2015 QCCQ 10882, 2015 QCCQ 10882

Goikhberg c. Bernard 2015 QCCQ 10882 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147547-154 DATE: August 28, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ YAFIM GOIKHBERG Plaintiff v.

WILERNE BERNARD -and- SERGE LAMONTAGNE Defendants -and- DIRECTOR OF CRIMINAL AND PENAL PROSECUTION (QUEBEC) Petitioner -and- ME ALEXANDRE AREL -and- ME PASCAL DOSTALER Mis en cause ______________________________________________________________________ JUDGMENT ON MOTION TO QUASH SUBPOENAS (Transcription of Oral Judgment Rendered on the Bench) ______________________________________________________________________ [ 1 ] Petitioner requests that the Court quash two subpoenas duces tecum issued against the two mis en cause Alexandre Arel and Pascal Dostaler. [ 2 ] The Motion to Quash is presented in the context of Plaintiff’s claim for fifteen thousand dollars ($15,000) in the Small Claims Division of the Court of Quebec.

Defendants have presented a Motion to Dismiss that claim on the basis of prescription. [ 3 ] For the hearing on that Motion to Dismiss, Plaintiff has requested that the Small Claims Division’s Court clerk issue several subpoenas , including two subpoenas duces tecum against two state prosecutors, the mis en cause.

The Petitioner asks that the subpoenas duces tecum be quashed for reasons of procedure, relevance and attorney privilege. [ 4 ] In accordance with the applicable rules established by the jurisprudence with respect to a Motion to Dismiss under Article 165 (4) of the Code of Civil Procedure , with very few exceptions, the facts alleged in the motion are considered as true and there is no testimony of any party or witness heard. At this preliminary stage, the Court will determine whether the Motion to Institute can succeed in law assuming the alleged facts are proven.

However, the exhibits that form part of the Court Record of the Motion to Institute can also be reviewed by the Court. [ 5 ] Given that this is the normal manner by which such a Motion to Dismiss is adjudicated, testimony of witnesses is not heard and is not relevant. This ground alone justifies the granting of the Motion to Quash the subpoenas as testimony is not heard.

[6] However, under exceptional circumstances, the Court can consider as admissible other evidence. [7] The Court will also therefore consider the possible validity of the issued subpoenas in that exceptional context. [8] From a review of the Plaintiff’s Motion to Institute, only two grounds of liability of Defendants are alleged: 1) amounts owedfor unpaid services rendered as a translator by Plaintiff to Defendants; and 2) Defendant Me Wilerne Bernard committed a fault by notsupporting Mr.

Goikhberg’s version of events in a criminal trial in 2011 regarding indictments for fraud against Plaintiff. [9] At that trial in 2011, mis en cause Me Alexandre Arel acted as the state’s prosecuting attorney. [10] As for mis en cause Me Pascal Dostaler, he was the state’s prosecuting attorney in another criminal trial in 2009, involvingPlaintiff as an accused. [11] Therefore, Me Dostaler cannot possibly testify on anything relevant in the present matter since there is no reproach in theMotion to Institute regarding the 2009 trial. [12] That is therefore an additional sufficient ground to grant the Motion to Quash with respect to the subpoena regarding Me PascalDostaler. [13] With respect to mis en cause Me Alexandre Arel, the legal question that the Court is called upon to decide at this stage iswhether Me Arel could have had any knowledge regarding either the claim for translation services of Plaintiff or the allegedunfavourable testimony of Me Bernard against Plaintiff in the trial in which Me Arel acted as prosecutor. [14] For the claim for services rendered as a translator/interpreter, based upon the Motion to Institute, it is clear that Me Arel couldhave no knowledge at all regarding such services.

That was a private matter between the Plaintiff and Defendants. [15] Regarding the claim for unfavourable testimony of Me Bernard, there is no allegation in the Motion to Institute that Me Arelacted in bad faith in the legal proceedings of 2011 or that there was any abuse in the institution of such criminal proceedings. In fact,Plaintiff was found guilty of the accusations and that judgment has never been modified in appeal.

Therefore, any testimony ordocuments that Me Arel could theoretically provide would be in the context of good faith criminal prosecution of Plaintiff. [16] Accordingly, such testimony and documents would be necessarily subject to client-attorney privilege and not admissible underArticle 9 of the Quebec Charter of Human Rights and Freedoms. The Court is charged with ensuring that this professional privilege berespected. [17] Also, in accordance with the case of R. v.

Anderson, 2014 SCC 41 , [2014] 2 SCR 167, 190, the discretion of thestate’s prosecuting attorney is not subject to judicial review or examination in the absence of an allegation or basis of abusiveproceedings. No such allegation is made in Plaintiff’s Motion to Institute. To the same effect, the Court refers to R. v. O’Connor, (SCC), [1995] 4 SCR 411, paragraph 87.

This is an additional ground to quash the subpoena duces tecum regarding Me Arel. [18] Finally, the subpoena duces tecum against Me Arel is vague and imprecise regarding its request for documents and is so widethat it is neither justified nor credible in light of the legal issues arising from Plaintiff’s Motion to Institute. FOR THESE REASONS, THE COURT: GRANTS the Motion to Quash the two subpoenas duces tecum issued against the mis en cause Me Pascal Dostaler andMe Alexandre Arel.

WITHOUT COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Me Patrice Peltier-Rivest Director of Criminal and Penal Prosecution Attorney of Petitioner Mr. Yafim Goikhberg Plaintiff Representing himself Me Wilerne Bernard Defendant Representing herself Me Serge Lamontagne Defendant Representing himself Date of hearing: August 28, 2015