2017 QCCQ 553, 2017 QCCQ 553

Iamonico c. Scotia Itrade Canada inc. 2017 QCCQ 553 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-148058-151 DATE: January 20, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ ROBERTO IAMONICO Plaintiff v. SCOTIA iTRADE CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Defendant Scotia iTrade Canada inc. (SCOTIA) submits an application for dismissal of the claim brought by the Plaintiff, Roberto Iamonico (IAMONICO). [ 2 ] Two arguments in law are raised: 1) The first one, pertains to a Superior Court judgment rendered on February 2 nd , 2010 dismissing IAMONICO's claim.

SCOTIA argues that the same facts serve as basis for this claim and therefore, there is resjudicata 2) The second argument relates to prescription. The facts of this case concern unauthorized transactions made in 2008. The claim seeks to enforce a personal right which is prescribed after a period of three years. Since the action was taken in 2015, it is therefore, prescribed. [ 3 ] IAMONICO argues that SCOTIA recognized his right in 2009 and therefore interrupted prescription. He also claims that he suffers from anxiety which prevented him from filing his action before 2015. [ 4 ] The

section 2925 of the Civil cod of Quebec [1] stipulates that: 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 5 ] Even if the Court recognized the 2009 letter as an acknowledgment of right which interrupts prescription,

section 2903 C.c.Q. provides as follows: 2903. After its interruption, prescription begins to run again for the same period. [ 6 ] This means that the claim had to be filed on or before July 16, 2012. [ 7 ] The argument regarding IAMONICO's anxiety problems rendering him incapable of filing a lawsuit must also be rejected. Firstly, he did not file any medical report to substantiate his incapacity.

Secondly, Court records show that he filed lawsuits in at least three other files at dates where he claims he was incapacitated (500-32-128797-117 filed May 31, 2011; 500-22-192379-124 filed November 5, 2012; and 500-17-083522-147 filed July 24, 2014). [ 8 ] Since the present claim was only filed in 2015, it is prescribed and therefore SCOTIA's application for dismissal is justified and must be granted. [ 9 ] This renders the first argument regarding resjudicata theoretical. FOR THESE REASONS, the Court: DISMISSES Roberto Iamonico's originating motion. Without costs.

__________________________________ GILLES LAREAU, J.C.Q. Date of hearing: December 6, 2016 [1] L.Q.1991, c. 64 .