2021 QCCQ 521, 2021 QCCQ 521

Collins c. ITM Instruments Inc. 2021 QCCQ 521 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” No.: 550-32-701594-191 DATE: February 8, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE STÉPHANE D. TREMBLAY, J.C.Q. ______________________________________________________________________ R. MAXINE COLLINS Plaintiff/Cross-defendant v. ITM INSTRUMENTS INC.

Defendant/Cross-plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ms. Collins, the cross-defendant, asks the Court to review the clerk’s decision to issue a notice of hearing for the cross- application scheduled for February 25, 2021. [1] [ 2 ] To better understand this judgment, the Court will briefly describe the chronology of the proceedings. [ 3 ] On October 3, 2019, Ms.

Collins filed an application with the Small Claims Division of the Court of Quebec claiming $14,692 from ITM Instruments Inc. (“ ITM ”). [ 4 ] On November 11, 2019, ITM filed a defence and cross-application. On November 27, 2019, Ms. Collins discontinued her application. [2] Despite the discontinuance, ITM maintained its cross-application. [ 5 ] On December 23, 2019, Ms. Collins submitted that the cross-application was inadmissible. She argued that under the Code of Civil Procedure , a cross-application cannot be filed with the Small Claims Division.

She further argued that her discontinuance of the principal application had the effect of closing the entire file. She therefore asked that the cross-application be dismissed at the preliminary stage. Ms. Collins also asked that a case management conference be held to discuss the issue of legal costs arising from the discontinuance. [3] [ 6 ] That application was presented to the coordinating judge, Laflamme J.C.Q., who dismissed the application for a case management conference.

The application to dismiss the cross-application was referred back to the master of the rolls for a hearing on the merits. [4] [ 7 ] On January 7, 2021, the clerk of the Small Claims Division of the Court of Quebec issued a notice of hearing for the cross- application scheduled for February 25, 2021. That decision is the subject of this application for review. [ 8 ] Basically, Ms. Collins argues once again that the cross-application is inadmissible. She repeats the same arguments considered by Laflamme J.C.Q. in January 2020. [ 9 ] Ms.

Collins reiterates her argument that the Code of Civil Procedure does not authorize the presentation of cross-applications in the Small Claims Division. Moreover, filing the discontinuance terminated the proceeding. As such, the Court cannot dispose of ITM’s cross-application. Therefore, the clerk’s decision to issue a notice of hearing should be reviewed. [ 10 ] Ms. Collins’s application is dismissed. [ 11 ] First, reviews of administrative decisions by a clerk are not authorized under art. 74 C.C.P. That

article reads: 74. Decisions of the court clerk other than administrative decisions and decisions of the special clerk, except judgments rendered by default following the defendant’s failure to answer the summons, attend the case management conference or defend on the merits, may, on an application, be reviewed by a judge in chambers or by the court. The same applies to decisions of the appellate clerk, which may be reviewed by an appellate judge. [Emphasis added.] [ 12 ] There is no question that a notice convening the parties to a hearing is an administrative decision. This type of decision cannot be reviewed by the procedure set out in art. 74 C.C.P.

[ 13 ] Second, the coordinating judge already ruled that the admissibility of the cross-application should be determined by the trial judge. Ms. Collins offers no new fact that would justify reviewing the decision of my colleague, Laflamme J.C.Q. [5] [ 14 ] Therefore, the notice of hearing issued by the clerk must be maintained. [ 15 ] To avoid any ambiguity, the undersigned would like to state that the Court is not ruling on the application to dismiss the cross- application for inadmissibility. Like Laflamme J.C.Q., the Court merely refers that matter to the trial judge. Ms.

Collins may raise her arguments at that time. [ 16 ] Alternatively, if the notice for the hearing scheduled for February 25, 2021, is maintained, Ms. Collins asks the clerk to quash the discontinuance filed on December 10, 2019, and that a new notice for the hearing of the initial application be sent to the parties. [ 17 ] That alternative request is dismissed. The effects of a discontinuance are set out in art. 213 C.C.P., which states: 213.

Discontinuance by the plaintiff of the whole of a judicial application terminates the proceeding on the notification of a notice of discontinuance to the other parties and its filing with the court office. It restores matters to their former state, and is effective immediately if it takes place before the court and in the presence of the parties. The legal costs are borne by the plaintiff , subject to an agreement between the parties or a decision of the court. [Emphasis added.] [ 18 ] Discontinuance therefore grants rights to ITM, particularly concerning the payment of legal costs. Ms.

Collins’s alternative request cannot be granted because it would prejudice ITM by depriving it of a right acquired as a result of the discontinuance. FOR THESE REASONS, THE UNDERSIGNED: DISMISSES the Application to review decision of the Court Clerk -

Article 74 and

Article 554 C.c.p. – Notification of Hearing [Cross Demand only] dated January 11, 2021; MAINTAINS the notice dated January 7, 2021, convening the parties to the hearing of the cross-application; WITH LEGAL COSTS in favour of ITM Instruments Inc. __________________________________ STÉPHANE D. TREMBLAY, J.C.Q.