2020 QCCQ 8764, 2020 QCCQ 8764

Hernandez c. Jarrah 2020 QCCQ 8764 COUR DU QUÉBEC « Small claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N° : 500-32-713597-203 DATE : December 18, 2020 PRESIDED BY JUDGE HENRI RICHARD DIANA HERNANDEZ Plaintiff c.

FARHAD JARRAH Defendant JUDGMENT [ 1 ] On November 18, 2020, the Plaintiff brought an action in which it claimed « to obtain a court order to make my neighbor to grant temporarily access to his property to finish our renovation project as soon as possible. » [ 2 ] By decision of November 20, 2020, the clerk refuses the application since « The small claims court has no jurisdiction over the matter of the claim ». [ 3 ] On November 30, 2020, the Plaintiff filed an Application for a review of the clerk's decision, pursuant to the first paragraph of

article 545 of the Code of Civil Procedure ( C.C.P. ). 545. The application is presented to the court clerk, who determines whether it is admissible. If the application is admissible, the court record is opened.

If the application is not admissible, the court clerk notifies a notice so informing the plaintiff and specifying that the latter may, within 15 days after the notification, ask for a review of the decision by the court, which decides the matter on the face of the record. [… ] [ 4 ] In its application for review, the Plaintiff alleges that : This is to request the revision of my demand; I would modify my demand to make my neighbor pay up to $15,000 fo the extra fees the contractor will charge for the project in my house because my neighbor refuses to grant access to his property to do this job in my property.

He wants me to dismiss the opening of an exterior door on the side of my building. If this amount is not a sufficient reason to fill a “small claim” please inform me what to do. [ 5 ] At any time before judgment, a party may amend a pleading as provided in

article 206 C.C.P. : 206. At any time before judgment, the parties may withdraw or amend a pleading without it being necessary to obtain an authorization from the court, provided doing so does not delay the proceeding and is not contrary to the interests of justice. However, the amendment of a pleading must not result in an entirely new application having no connection with the original one.

An amendment to a pleading may be made, for instance, to replace, correct or complete statements or conclusions, allege new facts or assert a right accrued since the notification of the judicial application. [ 6 ] It is clear that the claim as formulated does not fall within the definition of a small claim. In fact and as a matter of law, the Plaintiff is seeking the issuance of an injunction, which falls within the exclusive jurisdiction of the Superior Court. [ 7 ] That being the case, the Court has no choice but to dismiss the Plaintiff's application for a review of the clerk's decision.

However, it allows the Plaintiff to amend her application within 30 days, as long as the amendment relates to a "small claim" within the meaning of the first paragraph of

article 536 C.C.P. : 536. An application for recovery of a claim not exceeding $15,000, excluding interest, is instituted under the rules of this Title if the plaintiff is acting in their own name and for their own account or is acting as administrator of the property of others, tutor or curator or under a protection mandate. The same applies to an application seeking the resolution, resiliation or cancellation of a contract provided neither the value of the contract, nor the amount claimed, if any, exceeds $15,000.

A legal person, a partnership or an association or another group not endowed with juridical personality cannot act as plaintiff under the rules of this Title unless a maximum of 10 persons bound to it by an employment contract were under its direction or control at any time during the 12-month period preceding the application.

FOR THESE REASONS, THE COURT: DISMISSES the application for a review of the clerk’s decision of November 20, 2020; AUTHORIZES the Plaintiff, within the next thirty days, to amend her application so that it constitutes the recovery of a small debt. __________________________________ Henri Richard, J.C.Q.