2021 QCCQ 9939, 2021 QCCQ 9939

Maurice c. Maurice 2021 QCCQ 9939 COURT OF QUEBEC Small Claims Divison CANADA PROVINCE OF QUEBEC DISTRICT OF MINGAN TOWN OF SEPT-ILES « Civil Division » No: 650-32-700292-217 DATE: July 30, 2021 ______________________________________________________________________ BY THE HONORABLE : MADAM JUSTICE VICKY LAPIERRE, J.C.Q. (JL 4825) ______________________________________________________________________ KEITH MAURICE Plaintiff v. PHILIP MAURICE and JERRY DRISCOLL Defendants ______________________________________________________________________ JUDGMENT ON APPLICATION FOR REFERRAL TO THE COMPETENT COURT

Section 547 Code of civil procedure ______________________________________________________________________ [ 1 ] Jerry Driscoll, one of the defendants, is presenting an application for referral to the competent Court according to

section 547 of the code of civil procedure. [ 2 ] Georges Maxwell Bursey had passed away on August 28, 2019. The plaintiff alleges that on August 10, 2019, Georges Maxwell Bursey, before his death made him a gift of 12 000$. On December 10, , 2010, Georges Maxwell Bursey made a will divide evenly all of his assets between 6 people including the plaintiff. One of them, Leonard Driscoll predeceased him.

The Superior Court probated the will on March 18, 2020. [ 3 ] The defendants act as liquidators of Georges Maxwell Bursey’s will. [ 4 ] The plaintiff alleges that he paid 6 215,15 $ for funeral expenses and he asks for a reimbursement. [ 5 ] The plaintiff opposes the inventory of the succession made by the designated liquidators. [ 6 ] The defendants deny the fact that the deceased made a gift of 12 000 $ to the plaintiff just before his death. They allege that the amount of 12 000 $ was to cover funeral costs.

They allege that this fund transfer was gained through improper solicitations, having deceived the deceased in order to enrich himself at his expense. [ 7 ] The defendants allege that given the fact that the plaintiff was not the liquidator of the succession he had no right to act on its behalf and to spend money for funeral cost.

They add that they never received any evidence of those funeral costs. [ 8 ] Consequently they allege that they correctly identified the amount to be partitioned between each of the surviving heirs, this deducting the difference between what the plaintiff might have spent for the expenses and the remaining balance of the amount has been transferred on August 23, 2019. Issue in dispute [ 9 ] Is the plaintiff’s application brought before a Court other than the Court of competent jurisdiction? [ 10 ] The answer to this question is in the affirmative. Analysis

Subject-matter jurisdiction regarding the recovery of small claims [ 11 ]

Section 536 of the code of civil procedure is the following : “An application for recovery of a claim not exceeding 15 000 $, excluding interest, is instituted under the rules of this Title if the plaintiff 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 $.” [ 12 ] Even if access to justice must be promoted which is what the recovery of small claims provide, the Court has to analyze the issue of the jurisdiction in the present case. The Court has to analyze the meaning of the word “claim” according to

section 536 of the code of civil procedure and according to the civil law at large. [ 13 ] The meaning of the word “claim” refers to a monetary claim arising from an obligation. It does not concern the exercise of a real right, the claiming of property, the examination of accountability [1] or an application to obtain a declaratory judgment [2] . [ 14 ] The Court has to identify the essential nature of the application.

In short, what are the conclusions and results reached by the parties? [ 15 ] The application, the response and all the exhibits produce by the parties reveals that the plaintiff’s application is not a claim arising from an obligation, but more a contestation of the inventory made by the designated liquidators, following the probation of Georges Maxwell Bursey’s will. All the other elements asked by the plaintiff are accessory to the essential meaning of the application. [ 16 ] The Court is of opinion that such application is not from the jurisdiction of the small claim division from the Court of Quebec.

The essential nature of the application is more of an application to obtain a declaratory judgment, about the inventory made by the designated liquidators, which is the exclusive jurisdiction of the Superior Court. THEREFORE, THE COURT : [ 17 ] REJECT the plaintiff’s application; [ 18 ] THE WHOLE each party paying its costs. __________________________________ VICKY LAPIERRE, J.C.Q.