2021 QCCQ 4408, 2021 QCCQ 4408

Syndicat Place Champlain III c. Farhat 2021 QCCQ 4408 COUR DU QUÉBEC « Small Claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU « Civil Division » N° : 550-32-701163-187 DATE : May 26, 2021 ______________________________________________________________________ BY THE HONOURABLE PATSY BOUTHILLETTE, J.C.Q. ______________________________________________________________________ SYNDICAT PLACE CHAMPLAIN III 54, Dumas Gatineau (Québec) J8Y 2N3 Plaintiff c.

NAWAL FARHAT [...] Ottawa (Ontario) [...] Defendant / Plaintiff in warranty et BRANDON BROWN [...] Ottawa (Ontario) [...] Third person in warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] The defendant, Nawal Farhat, is applying for the revocation of a judgment rendered by default on December 11, 2010.

According to her, she never received the notice of hearing. [ 2 ] The judgment declared that the defendant had failed to pay for damages caused by her tenant. [ 3 ] The plaintiff is contesting the admissibility of the application. [ 4 ] Furthermore, the defendant asks that her tenant, if so, be declared responsible for the damages. QUESTIONS IN DISPUTE [ 5 ] The questions in dispute are as follows:

i) Is the defendant entitled to obtain the revocation of the judgment rendered? ii) If so, is the plaintiff entitled to the amount of damages claimed, and who is responsible? ANALYSIS

i) Is the defendant entitled to obtain the revocation of the judgment rendered? [ 6 ] Before ruling on the merits of the dispute, the Court must decide the question of the revocation of the judgment rendered in accordance with

article 568 of the Code of Civil Procedure . [ 7 ] The principle of the irrevocability of judgments is necessary to the sound administration of justice, and accordingly, the grounds for revocation must be serious. That procedure must contribute to the protection of both parties’ rights. The challenging of a decision must be the exception, not the rule. [ 8 ] That principle must be taken into account in the framework of an application for revocation of judgment. It is fundamental and necessary to ensure the stability of the legal system.

The fact that Small Claims Division judgments are final and without appeal adds to the definitive and irrevocable nature of the decisions. [ 9 ] In addition, since the application for revocation of judgment constitutes a derogation, the legislative provisions enacted in that regard must be interpreted and applied restrictively.

[ 10 ] The Court must also assess the situation in accordance with

article 17 of the Code of Civil Procedure , which declares that the Tribunal must uphold the adversarial principle and see that it is adhered to until the judgment and during execution of the judgment. [ 11 ] The jurisprudence establishes that, in case of doubt and unless there is gross negligence or bad faith on the part of the party who is the object of the judgment and is seeking its revocation, the right to be heard must take precedence. [ 12 ] The evidence has shown that the defendant was outside of the country at the time of the convocation, and even if she had somebody taking care of her mail, she didn’t received the notice to appear in court. [ 13 ] The grounds invoked by the defendant are serious.

She was not negligent in taking care of her business, and for these reasons, the judgment rendered December 11, 2019 is revoked. ii) Is the plaintiff entitled to obtain the damages claimed, and if so, from whom? [ 14 ] The testimony presented to the court confirms that someone, who was with the defendant tenant, Mr. Brown, did some damages to the elevator of the building. The court has no doubt about that. [ 15 ] The proof shown that witnesses had seen a video showing the tenant’s friend damaging the elevator.

Even if that video was not available for the court, the witnesses, who have seen its content, testify before this court, to that effect. The court has no reason to draw aside these testimonies. [ 16 ] The proof was less impressive concerning the damages. [ 17 ] The repairs were not done to the elevator door. The plaintiff produced a bill to the amount of $ 5 490.06 for the repairs and other damages, claiming from the defendant an amount of $ 3 500. [ 18 ] The proof of that request was very shallow.

Because the court has no doubt of the existence of the damages, using its discretion, the Court will allow an amount of $ 1 000 for that request.

In doing so, the Court took into account that some repairs were not the consequences of the action or the tenant’s friend, and it is difficult to disassociate one from the other. [ 19 ] For the other damages, $ 200 for the removal of a sticker, the bill produced by the plaintiff was homemade and not convincing. [ 20 ] For the loss of the shopping cart or the impossibility to use it for a period of time, the Court considers that the plaintiff didn’t made his burden of proof concerning the damages claimed.

THEREFORE, THE COURT: [ 21 ] ALLOWS the application for revocation of judgment; [ 22 ] REVOKES the judgment rendered on December 11, 2019; AS FOR THE MERITS OF THE DISPUTE: [ 23 ] ALLOWS partially the application; [ 24 ] CONDEMNS the defendant, Nawal Farhat, to pay the plaintiff, Syndicat Place Champlain III, $ 1 000, with legal interest starting on November 29, 2020, and costs of the amount of $ 151; [ 25 ] CONDEMNS the third person in warranty, Brandon Brown, to compensate the defendant, Nawal Farhat, of the total amount that she will have to pay to the plaintiff, Syndicat Place Champlain III, as declared in paragraph 25, an amount of $ 1 000, with legal interest starting on November 29, 2020, and costs of the amount of $ 151. __________________________________ PATSY BOUTHILLETTE, J.C.Q.

Date of hearing : April 21, 2021