2020 QCCQ 9023, 2020 QCCQ 9023

Black c. Dokis 2020 QCCQ 9023 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-158953-184 DATE: October 30, 2020 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ BRINA BLACK Plaintiff v.

JONATHAN DOKIS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On October 4, 2019, the Special Clerk of the Court of Québec rendered judgment by default and ordered Jonathan Dokis to pay Brina Black $2,114.10 plus interest and the additional indemnity (‘’ Default Judgment ’’). [1] [ 2 ] The Default Judgment was rendered following an Originating Application filed by Mrs. Black against Mr.

Dokis in September 2018 in which she alleges that she retained his services to install tiles in her kitchen and contends that the work suffered from poor workmanship and as a result, she had to redo it. As a consequence of his faulty execution, she claims she was entitled to damages of $2,114.10, which represents the amount she paid him to install the tiles, plus the cost of materials. [ 3 ] On October 28, 2019, Mr. Dokis filed an Application in Revocation of the Default Judgment and asked this Court to revoke and cancel the judgment.

He alleges that he never received the Originating Application and ignored that a lawsuit was pending against him, much less that a judgment had been rendered. [ 4 ] He adds that the tile installation work that he performed was properly done and that when Mrs. Black complained, he offered to redo the work free of charge as long as she purchased new materials, but that she never responded to his proposal. [ 5 ] On November 5, 2019, a judge of the Court of Québec held that the grounds alleged in Mr.

Dokis’s Application for Revocation appear sufficient, stayed the forced execution of the Default Judgment, and ordered the clerk to summon the parties to a hearing on both the Application for Revocation and the merits of the Originating Application. [ 6 ] The parties appeared before the undersigned on October 13, 2020, and the Court heard evidence on both applications. [ 7 ] At this hearing, the Court reserved judgment on the Application for Revocation and heard the evidence on the merits of Mrs.

Black’s claim, subject to its decision on the Application for Revocation. [ 8 ] This judgment disposes of both matters. [ 9 ] To adjudicate the dispute between the parties, the Court must answer the following questions:

a) Has Mr. Dokis proved compelling reasons which justify the revocation of the Default Judgment?

b) If so, has Mrs. Black proven that the tiles installed by Mr. Dokis suffer from poor workmanship? Analysis and Decision [ 10 ] The Court will first address the issue of Mr. Dokis’s Application for Revocation. If the Court finds that he has proved compelling reasons to revoke the Default Judgment, the Court will then address the merits of Mrs. Black’s claim, in other words, whether the tile installation work carried out by Mr. Dokis at her condo suffers from poor workmanship. [ 11 ] Of course, if the Court concludes that the Default Judgment should not be revoked, there is no need to address the second question in dispute.

a) Has Mr. Dokis proved compelling reasons which justify the revocation of the Default Judgment?

[ 12 ] According to

article 345 of the Québec Code of Civil Procedure ( C.C.P. ), a judgment may, on a party’s application, be revoked by the Court that rendered it if letting the judgment stand would tend to bring the administration of justice into disrepute. [ 13 ] In the case of a default judgment, as is the case in this matter,

article 346 C.C.P. provides that a party against whom a default judgment has been rendered following his failure to answer the summons may also be revoked where that party has been prevented from doing so owing to fraud, surprise or any other cause considered sufficient. [ 14 ] An application for revocation of judgment calls into play two opposing tenets; on the one hand, the principle of the irrevocable nature of final judgments, and on the other hand, the right of every party to be heard and be given the opportunity to make a full and fair defence. [ 15 ] The Court must strike a balance between these two competing values. [ 16 ] It is the party seeking the revocation of a judgment who bears the burden of proving the grounds which justify setting aside the original judgment. [ 17 ] Applying these rules to the instant case, Mr.

Dokis must first establish a valid or compelling reason - fraud, surprise or any other cause considered sufficient – for his failure to answer the summons.

Secondly, he must establish that his grounds of defence on the merits are sufficiently serious. [2] [ 18 ] As the Court of Appeal has made clear in Groupe JSV inc . [3] , these two factors must not be analyzed independently from one another: [30] En matière de rétractation de jugement pour cause de « surprise ou autre cause jugée suffisante » ( C.p.c., art. 482), le rescindant (les « motifs qui justifient la rétractation ») et le rescisoire (« les moyens de défense à l’action ») sont des vases communicants.

Plus les moyens de défense sont sérieux, plus sont vraisemblables et recevables les motifs du défendeur pour expliquer que son défaut est dû à la surprise, à l’oubli, à l’inadvertance, à la méprise, à une erreur, peut-être même stupide, mais sincère. (References omitted) [ 19 ] That said, no matter how serious are the grounds of defence on the merits, the party seeking the revocation must nonetheless establish a compelling reason for failing to answer the summons.

The defendant’s explanation for failing to answer the summons [ 20 ] What constitutes a compelling reason is a question of fact and each case must be analyzed on its merits according to all the circumstances and facts of the case. [ 21 ] A compelling reason will be found to exist where the party condemned by default establishes that, notwithstanding the fact that the originating application was validly served, he had no knowledge of this lawsuit because of circumstances beyond his control and which are not attributable to his own negligence. [4] [ 22 ] Where the party seeking a revocation has been negligent and adopted a ‘’couldn’t care less attitude’’ towards judicial proceedings, the default judgment should be left to stand. [5] [ 23 ] Mrs.

Black filed her Originating Application with the Court of Québec, Small Claims Division, on September 14, 2018. [ 24 ] Mr. Dokis is identified as the defendant and his residence is listed as rue Pavillon in Pierrefonds. [ 25 ] According to the certificate of service, the bailiff attempted to serve the claim on Mr. Dokis on November 3, 2018, at the address on rue Pavillon, but this proved unsuccessful since Mr.

Dokis no longer resided at this address on that date. [6] [ 26 ] Notification of the Originating Application was eventually effectuated by way of public notice published in Le Devoir newspaper on January 24, 2019. [ 27 ] Mr.

Dokis alleges in his Application for Revocation that he failed to answer the summons because he, “never received any notices from the court…or that I was getting sued.” He adds that he never refused to face justice (“I never ran away and never ignored them”). [ 28 ] He testified that he does not read Le Devoir and thus ignored that the Originating Application was served by way of public notice in this newspaper. [ 29 ] Mr.

Dokis claims that he learned of the existence of the Default Judgment on or about October 31, 2019, when the bailiff appeared at his front door and tried to serve him with the Notice of Execution. [7] [ 30 ] This statement is not credible since it is contradicted by Mr. Dokis’s sworn statement filed in support of his Application for Revocation where he states that he learned of the Default Judgment on October 16, 2019, when he was contacted by Mrs. Black’s husband who asked him when he was going to pay the amount he was condemned to pay following the default judgment. [8] [ 31 ] The evidence discloses that Mr.

Dokis was never served with the Originating Application, and thus he failed to answer the summons, because of his own negligence in that he did not comply with his obligations under the Act Respecting Legal Publicity of Enterprises ( R.S.Q. ch. P-44.1 , hereinafter the “ Legal Publicity of Enterprises Act ” ) and because he deliberately took steps to avoid service. Failure to comply with the Legal Publicity of Enterprises Act

[ 32 ] When Mr. Dokis contracted with Mrs. Black in the summer of 2018 for the tile installation services, his services were offered and provided through a general partnership named Diamond Home Services and advertised on the partnership’s website.

This entity only had an online presence. [ 33 ] The Legal Publicity of Enterprises Act creates an “enterprise register,” which comprises all the information recorded and documents deposited in it, and includes, for each “registrant”, an index of documents, a statement of information and an index of names. [9] [ 34 ] Every registrant must file a registration declaration upon registering. [10] This declaration states, among other things, the registrant’s name and any other name it may use, its domicile (head office), the name(

s) of its directors (in the case of a corporation) or of its partners (in the case of a partnership). [11] [ 35 ] The Act also obliges every registrant to keep up to date the information which concerns it on the enterprise register.

Any change in the information which is included in the registration declaration, including for example, a change in the address of the head office of a corporation or partnership, must be updated on the enterprise register within thirty days after the date on which any change occurs. [12] [ 36 ] In addition, a registrant must declare on annual basis that the information contained in the registration declaration is accurate and up to date. [13] [ 37 ] Any person may consult the enterprise register, free of charge. [14] [ 38 ] When Diamond Home Services was constituted, it had the obligation to register with the enterprise register by filing a registration declaration. [15] [ 39 ] Mr.

Dokis acknowledges that Diamond Home Services filed a registration declaration when he created Diamond Home Services in 2009. [ 40 ] As required by the Act , Diamond Home Service’s registration declaration included the address of its head office, which at the time was 14485, Pierrefonds Boulevard, apt. 1, which corresponded to the address of Mr. Dokis’s personal residence. [ 41 ] However, Mr.

Dokis admits that he did not update this information on the enterprise register despite the fact that between 2009 and 2018, he moved at least five times. [16] [ 42 ] Therefore, in September 2018, anyone who consulted the enterprise register to ascertain the head office address of Diamond Services or Mr.

Dokis would be misinformed, as the initial address included in the registration declaration filed in 2009 had not been updated despite the numerous moves. [ 43 ] The purpose of the enterprise register under the Legal Publicity of Enterprises Act is to allow persons who do business with corporations, general partnerships or sole proprietorships to obtain information with respect to these entities, including the names of officers, directors, or partners, and head office addresses. [17] The Act promotes transparency and the protection of those who do business with an enterprise. [ 44 ] In this day and age when many merchants or enterprises lack a brick and mortar retail presence but are limited to an internet- only presence, the information that is contained in the enterprise register and which must be kept up to date has increased importance. [ 45 ] Where there is no storefront, the enterprise register is virtually the only source of information for a person who wishes to obtain the address of an enterprise’s head office, establishment or place of business and in turn know where an originating application must be served. [18] [ 46 ] In the present case, the underlying goal of the enterprise register was thwarted because Mr.

Dokis did not comply with his obligations under the Legal Publicity of Enterprises Act . In turn, this failure constitutes the true reason why the originating application was not served on Mr. Dokis. [ 47 ] Had Mr.

Dokis fulfilled his obligations under the Act, it is more than probable that he would have been served with this pleading at the address where he resided in September 2018. [19] Failure to cooperate [ 48 ] All parties, including parties that are before the Small Claims Division of the Court of Québec, have a duty to act in good faith (art. 19 Code of Civil Procedure ) and to cooperate with one another (article 20 Code of Civil Procedure ). [ 49 ] These duties were breached by Mr. Dokis in the present case. [ 50 ] On November 3, 2018, the bailiff attempted to serve Mrs. Black’s Originating Application to Mr.

Dokis at the address on rue Pavillon, but was unable to do since he no longer resided at this address. [ 51 ] The bailiff’s Certificate of service states that on the same day, the bailiff called Mr. Dokis to obtain the address of his new place of residence, but Mr. Dokis refused to provide this address. [ 52 ] This conduct is contrary to the requirements of good faith and the duty to cooperate. It justifies a finding that Mr. Dokis was negligent, and in fact grossly negligent.

He cannot claim that he was prevented from answering the summons because of fraud, surprise or another sufficient cause when his own conduct prevented the bailiff from serving him with the originating application.

[ 53 ] In conclusion, Mr. Dokis failed to answer the summons because of circumstances entirely within his control – his failure to comply with his obligations under the Legal Publicity of Enterprises Act - and because of his own negligence and refusal to collaborate with the bailiff. The defendant’s grounds of defence on the merits [ 54 ] Are the grounds of defence set out by Mr. Dokis in his Application for Revocation sufficiently serious? [ 55 ] Mr.

Dokis alleges in his Application for Revocation that the client knew that he was not a professional tile installer, that the client declared herself initially satisfied with the finished work, but that a few days later she called him to voice her displeasure and he then offered to redo the work free of charge as long as she purchased new materials, but that she never responded to his proposal. [ 56 ] In the case of default judgments, the bar is not set very high – all that must be proven is that there is a reasonable likelihood of success of the defence. [20] [ 57 ] On a first impression, Mr.

Dokis’s grounds of defence are plausible. [ 58 ] But upon a closer examination – the Court reserved judgment on the Application for Revocation and heard the evidence on the merits of Mrs. Black’s claim, subject to its decision on the Application for Revocation – his grounds of defence are not meritorious as explained further below. Conclusion on Application for Revocation [ 59 ] Since Mr. Dokis has not established a valid or compelling reason for his failure to answer the summons, he must carry the responsibility for failing to do so.

For this reason, his Application for Revocation of the Default Judgment must be dismissed.

b) If so, has Mrs. Black proven that the tiles installed by Mr. Dokis suffer from poor workmanship? [ 60 ] Given the Court’s decision on the first question in issue, there is no need to answer the second question in issue. [ 61 ] That said, the Court will nonetheless briefly comment on the merits of Mrs. Black’s claim and Mr. Dokis’s defense. [ 62 ] Mr. Dokis was bound to warrant the tile installation work for one year against poor workmanship existing at the time of acceptance of the work. [21] [ 63 ] The photos of the tile backsplash installed by Mr.

Dokis show that the tile installation work suffers from poor workmanship and that this existed as soon as the work was completed: the tiles are poorly installed in that the edges are jagged and irregular, grout is improperly and insufficiently applied, and there are a number of gaps between the tile edges and the walls or the kitchen counter. [22] [ 64 ] This gives rise to a presumption of liability under

article 2120 C.C.Q. , presumption which Mr. Dokis did not rebut. FOR THESE REASONS, THE COURT: [ 65 ] DISMISSES Jonathan Dokis’s Application for Revocation of the default judgment dated October 4, 2019, rendered by the Special Clerk; [ 66 ] WITH LEGAL COSTS of $101 payable by Mr. Dokis to Mrs. Black. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: October 13, 2020.