2019 QCCQ 6873, 2019 QCCQ 6873

Martin c. Nashrudi 2019 QCCQ 6873 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-250391-185 DATE: September 13, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GINETTE MARTIN Plaintiff v.

SEAN NASHRUDI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Defendant, Sean Nashrudi seeks, by means of an application pursuant to articles 51 and following and art 168 of the Quebec Code of Civil Procedure (C.C.P.), to dismiss the Originating Application brought against him by the Plaintiff, Ginette Martin. [ 2 ] The Plantiff claims, in her Originating Application, damages to her reputation in the amount of $20,000.00 and punitive damages of $2,500.00 as provided at art. 49 al 2 of the Charter of Human Rights and Freedoms [1] because of defamatory and slanderous statements she alleges Mr Nashrudi made about her on November 10 th 2017 at an extraordinary general assembly of the co-owners of the immovable in which Mr.

Nashrudi’s spouse, Mrs Marie-Josée Beaulieu, owns a residential unit. [ 3 ] This unit is situated directly above the unit owned by Dr. Martin, a dentist, where she operates a dental clinic. Mr.

Nashrudi asserts in his application to dismiss that the allegations of insults and defamation are, regardless of intent, clearly unfounded in the sense of art. 51 of the C.C.P. and also because they are unfounded in law even if the facts alleged are true as provided at art 168 of the C.C.P. [ 4 ] He refers firstly to private written exchanges mentioned in paragraphs 10 to 18 of the Originating Application that appear in exhibits P-4 to P-7, dating back to February 28 th 2017. [ 5 ] He asserts that these would be clearly prescribed even if they could be considered defamatory since they were received more than one year before the filing of the Originating Application. [ 6 ] He asserts moreover that these private written exchanges, even if defamatory, cannot injure the reputation of the Plaintiff nor cause damages since they were private communications not brought to the attention of any other person. [ 7 ] At the hearing of the application to dismiss, Dr.

Martin’s attorney informed the Court that the allegations concerning these private exchanges were made to provide the factual context and that they do not form part of the cause of action per se . [ 8 ] The object of the case is therefore the alleged comments made by the Defendant in an extraordinary general assembly of co- owners of the immovable. Mr Nashrudi submits that if, despite his denial of having made the comments, it were proved that he uttered these words, they do not constitute defamation but rather an opinion.

He further submits that, as alleged, the comments were made by the Defendant in front of only 10 persons, that they consisted of two short sentences having a total of 10 words and that the Originating Application is therefore exaggerated and consists in a use of procedure that is excessive in light of art 51 of the C.C.P. [ 9 ] In addition, he asserts that it would be contrary to the guiding principles of procedure of the Quebec Code of Civil Procedure, at articles 17 and following, particularly in that, according to art 18, the parties in the proceedings must observe the principle of proportionality and insure that their actions are proportionate in terms of the cost and time involved. [ 10 ] He maintains that in light of these guiding principles, such minor disputes between two private citizens as are alleged in the Originating Application, constituting an opinion and brought to the attention of only 10 people, should not be the subject matter of proceedings in the judicial system requiring the holding of a trial on the merits. [ 11 ] He points out moreover that the total claim of $22,500.00 is clearly unjustified and grossly exaggerated.

In addition to the dismissal, he seeks compensation for legal fees and disbursements estimated at $5,000.00 sauf à parfaire . [ 12 ] In response to these arguments, the Plaintiff seeks to contextualise the incident. She points out that the 10 individuals present constitute all of the neighbours possessing units in the condominium, that she is a professional who carries out her dental practice in the building and that the words uttered were aimed at degrading or diminishing the assembled co-owner’s consideration and respect for her.

Therefore, she asserts that the conduct, as alleged, constitutes faulty behavior that is fundamentally incompatible with the conduct of a reasonable person. [ 13 ] As to the question of the quantum, her arguments amount essentially to the assertion that this is a matter best left in the hands of a judge presiding over a trial who has heard the evidence, seen the parties and can assess the extent of the prejudice having the benefit of all the facts and arguments. [ 14 ] To go further with an analysis, it is necessary for the Court to write briefly about the context of the case and the nature of the spoken words that constitute the cause of action. [ 15 ] The Plaintiff alleges that since acquiring her unit she suffered more than 20 water infiltrations of various sizes in her dental clinic typically manifested by water dripping from the upper floor onto the inner side of the clinic’s ceiling.

She alleges that the frequency of these water infiltrations greatly increased in 2017 and 2018 to the point of threatening the activities of her clinic.

Presumptively, she alleges that the source of the infiltrations must be Unit 306 owned by the Defendant’s spouse and that on February 11 th 2017 the context would indicate that a new water infiltration occurred when the tenants of Unit 306 where operating the shower. [ 16 ] This incident led to communications where it was asserted on behalf of Sean Nashrudi and Marie-Josée Beaulieu, that the Plaintiff had herself been guilty of abusive conduct because of her allegations. [ 17 ] The Plaintiff asserts that it was she who felt intimidated and threatened by the behavior of her opponents. [ 18 ] She alleges that, at the assembly where she raised the issue of water leakage : 22.

After barely a few words, plaintiff Martin was rudely and violently interrupted by Defendant Nashrudi, whose shouting contrasted with the otherwise harmonious tone of the assembly; 23. Defendant Nashrudi publicly insulted and derided Plaintiff Martin, notably calling her a “ box of crazy ” before her assembled peers and neighbours, and saying that “ Next time, I will call the police ”; 24.

Plaintiff Martin was shaken, scared and felt humiliated by the incident, and abandoned the topic of water infiltrations, for the fear of further escalation of the situation; ANALYSIS Proportionality [ 19 ] It is impossible to speak about the proportionality of a claim between two private persons for defamation without mentioning the exclusion of such proceedings from the ordinary Small Claim’s process created by the legislator for most other claims in which the quantum is limited to a maximum of $15,000.00. 537.

This Title does not apply to applications arising from the lease of a dwelling, applications for support or applications alleging defamation. Nor does it apply to applications brought by a person, a partnership or an association or another group not endowed with juridical personality on the basis of a claim assigned to them in return for payment. [2] [ 20 ] Thus, a claimant wishing to bring a somewhat small action alleging a defamation has no choice but to bring that case either in the general Civil Division of the Court of Quebec or at the Superior Court depending on the amount in issue.

The general procedure applicable in the Civil Division of the Court of Quebec is more onerous and complex than the rudimentary procedure of the Small Claims Division.

But in a case such as this one, where the protocol put in place by the parties is simple and quick, it is almost as expeditious as it would be in the Small-Claims Division, though there is the cost of proceeding through attorneys [ 21 ] In the present matter there is to be no written defence, only a briefly stated oral defence and the Application for Setting down for trial is to be carried out within the strict time limits in accordance with art 173 1 st par. C.C.P.

The parties require a period of approximately two days or less for the hearing. [ 22 ] Thus, it is very difficult to speak of an expense of time or money that is disproportionate with the intrinsic value of the claim between the parties. [ 23 ] In the Court’s view, the guiding principles of procedure do not preclude taking minor disputes between two private citizens into the justice system. The system exists for these matters as well as for larger and more complex cases. The Guiding Principles [ 24 ] The Court of Quebec is a court established for access to justice, not for exclusion.

The Judge’s primary role is it to hear cases on the merits, not to spend time arbitrarily filtering out cases because the amounts in issue are small or because of a value judgment as to the importance of the matter to the parties. [ 25 ] Much of the work of the Court is spent on resolving issues that, though in the grand scheme of things may not be of great importance to the public, have a very significant value to the parties that are involved in them and relate to conduct that is of social importance. The legislator decided to exclude cases of defamation from the Small Claims process.

There are good reasons why the legislator made this institutional choice, but that does not mean that such cases should be excluded from the general work of the Court merely because they are small in nature and limited in scope.

The Merits [ 26 ] An important issue is the small number of persons involved. Was the effect of the speech on only 10 people insignificant in the Plaintiff’s sphere, or was the speech such that it could reasonably tarnish her image with the entire group of her neighbours and, therefore, with all the persons in a direct and enduring relationship with her as divided co-owners? This is a decision best left to the trial Judge. [ 27 ] On an application to dismiss, a Judge should not exercise his or her judgement as to the two conflicting appreciations that the parties have of that context.

Finally, the brevity of the comments is not in itself a guide to the degree of defamation. A few carefully chosen or unfortunately used words can have more impact than a prolix diatribe: it is all a question of context and the meaning of words in that context. [ 28 ] The Defendant makes the point that the words spoken by Mr.

Nashrudi were an opinion not a defamation. [ 29 ] A judge on the merits will be able to determine in a very short trial whether the words : “ box of crazy ” as a description of the Plaintiff’s character and the allusion to contacting the police were, as the Plaintiff submits “ conduct clearly out of line and unjustified by any circumstances ” for which there exists “no redeeming excuse or justification”.

That judge will decide whether they were, rather, taken in the context of everything else that was spoken by the parties, the expression of an opinion about the validity of the Plaintiff’s assertion of fault on the part of the tenants occupying the apartment above the clinic, objectively acceptable in regard to the Plaintiff’s reputation and honour. [ 30 ] Finally, on the question of quantum, the Defendant provided several examples of situations where very small amounts were awarded for defamations that were much more broadly diffused as was the case allegedly here.

On the one hand, this points out that Courts will sometimes issue very small awards in defamation cases and that seeking to enforce small cases is not per se an improper use of procedure.

A reading of this jurisprudence also shows that in the case of persons who are public figures and in matters of politics, the tolerance for disparaging remarks in light of the freedom of expression is very high. [ 31 ] As each case turns on its own facts and on the merits of the specific situation put before the Court, it is not feasible to disqualify a certain class of defamation cases through the casuistic of comparative facts.

As in any case where moral or punitive damages may be in issue, comparisons can be valuable but the ultimate discretionary decision will depend on the Judge’s perception, in real time, of the evidence and careful consideration of the arguments given. This is, therefore, a proper case to proceed to trial. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s application to dismiss. WITH COSTS TO FOLLOW. ______________________ David L. Cameron, J.C.Q. Me Maxime Laflamme-Leblond Papineau avocats inc. Attorney for Plaintiff Me Rafaël Primeau-Ferraro Gowling WLG (Canada) S.E.N.C.R.L., s.r.l.

Attorney for Defendant Date of hearing : July 16 2019