2019 QCCQ 2024, 2019 QCCQ 2024

BMLEX Avocats inc. c. Nicos (Nikos) (Nikolaos Karabineris) 2019 QCCQ 2024 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-147420-154 DATE: March 12, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ BMLex Avocats Inc. Plaintiff v.

NICOS aka NIKOS aka NIKOLAOS KARABINERIS Defendant ______________________________________________________________________ JUDGMENT ON OPPOSITION TO SEIZURE AND TO DECLARE A PROCEDURE ABUSIVE ______________________________________________________________________ [ 1 ] Defendant has filed an opposition to a seizure of his bank account by Plaintiff. The Defendant requests the cancellation of the seizure alleging that the sums seized were paid to him as social assistance benefits. He also adds that these sums were not subject to seizure in virtue of

Section 698 al. 3 of the Code of Civil Procedure of Quebec ( C.p.c. ) [1] [ 2 ] Plaintiff contests the opposition arguing that there is no evidence to prove the Defendant’s allegations. Plaintiff adds that in a Judgment of this Court rendered on December 11, 2017, Justice Forlini dismissed a first opposition and reserved Plaintiff’s right to claim damages under

Section 51 and the following of the C.p.c. [ 3 ] Plaintiff adds that Defendant’s first opposition is abusive since he attempted to mislead the Court about his identity. At that time, the Defendant argued that the seized bank account belonged to his cousin, Nikolaos Karabineris. He failed to file any evidence to substantiate this claim. [ 4 ] According to Plaintiff, Defendant has brazenly attempted to mislead the Court, since it was, in fact, his bank account. [ 5 ] Plaintiff alleges having suffered damages in the amount of $1,000.00 representing time spent to prepare for the hearing of the first opposition.

In addition, Plaintiff suggests that it would also be appropriate to condemn Defendant to exemplary damages in the amount of $1,000.00. [ 6 ] The Court must therefore decide if this second opposition has merit and, if not, whether the Plaintiff should be awarded damages on the grounds that Defendant’s proceedings are abusive. ANALYSIS [ 7 ] At the hearing, Defendant not only failed to produce any evidence that the sums seized were benefits he received as social assistance, he admitted that they were not.

The sums seized were in fact given to him by his mother in exchange for some services rendered. [ 8 ] Therefore, the opposition, having no legal grounds, is dismissed. [ 9 ] On the issue of the damages, it is appropriate to recall this file’s history. [ 10 ] The initial claim from the Plaintiff represents an unpaid account for legal services rendered in the amount of $974.98 and was filed on May 28, 2015. [ 11 ] Judgment was rendered by default on February 1 st , 2016. [ 12 ] After a positive declaration from BMO Banque de Montréal, which led to the seizure of Nikolaos Karabineris’ bank account, a first opposition was filed by said Nikolaos Karabineris. [ 13 ] Nikolaos Karabineris alleges that he was not the Defendant Nikos Karabineris and that his account was illegally seized.

It was in fact his cousin, therefore , it was a case of mistaken identity. [ 14 ] The hearing of this first opposition was held April 18, 2017 before Justice Enrico Forlini but Nikolaos Karabineris was not present. The hearing was therefore postponed in order to allow for subpoenas to be issued for Angelo Papanikolaou, the BMO Branch

Director and for Nikolaos Karabineris, the opposing party. [ 15 ] The second hearing before this Court regarding the first opposition was held on December 11, 2017 and neither Nikolaos Karabineris nor Nikos Karabineris were present on that date. [ 16 ] Justice Forlini therefore dismissed the opposition and reserved Plaintiff’s right to «obtain a Declaration of abusive proceedings pursuant to

Section 51 of the Code of Civil Procedure ;» [2] [ 17 ] On August 10, 2018, Nicos Karabineris filed an Application in revocation of Judgment alleging that he never received the notice of hearing and was unable to pay for the Court's fees for the Application in revocation of Judgment before this date. [ 18 ] This application was dismissed by the Court on August 14, 2018. [ 19 ] It should be noted that the hearing regarding this second opposition to the seizure is related to the same bank account. Nicos is now the opposing party not his supposed cousin, Nikolaos.

Defendant now admits that the account is his and that «his cousin made a mistake in the first opposition». [ 20 ] In order to obtain all relevant documents, Plaintiff served a Duces Tecum Subpoena on Nicos, Nikos and Nikolaos Karabineris requesting that they bring «

(1) All of your Welfare slips between 21-03-2017 and 04-02-2019,

(2) Your tax declarations for years 2016 to 2018, as well as notices of assessment, (3) all your passports that were in force at any time between 21-3-2017 and 04-02-2019, 4) all bank statements between 21-3-2017 and 04-02-2019 for you and any entities you control. » [3] [ 21 ] No such documents were produced into the Court record by Defendant or any of his aliases. [ 22 ] The evidence is overwhelming, Defendant is abusing the Court's time. This abuse must stop and it must be sanctioned. [ 23 ] The Plaintiff is a company.

It alleges to have suffered damages «in the form of time Plaintiff’s representative had to expend to oppose Defendant’s (…) procedures». It offered no evidence to quantify such damages. This part of the claim is dismissed . [ 24 ]

Section 54 C.p.c. allows the Court to sanction abusive procedures by awarding punitive damages. 54. On ruling on whether a judicial application or pleading, including one presented under this division, is abusive, the court may order a provision for costs to be reimbursed, order a party to pay, in addition to legal costs, damages for any injury suffered by another party, including to cover the professional fees and disbursements incurred by that other party, or award punitive damages if warranted by the circumstances.

If the amount of the damages is not admitted or cannot be easily calculated at the time the application or pleading is declared abusive, the court may summarily determine the amount within the time and subject to the conditions it specifies or, in the case of the Court of Appeal, refer the matter back to the court of first instance for a decision. [ 25 ]

Section 1621 of the Civil Code of Quebec sets the criteria by which such punitive damages may be awarded. 1621. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the reparatory damages is wholly or partly assumed by a third person. [ 26 ] Taking the above-mentioned criteria into consideration, the fact that Defendant misled the Court and also the fact that the Defendant is on welfare, the Court awards an amount of $100.00 as punitive damages.

FOR THESE REASONS, THE COURT: DISMISSES Defendant’s opposition; PARTIALLY GRANTS Plaintiff’s motion to declare a procedure abusive; CONDEMNS Nicos Karabineris to pay, as punitive damages, the sum of $100.00 to BMLex Avocats Inc. The whole with costs. __________________________________ GILLES LAREAU, J.C.Q. Date of hearing: February 4, 2019