2022 QCCQ 1170, 2022 QCCQ 1170

El Masry c. M.A. Construction & Rénovation inc. 2022 QCCQ 1170 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division N° : 500-32-703005-175 DATE : January 27, 2022 PRESIDED BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ Hany EL MASRY Plaintiff c. M. A. CONSTRUCTION & RÉNOVATION INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A judgment was rendered in this matter by default against the Defendant by the Special Clerk on November 16, 2018, because the Defendant had failed to file a contestation. The judgment condemns the Defendant, named in the proceedings as “M.A.

Construction & Rénovation Inc.” to pay the sum of $ 15,000, plus interest and costs. [ 2 ] This judgement resulted in a forced execution carried out by a bailiff commencing by the issuance of an avis d’exécution initial on December 27, 2018. The bank garnishee made a negative declaration on January 8, 2019. The bailiff seized, on January 14, two motor vehicles registered with the S.A.A.Q in the name of M.A. Construction & Rénovation 2012 inc. [ 3 ] This led quickly to proceedings initiated by M.A. Construction & Rénovation 2012 and its principal, Mr.

Michel Maalouf, in revocation of the default judgement and in opposition to the seizure of the vehicles. [ 4 ] The revocation resulted in a preliminary decision of a judge suspending the execution and ordering the Clerk to summon the parties to a hearing on the revocation and on the merits of the case and ordering as well the Defendant to file a written contestation within 20 days. [ 5 ] The hearing of the revocation and the opposition took place on June 13, 2019. Both matters were dismissed from the bench for want of evidence given the absence of Mr. Maalouf personally and as a representative of M.A.

Construction & Rénovation 2012 inc. This dismissal had the effect of lifting the suspension of execution and the bailiff continued to carry out steps in regard to the forced execution over the vehicles. [ 6 ] Particularly, on August 1, 2019, the bailiff served a notice of sale under articles 748 and 749 of the Code of Civil Procedure. The notice would have normally resulted in the sale and satisfaction of judgment, were it not for a fresh application in revocation, this time in respect of the judgment of June 13, 2019.

This motion was filed September 9, 2019, by the Defendant as initially named in the proceedings, M.A. Construction & Renovation Inc. [ 7 ] The application in revocation asserts, with the sworn statement of Mr. Maalouf in support of the assertions: 1. that the Defendant only learned of the judgment of June 13, 2019 on August 1, 2019. 2. That the notice of hearing was not sent to the proper address. (“ Jamais reçu mon

Avis de Convocation. A été envoyé à un autre adress que le 110 ch du Bord du lac’’ [sic]) [ 8 ] This application was received by a judge who suspended the forced execution and, again, ordered the Clerk to summon the parties to a hearing on the application in revocation and on the merits of the case. [ 9 ] The present judgment is the outcome of the hearing on these two matters which began before the undersigned judge on January 8, 2020, and completed on September 30, 2021. The Plaintiff was absent on the first date but present at the second. At the first hearing the undersigned heard the testimony of Mr.

Maalouf, chiefly on the issue of the date on which he became aware of the judgement of June 13, 2019. The Court was not satisfied as to the probative value of Mr. Maalouf’s testimony and wished to hear the testimony of Maître Danielle Roy, an attorney with whom he discussed the matter before proceeding to the application in revocation of September 9, 2019.

[ 10 ] At that point in time, the Court did not have the benefit of seeing the bailiff’s proof of service, on August 1, 2019, of the notice of sale. Mr. Maalouf was asserting that he did not have knowledge of the judgment that early, only learning of it fewer than 30 days before he initiated his application in revocation. Clearly, if he did know of the judgment on the date of the service of the notice of sale, on August 1, 2019, he did not act within the 30 day time limit imposed by

article 568 CCP and the proceeding must be dismissed. [ 11 ] The testimony of Maître Roy, administered with Mr. Maalouf’s renunciation to attorney-client privilege, established that Mr. Maalouf consulted her one or two days before the filing of the application in revocation on September 9, 2019. This is consistent with his position but does not really establish that he did not know of the notice of sale, and therefore the judgment, on August 1, 2019, as stated in the application for revocation.

Her recollection of the nature of the proceedings she was shown is vague, but she remembers that a pickup truck was involved. [ 12 ] This testimony does not lend much assistance to the Defendant’s case which depends upon acquisition of the knowledge of the judgment within 30 days of the filing. The Defendant’s case is already seriously impaired by the assertion made, under oath, in the application for revocation, to the effect that the Defendant learned of the judgment on August 1, 2019.

It would be possible to consider the date on the application to be a clerical error, but it would nevertheless require clear evidence of the date on which the Defendant truly became aware of the judgment, if it was later than August 1, and of the circumstances that support this. [ 13 ] The bailiff’s proof of service, showing a service by putting the proceedings by attaching them to the door of the residence, establishes the address as [...], Laval, QC, Canada. This is the address that Mr.

Maalouf declared on January 29, 2019 on the change of address form he filed in the Court record. [ 14 ] The pretension that the address in the file was not accurate and could lead to a faulty notice of hearing is not supported, at least not in regard to the hearing of June 13, 2019. [ 15 ] As well, the Court accepts the sincerity and accuracy of the testimony of the Plaintiff to the effect that he received a call from Mr. Maalouf concerning the garnishment of the Company’s bank that occurred just after the default judgement was rendered condemning the Defendant to pay the $15,000.

In the discussion, the parties debated about a way to release the seizure on the bank account, without coming to a decision. It would have been obvious to Mr. Maalouf, at that stage, on or around December 27, 2018, that there was a judgment against his company.

Thus, when the bailiff was at the stage of a notice of sale in the seizure on the vehicles that had previously been suspended, he would have known that the seizure had become active again and that the judgement was again in force, that it had not been revoked. [ 16 ] The sworn declaration of his knowledge, as of August 1, 2019, of the judgment refusing the revocation and the opposition has the strong probative value of a judicial admission.

The vague and tentative testimonial evidence that could try to contradict that admission is, technically inadmissible, and, practically speaking, of little weight. [ 17 ] The application in revocation is therefore ill-founded because of the period of more than 30 days between the knowledge of the judgment and the filing of the application.

What’s more, the ground raised to support the allegation that the notice of hearing was not effective does not stand up, given that the address being used by the Court office was the exact address he had given in his change of address form of January 29, 2019. [ 18 ] It is therefore more likely than not that Mr. Maalouf received the notice of the hearing of June 13, 2019, but did not attend because of factors related to the press of business and insufficient time management. [ 19 ] Mr. Maalouf, on behalf of the Defendant M.A. Construction & Rénovation Inc. and of the Opposing party, M.A.

Construction & Rénovation 2012 inc., makes much of the fact that the name of the Defendant differs from the name of the owner of the vehicles. In fact, the Claim brought by the Plaintiff mentions M.A. Construction & Rénovation 2012 inc. in the key allegations as being the corporation that is bound by the promises made on its behalf by Mr. Maalouf at the time the contract was entered into by the parties. This is the true name of the Defendant, and the name used in the style of cause is, to that extent, in need of correction as a clerical error.

There is no prejudice to the designation being corrected to conform to the exact legal name of the entity, because there is no possible confusion in the written proceedings to differentiate between what appear to be two names for the same entity. Thus the opposition to the seizure by M.A. Construction & Rénovation 2012 inc., would not have had any reasonable chance to succeed if the hearing leading to its dismissal had been attended by Mr. Maalouf.

That corporation, even if it is distinct from the Defendant as named, did not seek the revocation of the judgment. [ 20 ] The Court did hear the evidence of both parties concerning the case on the merits, but will refrain from giving any opinion on this aspect of the matter, given the importance of the principle of the stability of judgements. The Plaintiff wished to obtain the costs of translation of a conversation he recorded between himself and Mr. Maalouf. This was not recognized an admissible cost by the Special Clerk who limited the judicial costs to 200$.

The judgment is maintained, so it cannot be varied by the Court in this respect. BY THESE REASONS, THE COURT, DISMISSES the Application in Revocation of Judgment; CONFIRMS the judgment of June 13, 2019, dismissing the revocation of the judgment of November 16, 2018, and confirming the said judgement and dismissing the opposition to the forced execution of that judgment; AUTHORISES the seizing bailiff to continue, to completion, the forced execution commenced that had been previously suspended because of the revocation and opposition proceedings; WITH costs in favour of the Plaintiff.

__________________________________ David L. Cameron, J.C.Q. Date of the hearings January 8, 2020 and September 8, 2021