2022 QCCQ 3343, 2022 QCCQ 3343

Aziz c. Massier 2022 QCCQ 3343 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL Civil Division N° : 500-32-159526-195 DATE : April 13, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Karim AZIZ Plaintiff c.

Ronald MASSIER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On August 28, 2017, just after 4:00 o’clock a.m., an altercation took place between the Plaintiff, Mr. Karim Aziz and the Defendant, Ronald Massier (also known as Ron Massier), on the premises of a Tim Hortons restaurant at 2081, Guy Street, Montreal. Some procedural background [ 2 ] This is the final judgment in a case which was initiated on November 23, 2017, in Superior Court (500-17-101172-172) by Mr.

Aziz who claimed damages in the amount of $ 100,000. The claim involved eight Defendants, all of whom, except Mr. Massier were taken out of the case. The amount claimed was successively reduced as the file wound its way from the Superior Court to the Court of Quebec, Civil Division (500-22-24843-184 the claim being reduced to $ 20,000) and finally to the Small Claims Division. [ 3 ] In its ultimate form, it is a case solely between the two persons who participated in the altercation, to the exclusion of a host of other defendants. Mr. Aziz amended his case to $ 14,000 and Mr.

Massier brought a counter claim in the amount of $ 500 for the replacement of his glasses, allegedly damaged during the incident and for $ 5,000 in damages for the trouble and inconvenience associated with the abusive character of the proceedings. [ 4 ] On March 8, 2019, Mr. Aziz sought a postponement of the trial that had been planned for May 9 and 10, 2019, or, in the alternative, permission to appear at the trial by Skype or other similar means, due to his travel plans. These dates had been set by the undersigned at a case-management meeting held on December 6, 2018.

This case-management role was conferred on the undersigned by order of the coordinating judge, as she then was, Martine L. Tremblay, on November 1, 2018. [ 5 ] Mr. Massier could not be summoned to the hearing set to decide the motion to postpone, on March 21, 2019 because his address was unknown to the Court. He had been receiving all notifications at the address of his former employer and did not update his address in the file when he ceased working for that employer.

In ruling on this motion for postponement, the Court decided that this was not a case where it would be feasible to proceed by Skype given the need to see the witnesses, to communicate adequately and to evaluate the demeanor of the witnesses. An order was made striking the case from the roles and inviting either party to make the appropriate request to the case-management judge to have the case placed back on the role. [ 6 ] Neither party reactivated the file. The undersigned only learned of Mr.

Aziz’ return to Canada well after he had brought two additional proceedings, initiated on September 15, 2020 and August 28, 2020. Mr. Aziz did not seek to reset the trial date in the present case immediately. These new actions stemmed from the same incident, and were eventually referred to the undersigned for case management when they became subject to the small-claims procedure. The two cases are quite redundant with the initial action in Superior Court that has been reduced to the present matter, but with even more parties named as Defendants. These two new files started as cases in the Civil Division, but Mr.

Aziz modified the amounts, bringing them within the small-claims procedure. (The files became 500-32-162033-205 and 500-32-162034-203) [ 7 ] The Court became seized of applications made by Defendants in these two files for dismissal, based, among other grounds, on the abusive character of the proceedings. Mr.

Aziz, for his part, sought an order to join these two cases with the present file for a common hearing, and for the appointment of an expert. [ 8 ] The Court heard these applications on July 16, 2021, received additional written submissions from the Plaintiff up to and including August 1, 2021 and rendered a judgement on September 22, 2021, declaring abusive and dismissing both cases. This meant that the way was clear to

schedule the remaining case, and it was heard on a priority basis on November 8 and 9, 2021 with a supplementary hearing on December 20, 2021. This supplemental hearing was the only part of the trial that Mr. Massier was able to attend, but the Court made every effort, to Mr. Massier’s satisfaction, to allow Mr. Massier to know the case that was made against him and to have a

full defense. [ 9 ] The narratives of the case precede the incident of August 28, 2017. It is important to know of the background in order to understand what was to take place. Issues of credibility [ 10 ] It is also necessary to state, at the outset, that both of the parties have certain limitations and conditions that cause concern as to their respective credibility. [ 11 ] In the case of Mr.

Aziz, the very longstanding mental illnesses that he complains of have an impact on his behaviour and perception and also on the way in which he treats the Courts and judges before whom he presents himself. [ 12 ] In the framework of the motions to dismiss mentioned above, the City of Montreal raised an exception based on prescription. To counter this exception, Mr. Aziz made an argument that he was in a position of impossibility to act sooner than he had.

It was not necessary for the Court to resolve this question, because the cases were dismissed on other grounds, but, the allegations are quite clear as to major psychiatric conditions. During the time Mr. Aziz was away, he was in Iran and, for part of that time he was a patient in a hospital setting. He produced expert evidence as to his condition. [ 13 ] The following passages from his allegations are pertinent: 3 .

Plaintiff, Karim Aziz, invoking and plead and relies on (Art, 2904 C.C.Q.), and stat that it was impossible in fact for him to act by himself sooner and to open case in court sooner or to be represented by others and invoking and plead and relies on (Art, 2904 C.C.Q.) which (Art, 2904 C.C.Q.), states as follow : SUSPENSION OF PRESCRIPTION Art. 2904. Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others. 4.

Following are the timeline list of the events in the chronological order, from October-16-2018, the date of the judgment of not guilty by the Municipal court judge in two criminal case against the plaintiff in case numbers 117-139-253, and 118-042-746, to the date that plaintiff, Karim Aziz, filed the two civil cases against the defendans ville de Montreal et al., on August-28-2020, and September-15-2020, small claim court case numbers 500-32-162034-203, & 500-32-162033-205. 5.

That plaintiff, Karim aziz, has been suffering from mental illness since 1990, and has been diagnosed by the various psychiatrists of having suffered from serious mental illness and mental disorder such as paranoid schizophrenia, bipolar disorder, serious and severe depression, hallucinations, anxiety, and emotional and psychological problems, and trouble concentrating and remembering and comprehension, and mental pains. […] 6.

That because of the events of wrongful criminal criminal charges by the Montreal police againast the plaintiff, Karim Aziz, leading to the October-16-2018, not guilty judgment, plaintiff mental health had become seriously deteriorated, and plaintiff were totally exhausted, worn out, drained, debilitated, weakened, of mental & physical energy & resources, and that was the exact reasons that Mr. Aziz, on Jan-18-2018, & july-13-2018, involuntary, & reluctantly desisted & withdrawn his civil claim against the Ville de Montreal and et al., and in other words, Mr.

Aziz was not in his right mind when this happened, and also when this mental pressure, And also that was the reasons that Mr. Aziz decided to get away from all these troubles and nightmares and torment, agony, anguish, misery , so Mr. Aziz decided to leave canada, so Mr. Aziz decided to travel to Iran and visit his family, and since Mr. Aziz did not have sufficient money for round trop airline ticket to Iran, So Mr. Aziz purchased a one way airline ticket to Iran and on March-16-2019, traveled to Iran. […] 7.

That upon arrival in Iran, plaintiff was interrogated for a long time by the Border and passport control police of the Islamic republic of Iran, and plaintiff was accused that in the past, he had departed Iran illlegally and using a fake passport, also plaintiff was told that as punishment he would be disqualified to obtain Iranian passport for period more that a year. and plaintiff was told that he must report to the passport office in order to apply for a new passport and authorization to depart Iran. 8.

So Plaintiff applied for a new Ianian passport, but received a letter from the passport and immigration police force of the islamic republic of Iran, which said letter states as follow: Mr. Karim Aziz “With reference to your Iranian passport application, take notice that due to illegal departure from Iran and the use of fake passports, You are subject to

Article 16 of the Iran passport law of the Islamic Republic of Iran. Therefore from April/1/2019 until June/1/2020, you are not eligible to obtain iranian passport and you are forbidden to leave Iran.” Passport and Immigration Police Chief Police force of the Islamic Republic or Iran […]

9. That upon receiving this devastating new from the Iran paasport authority that he could not obtain passport and was forbidden to depart Iran from April-1-2019 until June-1-2020, plaintiff was devastated and his mental health became much more deteriorated, and as result the family of the plaintiff checked him into a mental hospital, and plaintiff was in this mental hospital from April-4-2019, until March-28-2020, and receiving mental and psychiatric and psychological treatment ans care.

See the letter from plaintiff’s psychiatrist doctor which states as follow: Vanak psychotherapy clinic and hospital – IRAN TO WHOM IT MAY CONCERN June-15-2020 Subject: Karim Aziz. “This is to certify and confirm that Mr. Karim Aziz, was hospitalized at our psychiatric polyclinic hospital for the period around more than eleven months from April-4-2019, to March-28-2020, and Mr. Aziz has been suffering various mental disorder problems such as paranoid schizophrenia, depression, bipolar, hard of hearing and hearing voices coming from the walls.

Sometimes he thinks someone talking on his head and he is on a lots of stress and anxiety and he thinks people using his head and mind and stealing his thoughts and read his mind and the patient is under care of this psychiatry hospital. In my opinion his mental problems are serious and he needs to be medicated and to be under care of mental health professional, and he was not in a position to take care of his legal problems and responsibilities.” Dr.

Mina Majlesi, MD -psychiatrist [1] [sic] [ 14 ] The Court is not in a position to give any opinion on the probative value of this medical report, except to say that it has the appearance of being valid, the point being that it was Mr. Aziz himself who brought his mental condition to the forefront as an answer to a defense of prescription based on impossibility to act. [ 15 ] In his interaction with the Court and its officers, Mr. Aziz often has very vexatious comportment. His written proceedings show many of the characteristics that are indications of quérulence .

In appearances before the undersigned, he had to be admonished on more than one occasion to cease acting inappropriately. [ 16 ] In several instances, Mr. Aziz has shown disrespect for the Court and, in particular, in his insistence the that Court give its commitment to render decisions that will be taken or are about to be taken under advisement within a period that is less than the statutory maximum time. [ 17 ] Of course, a judge is free to render judgement from the bench and this can be done on a future date the judge choses, assuming he can

schedule a hearing, which is often not possible. In most instances, in the Small-Claims division especially, because of the high volume of cases, the matter is either decided and a judgement given orally at the hearing, or judgment is reserved (taken “under advisement”). It is not feasible for a judge to determine at what date within the four-month period the judgment will be signed, given the number of cases under advisement, and the fact that the judge’s prospective workload, state of health and access to scarce secretarial resources cannot be predicted with that degree of accuracy.

It is also quite often necessary to consider in greater depth than had been anticipated the reasons for judgment before drafting them, and the process can easily take more time than a judge could consider sufficient at the close of the hearing.

The Court was therefore under a duty not to make the commitment to render the judgement within a time less than the maximum permitted. [ 18 ] It would also be unfair for a judge to give commitments to some litigants and not to others, and it could create a real sense of injustice if the date of judgment was given in advance in any given case and the judge subsequently became unable to meet the commitment. [ 19 ] Thus, on the first day of hearing, November 8, 2021, Mr. Aziz asked for a commitment from the Court to render its decision within 14 days.

The minutes read: 10h14 For the reasons given orally, the Court will not commit to rendering judgment within the 14 days requested by Mr. Aziz. [ 20 ] Then, later in the day, he reiterated the request: 11h46 Mr. Aziz has again asked the Court to commit to a time frame for rendering judgement and the Court reiterates that it will not make a commitment of that nature.

When the case is closed, the Court will decide whether to render judgment orally at the hearing or whether the case will be taken under reserve to be rendered in writing within the four months. [ 21 ] He made similar requests at the hearing of November 9, 2021: 16h33 The Court asks Mr.

Aziz to cease pleading for a commitment on the part of the Court to act within a specific time frame in regard to what is stated about. [ 22 ] At the final supplemental hearing on December 20, 2021, as the case was being taken under advisement, he reiterated the same request and the Court gave the same answer, that it would not make a commitment, but in a much more

summary way, the request being redundant. Even as the judge left the room, Mr. Aziz’ continued, as the guards ushered him from the room. His next step, during the délibéré , was to bring a complaint before the Conseil de la Magistrature alleging that the failure on the part of the judge to commit to

shorter deadline constituted a matter where that institution should investigate and intervene. The challenge of impartiality [ 23 ] This raises the question of the Court’s impartiality in the case. [ 24 ] Mr. Aziz presented a motion to recuse in the present matter at the opening of the first day of trial November 8, 2021.

His grounds related to the fact that he had brought an application for judicial review of the Court’s judgment of September 22, 2021, dismissing his claims in case numbers 500-32-162033-205 and 500-32-162034-203. [ 25 ] The relevant passages of the minutes concerning the application for recusal including to the judgement given by the undersigned are as follows: 11h29 Le demandeur demande au Tribunal des précisions sur l’application de l’article 51 et 52 du Code de procédure civile dans les dossiers de petites créances. 11h31 Le demandeur réfère le Tribunal au paragraphe 10 de la demande introductive d’instance dans le dossier 500-17-118800-211, demande de révision judiciaire du jugement du 22 septembre 2021. 11h33 The Plaintiff has asked the Judge to reconsider his decision of September 22nd, 2021 The Judge has answered that he does not have the jurisdiction to reconsider this decision. 11h34 The Plaintiff has asked the court to discuss aspects of the decision and the Judge answered that he is not allowed to discuss the decision.

The Judge instructs the Plaintiff to refrain from further discussing the decision of September 22nd, 2021. The court has taking [sic] cognizance of the application for judicial review, filed October 27th, 2021. 11h35 JUDGMENT The Plaintiff presents orally an application for recusation on grounds of bias and because of the Plaintiffs’ filing of a petition for judicial review of the decision of the Court dated September 22nd, 2021, pursuant to articles 201, 202 and 205 of the Code of civil procedure. The Court listened to Mr.

Aziz’ comments and read the petition, a copy of which is filed in Superior case number 500-17-118800-211. In the Court’s view there is no basis for it to recuse itself. The Court does not consider that there is any conflict between the Judge and the Plaintiff, neither have there been threats or insults [art 202 (6) C.C.P.] The Court also is of the view that there is no reason under

article 203 C.C.P. because the Court has not yet heard the case nor given an opinion on the subject matter of the case presently before the Court. The criticism Mr. Aziz has offered about the Court system and about the specific Judge seized of the file are not serious reasons for questioning the Judge’s impartiality and, though they are harsh criticisms, the Court does not feel that it has any reason, going forward in the case to perceive anything insulting or anything that would compromise the Judge’s impartiality and objectivity.

The mere fact that proceedings in nature of judicial review have been brought in the related decision does not constitute a basis for recusation. BY THESE REASONS, THE COURT: DISMISSES the Plaintiff’ oral application in recusation; WITHOUT costs. THE HONOURABLE DAVID L. CAMERON, J.C.Q. [ 26 ] Even after the persistent and unacceptable reiterations of the misguided requests Mr.

Aziz made for a commitment to a judgement date, and the inopportune application for recusation, and even after a trial punctuated with the distractions of out-of-order interventions, the Court continues to adopt a neutral position, accepting, to the extent it can, the eccentricities of Mr. Aziz’ behaviour, not taking his conduct as a personal insult, though it is in many respects an affront to the integrity of the institution. Therefore the Court will continue to render the judgement warranted by the evidence. [ 27 ] It is also necessary to write a few words about the Defendant.

While there is no suggestion of any mental illness, there is an obvious difficulty related to cognition. Without any expert opinion on the point, it is obvious to the Court, having listened to Mr. Massier’s presentation, both testimony and argument, that he has an inadequate understanding of the situation he found himself in, both in the altercation that he participated in and in the judicial process of the criminal-law system to which he became subject. The first aspect of this situation is the provocation that led to the incident, and this is the nexus of the case because it is a key weakness in Mr.

Aziz’ position. The second aspect is Mr. Massier’s admission of criminal responsibility, which has presumptive value in the evidence, but a very weak presumption, because Mr. Massier, patently, has misunderstood that process. When testifying about his admission of criminal culpability, he spoke about how he realised he would not be able to get his glasses back and that he was counseled to go along with the admission he made. This non sequitur is not disingenuous on his part, it is a sincere misunderstanding of the importance of admitting criminal culpability.

[ 28 ] We will now turn to the facts and issues of the case at hand. The provocations [ 29 ] On August 24 2017 Mr. Aziz, according to his own testimony, entered the Tim Hortons coffee shop around 1 a.m. He did not buy anything. He entered with a scooter. He got the attention of “Ron” who told him to “get out, you cannot come in with scooter”. Mr. Aziz told him to call the police if he wanted him to leave. The police were called, arrived on the scene and ushered him out. [ 30 ] This is only one part of a longer narrative that begins earlier with a series of visits by Mr. Aziz at time when Mr.

Massier was on duty is shift as night manager of the Tim Hortons franchise. [ 31 ] Mr. Massier goes back to an incident several years earlier; he believes it was in February 2013, when Mr. Aziz came to the Tim Hortons’ premises, was knocking on the windows and emptying the garbage cans. The person in charge was Mélanie Gauthier, Mr. Massier’s superior. The police were called to remove Mr. Aziz from the premises. They came eventually (“en retard”). [ 32 ] He returned about three months later and asked Mr. Massier if he could fire Mélanie Gauthier since he had been working for a long time. Mr.

Massier replied that he could not as she was now his manager. [ 33 ] In the same conversation Mr. Aziz asked him if he could help him pay a debt; he understood Mr. Aziz to propose using a credit card and splitting the money. The Court understood this to perhaps be a proposal to share the proceeds of a credit card fraud, but Mr. Massier’s explanation was inexplicit. Whatever the proposal was, he did not agree. [ 34 ] Mr. Massier speaks of repeated incidents when Mr. Aziz returned during his shift, always bringing up problems of various sorts.

For example, Tim Hortons has a policy of changing a person’s coffee if he is unsatisfied with it. Mr. Aziz would come with a large cup and asked that the coffee be changed. When Mr. Massier would oblige, he would find that the cup was full of orange juice. Then Mr. Aziz would laugh and leave. [ 35 ] He would return a few months later, each time bothering Mr. Massier with these types of tricks (“mauvais coups”). For example he would leave refuse paper on the floor and tell Mr. Massier that it was the latter’s role to clean it up. Mr.

Massier tolerated these types of incidents over a lengthy period of time. [ 36 ] On another occasion he repeated the same proposal to obtain a credit card, arguing that he was “popular” and could afford to accommodate him. [ 37 ] During several days prior to the events of August, he came to the store, taking napkins, laughing and leaving. This, in the Court’s perception, was part of a frequent and longstanding pattern of behaviour that, in its cumulative effect, constituted a harassment of Mr.

Massier, who was ill equipped to deal with it and eventually lost his patience and tolerance. [ 38 ] The event of August 24 , 2017 is singularly bizarre. Mr. Aziz, who knew various rules pertaining to the establishment, brought his scooter into the premises. Mr. Massier told him that he must leave: Mr. Aziz, neither refused nor accepted: he told Mr. Massier to call the police. The police were called and arrived on the scene and Mr. Aziz left. Mr.

Massier believes the police took an inordinate time to arrive, and, in his declarations to the police and in his testimony speak of an interval of more than one hour, but the evidence tends to show that they arrived rather promptly. [ 39 ] What is more important than that detail is the effects of Mr. Aziz’ conduct on Mr. Massier, who felt that he was being mocked, humiliated in the presence of the employees he was charged with supervising and in the presence of other customers of the establishment.

He was afraid for his position with the enterprise and called upon the police very reluctantly, preferring over a lengthy period to tolerate and ignore the behaviour, though he did not condone it. [ 40 ] The cumulative effects of these strange behaviours over several years where more and more difficult to tolerate. [ 41 ] We come to the event that is the subject matter of the case, that of August 28, 2017. The event of August 28, 2017 [ 42 ] This is the unfortunate event, for which Mr. Massier expresses remorse, when the altercation took place. [ 43 ] Mr.

Aziz, in his testimony of November 9, 2021 gives a completely one-sided narrative, essentially that he came to the premises to use the internet, because his internet at home was not working and he wanted to make a call (a voice communication using an internet application) He stood up to leave by the door leading to the exterior when Mr. Massier “spoke crazy”. Rather than simply allow him to leave, Mr. Massier pushed him and from then on, he tried to defend himself from his aggressor but was overcome by him. When the two were between the inner and outer doors of the premises, Mr.

Massier’s glasses fell from his face. Once outside, Mr. Massier put him down on the ground, kicked him and punched him in the face. His ring was instrumental in causing a wound above his left eye and he had bruises to his ribs. [ 44 ] One very important aspect of this narrative that is directly contradicted by the version given in Emily Woodworth’s written statement to the police is the idea that Mr. Aziz would have acted with the intention of leaving at the first opportunity. According to her version, the first interaction was that Mr. Aziz he would have misunderstood Mr.

Massier’s gesture of pointing to the door when he said “get out” understanding that he should change seats, as he moved from where he had been sitting toward another seat. There is no suggesting that Mr. Aziz was leaving voluntarily. [ 45 ] This aspect of Mr. Aziz’ testimony is also inconsistent with the allegation made in his originating application of November 22, 2017. We reproduce the form and content of the key allegations:

6. So on August-28-2017, Ronald Massi, in a bullying and intimidating manner came towards Mr. Aziz and he said to Mr. Aziz (get the fuck out) , Mr. Aziz said he would not go because he was not doing anything wrong. Mr. Aziz asked him to give him two minutes for him to look at the internet and he would leave. Ronald Massi, said no. Mr. Aziz told him to call the police. Ronald Massi said he did not need the police. 7. That all of the sudden to Mr.

Aziz surprise and astonishment, Ronald Massi was acting just like Hyena, a wild dangerous vicious animal, in fact he instantly transform and become dangerous wild vicious animal, and with-out any leash , in other word , Ronald Massi was very badly behaving and acting just like maniac and madman, psychopath, and a common street bullying thug and hoodlum and fully energized with rage and on a mission, assignment, task and purpose, and with the clear intention to cause serious bodily harm and injuries to Mr. Aziz 8 . So Ronald Massi aggressively and violently charge toward Mr. Aziz and violently attack Mr.

Aziz and grabbed Mr. Aziz and drag Mr. Aziz outside; Mr. Aziz resisted but Ronald Massi was a chubby very strong guy. Mr. Aziz tried to free himself from Ronald Massi strong hand as he was violently and firmly and tightly holding Mr. Aziz and dragging him towards exit door. Mr. Aziz was trapped and was boxed in and was not able to do anything. Mr. Aziz did not attack Ronald Massi in any shape. Ronald Massi was very strong wild vicious and unmerciful person. [ 46 ] Mr. Aziz adapts his narrative to fit a series of screen shots taken from a video record of the events from the security cameras.

He provides a play by play through captions, a rather self-serving presentation, but nothing in it suggests that his initial reaction to being told to leave was in any way an attempt to leave. [ 47 ] There are very clear indications in the video record that Mr. Massier repeatedly pointed to the door, as an order to Mr. Aziz to leave immediately and Mr. Aziz stood his ground. [ 48 ] It is clear from Emily Woodworth’s statement that both men were yelling expletives, back and forth. She states that Mr. Massier cleared away the chairs and table in front of Mr. Aziz, and when Mr.

Aziz did not comply with the instructions to leave, Mr. Massier grabbed him and was forcing him out the door; Mr. Aziz was pushing back. [ 49 ] Mr. Massier’s testimony on the way the altercation began is subtly different. After several exchanges where Mr. Aziz refused to leave and got up to move toward another chair, Mr. Massier tried to block his passage in that direction. Mr. Aziz reacted by engaging him as a wrestler would and calling him names (with racial connotations).

Thus the altercation began and continued toward the door (2018 Guy Street), each man pushing against the other. [ 50 ] The video, although it is of poor-quality resolution, tends to confirm that the opponents were locked in a sort of embrace as they pushed against each other. The cameras do not show the door area clearly. In the vicinity of the doors, the proof is consistent with the idea that Mr. Massier, who suffers from myopia, lost his glasses, perhaps in the area between the inner and outer doors. Mr. Massier asserts that Mr. Aziz deliberately grabbed them. They were damaged, and Mr.

Massier never got them back as they were taken as evidence in the

summary conviction proceedings in the Municipal Court. [ 51 ] The objective evidence does not support Mr. Aziz’ assertion make in certain of his versions of the events, that he was pursued and assaulted as he attempted to leave the premises. [ 52 ] Once the two individuals were outside, Mr. Massier, still engaged with and by Mr. Aziz, and without being able see well, lost his self-control. Mr. Massier mentions that Mr. Aziz had struck him. He admits having punched Mr. Aziz on the face, when he was down, but his testimony about the kicking is somewhat vague. He denies having hit Mr.

Aziz with a ring on this finger, claiming to not wear any rings. The rather minor cut that Mr. Aziz received above the eye is not consistent with Mr. Aziz’ assertion that he was brutally punched with a fist that bore a ring. [ 53 ] The entire incident occurred in a short lapse of time. Mr. Aziz entered the shop at 4:03:43 a.m. He was first told to leave at 4:04:14 a.m. Yelling was fully engaged between the two by 4:04:39 a.m.; At 4:06:25 Emily Woodworth, who had been occupied with a customer during the altercation headed toward the door and witnessed the part of the altercation that was going on outside.

The event was over when Mr. Massier recovered his glasses and returned to his duties, at around 4:08 a.m. At that point, Mr. Aziz headed toward the police station which is close by, which lead to the police coming to the premises to begin their investigation at around 4:15 when they were met at the Guy Street entrance. [ 54 ] Emily Woodward stated that she did not call the police, though Mr. Massier had told her to do so. She says that she did not know the address of the restaurant. This is a rather lame assertion, in that the Tim Hortons location on Guy Street is very close to the local police station.

They would not have required the exact address to find this landmark location at one of the busiest intersections of the city, close to a metro station and to prominent buildings of Concordia University. [ 55 ] If the antagonists in this drama had been playing in a hockey match, they would have both received major penalties, but of course no civil or criminal proceedings would have been imaginable.

But it was not a sporting match. [ 56 ] It becomes necessary to examine the three elements of civil liability: fault, prejudice and causality. [ 57 ] Neither of the two had an appropriate conduct: both were at fault. [ 58 ] Mr. Aziz had no business attempting to use the premises for his internet needs or for any other purpose, without the intention of buying any food or beverage. This was something he could not have been unaware of given his long history with the establishment.

In fact, it appears to be a case where he deliberately and frequently tested the rules and people’s patience, probably to get a reaction that he

could then exploit. He found his prey, a night manager that he had taunted over the years and, in the recent past, had annoyed to the point of consternation. He chose as his opponent in this drama a person who, visibly, was vulnerable, whose patience was wearing thin, and who felt threatened both in this job and in his dignity and image among his co-workers. Mr. Massier lacked judgment and was not adequately equipped to work as a manager. By his own admission he did not have authority over Emily Woodward, who did not follow his instructions, not even calling the police when he told her to do so. When Mr.

Aziz was clearly told to leave the premises, he did not, preferring to engage in aggressive interaction, first verbally, then physically. He should have simply avoided the conflict by not coming into the restaurant in the first place without the intention of procuring any food or beverage, or, at least by immediately agreeing to leave and by actually leaving, as soon as he was told to do so. [ 59 ] Mr. Massier, though within his authority to ask Mr. Aziz to leave the premises, did not have sufficient means to enforce this authority, and should have simply called the police.

It is understandable that he felt that this was not the best option, because he lacked the necessary understanding of how things work in this type of situation. He also had a very tenuous self-control, having been taunted and pushed beyond his capabilities of self-restraint. He was not to blame, in the sense of fault and prejudice, for the first stage of the altercation: both he had Mr. Aziz were equally afraid one of the other, and both had played a

part in initiating the non-consensual physical conduct: Mr. Massier by passively attempting to bock Mr. Aziz’ movement, and Mr. Aziz by resisting rather than moving away. This physical conduct did not result in any harm to either man, though it was socially unacceptable. [ 60 ] The altercation escalated when, between the doors Mr. Aziz grabbed the glasses, punches were exchanged, and Mr. Aziz was forced to the ground. Both were engaged simultaneously in assaulting the other, and both were engaged in self-defence. [ 61 ] When Mr. Massier had Mr. Aziz on the ground, it was time to stop.

But he had lost control and his self-defence became disproportionate. Causality and prejudice [ 62 ] This disproportionate self defense caused the prejudice to Mr.

Aziz that consisted in the immediate pain of the blows and some minor bruises and a superficial facial injury The Emergency Record of the Jewish General Hospital, under the heading “Physical exam” reads as follows: Physical exam: General appearance: Normal HEENT: simple 2cm laceration to L forehead; no foreign body; hemostasis ok; wound cleaned Cardio: Normal Respitory: mil tenderness to R anterior axillary line at inferior border of rib cage; bilat AE, normal breath sounds; ne crepitus, no flail Abdo: Normal MSK: Normal Neuro: Normal […] Impression and Plan: IMP: 1. Simple 2cm laceration to R forehead – mTBI 2.

R rib cage contusions – no apparent flail chest of pneumothorax [ 63 ] The photo provided as evidence is quite dramatic, because Mr. Aziz shows his face to the camera before having washed away the coagulated blood, but it confirms the superficial nature of the wound. No stitches were required to close it. He had discomfort because of bruises, which confirms that he was probably kicked, but there was no serious injury. Quantum [ 64 ] In the Court’s estimation, in the absence of any expert proof, the compensatory damages should be arbitrated at $ 2,000 globally. Mr.

Aziz initial claim for $ 100,000 was grossly exaggerated. It was reduced, first for the amount of $ 20,000, then to $ 17,000 and a third time for the amount currently claimed of $ 14,000. At the hearing, he would have settled for a nominal amount, but the Court does not take this as an admission, it being part of a settlement offer, subject to privilege. [ 65 ] Mr. Massier does not claim any compensatory damages, except for the glasses for which he claims $ 500. He, at this late date, had insufficient documentary proof of the cost of the glasses, but testified that he had acquired two pairs for $ 800.

The Court arbitrates the damages for the glasses at $ 400: it would be hard to imagine a good quality pair of glasses for myopia costing less than that. [ 66 ] The cause of the damage to the glasses was Mr. Aziz grabbing them during the altercation. The Court does not accept Mr. Aziz denial that he did so. It lacks credibility, as does his testimony generally. [ 67 ] Mr. Aziz settled with other Defendants in the case as initially instituted. He and admits having received $ 1,000.

The settlement was homologated and his attempt at contesting the homologation and at first instance in Superior Court and on Appeal were unsuccessful.

[ 68 ] This partial recovery of $ 1,000 reduces his award in damages to $ 1,000, because the Plaintiff cannot recover more than the amount of his prejudice. [ 69 ] The final issue that must be dealt with is Mr. Massier’s claim for damages because of the abusive nature of the proceedings. Mr Massier’s claim for abuse [ 70 ] At the hearing, Mr. Massier, when settlement was discussed, had no difficulty with the Court’s suggestion that both parties settle with an exchange of regrets, and put the matter behind them. This is to Mr.

Massier’s credit, because the outcome of the altercation includes the stigma of the criminal responsibility that he was led to admit, without a true understanding of what that meant, and the difficulty in finding work thereafter. This is especially true because Mr. Massier has very limited capacities and was working as a cashier and then as a night manager, jobs for which an employer might not now consider Mr. Massier’s candidacy, given the degree of confidence required.

He does not include any claim in that regard, and the only remaining issue is whether he should be awarded damages because of the abusive character of the proceedings brought by Mr. Aziz. [ 71 ] If Mr. Massier had not included this as a counter claim in his contestation, as amended at the case-management conference of December 6, 2018, the Court would have raised the issue of abuse of procedure on its own motion. Mr. Aziz proceedings, are truly excessive, exaggerated, and vexatious and they show signs of quarrelsomeness in many respects.

In particular, they use offensive language and are redundant and prolix. [ 72 ] In regard to Mr. Massier, it is not only the annoyance of the multiplicity of documents he has been served with, which he carried with him to the trial in a large bag, but also the insulting way he is referred to in the allegations. [ 73 ] One only need read the allegations quoted above. The various memes and photos used to illustrate the claim which the Court could not include in the text of this judgment are nevertheless in issue.

They are not simply eccentric means of expression: they are part of the vexatious nature of the use by Mr. Aziz of a procedural right. This verbal and graphic abuse is unwarranted, even though Mr. Massier committed the fault referred to above, which is not acceptable conduct. But the abusive way in which Mr. Aziz characterizes the event, and the excessive and redundant proceedings that he has brought are a continuation of the harassment that he carried out over a lengthy period at the Tim Hortons restaurant, aimed at Mr. Massier.

The proceedings are an attempt to slur a respectable person and to refer to him as an animal. They have racist overtones. No one should be subjected to this type of treatment, especially in documents issued as part of a permanent Court record. [ 74 ] Mr. Massier kept his address confidential throughout the proceedings because he felt threatened. The Court does not express an opinion as to whether, after the events of August 2017, Mr. Aziz acted in any manner that was offensive or threatening toward Mr. Massier, except through the proceedings, but it is not difficult to understand why Mr.

Massier would try to restrict Mr. Aziz’ license to humiliate him through further conduct, procedural or otherwise, of the nature engaged in here. [ 75 ] All things are relative, and the moral damages of $ 5,000 do not constitute an unreasonable or excessive claim, but the Court is of the view that an award of $ 2,500 is sufficient in this case.

FOR THESE REASONS, THE COURT; GRANTS , in part, the Plaintiff’s claim; CONDEMNS the Defendant Ronald Massier to pay damages to the Plaintiff in the amount of $ 1,000; GRANTS , in part the Defendant’s counter claim; CONDEMNS the Plaintiff Karim Aziz to pay the Defendant damages for abusive procedure in the amount of $ 2,500; CONDEMNS the Plaintiff Karim Aziz to pay the Defendant compensatory damages in the amount of $ 400 PRONOUNCES judicial compensation between these condemnations up to the lessor amount, with the effect the condemnation in favour of Karim Aziz is deemed paid, and an amount of $1,900 remains payable and executory in favour of Ronald Massier, with interest at the legal rate and the additional indemnity, calculated from the date of the present judgment.

With each party paying his own judicial costs. __________________________________ David L. Cameron, J.C.Q. Dates: November 8, 9 and December 20 2021