2017 QCCQ 14182, 2017 QCCQ 14182

Syndicat de la copropriété Atrium Rosemont c. Somasundaram 2017 QCCQ 14182 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-22-239183-174 DATE: December 1, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ SYNDICAT DE LA COPROPRIÉTÉ ATRIUM ROSEMONT Plaintiff v.

SIMSONE SAJEEVAN SOMASUNDARAM Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Defendant presents an Application for Revision of a Decision Rendered by a Special Clerk pursuant to

Article 74 of the Code of Civil Procedure , respecting the dismissal of an application to be relieved of default to answer. The Decision was rendered on November 17, 2017. [ 2 ] The Plaintiff’s Originating Application was served on May 29, 2017. [ 3 ] Defendant did not file an Answer within the prescribed deadline. [ 4 ] Judgment on the merits has not as yet been rendered. Plaintiff proceeded by default and the Originating Application was referred to the Special Clerk’s Default Judgment Services for review (“verification”). [ 5 ] Plaintiff is a condominium association. There are two parts of Plaintiff’s claim:

a) Outstanding condo fees; and

b) Penalties resulting from non-payment of condo fees. [ 6 ] Defendant does not contest liability and agrees to immediately pay the outstanding condo fees. He only contests the penalties claimed. [ 7 ] On October 19, 2017, Defendant filed an Answer into the Court Record through his attorneys. [ 8 ] Several changes have occurred in the evidence before the undersigned from that presented to the Special Clerk:

a) Contrary to what was stated to the Special Clerk, there is evidence that Defendant did not previously contest the liability for condo

fees (see letters Exhibit D-3 of the Application for Revision);

b) There is now evidence both by affidavit in the file and testimony before this Court that Defendant was either badly advised by the Legal Aid Service or that he misunderstood their advice when he went to see them after receipt of the Originating Application. He understood that he would be receiving a Notice of Hearing. This explains why an Answer was not filed earlier by him;

c) After not receiving a notice, he returned to the Legal Aid Service. They then told him that the file had proceeded by default and that he must obtain legal representation immediately. This is what he has done.

d) The Application for Revision enunciating the same grounds as the application to be relieved of default is supported by affidavit signed under oath by Defendant. [ 9 ] The rule Audi Alteram Partem , as codified at

Article 17 of the Code of Civil Procedure , that Defendant must have an opportunity to submit his representations and contest directly the claim for penalties made against him by Plaintiff, must be respected. He can only do so in the present circumstances by being relieved of default to answer. [ 10 ] In the meantime, Defendant offers unconditionally to pay Plaintiff’s attorneys In Trust within four (4) days of the present date: • $2,578 in claimed condo fees; plus • $154.70 in interest (sauf à parfaire). [ 11 ] Plaintiff’s attorney will remit these amounts directly to Plaintiff immediately upon receipt. [ 12 ] CONSIDERING

Article 74 of the Code of Civil Procedure ; [ 13 ] CONSIDERING the grounds of the Application for Revision of a Decision Rendered by a Special Clerk, the Affidavit and the Exhibits filed in support thereof; [ 14 ] CONSIDERING that Defendant would suffer an important prejudice with regard to his right to contest the penalties charged if he is not relieved of default to answer in order to plead in the circumstances since he will not be able to present his grounds of defence regarding that claim; [ 15 ] CONSIDERING that in light of the agreed payment by Defendant, Plaintiff will not suffer a prejudice from an order relieving Defendant of his default to answer; FOR THESE REASONS, THE COURT: REVISES the decision rendered on November 17, 2017 by the Special Clerk in the present case; RELIEVES Defendant of his default to Answer within the prescribed delay; TAKES ACT and DECLARES VALID the Answer of Defendant filed into the Court Record;

TAKES ACT and DECLARES EXECUTORY and BINDING Defendant’s obligation to pay Plaintiff’s attorney within four (4) days of the present judgment : • $2,578 in condo fees; plus • $154.70 in interest (sauf à parfaire). WITHOUT LEGAL COSTS. __________________________________ Jeffrey Edwards, J.C.Q. Me Maxime Laflamme-Leblond Papineau Avocats inc. Attorneys for Plaintiff Me Jessica Dekhter Sabbah Mergui Avocats Attorneys for Defendant Date of hearing: December 1, 2017