2016 QCCQ 5761, 2016 QCCQ 5761

Jou c. Gaz Métro 2016 QCCQ 5761 COUR OF QUÉBEC Practice Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division» N° : 500-22-220741-154 DATE : April 26, 2016 ______________________________________________________________________ PRESIDED BY THE L’HONORABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ SHOAOLLAH FARHADI JOU RANA FOROUGHI FARZIN FARHADI JOU Plaintiffs c. GAZ MÉTRO MARATHON DIVISION GAZ BÉLAIRDIRECT INSURANCE COMPANY INC.

Defendants ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ [ 1 ] On April 22, 2016, Mr. Justice Sylvain Coutlée dismissed the action instituted by Shoaollah Farhadi Jou (“ Mr. Shoaollah ”) and Rana Foroughi (“Mrs. Foroughi”) . Today, the Court is seized with Motions seeking the dismissal of the action instituted by their co- plaintiff, Mr. Farzin Farhadi Jou (“Mr. Farzin”) .

The Motions are made under articles 51 to 54, 85 and 99 of the Code of Civil Procedure (« C.c.p. ») in force since January 1 st , 2016. [2] [ 2 ] Since the hearing before Mr. Justice Coutlée, Mr. Shoaollah and Mrs. Foroughi served a proceeding entitled “Plaintiff’s Ply for Amending Motion to introduce proceedings Art. 35 C.C.P..” upon Defendants’ attorneys. It seeks to increase the amount of their claim to $ 119,556.65. [ 3 ] It appears that attempts to serve this proceeding were made on April 22, 2016 most probably during the night.

In any event, the Defendants are here this morning and they are opposing the amendment, inasmuch as it is necessary given the judgment of Justice Coutlée. Therefore, the Court decided to rule upon the right of Mr. Shoaollah and Mrs. Foroughi to proceed as they did and in order to clarify their standing in this matter once and for all. [ 4 ] Mr. Justice Coutlée’s judgment of April 22, 2016 dismissed the claim of Mr. Shoaollah and Mrs. Foroughi. It was rendered before the amendment was properly made and filed into the Court record. As a result, Mr. Shoaollah and Mrs.

Foroughi are left with no possibility to amend their proceedings before this Court. In so far as they are concerned, this case is over. [ 5 ] Now, the Court will rule upon the Motion of Defendants to dismiss the claim of Mr. Farzin. The action was instituted on April 10, 2015. The Motion to introduce proceedings was amended on July 17, 2015, and again on October 25, 2015. [ 6 ] On November 19, 2015, the undersigned made it clear to Mr. Shoaollah that his Power of Attorney to represent Mr. Farzin did not allow him to act as Mr. Farzin’s lawyer.

Therefore, on or about December 4, 2015, Me Antonella Petrolito appeared on behalf of Mr. Farzin in the Court record. [ 7 ] This morning, Me Petrolito confirmed that she obtained her mandate to represent Mr. Farzin from Mr. Shoaollah. The Court is not surprised given the fact that on numerous occasions before, as he did no later than this morning, Mr. Shoaollah has claimed to be duly mandated by Mr. Farzin to represent him in this matter. The Power of Attorney given to Mr. Shoaollah by Mr.

Farzin, dated March 16, 1998, has even been filed into the Court record. [ 8 ] So, since Me Petrolito is on the record, she is aware of the existence of the various orders that were rendered by the Court in this file, including the order of Mr. Justice Bousquet of September 30, 2015 giving Mr. Farzin and co-Plaintiffs one month to correct, modify and clarify the allegations of their Motion to institute proceedings. Despite the various amendments made to the demand prior to Me Petrolito’s arrival as attorney of record for Mr.

Farzin, the allegations are still vague and difficult to understand. [ 9 ] Since October 30, 2015, when the timetable providing for Mr. Farzin’s examination on discovery was signed, various orders were made confirming the obligation of Mr. Farzin to submit to an examination on discovery.

[ 10 ] On many occasions, Mr. Shoaollah claimed that it was not necessary for Mr. Farzin to be examined or to say anything. Again this morning, Mr. Shoaollah reiterated that it was useless for Mr. Farzin to be examined on discovery in this matter. He remitted to the Court a handwritten note [3] dated January 21, 2016, stating that Mr. Farzin was not in Montreal at the time and that it was not necessary for him to say anything. [ 11 ] This morning, Me Petrolito requests an additional delay in order to obtain a medical document of some sort that could explain the reason why Mr. Farzin failed to attend the examination on discovery, despite the fact that:

a) Mr. Farzin has known or should have known for a very long time that he would have to testify on discovery in this matter;

b) Mr. Farzin has been represented by an attorney since December 4, 2015;

c) Mr. Shoaollah, who is Mr. Farzin’s mandatary, was present in Court every time the right of Defendants to examine Mr. Farzin on discovery was discussed and confirmed since October 30, 2015;

d) Defendants offered to accommodate Mr. Farzin and to proceed by videoconference when they were told that he was living in Australia, and then in Ontario;

e) since the service of Defendants’ Motions to Dismiss Mr. Farzin’s action on March 11 and 17, 2016, Mr. Farzin has offered no real and concrete evidence as to why he did not attend the examination on discovery that was scheduled, following an order of this Court, for January 26, 2016, and what prevented him from being present on that day;

f) Mr. Farzin cannot doubt Defendants’ serious desire to proceed with the dismissal of his action as a result, amongst other things, of his failure to attend the examination on discovery; [4] [ 12 ] Me Petrolito’s only evidence to support the allegation that it is impossible for Mr. Farzin to attend the examination is an email allegedly sent by Mr. Farzin to Mr. Shoaollah, [5] bearing no signature and stating that he resides in Ontario, he is disabled and unable to attend, he has given full power of attorney in regard to any matter pertaining to the property on Roger-Pilon street in Dollard-des- Ormeaux to Mr.

Shoaollah and he “has never been contacted by telephone or mail in January of 2016” regarding the property in question. [ 13 ] Given that Me Petrolito has no direct access to Mr. Farzin and given Mr. Shoaollah’s numerous attempts to prevent the discovery of Mr. Farzin, granting an additional delay this morning would be useless. Mr. Farzin has already had ample time to obey what was agreed to in the timetable and ordered. [ 14 ] Futhermore, on October 23, 2003, a decision was rendered in the case of Foroughi vs. Allstate du Canada , [6] dismissing the action of Mr. Farzin, Mr. Shoaollah and Mrs.

Foroughi as a result of their failure to attend an examination on discovery. Mr. Justice André Renaud wrote: 21. Les demandeurs n’ont pas démontré leur volonté à participer à un débat judiciaire selon les procédures qui prévoient leur participation à un interrogatoire préalable dans une langue ou des langues qui sont le français ou l’anglais . [ 15 ] So, Mr.

Farzin is not someone who does not know that if he takes legal proceedings, he may have to submit to an examination on discovery at one point or another. [ 16 ] Additionally, despite the order of Justice Bousquet of September 30, 2015, and despite the numerous amendments that were made to the introductive proceeding, it is still very hard at this point in time to understand what this case is all about. [7] [ 17 ] Given the scope of the new articles 51 and following C.C.P. and the blatant disrespect of the case protocol agreed between the parties and endorsed by the Court, [8] Defendants’ motions to dismiss the action of Mr.

Farzin are granted. [ 18 ] The Motion of Defendants Gaz Metro and Marathon Division Gaz alleges that Mr. Farzin’s course of conduct throughout constitutes an abuse of procedure. They are asking that Mr. Farzin be condemned to pay them the extrajudicial fees they had to incur in order to defend Mr. Farzin’s action, namely $ 6,682.93. [9] [ 19 ] Clearly, in the circumstances of this case, Mr. Farzin’s refusal to attend the examination on discovery and his numerous unsubstantiated attempts to avoid same are an abuse of the judicial process and amount to a vexatious conduct. [ 20 ] In addition, Mr.

Farzin’s conduct is the reflection of the conduct of his mandatory, Mr. Shoaollah. The Court shares Mr. Justice Coutlée’s opinion to the effect that “la présente instance constitue une utilisation excessive et déraisonnable de la procédure et qu’en conséquence, cela constitue de l’abus de droit au sens de l’article 51 c.p.c. ”. [ 21 ] While the Court was delivering this judgment, Mr. Shoaollah lost his temper and left the courtroom. This is an additional display that he does not take no for an answer. [ 22 ] Does Mr. Farzin know what Mr. Shoaollah does in his name?

Well, the Court has to presume that he does or should do given the notarized power of attorney and the email. [10] Under the rules of mandate applicable in this province, if you give a mandate to someone you are liable for the acts performed by that person. [11] [ 23 ] The Court has discretion to award damages in such instances of vexatious conduct [12] . There is a message to be sent. The Court will grant the extrajudicial fees that are sought, but only up to an amount of $2,500. Hopefully, Mr.

Farzin will realize that abusing the judicial system can be costly, even if he does not have to handle the matter himself. The judicial system is affected by his decision to give a mandate to someone who obviously does not understand that the judicial process has to be used adequately.

FOR THESE REASONS, THE COURT : DECLARES that Plaintiffs Shoaollah Farhadi Jou and Rana Foroughi’s proceeding entitled “Plaintiff’s Ply for Amending Motion to introduce proceedings Art. 35 c.c.p.” cannot be filed in the Court record given the dismissal of their action by Mr. Justice Coutlée on April 22, 2016. GRANTS Defendants Motion to dismiss the action of Mr. Farzin Farhadi Jou. DISMISSES Plaintiff Farzin Farhadi Jou’s action against Bélair Direct insurance company inc. and Gaz Metro and Marathon Division Gaz. DECLARES that Mr.

Farzin Farhadi Jou’s use of the judicial system in this matter, including in order to avoid his examination on discovery, is abusive. CONDEMNS Mr. Farzin Farhadi Jou to pay to Gaz Metro and Marathon Division Gaz, jointly, the sum of $ 2,500 in damages. ____________________________ MARTINE L. TREMBLAY, J.C.Q. Me Antonella Petrolito Attorney for M. Farzin Farhadi Jou. Me George Peizler PEIZLER & VANI Attorney for Gaz Métro et Marathon Division Gaz Me Joëlle Forcier Attorney for Belair Direct M. Shoaollah Farhadi Jou Mme Rana Foroughi Date d’audience : 26 avril 2016