2021 QCCQ 1902, 2021 QCCQ 1902

Ozoor c. Deol 2021 QCCQ 1902 COUR DU QUÉBEC « Small Claims Division » CANADA PROVINCE DE QUÉBEC DISTRICT DE MONTRÉAL « Civil Division » N° : 500-32-160255-198 DATE : March 22, 2021 ______________________________________________________________________ BY THE HONOURABLE JEAN-FRANÇOIS ROBERGE, J.C.Q. ______________________________________________________________________ HASSAN OZOOR Plaintiff v. AMAR DEOL and AMAR TRANSPORT INC. Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Hassan Ozoor is seeking $13,050.82 from Amar Transport Inc. and Mr. Amar Deol for hours billed but unpaid ($11,555.44), and compensation for expenses incurred as a result of personal injury ($1,495.38). [ 2 ] A judgment issued on May 1, 2020, ordered, by default Amar Transport Inc., to pay Mr. Ozoor $11,555.44 for the · honorariums charged, plus interest as well as the additional compensation under

section 1619 of the Civil Code of Quebec and court costs [1] . The judgment dismisses the personal injury claim on the basis that there is no supporting evidence. The judgment also dismisses the claim against Mr. Amar Deol personally since there is no legal relationship. [ 3 ] On June 2, 2020, Amar Transport Inc. filed an application to withdraw the judgment against the company. To support its application, Mr. Amar Deol, acting as president of Amar Transport inc., alleges the following reasons : « The Defendant never received any motion or any information with regards to a lawsuit from Plaintiff.

The Defendant did not know it was being sued until it received the judgment on June 1, 2020. [2] » [ 4 ] The grounds of defence relied upon by Amar Transport Inc. are the following: « Defendant never received the application and therefore is not aware of the allegations. Plaintiff used to work for Defendant and was terminated. Plaintiff was paid all amounts owed, including termination notice. [3] » [ 5 ] Mr. Ozoor is challenging the Application for Revocation.

He alleges that all procedures were sent to the address of the company's headquarters and that this address is still valid. [ 6 ] The Tribunal must now decide whether to grant or dismiss the Application for Revocation of Judgment. Amar Transport Inc. must convince in a preponderant manner [4] of the veracity of the cause that prevented the company from defending itself [5] .

The delay is not an issue because the Application for Revocation was served within 30 days of the knowledge of the judgment [6] . [ 7 ] The hearing focused on the revocation first, then on the merits of the dispute, as stipulated in the Quebec Code of Civil Procedure [7] . ANALYSIS [ 8 ] In the case of revocation of judgment, two legal principles are opposed, which must be weighed by the judge who decides on such an application [8] .

On the one hand, the party seeking revocation pleads its right to a full defence [9] , while the party that opposes it instead invokes the principle of the finality of judgments, which is necessary for the proper administration of justice and the stability of legal relations [10] . [ 9 ] According to the Quebec Court of Appeal, the analysis must focus on the veracity of the cause of inaction invoked by the person seeking revocation [11] .

In making this analysis, the judge must consider the reasons given for revocation of judgment and the grounds of defence raised on the merits as interconnected, or in other words, as « communicating vases » [12] . The more serious the grounds of defence, the more likely and admissible the defendant's reasons for its default are due to surprise, oblivion, inadvertence, misunderstanding or sincere error [13] . The Tribunal must assess this balance [14] .

[ 10 ] According to the Quebec Code of Civil Procedure , the court clerk notifies the Introductory Application to the defendant's [15] , and when it is a legal person, notification is made at its head office to a "person who appears to be in a position to give it to an officer or director or an agent of the legal person [16] ." [ 11 ] In our case, Amar Transport Inc. alleges that it was prevented from acting because it did not receive the Introductory Application and was not aware that it was being sued.

Is this cause of inaction likely in relation to the evidence? [ 12 ] Let's go back to the chronology of events. [ 13 ] On May 21, 2019, the clerk of the Small Claims Division sent Mr. Ozoor's Introductory Application to Amar Transport Inc. at the address registered with the Quebec Enterprise Registry (REQ) 7290, Dr. Mackenzie Kleinburg (Ontario) L0J 1C0. The company is headquartered in Ontario and also has a business office in Montreal. The president, sole shareholder and administrator of the company is Mr.

Amar Deol. [ 14 ] The mailing is made by certified mail with Canada Post to the company's headquarters and the handover is made on May 29, 2019, to an individual who has signed as MA DI. [ 15 ] On June 3, 2019, Madhu Dagar contacted the Small Claims Division Registry by email to clarify Mr. Ozoor's court application. [ 16 ] Here is the content of the email: « Respected Sir/Madam, Writing this email in response of Mr. Ozoor recent court claims. Mr. Hassan Ozoor, has made an allegation of 18 months unpaid wages against Amar Transport inc. & Amar Deol for $13,050.82. Mr.

Hassan Ozoor also claimed that he has documents to prove his allegations against Amar Transport Inc. and Amar Deol but he didn’t provide any supporting documents to support his allegations. Can I have the documents which show that Mr. Hassan Ozoor didn’t get pay for his work? Please feel free to call me at blow given number or reach me at 416-568-4031 . Kindest Regards ». [ 17 ] The email is sent from "Safety@amartransport.com" and the sender's electronic signature is as follows: Madhu Dagar, Field Safety Advisor, 7290 Major Mackenzie Dr.

Kleinberg (Ontario) L0J 1C0, e-mail: safety@amartransport.com , visit us at : www.amartransport.com . [ 18 ] On December 9, 2019, the clerk sends the Notice of Hearing at the company headquarters. The clerk does not receive any return of mail to the sender. The hearing proceeds by default on January 22, 2020, and the judgment condemning Amar Transport Inc. is delivered on May 1, 2020. [ 19 ] When questioned at the hearing, the company's president, Mr.

Deol, maintained that he did not know that he was being prosecuted, but he did not provide any evidence that could explain why he claimed not to have received the Application for the court and the Notice of the summons to the hearing. [ 20 ] The Tribunal concludes that the cause of inaction cited by the company's president is improbable. The proof of notification of the Introductory Application to the court is established.

A person at the company's headquarters who signed as MA DI acknowledges receipt of the document on May 29, 2019 [17] . [ 21 ] It is likely that the MA DI signatory is Madhu Dagar and that it is the same person who sends the email to the Small Claims Division Registry on June 3, 2019. The email sent unequivocally confirms that this person is aware of the existence of the court application and its contents.

The person contacts the Registry to get the supporting documents. [ 22 ] It is also likely that Madhu Dagar is a person who appears to be able to hand over the document to an officer or director of the corporation or one of its agents. Her electronic signature suggests this, both given her position and her place of work at the company's headquarters. [ 23 ] In conclusion, the cause of inaction relied upon in the Application for Revocation is contradicted by the evidence.

The Tribunal, therefore, does not give credibility to the testimony of the president who mentions in the proceedings and maintains at the hearing that the case that prevented him from defending himself is that he « never received any motion or any information with regards to a lawsuit from Plaintiff [18] ». [ 24 ] With respect to the substantive grounds for defence, Amar Transport Inc. alleges that it paid Mr. Ozoor in full for all the hours worked. Is that a serious defence in the circumstances? [ 25 ] In order to demonstrate that the hours billed by Mr.

Ozoor have been paid, the company’s president submits a detailed in-house sheet for each of the bi-monthly payrolls from October 1, 2016, to June 30, 2018. The detailed table is an internal document. It is not verified by an external auditor, nor is it corroborated by evidence originating from a bank showing money transfer into Mr. Ozoor's bank account. [ 26 ] When questioned at the hearing, the president acknowledged that he owes Mr. Ozoor $819.31 but not $11,555.44. The Chairman justifies the difference between the two amounts, notably by miscalculations on the amount of taxes, and by the fact that Mr.

Ozoor was paid by the company's “Quebec division” for the first 70 hours of work per week, and by the "Ontario division" for overtime to avoid legal problems. Mr. Ozoor would not have taken into account all the hours paid by the Ontario division in his claim. [ 27 ] The grounds for defence relied upon by Amar Transport Inc. in the Application for Revocation is contradicted by the evidence. The Chairman admitted at the hearing that the company owes Mr.

Ozoor $819.31, while his defence on the merits and challenge in the Application for Revocation is as follows: “Plaintiff was paid all amounts owed, including termination notice.” [ 28 ] Therefore the Tribunal gives little credibility to the president's testimony that the company does not owe the amounts claimed on the basis of an internal document prepared for trial purposes, unverified and uncorroborated.

[ 29 ] Since the reason for revocation is not credible, the defence is not serious and the supporting documents have no probative force, the Tribunal concludes that Amar Transport Inc. has not “been prevented from defending itself by fraud, surprise or any other cause considered sufficient [19] .” The company has not discharged its burden of proof. WHEREFORE THE COURT HEREBY: DISMISSES the Application for Revocation; WITHOUT LEGAL COSTS. _______________________________ JEAN-FRANÇOIS ROBERGE, J.C.Q. Date of hearing : February 9, 2021