r v. Soci, 2021 QCCQ 4951

Epstein c. Safran-Albert 2021 QCCQ 4951 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-708934-197 DATE: June 11, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ ISAAC EPSTEIN Plaintiff v.

RHODA SAFRAN-ALBERT Defendant ______________________________________________________________________ TRANSCRIPT OF THE JUDGMENT RENDERED AT THE HEARING ON JUNE 11, 2021 [1] ______________________________________________________________________ [ 1 ] Plaintiff has filed a lawsuit against the Defendant before the Small Claims Division of the Court of Quebec to recover the value of bonds which he claims he rightfully owns. [ 2 ] On its own initiative, the Court raised the issue of whether the Plaintiff’s application is eligible to be instituted under the rules for the recovery of small claims on which the matter should be continued before the regular Civil Division. [ 3 ] The parties were required to attend a case management conference to address this issue.

Question in Issue [ 4 ] The Court must determine whether Plaintiff’s lawsuit was lawfully filed under the rules governing the recovery of small claims, which are set forth in Book VI, Title II, of the Code of Civil Procedure (“ C.C.P . ”). In other words, the Court must decide whether the subject matter of the application is a “claim” for the purpose of art. 536 C.C.P.

Legal Framework [ 5 ] The issue of whether an application was properly filed under the rules governing the recovery of small claims may be raised at any stage of the proceeding, and may even be declared by the Court on its own initiative, since this question raises public order. [ 6 ] According to

article 536 of the Code of Civil Procedure , a small claim is defined as an application for recovery of a claim not exceeding $15,000, excluding interest.

A small claim also includes an application seeking the resolution, resiliation or cancellation of a contract provided neither the value of the contract, nor the amount claimed, if any, exceeds $15,000. [ 7 ] The Code of Civil Procedure does not define the term “claim”. [ 8 ] However, the case law has interpreted this term and articulated its meaning. [ 9 ] Case law has consistently held that the Small Claims Division does not have jurisdiction to hear an application for revendication of property as this type of claim does not meet the criteria of a “claim” within the meaning of the small claims recovery provisions [2] .

The same conclusion applies if the claim is for the value of the property the plaintiff alleges he rightfully owns. [3] [ 10 ] For example, in Dubé v. Coopérative de travail Sempi , the court held that an application for the return of contributions to a RRSP fund could not be instituted under the rules governing the recovery of small claims since the application was not one for the recovery of a “claim” within the meaning of art. 536 C.C.P. [4] [ 11 ] The same reasoning was applied by Justice Breault in Moreau v. Blanchard . [5] [ 12 ] In Bélanger v.

Société d'exploitation des ressources des Basques inc. , the plaintiff owned shares in the defendant corporation. The shares contained a provision whereby the corporation could buy back the shares under certain conditions. The plaintiff alleged that these conditions were met, but that the corporation unlawfully refused to repurchase the shares. The plaintiff filed an application seeking

the payment of the value of the shares.

The court held that the application could not be brought under the rules governing the recovery of small claims as the plaintiff’s claim was not a “claim” for the purpose of art. 536 C.C.P. [6] Application to the Facts of this Case [ 13 ] The question to be decided in this case does not concern whether the Plaintiff’s application meets the monetary threshold of the Small Claims Division, it does, but rather pertains to the nature of the claim asserted by the Plaintiff and whether it qualifies as a “claim” for the purposes of art. 536 C.C.P. [ 14 ] To determine whether a claim qualifies as a small claim under this provision, the Court must first determine what is the essential nature, or the pith and substance, of the claim. [ 15 ] According to the Application, the contestation, and the exhibits filed by the parties, the parties disagree as to who owns five bonds issued by the State of Israel in 1950.

The bonds in question are identified in exhibit D-1. [ 16 ] The parties agree that the bonds were originally issued in January 1950 to Issie Saffran, the Defendant’s father. [ 17 ] The Plaintiff claims that Issie Saffran transferred the bonds over to him some time ago.

The exact date is not specified in the pleadings or the exhibits; all we know, according to Plaintiff’s letter dated August 14, 2018 to the Defendant is that the alleged transfer or gift happened “years ago”. [7] [ 18 ] In a demand letter dated February 10, 2019 addressed to the defendant, Plaintiff writes “you came by and you apparently took with you the original bond plus the original transfer form that your late Father signed over to for me”.

He adds that the defendant has not returned the documents which evidence the transfer and title to the bonds and prays her to return them to him within 10 days, otherwise he will have no other choice but to take legal action. [8] [ 19 ] In his lawsuit he alleges in paragraph one that he is suing the Defendant because he would like her to return the bonds that she is legally obliged to return. [ 20 ] The Defendant does not dispute that she’s in possession of the bonds. However, she alleges in her Contestation that her father purchased them in 1950 and that the Plaintiff obtained them illegally from him.

She vehemently denies that Plaintiff is the rightful owner of the bonds. [ 21 ] Although the Plaintiff does not seek the return of the bonds themselves, he asks the Court to condemn the Defendant to pay him the value of the bonds, which he alleges are worth $2,500. [ 22 ] The essential nature of the Plaintiff’s lawsuit is an action in revendication of movable property, i.e. the bonds which he claims Issie Saffran transferred to him and which he now owns.

Rather than asking for the return of the bonds, which the Defendant refuses to do, he asks the Court to condemn her to pay him the value of these bonds. [ 23 ] Fundamentally, the dispute between the parties is one which raises the following question: Who is the owner of the bonds? [ 24 ] This is not an application for recovery of a “claim” for the purpose of art. 536 C.C.P. as this term had been interpreted and defined by the case law.

Conclusion [ 25 ] Plaintiff’s Application should not have been brought under the rules governing the recovery of small claims, and cannot continue under those rules, since the application is not one for the recovery of a “claim” within the meaning of art. 536 C.C.P. [ 26 ] Plaintiff’s application is not dismissed for lack of jurisdiction.

Rather, it will have to be continued before the regular Civil Division of the Court of Quebec, and conducted under the rules set forth in Book II of the Code of Civil Procedure . [ 27 ] Pursuant to its powers under art. 152 C.C.P. , the court will order the parties to attend a case management conference for the purpose of establishing a case protocol. [ 28 ] Until the case management conference is held, the parties are to required to co-operate to either arrive at a settlement or establish a case protocol (art. 20 and 148 C.C.P. ). [ 29 ] If they agree on a case protocol before the date of the case management conference, the parties are required to file it with court office forthwith.

FOR THESE REASONS, THE COURT: [ 30 ] DECLARES that Plaintiff’s Application was not admissible under the rules governing the recovery of small claims; [ 31 ] REFERS the matter to the regular Civil Division of the Court of Quebec so that the matter be continued in accordance with the rules set forth in Book II of the Code of Civil Procedure ; [ 32 ] ORDERS the parties to appear at a case management conference on June 21, 2021 at 14:00 in room 2.02 of the Montreal Courthouse for the purpose of establishing a case protocol, unless they have already agreed on a case protocol before this hearing, in which case, the Court ORDERS the parties to file it with the Court office.

__________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: June 7, 2021