2011 QCCQ 11792, 2011 QCCQ 11792

Cohen c. CIEC 2011 QCCQ 11792 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-122933-106 DATE: September 30, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ PENNY COHEN Plaintiff v. C.I.E.C.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On October 28, 2010, a judgment by default is rendered against C.I.E.C. in favour of Penny Cohen for an amount of $7,000 plus interest, additional indemnity and fees. [ 2 ] On November 10, 2010, the representative of C.I.E.C., Mr Ibrahim Abdelrazek, files an application for revocation of judgment under

Article 989 of the Code of Civil Procedure (" C.C.P. "): " 989 . If a party against whom a judgment by default is rendered was unable to contest the action or attend the hearing owing to surprise, fraud or any other sufficient cause, the party may apply for the revocation of the judgment. A party may also apply for the revocation of the judgment in any case described in

article 483 that is not inconsistent with the provisions of this Book." [ 3 ] In this application for revocation of judgment, Mr Abdelrazek alleges, to justify the absence of contestation in due time, that the was thinking: "that I will see the judge at the same time". [ 4 ] At hearing, he testifies that his wife did receive Ms Cohen's application and forgot to give him a copy. [ 5 ] In its written contestation, C.I.E.C. pleads that Mr Abdelrazek tried to resolve the problems related to the work performed for Ms Cohen who allegedgly never gave him the chance to do anything because: "she is always running after the money which I not suppose to pay at all" [sic]. [ 6 ] As indicated in

Article 989 C.C.P. , a party asking for the revocation of a judgment must establish that it was rendered after being unable to contest the action "owing to surprise, fraud or any other sufficient cause". [ 7 ] After carefully reviewing the evidence adduced as to the application for revocation of judgment, the Court finds no evidence establishing any surprise, fraud or any other sufficient cause justifying the revocation of the judgment rendered by default on October 28, 2010 in the present file. [ 8 ] In fact, the evidence shows that the judgment rendered by default is the consequence of C.I.E.C.'s negligence to take all necessary measures to contest in due time Ms Cohen's application. [ 9 ] Also, Ms Cohen's evidence shows eloquently that she was victim of poor workmanship on C.I.E.C.'s part justifying her claim of $7,000.

In that regard, the motives in C.I.E.C.'s contestation are ill-founded both in fact and in law. THEREFORE, the Court: DISMISSES C.I.E.C.'s application for revocation of judgment; MAINTAINS the judgment rendered by default on October 28, 2010 condemning C.I.E.C. to pay to Penny Cohen the amount of $7,000 with interest at the annual rate of 5 % and the additional indemnity provided for under

Article 1619 of the Civil Code of Québec , as from April 7, 2010, with costs ($159).

__________________________________ Henri Richard, J.C.Q. Date of hearing: September 26, 2011