2011 QCCQ 1020, 2011 QCCQ 1020

Rothchild Condominium—phase II c. Gordon 2011 QCCQ 1020 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-115159-099 DATE: February 7, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ LE ROTHCHILD CONDOMINIUM - PHASE II Plaintiff v.

ROBERT GORDON Defendant ______________________________________________________________________ JUDGMENT (rendered at hearing) ______________________________________________________________________ [ 1 ] The syndicate named «Le Rothchild Condominium – Phase II» (the " Syndicate ") claims before the Small Claims Division of the Court of Québec an amount of $5,900. [ 2 ] As a preliminary motion, Mr Robert Gordon raises the absence of jurisdiction of this Division to hear such a case, pleading that the Syndicate has more than five employees during the 12-month period preceding the Application. [ 3 ] The last paragraph of

Section 953 of the Code of Civil Procedure , R.S.Q., c. C-25, states: " 953. […] A legal person, partnership or association may, as creditor, avail itself of the provisions of this Book only if, at all times during the 12- month period preceding the application, not more than five persons bound to it by contract of employment were under its direction or control." [ 4 ] The representatives of the Syndicate admit that it has seven employees.

No matter if they are full or part time employees, it is not important for the purpose of qualifying those persons as employees of the Syndicate. [ 5 ] One question has to be resolved. Is the Syndicate a "legal person, a partnership or an association" within the meaning of

Section 953 of the Code of Civil Procedure as quoted?

Section 1039 of the Civil Code of Québec holds that: " 1039. Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest.

The legal person is called a syndicate." [ 6 ] It is clear that within the meaning of the law, the Syndicate is a legal person. [ 7 ] The Court concludes that the Small Claims Division of the Court of Québec do not have any jurisdiction in the present case. Consequently, the Court has no other alternative, but to grant Mr. Gordon's preliminary motion because this Division do not have jurisdiction.

THEREFORE, the Court: GRANTS Mr Robert Gordon's preliminary motion; DECLARES that the Small Claims Division of the Court of Québec do not have jurisdiction in the present case; RESERVES to Le Rothchild Condominium – Phase II all its rights and recourses against Mr Robert Gordon concerning the same facts and the same legal points; CONDEMNS Le Rothchild Condominium – Phase II to pay within 30 days to Robert Gordon the amount of $144 as judicial fees.

__________________________________ Henri Richard, J.C.Q.