2012 QCCQ 2543, 2012 QCCQ 2543

Ohayon c. Dahan 2012 QCCQ 2543 COURT OF QUEBEC (Practice division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-189017-125 DATE: March 23, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MICHEL OHAYON Plaintiff vs.

EMMANUEL DAHAN Defendant ______________________________________________________________________ INTERLOCUTORY JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Michel Ohayon, sued the Defendant, Emmanuel Dahan, initially, for $40,000, the amount of a loan to the Defendant and to another borrower named Jeremy Sebbag. [ 2 ] After the Defendant had given notice of two preliminary exceptions, namely: 1. to force the intervention of Jeremy Sebbag, the alleged co-borrower to be added as a "Co-Defendant" and; 2. to call in warranty Captivision Média Inc., the company in which the funds were, according to the allegations, to be employed, The Plaintiff brought a motion for permission to amend its originating motion in order to reduce the amount claimed to $20,000. [ 3 ] The motion asserts: 4.

Le demandeur désire amender sa requête introductive d'instance afin de diminuer sa demande de 40,000$ à 20,000$, représentant la moitié du prêt dont le défendeur est responsable; [ 4 ] The Defendant opposes this motion, invoking the principle that an amendment to reduce the quantum of a claim is not allowed, as not being useful, since the trial judge has the jurisdiction to render judgment for an amount less than the amount claimed. [ 5 ] The Defendant also contests the motion on the basis that it is a means of depriving him of his right to examine on discovery by bringing the conclusions of the action below the $25,000 threshold of

article 396.1 C.C.P. [ 6 ] The Plaintiff answers that his goal in reducing the amount of the claim is to clarify that it only seeks to recover that portion of the total debt that can be attributed to the co-borrower, Emmanual Dahan, and that he is not obliged to seek recourse against the second named borrower, Jeremy Sebbag. [ 7 ] Sebbag's father also happens to be a person who acts for Michel Ohayon as a mandatory to launch the action in recovery of the loan.

As appears from a document entitled: "Pouvoir " produced as exhibit P-1, a mandate giving to Armand Sebbag to "agir comme plaignant" in the recovery of the loan. ISSUE [ 8 ] The Court must determine whether the amendment sought is useful according to

article 199 C.C.P. and whether it is otherwise prohibited as means to thwart the Defendant's right to conduct an examination on discovery pursuant to 396.1 and following C.C.P. ANALYSIS

[ 9 ] There is a fairly constant jurisprudence stemming from Commission du salaire minimum c. Kastner [1] , Canadian Imperial Bank of Commerce c. Knitrama Fabrics Inc. [2] and Kenneth Irving c.

Jean Leclerc [3] refusing amendments that have has their sole purpose to reduce the amount of a claim. [ 10 ] The reasoning invoked is that the old procedure of the "retracit" no longer exists, that partial discontinuances are unknown to the procedural law and that in any event, an amendment to reduce the amount of a claim is useless because the Court always has the power to condemn a Defendant to less than what is asserted initially in the action. [ 11 ] An application of the principle can be found in 2736-9230 Québec Inc. c.

British Aviation Insurance Group (Canada) Ltd. [4] which was followed recently by the Court of Quebec in Martin c. Laliberté [5] . [ 12 ] In that case and in a case that it cites, Sylvie Gagnon c. Marc Bédard et Raymonde Bouchard [6] , the obvious purpose of the amendment was simply to avoid the examination on discovery that would otherwise have been possible because the amount initially claimed was not less than $25,000. [ 13 ] In the Court's view, the present case presents a different problem.

Although the Plaintiff is seeking to amend to reduce the amount of the claim from $40,000 to $20,000, the motion to amend and the argument submitted at the oral hearing make it clear that the Plaintiff is treating the loan as a joint obligation and opting to bring recourse only against one of the two borrowers. [ 14 ] It is fairly obvious that the co-borrower Sebbag is a friend and the Plaintiff has decided not to seek recovery against him. [ 15 ] If the claim is left at $40,000, the Plaintiff may, if the debt is solidary, recover the full amount from the Defendant Dahan, but the latter has the option of impleading his co-debtor, according to

article 1529 C.C.Q. [ 16 ] By claiming only $20,000 from the Defendant, the Plaintiff is treating the debt as joint, renouncing solidarity and seeking recovery only for that part of the debt that can be attributed to the Defendant. [ 17 ] The amendment, therefore is not useless, it is helpful in articulating for the benefit of the Defendant Dahan, that he is not sought as a solidary debtor and that only his portion of the debt is in issue. [ 18 ] This has ramifications not only for the Defendant but also for Sebbag.

It is also helpful to the Court because it eliminates the issue of whether the debt is claimed as a joint or solidary obligation. [ 19 ] The case can therefore be distinguished from the cases cited where it was simply a question of a party reducing the quantum without making any change to the allegation of the underlying obligation. [ 20 ] The legislator has decided in

article 396.1 C.C.P., that examinations are not to be held in files where the amount in issue is less than $25,000.

Because of this legislative intent, it is not preferable that the case be artificially maintained at an amount higher than the threshold in a manner that, necessarily, will involve both borrowers either as direct defendants or defendant in warranty when the Plaintiff has opted not to proceed in this manner, just because the Defendant initially planned on carrying out an examination. [ 21 ] That examination, which would have been useful to the defendant, sued for $40,000, to ascertain whether the Plaintiff could prove the solidary nature of the loan, is no longer as important. [ 22 ] The case can be distinguished from the situation described in Martin c.

Liberté and Gagnon c. Bédard and Bouchard , where patently, the only purpose in reducing the quantum was to avoid the examination. [ 23 ] The wording used in the amendment to the originating motion submitted must however be modified to clarify the Plaintiff's intention. [ 24 ] At present, it is ambiguous.

The reader does not know whether the claim is simply reduced or if it is reduced to only assert the Defendant's portion of the debt. [ 25 ] The Court will address the parties to obtain a proper drafting of paragraph 11 making it consistent with the motion for permission to amend. [ 26 ] Since this was novel point, the Court will not impose costs. FOR THESE REASONS, THE COURT: ALLOWS the Plaintiff's motion to amend to limit its claim to $20,000 representing the 50% portion of the loan for which the Defendant is allegedly responsible; THE WHOLE , without costs. __________________________________ DAVID L.

CAMERON, J.C.Q. Mtre Véronique Belley SPIEGEL SOHMER INC. Attorneys for the Plaintiff

Mtre Mikhail Babenko-Gofman SIMON & ASSOCIÉS Attorneys for the Defendant Date of hearing: March 19, 2012