2022 QCCQ 6312, 2022 QCCQ 6312

Valente c. Town of Hudson 2022 QCCQ 6312 JG2338 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD « Civil Division »

N° : 760-22-012146-216 DATE : July 20, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE CÉLINE GERVAIS, J.C.Q. ______________________________________________________________________ GIUSEPPE VALENTE Plaintiff vs TOWN OF HUDSON Defendant and L’OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE VAUDREUIL Implicated party ______________________________________________________________________ JUDGMENT ON PLAINTIFF’S DEMAND TO BE RELIEVED FROM HIS DEFAULT TO FILE A CASE PROTOCOL AND TO HAVE THE CASE READY FOR TRIAL WITHIN THE DELAYS ______________________________________________________________________ [ 1 ] Giuseppe Valente asks the Court to be relieved from his default to file a case protocol and to have the case ready for trial within the delays, as no further procedures were filed after his case was transferred from the Superior Court to the Court of Quebec. [ 2 ] The procedures between Mr.

Valente and the Town of Hudson may be summarized as follows : [ 3 ] On December 8, 2015, Mr. Valente sued his neighbours, Wulfram Wendt and Alma Maria Rzytki, requesting an injunction because they had raised their land which, according to Mr. Valente, has caused floods on his own land. He asked by his injunction that Mr. Wendt and Mrs.

Rzytki bring their land to the level it was before their construction work, that they take away the boulders they have placed on the border of their land and that each of them pay damages in the amount of 30,000$. [ 4 ] He also sued the Town of Hudson in his procedures, alleging that they granted a permit to allow the construction work and that the Town did nothing to intervene in the litigation between himself and his neighbours. [ 5 ] Both Mr. Wendt and Mrs. Rzytki and the Town of Hudson claimed damages from Mr.

Valente, saying that his procedures were abusive. [ 6 ] The trial was held in October 2018 and judgment was rendered on March 27, 2019, by Honourable Stéphane Sansfaçon, J.C.S., dismissing Mr. Valente’s demand. He considered that the Town of Hudson has done nothing wrong and Demandhe declared Mr. Valente’s lawsuit against the Town abusive and condemned him to pay 20,000$ as damages. [ 7 ] Mr. Valente appointed new attorneys and filed an appeal of that decision. The Town of Hudson asked for the dismissal of this appeal, which was granted on June 10, 2019. The Court of Appeal considered that Mr.

Valente’s appeal was also abusive and condemned him to pay an additional amount of 5,000$ to the Town. [ 8 ] On December 10, 2020, the Town of Hudson registered a Notice for a legal hypothec resulting from the judgments (section

2730 CCQ). [ 9 ] The exhibits filed by Mr. Valente show that he sent six payments of 2,413.64$ to the Town of Hudson by checks dated September 10, 2019, October 10, 2019, November 10, 2019, December 10, 2019, January 17, 2020 and February 10, 2020. [ 10 ] The seventh and last check was sent on March 14, 2020, for the same amount. Mr. Valente claims that a drafted note was attached to the check with the following : If you do not agree with the term and condition on the check you must return the check. Thank you.

It was written « final payment » on the check, with the Superior Court and Court of Appeal’s file numbers. [ 11 ] On December 23, 2020 , Mr. Valente filed a demand for judicial cancellation of the legal hypothec, alleging he had payed his debt to the Town of Hudson. [ 12 ] The Town filed a demand to have the file transferred to the Court of Quebec since the amount of the legal hypothec was $25,000. This demand was granted by the Special Clerk, Maître Petrishki, on January 21, 2021 . Mr.

Valente was present in Court on that date, as shown in the procès-verbal. [ 13 ] Nothing happened in the file further to that transfer, except that Mr. Valente filed on March 2, 2022, a note stating his new address. [ 14 ] He then filed the present Demand to be relieved of his default on April 25, 2022, to which the Town of Hudson objects strongly. ANALYSIS AND DECISION : [ 15 ]

Section 177 of the Code of Civil Procedure states that : « 177. A plaintiff who fails to file a request for setting down within the strict time limit is presumed to have discontinued the application, unless another party files such a request within 30 days after the expiry of the time limit. The court may relieve the plaintiff from this sanction if it is satisfied that it was impossible in fact for the latter to act within the time limit.

In such an instance, the court modifies the case protocol and sets a new time limit, which cannot be extended except for compelling reasons. » [ 16 ] The Court of Appeal explained in the Heaslip [1] decision what are the conditions to be relieved from the presumption of discontinuance : « [32] L’article 177 C.p.c. requiert donc un exercice de pondération et les facteurs énoncés dans l’arrêt Zodiac (sous réserve de la précision apportée au paragraphe [30]), bien que non limitatifs, constituent un cadre d’analyse approprié.

Rappelons, par souci de commodité, que ceux-ci amènent le tribunal à tenir compte, entre autres, du préjudice qui découlerait de son refus de lever la sanction, du caractère apparemment sérieux de l’action, du temps écoulé depuis l’expiration du délai d’inscription et du comportement de toutes les parties et de leurs avocats à l’égard du déroulement de l’instance. [34] Ainsi, en résumé, et pour reprendre le paragraphe [4] du présent arrêt, l’impossibilité d’agir dont parle l’article 177 C.p.c. est celle de la

partie demanderesse elle-même, qui aura à supporter les conséquences du défaut si la sanction n’en est pas levée. Cette impossibilité peut résulter de l’erreur, de l’incompétence ou de la négligence, même grossière, de son avocat, dans la mesure par ailleurs où la

partie elle-même aura agi avec diligence. Si tel est le cas, le tribunal devrait en principe relever la

partie de son défaut, quoiqu’il ne s’agisse pas d’un automatisme. Divers facteurs, dont ceux énumérés au paragraphe [32], supra, peuvent en effet justifier, par exception, que la sanction ne soit pas levée même en cas d’impossibilité d’agir, facteurs qui seront pondérés dans le but d’assurer le respect de l’article 9 C.p.c. » [ 17 ] Mr. Valente argues that he was not negligent in this case as he was waiting to receive the new file number of the Court of Quebec.

He pleaded that because he is self-represented, he could not know the right procedure. [ 18 ] The courts have rendered several decisions on the question of impossibility to act. Here is how the Court of Appeal explained when a person can be considered as being under an impossibility to act, that can allow her default to be excused ( as translated in the decision Mannan v. Agence du revenue du Québec [2] ): [17] The Court of Appeal of Quebec, in Océanica c.

Sous-ministre du Revenu du Québec [3] stated the following with respect to the notion of impossibility in fact to act: [translation] [25] The issue of whether it was impossible in fact for a taxpayer to act is a question of fact that must be examined on a case-by-case basis and decided on the particular facts of the case. [26] It is common ground that the impossibility in fact to act is a relative, not an absolute, impossibility; the party asserting it need not show that it was prevented from acting due to an insurmountable obstacle beyond its control.

Therefore, the lawyer’s error could constitute such an impossibility in fact to act provided that the party itself acted diligently. [18] Commenting on the Océanica decision cited above, the Court of Appeal wrote the following in Air Canada : [4] [translation] [22] This approach is consistent with the one taken in every judgment on the impossibility to act, a concept referred to in various legislative provisions extending procedural time limits. Take, for example, arts. 110.1, 484, or 523 of the former Code of Civil Procedure or arts. 84, 177, or 363 of the new Code of Civil Procedure.

In every case, the diligence of the party alleging that it was

impossible to act is one of the essential considerations to be assessed by the court. It is up to the party who invokes the impossibility to act to establish its personal diligence, as the lack thereof is an obstacle to the recognition of the impossibility to act. In other words, it is impossible to act only if the party, represented or not, was personally diligent. Therefore, if a party was not diligent or could have corrected the effects of a failure (of counsel for example) but chose not to or neglected to do so, it was not impossible for that party to act.

It could thus be said that diligence is a sine qua non condition of the impossibility to act. » (our emphasis) [ 19 ] The obligation to act diligently applies to every party, should they be represented by a lawyer or acting on their own behalf. [ 20 ] In his Motion, Mr. Vallente alleges that he obtained no collaboration from the Town, who did not inform him that a Case Protocol had to be filed and that he should have inscribed his case. [ 21 ] It was Plaintiff’s duty to obtain the necessary information and to follow the procedure. [ 22 ] In this file, Mr.

Valente waited fifteen months after the transfer to the Court of Quebec before filing a procedure. This is more than twice the delay provided for in the Code of civil procedure. [ 23 ] At the hearing, Mr. Valente filed the sworn statement of his spouse dated February 8, 2021. The Court accepted the document despite the objection by the Town’s attorneys. This sworn statement is related to the fact that Mr. Valente sent the cheque with the note regarding the final payment. It cannot help Mr. Valente prove that he acted diligently to have his file move forward.

FOR THESE REASONS, THE COURT : DISMISSES the Demand to be relieved from his default to file a Case Protocol and to have the case ready for trial within the delays; DECLARES that Plaintiff is presumed to have discontinued his Application; THE WHOLE with costs. __________________________________ CÉLINE GERVAIS, J.C.Q. Mr. Giuseppe Valente Self represented Me Émilie Corriveau Dunton, Rainville Counsel for the Defendant