2018 QCCQ 3494, 2018 QCCQ 3494

Smith c. Migunov 2018 QCCQ 3494 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-154842-167 DATE: April 23, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ SEYMOUR SMITH Plaintiff v.

OLEKSANDR MIGUNOV Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Seymour Smith (Smith) claims from Oleksandr Migunov (Migunov) the sum of $7,000.00.

The breakdown of which is as follows: $3,000.00 for the use of an illegally installed lattice partition on a balcony, $3 000.00 for the « use and occupation of placement of bricks and awning, vinyl squares » and $1,000.00 for having cut down trees on his property. [ 2 ] Migunov contests the claim adding that there is res judicata by virtue of a Judgment rendered on October 21, 2016 by Justice Donald Bisson of Quebec Superior Court.

The said Judgment in the file 500-17-080376-133 rejected Smith’s Introductory Motion for Injunctive Relief to the same effect, declared his claim abusive and condemned the latter to pay $4,800.00 in damages to Migunov. [ 3 ] Migunov asks for the dismissal of the present demand and in a cross-demand claims the sum of $5,000.00 in damages for the loss of one day’s work, stress and inconvenience that this case has caused him. [ 4 ] The details of Smith’s action show that part of the claim relating to the installation of the awning has been dealt with by Justice Bisson’s Judgment.

This part of his demand is therefore inadmissible for reason of res judicata. [ 5 ] The rest of the claim pertains to events which occurred in February 2013 and July 2013. Since Smith filed his claim before the Court of Quebec on November 8, 2016, more than three years after both events, his right to take such a claim is therefore prescribed. 2925.

An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [1] [ 6 ] As a result, Smith’s motion is ill-founded in law and must be dismissed. [ 7 ] Migunov’s claim in the amount of $5,000.00 is based on the abusive nature of this case. He states that this is the second time that Smith brings this case to Court and both times he has been unsuccessful. He adds that both he and his spouse are tired and stressed out at having to come to Court twice to answer to the same accusations.

He asks that Smith be ordered to compensate him for his loss of one day’s work and for the stress and inconvenience that this case has brought him. [ 8 ] By bringing this case to Court regardless of a previous Judgment of the Superior Court which dismissed a motion that raised some of the same issues, it appears clearly that Smith committed an abuse of procedure. The Court also notes that the rest of the motion is for claims that are clearly prescribed.

Finally, considering the fact that the previous Judgment of the Superior Court declared Smith’s first motion abusive, it becomes difficult for this Court not to arrive at the same conclusion. [ 9 ] The evidence adduced in Court shows that Migunov's loss of salary for one day of work represents $346.00. The Court feels that reasonable compensation for stress and inconvenience must be added to this amount. An additional amount of $200.00 seems justified in light of the circumstances pertaining to this case. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s motion;

PARTIALLY GRANTS Defendant’s cross-demand; CONDEMNS Seymour Smith to pay to Oleksandr Migunov the sum of $546.00 with interest at the legal rate of 5% and the additional indemnity provided for in

Article 1619 of the Civil Code of Quebec as of November 8, 2016. The whole with judicial costs. __________________________________ GILLES LAREAU, J.C.Q. Date of hearing: January 8, 2018 [1] C.c.Q.

section 2925 .