2022 QCCQ 4252, 2022 QCCQ 4252

Korda c. City of Montreal 2022 QCCQ 4252 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-157177-173 500-32-157178-171 500-32-157179-179 500-32-157180-177 500-32-157181-175 500-32-157182-173 DATE: June 30, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ RADEK KORDA (500-32-157177-173) Plaintiff v.

CITY OF MONTREAL METROPOLITAN REGIONAL TRANSPORTATION AUTHORITY HYDRO-QUEBEC Defendants FRANCES MAXANT (500-32-157178-171) Plaintiff v. CITY OF MONTREAL METROPOLITAN REGIONAL TRANSPORTATION AUTHORITY HYDRO-QUEBEC Defendants FRANCES MAXANT IN HIS QUALITY AS TUTOR TO FRANTISEX KORDA (500-32- 157179-179) Plaintiff v. CITY OF MONTREAL METROPOLITAN REGIONAL TRANSPORTATION AUTHORITY HYDRO-QUEBEC Defendants FRANCES MAXANT IN HIS QUALITY AS TUTOR TO MAREK KORDA ( 500-32- 157180-177) Plaintiff v.

CITY OF MONTREAL METROPOLITAN REGIONAL TRANSPORTATION AUTHORITY HYDRO-QUEBEC Defendants FRANCES MAXANT IN HIS QUALITY AS TUTOR TO LUKAS KORDA ( 500-32-157181- 175) Plaintiff v. CITY OF MONTREAL METROPOLITAN REGIONAL TRANSPORTATION AUTHORITY HYDRO-QUEBEC Defendants -and-

FRANCES MAXANT IN HIS QUALITY AS TUTOR TO RADEK JR KORDA ( 500-32- 157182-173) Plaintiff v.

CITY OF MONTREAL METROPOLITAN REGIONAL TRANSPORTATION AUTHORITY HYDRO-QUEBEC Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized of applications to dismiss the introductory applications in each of these files, brought by the first Defendant, Ville de Montréal (“the City”). [ 2 ] The introductory applications are brought by Radek Korda and Frances Maxant personally and by Frances Maxant es qualité tutor to each of the four children of the couple. [ 3 ] The matter arises out of an incident of flooding that occurred on and after May 7, 2017, in the borough of Pierrefonds-Roxboro, causing serious water damage to many homes.

The flooding is associated with unusually high-water levels in the Rivière des Prairies; according to the City, they were “historically” high levels of water. The six applications, which are identical in their drafting, assert fault on the part of the City and the other two Defendants. [ 4 ] The City mentions a total of 23 cases brought in the Small Claims Division, including these six, which it hopes to join to be case-managed and heard on the merit together.

It will seek joinder and case-management, as soon as the present motion to dismiss is disposed of. [ 5 ] The City asserts that the six claims are in reality a single claim that Mr. Korda et Mrs. Maxant have divided within the meaning of

article 538 C.c.p. Each of the six claims is stated on exactly the same facts, and each is for 5,000 $, for an agregate of 30,000 $, subject to the Plaintiffs’ reservation of the right to amend to establish the exact amount of damages. [ 6 ] The applicable provision of the Code of Civil Procedure, which is both procedural and substantive, reads [1] : 538. A plaintiff may voluntarily reduce the amount claimed to $15,000 or less, but cannot divide a claim exceeding that amount into two or more claims not exceeding that amount, under pain of dismissal of the application. […]

a) The City raises several points in support of its motion to dismiss:

b) The Plaintiffs are a family who live together in the residence owned in indivision by the parents that was damaged in the flood.

c) The six actions are identical, raise the same legal issues, have the same juridical basis, and refer to the same facts.

d) The claims are related to the same immovable, the family residence.

e) The couple, the Plaintiffs Frances Maxant and Radek Korda, being co-owners of the residence, would probably have received, like other residents in the same circumstances, financial indemnities from insurers, different levels of government and/or the Red Cross.

An analysis of these indemnities will have to be carried on in order to apportion them in respect of each of the plaintiffs (“ afin de déterminer les ratios entiers en lien avec chacun des demandeurs”). [ 7 ] Some procedural details must be mentioned before turning to the issues raised here. [ 8 ] Firstly, the parties were summoned to the present hearing, as though it were the trial on the merits, pursuant to an understanding of the minutes of a case-management hearing held on November 9, 2021.

The conclusions of the minutes (item 17 in the plumitif) gave the Plaintiffs 30 days to produce whatever exhibits they wish to invoke on the motion to dismiss and gave the Defendants 60 days to produce any such documents they wished to bring for the same purposes. [ 9 ] A corrected version of the minutes (item 18 in the plumitif) was subsequently issued by the same judge removing any mention of the hearing on the merits. [ 10 ] It is clear, therefore, that the parties are not foreclosed from producing their documentary evidence later; presumably further case-management conferences will deal with this, as well as with all of the related cases still in play when a joint case-management conference is convened. [ 11 ] The City also calls into question the representative quality of Frances Maxant in the case for Radek Korda and for the minor

children. This issue is resolved by the letter of mandate date June 14, 2021, signed by Mr. Korda and received by the Court on the same day. The original is filed in case no: 500-32-157-178-171 and stapled to the Court’s working copy of the Application. [ 12 ] Another matter requires clarification: the City makes much of the fact that the six claims are identically worded and are vague as to the nature and breakdown of the damages. [ 13 ] The Plaintiffs, however, provided particulars in the form of a document dated June 25, 202, stating their contestation to the City’s motion to dismiss.

The document does not appear to have been captured by the plumitif, but it is, in substance, a modification of the applications to particularise the damages claimed by each Plaintiff. Individual “ moral ” damages [ 14 ] According to these particulars, each of the Plaintiffs claims his/her own individual “ moral damages” arising from the flooding. It seems self-evident that the moral prejudice, a non-pecuniary damage, cannot be considered collective or indivisible: it is an individual claim, unique to each individual person.

My college, the Honourable Gatien Fournier J.C.Q., came to the same conclusion in another set of cases brought by an owner of a residence damaged in the same incident of flooding in his own right and as tutor for a child [2] .

Judge Fournier makes the distinction between the claim of the owner for property damages to the immovable and to certain movable property, his lost revenue and his moral damages on the one hand and the moral damages of the child on the other. [9] Or, une simple lecture des deux demandes en cause permet de constater que les demandeurs ne sont pas les mêmes et que l’objet de celles-ci diffère. [10] Dans le cas de la demande d’Itzhak Romano, celui-ci réclame la somme de 15 000$ en compensation de dommages causés à sa propriété immobilière et à certains biens mobiliers ainsi que pour la perte de revenus et pour le préjudice moral subi par lui. [11] Dans le cas de Joseph Romano, sa réclamation au montant de 15 000$ est plutôt à

titre de dommages moraux en compensation du préjudice qu’il dit avoir subi suivant l’inondation de la résidence familiale dont il incombe la responsabilité à la défenderesse. [12] Il ne s’agit donc pas de la même créance qui fait l’objet ici d’une division, mais plutôt de deux créances distinctes pouvant chacune faire l’objet d’une demande à la Division des petites créances. [ 15 ] The fact that the claims flow from the same juridical basis is treated by the Judge as a reason to join the applications pursuant to

article 539 C.c.p., not as a reason to treat them as a division of a single claim, as defined in

article 538 C.c.p. [13] Les demandes dont il est question en l’instance présentent essentiellement le même fondement juridique et elles soulèvent à bien des égards les mêmes points de droit et de fait. [14] Il y a donc lieu dans les circonstances de joindre le demandes suivant l’article 539 du Code de procédure civile. [ 16 ] The particulars provided in the present file also assign to each of the six plaintiffs specific movable property, such as clothing, sports equipment, toys, books, electronic equipment, etc. [ 17 ] It will fall to each plaintiff to establish his/her exclusive ownership of any given item and its value.

This is a question of proof on the merits. If a given plaintiff can prove, on the balance of probabilities, such ownership and the damage sustained, he/she can succeed as on a distinct claim. [ 18 ] Of course, a given plaintiff’s total claim cannot exceed 15,000 $, or it must be reduced to that amount. It would be better if the allegations made it clear what amount is claimed for each item or category of property and at what amount the claim for moral damages is assessed, but this is a question for further case-management, not for a motion to dismiss. [ 19 ] The claims of the two parents, Mr. Korda and Mrs.

Maxant, add additional complexity. The Court’s understanding of these particulars is that: 1. Both spouses claim his/her own moral damages. This is not a division. 2. Each claims his/her own clothing, jewelry, sports equipment, etc. This is not a division; each person has an exclusive right to personal effects. 3. Only Radek Korda claims damages to the immovable, not covered by the “ MSP ” (an indemnity received or to be received from government). 4. The immovable is, presumably, owned in undivided ownership by Radek Korda and Frances Maxant, as it is asserted by the City. 5.

This is a case where the claim for damage to the immovable is indivisible as between the two owners and cannot be divided to exceed the small-claim's limit [3] . 6. The Plaintiffs have complied with this requirement: only one claim is made for the building, in case number 500-32-157177-173, by Radek Korda. Since it is an indivisible claim, one owner can claim it. He also makes a claim for « dommages matériaux à ses biens meubles qui ont péris dans l’innondations » [sic]. He can recover these, so long as he proves this exclusive ownership, for his clothes, for example. 7.

He also makes a claim for « Équipements et matériaux de construction de rénovation, tel que […] ». Again, if this is his exclusive property, pertaining to professional, business activity or a hobby, and not pertaining to the jointly - owned immovable, it is an individualized damage, and not part of the indivisible claim.

8. Frances Maxant groups together her own personal effects, and things “for the family”. It would be difficult not to consider the latter to be joint property with her husband, and therefore, subject to the 15 000 $ limit to all joint property. In other words, the damage to the immovable property of both spouses, together with their damages to joint movable property connected with the home, should be taken as a single claim.

The fact that it is spread out over two actions should, however result in a dismissal, but rather a limitation to 15 000 $ as to the joined claims contained in the cases of the two individuals. 9. The same consideration applies to the “ frais de déplacement ” relative to the family, whether it be for moving furniture, to bring the children to and from school and recreational events: this is a joint expense of the two parents, not an individual expense of each separately. The same consideration applies to rental expenses, incurred by the spouses during the temporary absence from their home.

In the aggregate, all of these indivisible claims should be deemed to be joined, and the amount cannot exceed $ 15,000 $. If this exceeds $ 15,000 $ in the aggregate, it must be reduced to $ 15,000 $ if it is to stay in the Small Claims Division. [ 20 ] Further particulars will be required to assist the trial judge in the administration of these files. Mr. Korda and Mrs. Maxant could provide for example, at the next case-management, a further particularized breakdown of joint-property claims, to the extent they have not been fully indemnified under the government programme, in the following categories:

a) to the immovable;

b) to any movable property owned jointly;

c) for all travel expenses incurred by the family due to the property loss;

d) for rental of temporary premises due to the property loss. [ 21 ] In that manner, the judge seized of the case on the merits would be able to render a judgment, assuming there is liability on the part of the Defendants, or any one of them, so as to insure that the limit of 15 000 $ is not exceeded, considering Radek Korda and Frances Maxant to be parties to the same claim in respect of these damages.

Either of them should be able to claim individual damages for movable owned exclusively and for moral damages, but only to the extent that the 15 000 $ limit is not reached in the part of the claim that is joint and indivisible. Claims of the children can be judged on their merits, with each having the burden of proving moral damages and losses to specific exclusively - owned moveable property. BY THESE REASONS, THE COURT DISMISSES the motion to dismiss brought by the City. REFERS to further case management the particularization of damages as mentioned above in the reasons for judgement.

REFERS to the Judge on the merits the determination of the joint indivisible claim of the Plaintiffs Radek Korda and Frances Maxant and for the specific indivisible claim of each, so that no division of the claim is permitted, and that the limit of 15,000 $ is not exceeded by either of them. WITHOUT COSTS. __________________________________ David L. Cameron, J.C.Q. Date of hearing: June 6, 2022.