately. He initially estimated that a final report could be issued within approximately 2 ½ months. [ 5 ] Exceeded with a series of extensions by Dr. Worenklein of this estimated delay, and numerous failed promises to deliver the report within “the next few days”, Ms. Savard, through her attorney, terminated the mandate on August 27, 2012 [2] . [ 6 ] The report was never produced. [ 7 ] Dr.

Worenklein pleads that he has been prevented from finalizing his report due to this premature cancellation of his mandate. He states that he had an appointment with Ms. Savard on August 30, 2012, where she was to review her

section of the report. He says that at that time, his report was 90% ready. [ 8 ] More fundamentally, Dr. Worenklein argues that the delays and missed deadlines invoked by Ms. Savard’s attorney are in fact false pretexts, and that the real reason why his mandate was terminated is that Ms. Savard’s attorney was not pleased with some orientations of the report to come, which had been communicated verbally to the latter by Dr. Hirschberg. [ 9 ] Dr.

Worenklein also relies heavily on the refusal by the competent instances of the Ordre des psychologues du Québec to institute disciplinary proceedings against him pursuant to the complaint filed by Ms. Savard. [ 10 ] In an explanatory and exculpatory letter [3] he addressed to the syndique adjointe in response to this complaint, Dr. Worenklein writes that Ms. Savard’s attorney “ was reportedly told by Dr. Hirschberg that a form of shared parenting was being considered .” Dr. Worenklein further writes that it was only at that time that his mandate was cancelled.

He reiterates this statement, with emphasis, adding that Ms. Savard’s attorney cancelled his mandate “ only after he, according to Dr. Hirschberg, heard from him that there could possibly be recommendations that were not in favor of his client’s position. ” [ 11 ] At the hearing, the Tribunal expressed its surprise over the fact that upon receiving the email of cancellation of his mandate from Ms. Savard’s attorney, which outlines a long series of reproaches, Dr.

Worenklein did not send him a draft of his report, which could have at least demonstrated that he had indeed made substantial progress in the performance of his mandate. [ 12 ] Both Ms. Savard and her attorney testified that they have never seen even a draft from Dr. Worenklein. [ 13 ] Viewing that Dr. Worenklein testified that when his mandate was terminated, his report was almost ready, the Tribunal thus ordered him to produce a copy of the last version of his draft report in the Court record on the following business day [4] .

[ 14 ] To the exception of two paragraphs, where Dr. Worenklein summarizes his observations through closed circuit television of Ms. Savard and her son’s interactions in a play session, this 20-page document solely consists in a recollection of facts and information provided to Dr. Worenklein by Ms. Savard herself. There is no account of interviews by Dr. Worenklein of the child or the father. There is no mention of any work carried out jointly with Dr. Hirschberg. The document contains no analyses, opinions nor recommendations.

It is nowhere close anything which could have been helpful to the Superior Court in the custody proceedings. [ 15 ] The Tribunal cannot believe Dr. Worenklein when he says that his report was almost ready and could have been completed within the next few days. Rather, this statement by Dr. Worenklein reinforces the credibility of Ms. Savard’s and her attorney’s testimonies to the effect that Dr.

Worenklein repeatedly missed deadlines and promised that his report would be delivered “within the next few days”. [ 16 ] Moreover, there is not a shred of information in this draft report to indicate that a form of shared parenting could be considered between Ms. Savard and her son’s father, nor is there anything suggesting that a recommendation not in favour of Ms. Savard would flow from said information. [ 17 ] The Tribunal also notes that the Superior Court, in the custody proceedings, granted Ms. Savard’s Motion for special case management , which explains in detail why Dr. Worenklein and Dr.

Hirschberg’s joint mandate ought to be terminated.

The Superior Court’s judgment on this Motion reads as follows: ACCORDE la requête de la mère selon les articles 151.11 et suivants C.p.c.; ORDONNE la tenue d’une expertise psychosociale par le service d’expertise concernant la garde et l’accès à [name of child]; ORDONNE aux experts Worrenklein (sic) et Hirschberg de transmettre à l’expert du service d’expertise les résultats bruts des tests effectués par les parties et leurs (sic) enfants (sic); ORDONNE aux parties de collaborer avec l’expert du service d’expertise; DÉCLARE inadmissible en preuve quelque rapport que ce soit provenant des experts Worrenklein (sic) et Hirschberg ; (Emphasis added by the Tribunal) [ 18 ] Finally, the Tribunal retains from Ms.

Savard’s attorney’s testimony that during a telephone conversation held on August 10, 2012, more than five (5) months after he had accepted the mandate, Dr. Worenklein asked him whether he represented the mother or the father! This, especially in light of the fact that at the time, the father was not even represented by counsel in the custody proceedings, is certainly not consistent with the deep and intimate knowledge that Dr. Worenklein would have had of the file if he was at the stage of advancement of his mandate where he claims he was. [ 19 ] As was her burden [5] , Ms.

Savard established on a balance of probability that Dr. Worenklein did not perform his contractual undertakings towards her, nor his judicial duty towards the Superior Court, in a diligent manner, particularly in the context of extremely delicate and volatile custody proceedings, involving the well-being of a young child, which are, it goes without saying, urgent by nature. [ 20 ] Aside from his own testimony, Dr. Worenklein did not adduce any evidence to contradict Ms. Savard’s allegations, which conversely, are corroborated by her attorney’s testimony. In particular, the Tribunal notes that Dr.

Hirschberg was not called to testify. Had he been called as a witness, Dr. Hirschberg could have testified to the core of Dr. Worenklein’s case theory, to wit, that the reason why his mandate was terminated was because Dr. Hirschberg told Ms. Savard’s attorney that the report to come would be unfavourable to his client. No evidence whatsoever was presented to establish that these words were ever even uttered by Dr. Hirschberg, let alone that this is what prompted Ms. Savard’s attorney to terminate Dr.

Worenklein’s mandate. [ 21 ] Finally, as explained at the hearing, the Tribunal is not bound by the findings of the Ordre des psychologues in a disciplinary context. [ 22 ] It appears from the invoices from Ms. Savard’s attorney that he charged well over $2,000.00 to draft and present the Motion for special case management which was granted by the Superior Court. Not only was this motion well-founded, it was rendered necessary strictly due to the uselessness of Dr. Worenklein’s work. FOR THE FOREGOING REASONS, THE TRIBUNAL: GRANTS Ms. Catherine Savard's action; CONDEMNS Dr.

Abraham Worenklein to pay $6,370.00 to Catherine Savard, with interest at the legal rate plus the additional indemnity stipulated in

section 1619 of the Civil Code of Québec since May 10, 2013; WITH COSTS against Dr. Abraham Worenklein in favour of Ms. Catherine Savard in the amount of $167.00. __________________________________ VINCENZO PIAZZA, J.C.Q.

Date of hearing: March 27, 2015