2022 QCCQ 6445, 2022 QCCQ 6445

M.P. c. E.H. 2022 QCCQ 6445 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500- 22-253710-191 DATE: September 30, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ M. P. Plaintiff v. E. H. S. I. RICCI, TEASDALE, HUISSIERS DE JUSTICE INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The application for dismissal [ 1 ] Ricci Teasdale, huissiers de justice inc., (« Ricci Teasdale »), one of the three defendants in this matter, seeks the dismissal of the action, in so far as it is concerned, pursuant to

article 51 C.C.P. [ 2 ] Ricci Teasdale argues that the action is abusive in that it is manifestly unfounded. [ 3 ] The action is suspended as regards the Defendant E. H. because of proceedings pending in bankruptcy. [ 4 ] The Defendant, S. I., takes a position similar to that of the Plaintiff M. P., arguing that the case against Ricci Teasdale is not unfounded. Procedural background [ 5 ] The Plaintiff, Mr. P., obtained from the Defendant, signing as “E. H.”, an acknowledgment of debt dated 2 February 2013 for the amount of $7,850 payable 1st April 2013 (P-3). [ 6 ] Subsequently, 1 st October 2013, Mr.

P. obtained from Mr. H. a written authorization to have possession and use of the latter’s Cadillac DTS 2006. Mr. P. then made an inscription on the RDPRM in respect of the Cadillac as follows: Hypothèque conventionnelle avec dépossession (gage « hypothèque conventionnelle avec dépossession ») [ 7 ] This inscription, having effect from 4 October 2013 (P-5) was followed up by a prior notice of exercice of a hypothecary recourse (préavis d’exercice d’un droit hypothécaire) on 12 November 2014. This prior notice was never acted upon (admission, deposition page 66).

Judgment of Francine Nantel, J.C.S. [ 8 ] In divorce proceedings between Mr. H. and Ms. I., an application for provisional measures was heard by Justice Francine Nantel on the 5,6,7,9 and 14 October 2015 [ 9 ] On 16 October 2015, Mr.

P. filed another inscription, similar to the first, on the same Cadillac, this time in respect of an “acte constitutif” of 16 October 2015. [ 10 ] Whatever the status of the hypothec might have been at the time she rendered the judgment, it is clear that Justice Nantel based the decision on the status as she knew it when the evidence was closed on October 14, 2015. [ 11 ] One of the objects in issue was the Cadillac TDS 2006. Justice Nantel, on the basis of the evidence before her, made the following finding of fact [1] :

[85] On October 4, 2013, Mr. P registered a lien on the Cadillac TDS 2006 for a debt of $7,850. The lien is no longer registered on the car. [ 12 ] In her decision dated 28 October 2015, Justice Nantel issued the following order in respect of the Cadillac [2] : [114] ORDERS S. I. [S. I.] to remit the Cadillac TDS 2006 to E. H. [E. H.] if and when she regains possession of the vehicle. [ 13 ] In the context where the instructions were coming from Mr. H., the owner of the vehicle, it is obvious that the bailiff was told that Mrs.

I. resided at the address indicated. [ 14 ] It is common ground between the parties that the bailiff did not make his own independent search into the accuracy of the information he was given in that regard. [ 15 ] The day after the execution by way of “remise de possession” was carried out (P-10), Mr. P.’s attorney addressed a without- prejudice letter to Ricci Teasdale stating that: - Mrs. I. has never resided at the given address where the car was found. - Mrs. I. did not have the possession of the car which was in the possession of Mr.

P. at the time it was seized in virtue of a “garantie d’une hypothèque conventionnelle avec dépossession (gage “ hypothèque conventionnelle avec dépossession”) [ 16 ] The letter also mentions Mr. P.’s position in relation to the residence that Mrs. I. was ordered to vacate no later than December 31, 2015, but it is not necessary to treat this issue in the present file. [ 17 ] In respect of the Cadillac, the attorney summons the bailiff to return the vehicle to the place from which it was taken.

The letter also makes a monetary claim of $50,000 in respect of the car and the residence. [ 18 ] Ricci Teasdale, through an employee, in Mr. Ricci’s absence wrote to Mr. H. by email March 9, 2016, asking him: to verify with your lawyer on his input on this matter (the vehicle situation) should it he return [sic] to Mr. P. considering the info on the RDPRM) (P-13). [ 19 ] during the deliberation of Justice Nantel, Mr. H. instituted proceedings in case number 500-22-225128-159 on 22 October 2015 against Mr.

P. to cancel the encumbrances (in the RDPRM) against the vehicle, to return it to him, and to pay damages alleging essentially that the allegation made as the basis for the conventional hypothec was false, there being no such agreement. [ 20 ] The outcome of this case was that the Court of Quebec dismissed the action [3] . [ 21 ] The Court found that the Plaintiff had signed an acknowledgement of indebtedness. […] and remitted the car to Defendant following his incapacity to pay off his debt.

Defendant took the car with the Plaintiff’s consent [4] . [ 22 ] More importantly, for the present matter, it is useful to note the judge’s finding of fact to the effect that [5] : [8] In August of 2014, Defendant registered a lien on the car at the Registre des droits personnels et reels mobiliers. On August 20th, 2014, a bailiff served upon Plaintiff, through his employee Mr. Maltsev, a prior notice of the exercise of a hypothecary right as per

section 2757 and following of the Quebec Civil Code ( Q.C.C. ). [9] Defendant explained that he took no additional steps with respect to the car considering the number of issues he then had with Plaintiff. In addition, Plaintiff was also going through divorce proceedings. [10] A debt acknowledgment was filed into the Court record and after an expert graphologist, Mrs. Pettinati, prepared a report, Plaintiff admitted having signed it. He, however, testified that he had no recollection whatsoever of signing this document.

From Plaintiff's standpoint, he never owed any money to Defendant and he never accepted to be responsible for his wife's debts with Defendant. [ 23 ] It is also crucial, for an understanding of the present matter, to note that, after Mr.

P. lost possession of the car, if in fact he had it, after the execution of 3 March 2016 (P-10), he took no step before the Superior Court in regard to the execution of Justice Nantel’s order, nor did he bring any proceedings in the Court of Quebec to seize the car himself as hypothecary creditor despite being before our court in case no. 500-22-225128-159 for case management on March 16, 2016. At the hearing of the present application, Mr.

P. stated that his lawyer had asked judge Magali Lewis to order the return of the vehicle, but a careful reading of the very detailed minutes of that hearing shows that the main issue was the appointment of a handwriting expert. There is no sign of an oral application to return the vehicle and no sign of any discussion on the matter. No counter claim of any kind in respect of the movable hypothec in the vehicle nor the possession, custody, or use thereof was made in the case or elsewhere. [ 24 ] Rather, M.

P. brought, on May 10, 2017, a simple action before the Small Claims Division of the Court of Québec, claiming the debt of $7, 850, plus interest. [ 25 ] Mr. H. contested his signature on the document and denied any debt claiming as well $5, 000 for damages allegedly caused to the vehicle during the time it was in the possession of Mr. P.. The case was initiated in 2017 was heard before Judge Jo Ann Zaor on April 24, 2018. Judgment was rendered 16 May 2018 condemning Mr. H. to pay to Mr.

P. the amount of $7, 850 with interest at the legal rate plus the additional indemnity calculated from the “mise en demeure” of 6 December 2016. The judgment dismisses the counterclaim in damages of Mr. H. [6] . [ 26 ] Mr. P. received the full and final payment for the amount ordered in the judgment. Obviously, in retrospect, Mr. P.’s option to

do nothing to further his interest in respect of the movable hypothec once Mr. H. recovered possession of the vehicle was a wise choice on his part. [ 27 ] Through the simple, inexpensive and relatively rapid process of the Small Claims Division, he was entirely successful in respect to his monetary claim.

P.’s claim for damages in the present matter [ 28 ] In the context then where the movable hypothec was not used in connection with the recovery of the monetary claim, the question arises whether any prejudice can be associated with the bailiff’s actions or omissions in the execution of the Nantel judgment. [ 29 ] Mr. P. modified his introductory application on August 5, 2022.

He probably did so in anticipation of the hearing of the present motion scheduled for September 9, 2022. [ 30 ] The amounts claimed stand out because of their magnitude in comparison with the small amount of the monetary claim secured by the movable hypothec. Firstly, there is a claim of amounts allegedly paid by Mr. P. for maintenance to the vehicle, $ 2,344.18, but also $ 8,700 for legal fees encored in connection with the “seizure”. There is a claim for acute stress allegedly resulting from Mr.

P. being dispossessed of the vehicle. [ 31 ] He alleges troubles and inconveniences associated with arranging transport by other mean. [ 32 ] He also claims a loss of reputation and “une atteinte illicite et intentionnelle à sa réputation et au respect de sa vie privée” resulting from the failure to return the Cadillac and the false allegation that the Defendant I. resided with him at the Île-Perrot address.

The non-pecuniary damages work their way into the conclusion as $ 3,500 for damages, $ 5,000 for troubles and inconveniences, $ 3,000 for loss of reputation and $ 8,000 for punitive damages. [ 33 ] Similar amounts for non-pecuniary damages are claimed in connection with each of the other two defendants. The grounds for dismissal [ 34 ] Much of the debate before the Court dealt with the alleged fault on the part of the bailliff and the effect of the relative immunity accorded to bailiffs by

article 145 C.C.P. in the absence of intentional fault or gross negligence. It is appropriate to deal with the arguments of the parties under the usual headings of fault, causality and prejudice, essential elements of extra contractual civil liability.

Fault in the version of the introductory application as it stood in its September 2, 2020, version [ 35 ] The essential allegation of a fault on the part of the Ricci Teasdale is that: [27] La défenderesse Ricci Teasdale savait, ou aurait dû savoir, car il ne fallait qu’une vérification basique que cette adresse ne correspondait ni à un domicile, ni à une propriété, ni à une résidence de Mme. S. I., mais bien plutôt à celle du demandeur. [ 36 ] Bearing in mind that the bailiff received instructions from Mr. H., the information would have come from that source.

When examined by Ricci Teasdale’s attorney on what would have constituted a “verification basique” , Mr. P. responded that the bailiff could have called Mrs. I. to ask her whether she resided at the Île-Perrot address, that they could have had access to her address by way of the registry of a driver’s licence or other registers with the “registre foncier”, the RDPRM, Hydro and that they could have verified with Mr. H.. Finally, under cross-examination, he admitted that it would have come down to the bailiff communicating directly with Mr. H. or with Mrs.

I. to ask them whether she resided at that address. [ 37 ] The fact of the matter is that a person’s residence, unless the person makes it known publicly, is private information and not accessible through any simple search of any registry. The issue, however, of the bailiff’s efforts or lack of effort to ascertain whether Mrs. I. had possession of the car evolved through the modified version of the Application to Institute Proceedings of 5 August 2022, and the arguments made by Mr. P. orally on the hearing. The position of Mr. P. and of Mrs.

I. has broadened now to include the concept that the judgment itself was unenforceable as it was made subject to a condition. [ 38 ] This is an interesting argument, because the executory nature of a judgment is closely connected with the work of bailiffs who, presumably would have a basic understanding of the question. Mr.

P. puts particular emphasis on the case Bouzidi c. 9291-5370 Québec Inc [7] . [ 39 ] The facts of the case are quite different, but my colleague, now deaceased, the Honourable Vicenzo Piazza, J.C.Q., pointed out that [8] : [26] […] La détermination du caractère exécutoire des décisions de justice est centrale à l’exercice de la profession d’huissier.

En effet, l’acte de mettre à exécution les décisions de justice ayant force exécutoire se situe au cœur même de cette profession [3]. [ 40 ] Bouzidi was a case where it was found that the bailiff had shown a rather severe form of incompetence ( forme marquée d’incompétence ) not realising that he was carrying out a seizure related to a decision of the “Régie du Logement” that was not enforceable because of a transaction that had been reached between the parties. [ 41 ] The bailiff took the position that because the transaction had not been adhered to, the successful party could return to the more beneficial conclusions of the decision itself.

The bailiff had erred in that regard and the general flavour of the decision is that the bailiff

acted in an objectionable manner. [ 42 ] The judgment dismisses, however, the claim on the basis of the relative immunity of bailiffs on the question of “faute lourde”, judge Piazza writes [9] [33] Bien qu’ils soient des officiers de justice, les huissiers ne sont pas des juristes.

Il n’est donc pas possible de conclure positivement que même l’huissier parmi les moins soigneux et les plus stupides d’entre eux aurait su à tout coup que le fait de ne pas effectuer le paiement prévu à la transaction dans les 15 jours suivant le 23 juillet 2018 n’avait pas pour effet de faire « revivre » la décision du 19 juin. [34] De la même manière, il n’a pas été démontré qu’un huissier moins responsable et ayant moins de jugement qu’un huissier irresponsable et manquant vraiment de jugement aurait effectué les vérifications élémentaires qui s’imposaient dans les circonstances, en consultant le plumitif de la Régie du logement et le Registre des entreprises. [ 43 ] In the Court’s view, the question of the enforceability of the Nantel’s decision is one worthy of debate.

It could be argued that the order, as opposed to a condemnation, is not enforceable in law because it depends upon the accomplishment of a condition i.e., that the car be in the possession of Mrs. I.. [ 44 ] Mr.

P. makes the interesting argument that the bailiff should have returned to the Superior Court for instructions because of the uncertainty of the accomplishment of the condition, something the bailiff had a positive duty to resolve through his own inquiry. [ 45 ] Ricci Teasdale argues that the bailiff was in no position to question the enforceability of the decision nor to render his own judicial determination by carrying out a study on his own as to the factual issue of possession. [ 46 ] Ricci’s main argument is that he acted in good faith, relying upon what seemed to be reasonable information and instructions from his client and that his conduct in seeking further instructions from his client’s attorney in connection with Mr.

P.’s allegation that the condition of the decision was not met shows his good faith and lack of gross negligence.

The Court’s view [ 47 ] The matter would be triable on the issue of fault, but this point alone is not sufficient for the Court to dismiss the Application. [ 48 ] It is perhaps somewhat unrealistic for the Plaintiff to believe that he can establish gross negligence on the part of the bailiff in the face of the dominant jurisprudence [10] .The issue raised in the present case, however, is somewhat novel dealing with somewhat an unusual judicial order to the wife to deliver an asset to the husband, should she become possessed of it at a future time.

The order was obviously within the judge’s jurisdiction and it creates a res judicata as to who should have possession of the vehicle and on what conditions, but arguably, a further order might have been required prior to execution for execution of a change of possession. In such a complex situation, would the most incompetent bailiff have thought that the executing creditor’s assertion of the accomplishment of the condition was adequate?

As stated above, it would be quite difficult in a circumstance such as this for the Plaintiff to overcome the relative immunity, but that is an issue that ought be decided by a court on the merits, not on a motion to dismiss pursuant to

article 51 C.C.P. [ 49 ] The Court is, however, of the view that the case should be dismissed on the issues of causality and damages. Causality [ 50 ] Much of the case concerns allegations relating to a loss of use of the vehicle because possession was given, with the assistance of Ricci Teasdale, to Mr. H.. [ 51 ] This loss of use is distinct form the movable hypothec itself and the simple possession that is essential to it. The Civil Code provides that, while the creditor must conserve the movable property, he may not use it except with the permission of the debtor: 2736.

Le créancier d’une hypothèque mobilière avec dépossession doit faire tous les actes nécessaires à la conservation du bien grevé dont il a la détention; il ne peut l’utiliser sans la permission du constituant. [ 52 ] The permission to use the car was given by Mr. H. on 1 st October 2013 (P-4) but, obviously, that permission was no longer given from the moment in time when he sought to recover the possession of the vehicle. [ 53 ] Even if the bailiff was at fault in assisting Mr. H. to recover custody or possession of the car, the resulting loss of use was something Mr. P. was exposed to in any event.

He was aware of the proceedings in file 500-22-225128-159 as early as October 22, 2015, the date he received service. [ 54 ] Therefore, the prejudice of a pecuniary or non-pecuniary nature associated with a loss of use has no causal connection with the bailiff’s actions or omissions. [ 55 ] Loss of the effects of the movable hypothec, if the bailiff’s action caused any such loss, had no impact on the recovery of the monetary claim.

As stated above, the simple action on the debt, brought as a small claim, was entirely effective and resulted in full payment. [ 56 ] Much was made at the hearing of the damage allegedly caused to the vehicle after Mr. H. repossessed it. The argument is that were it not for the bailiff’s actions, H. would not have been able to damage it. As dramatic as it may be that H. allegedly “chopped it up”, this has no effective causal relationship with the change of possession. The chopping would be a novus actus in which the bailiff played

no part. [ 57 ] The Plaintiff alleges a sort of causality sine qua non , whereas the causal relationship the law would recognize here is that of causa causaus . The bailiff had nothing to do with the alleged fault on the part of Mr. H. once the latter had possession. [ 58 ] The claim in punitive damages in respect of the bailiff’s actions is also sure to fail.

No serious allegation is made that the bailiff carried ont an illicit and intentional violation of a charter-protected right, nor any other fault that could give rise to punitive damages. [ 59 ] The damages claimed, as a whole, in respect of Ricci, Teasdale, at least (a total of $27, 000) are exaggerated to the point of constituting an abuse, even if there were any causal relationship involving the bailiff. [ 60 ] In

summary, the issue of the bailiff’s liability is triable, with limited chances of success. That issue should not be tried however in a such as this one, where the case is bound to fail because of the lack of causality with the prejudice asserted. The damages, as claimed, as well, constitute an abuse. BY THESE REASONS, THE COURT GRANTS Ricci Teadale’s application Ricci, Teasdale, huissiers de justice inc.. DISMISSES M. P.’s originating application against Ricci, Teasdale, huissiers de justice inc.

WITH legal costs in favour of Ricci, Teasdale, huissiers de justice inc., including the annulation fees of the pre-trial examination of 287,44$. ______________________ David L. Cameron, J.C.Q. M. P. Not represented Suzanne I. Not represented E. H. Not represented Me Sylvain Racette BÉLANGER SAUVÉ Attorney of RICCI, Teasdale, Huissiers de Justice Inc. Date of hearing: September 9, 2022