2023 QCCQ 4193, 2023 QCCQ 4193

Aizenberg c. Sous-Ministre du Revenu (Agence du revenu du Québec) 2023 QCCQ 4193 JG2338 COUR OF QUEBEC « Administrative and Appeal Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL No.: 500-80-010229-087 DATE : June 9, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE CÉLINE GERVAIS, J.C.Q. ______________________________________________________________________ HYMAN MARK AIZENBERG Plaintiff v.

LE SOUS-MINISTRE DU REVENU (AGENCE DU REVENU DU QUÉBEC) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Aizenberg presents an Application for revocation of a judgment rendered on August 2, 2019, declaring his appeal discontinued. [ 2 ] The Court will review the procedures that were filed by Mr. Aizenberg in this matter, which can be separated in three different periods of time. First part of the file / 2008: [ 3 ] On February 6, 2008, Mr.

Aizenberg files a demand by which he asks the Sous-Ministre du Revenu du Québec (as it then was), hereinafter « ARQ », to credit the sum of $22 697 for business expenses from 2002, as well as an amount of $11 040 for personal caregiving expenses added to the bad debts. He also asks for interest/carrying charges contracted on December 30, 1993 (interest paid on a loan regarding his vehicle) as well as a carry back loss from 1998-1999, including early redemption fees declared for the 2005 taxation year. He files 64 exhibits. [ 4 ] On May 8, 2008, ARQ files a Defence stating that Mr.

Aizenberg’s demand is in fact an appeal of an assessment in accordance with

section 93.1.10 of the Act respecting the Ministère du Revenu [1] . The defence states that the Court of Quebec does not have jurisdiction on the other demands contained in Mr. Aizenberg’s procedure. [ 5 ] On September 9, 2008, ARQ files the Declaration according to

section 274.2 of the Code of Civil Procedure that indicates they will need half a day for the trial. [ 6 ] As the six-month delay to inscribe his case was expired, Mr. Aizenberg presented a Motion to be relieved of default, which was granted by Justice Diane Quenneville, J.C.Q. She gave Mr. Aizenberg an additional delay until September 30 to file his inscription. [ 7 ] On the same day, Me Kucharsky for ARQ sends Mr. Aizenberg an example of such a procedure and reminds him that he has to serve his procedure and file it in Court before September 30, 2008. [ 8 ] The Declaration according to

section 274.1 C.C.P. is signed by Mr. Aizenberg who sends a copy to Me Kucharsky on September 26, 2008. He says that he will have three witnesses (one lawyer and two accountants), asks for a pretrial conference and estimates he will need five days to present his case. [ 9 ] Mr. Aizenberg never filed this declaration in the Court record, which remained inactive for more than 10 years. The other recourses filed by Mr. Aizenberg: [ 10 ] It is very useful to have a look at other litigations in which Mr. Aizenberg was involved, as he refers to them in his recent

procedures in this file. [ 11 ] On December 10, 2007, a judgment is rendered by the Canadian Tax Court on appeals by Mr. Aizenberg from reassessments by the Minister of National Revenue for taxation years 2002-2004 [2] , based on arbitrary assessments, as Mr. Aizenberg has not filed his own returns. [ 12 ] The question raised before the Tax Court was whether Mr.

Aizenberg was an employee or an independent contractor. [ 13 ] The judge found that he was an independent contractor, stating the following: « [3] (…) Everything that we heard in evidence this morning leaves me to conclude that he was an independent contractor, although the evidence was so unclear, I do not know exactly what the appellant did and certainly, there was no evidence whatsoever that he worked for somebody other than himself. » [ 14 ] The judge also notes that « the appellant was uncooperative in providing the expenses he had » .

Apparently, he had boxes of receipts, but requested from the Minister that he be permitted to present these boxes one year at a time, have the Minister photocopy the invoices and receipts and return the box to him, probably while he waited. Of course, this was refused so the invoices were never examined. [ 15 ] The judge also noted that Mr. Aizenberg prepared a list of carrying charges and interest expense that was found incomprehensible. [ 16 ] The judge notes, though, that Mr.

Aizenberg is an honest and emotional person who has gone through difficult times particularly in 2002 and 2003. [ 17 ] On July 2009, a judgment is rendered by the Tribunal administratif du Québec (hereinafter « TAQ »), social affairs division [3] . In this file, Mr. Aizenberg was asking for the revocation of a decision rendered on August 29, 2002, by another member of the TAQ. That judgment acknowledged an agreement that intervened in a conciliation session. [ 18 ] Five years later, Mr.

Aizenberg asked for the annulation of that decision, pleading that he never gave his consent to this agreement and that he was forced to sign it, blaming his attorneys. [ 19 ] In that file, Mr. Aizenberg sent a subpoena to Me Kurcharsky; the TAQ decided that she did not have to testify, and that there was an abuse of procedures, though there was no bad faith from Mr.

Aizenberg. [ 20 ] His demand was dismissed as he had shown no reason to justify the five-year delay before filing the demand for a revocation, such delay being unreasonable. [ 21 ] The TAQ also notes that his pleadings and arguments were incoherent et unintelligible, both for the written arguments detailed on many pages and those exposed verbally at the hearing. [ 22 ] On July 12, 2016, another judgment was rendered by the TAQ , immoveable property division , as Mr.

Aizenberg (being the liquidator of his mother’s estate) has asked for a review of the property assessment of his mother’s building on the 2011-2012-2013 triennal role [4] . [ 23 ] Further to that demand, the municipal assessor proposed new values, to which Mr. Aizenberg agreed by signing the form with the assessor’s new evaluation. [ 24 ] Two months later, Mr. Aizenberg filed a new motion for review. The city asked for the dismissal of this demand because of the above-mentioned agreement.

This motion for dismissal was supposed to be heard on February 13, 2012, but was postponed four times, until the TAQ set a peremptory hearing for April 20, 2016. The TAQ then ordered Mr. Aizenberg to find an expert before January 15, so his report could be filed at the latest on March 20, 2016. [ 25 ] The day before the hearing, Mr. Aizenberg informed the TAQ that he had found an expert only the day before and that he had no report. [ 26 ] The TAQ proceeded anyway and dismissed Mr. Aizenberg’s recourse, noting that Mr.

Aizenberg pleaded that he tried, without any success, to have legal aid accept to plead his file. [ 27 ] On March 26, 2018, a judgment was rendered by the Régie de l’énergie [5] regarding a complaint against a decision rendered on May 25, 2017. Mr. Aizenberg was contesting a change in the billing period by Energir that happened in May 2012. [ 28 ] A conciliation session was held without success. [ 29 ] Mr. Aizenberg’s demand was dismissed, as he was contesting something he learned about over five years earlier, as the applicable law specified a one-year delay. The Régie notes that Mr.

Aizenberg gave no reason to justify or explain the delay between the facts and his complaint. [ 30 ] Finally, on August 20, 2019, the Commission d’accès à l’information (hereinafter « CAI ») rendered a judgment in a litigation between Mr. Aizenberg and Énergir [6] . In that affair, Mr. Aizenberg filed a demand to know who contacted Énergir around May 18, 2011 and to correct the information in his file regarding a telephone register for that year. Mr. Aizenberg also asked for an extension of delay and to obtain costs on a solicitor and client basis. [ 31 ] The CAI considered that Mr.

Aizenberg had not given any real and serious reasons to justify a demand to extend the delay.

Second part of the file / 2019-2020: [ 32 ] On March 4, 2019, while doing a review of the Court’s files, Justice Marie Michelle Lavigne, J.C.Q., asks Me Kucharsky if this file is settled. Me Kucharsky then wrote to Mr. Aizenberg asking if he wished to pursue it. [ 33 ] On April 2, 2019, Mr. Aizenberg answers Me Kucharsky and files a Notice of presentation, without a date, containing allegations that do not answer the question.

He refers to the 2008 judgment of the Tax Court and the fact that he was unable to find himself a lawyer, pleads the Charter of Rights and Freedoms and asks for leniency in these exceptional files in the public interest of justice. [ 34 ] On June 11, 2019, ARQ files a Notice of case management which is heard by Justice David Cameron, J.C.Q., on June 19, 2019. It is clear from the transcript of that hearing that Justice Cameron gave another chance to Mr. Aizenberg to file a motion for relief in order for him to obtain permission, again, to file his demand to have the case inscribed.

It is also very clear from Justice Cameron’s words that this motion is to be presented on July 24, 2019, though Mr. Aizenberg asked for a delay until September or October. [ 35 ] Mr. Aizenberg filed a Notice of presentation on July 15, 2019, with a document intitled « Inscription for proof and hearing on the merits » and his Declaration according to

section 274.1 C.C.P. In this Declaration, he writes the following: « The Plaintiff hereby submits his motion to relief default and extension of delay relating to his inscription for proof and hearing on the merits to the best of his ability under reserve by responding to any requests to meet the required legal time limits or deadlines before Wednesday July 24, 2019. » [ 36 ] On July 24, 2019, Mr. Aizenberg is not present at Court.

Justice Daniel Bourgeois, J.C.Q., hears Me Kucharsky’s arguments and takes the case under advisement. [ 37 ] He renders his decision on August 2, 2019 [7] , in which he reproduced the arguments of Mr. Aizenberg’s declaration and notes that « the content of the document is nothing but a litany, or even a host of incomprehensible arguments, irrelevant to what was being asked of it in the circumstances. » [ 38 ] As Mr. Aizenberg has not proven that it was impossible in fact for him to act, his motion was dismissed; the judge concluded that Mr.

Aizenberg was grossly negligent by not taking care of his file during almost 11 years. [ 39 ] On January 10, 2020, Mr. Aizenberg files an Application for revocation of the judgment rendered by Justice Bourgeois, saying that he learned of this judgment on December 12, 2019.

The reason he invokes is that: « Plaintiff represented himself did not fully understand the proceedings nor expressly brought to his attention or fully explained to him beforehand or his obligation rising from it, that may have been required on August 2, 2019, to deliberate and exercise his option (…) » [ 40 ] It is Justice Marie Michelle Lavigne, J.C.Q., who hears this motion. At the hearing, she asks that Me Kucharsky meet with Mr.

Aizenberg within the next 30 days to try to take position on the merits and requests an update at the end of that delay. [ 41 ] On February 17, 2020, Me Kucharsky asks to extend the delay and the meeting is set for March 16, 2020. That meeting will be cancelled due to the pandemic. [ 42 ] On April 21, 2021, Justice Lavigne inquires to Me Kucharsky as to what happened in the file. [ 43 ] Mr. Aizenberg answers by referring to a pretrial conference that was set before the TAQ on June 18, 2021 and asks for help to be represented. For a reason that is not explained, the file will remain inactive for another two years.

Third part of the file / 2023: [ 44 ] On February 14, 2023, Mr. Aizenberg files another Application for revocation of the judgment rendered by Justice Bourgeois; in the application form, he writes that he learned of this judgment on February 9, 2023 … [ 45 ] The reason invoked is that: « Replied to letter dated April 21, 2021, from the Court sent to Me Judith Kucharsky for Revenu Québec and Mr.

Aizenberg reply in the Court and Me Kucharsky explaining reasons for the delays to hold such a meeting with the parties beyond our control. » [ 46 ] On the form used by the Court to render a decision on applications for revocation of judgment in Small Claims Court, Mr. Aizenberg, who adds the Ministère de l’emploi et de la solidarité sociale as an intervening third party, writes the following: « Plaintiff not informed of hearing prevented him to appear on July 24, 2019.

There seems to be ungoing errors with the Court and other public services due to communication problems, is now essential to establishing his interests or rights in such capacity from the day his right rises to deliberate and exercise his options in support of his declaration submitted to the Court and the MRQ on July 17, 2019. » [ 47 ] There were discussions between Mr. Aizenberg and the ARQ in April 2023 to establish the matters to be discussed in a meeting to be held as requested by Justice Lavigne. No agreement could be reached between the parties and the Application was finally presented on May 3, 2023.

ANALYSIS AND DECISION: [ 48 ] When he pleaded his Application for revocation, Mr. Aizenberg stated he had not received Justice Bourgeois’ judgment but knew about it only two years after. It was very difficult to follow his arguments and basically, he put the faults on the Courthouse’s personnel that did not inform him correctly and said again that legal aid was refused to him.

[ 49 ] Let’s simply refer to Mr. Aizenberg’s Application of January 10, 2020, in which he says that he learned of Justice Bourgeois’ decision on December 12, 2019. [ 50 ] Mr. Aizenberg was given a first chance by Justice Quenneville in September 2008, who provided him with an additional two- week delay to serve and file his inscription. [ 51 ] Despite that unreasonable ten-year delay, Mr. Aizenberg was given another chance by Justice Cameron, who gave him yet another delay to file a motion to be relieved of his default and explained very clearly that it had to be served and filed and presented on July 24, 2019.

Mr. Aizenberg did not show up. [ 52 ] As Mr. Aizenberg refers to the date of July 24, 2019 in his own procedures, as related on paragraph 35 of this decision, it is impossible to conclude that he did not know he had to be in Court at that date. [ 53 ] It has to be noted that despite his absence in Court, Justice Bourgeois took the case under advisement before rendering his judgement and considered Mr. Aizenberg’s written arguments. [ 54 ] Nowhere in his numerous letters and procedures did Mr.

Aizenberg explain why he did not file his inscription before September 30, 2008, why his file was dormant for over than 10 years and why he did not present his motion on July 24, 2019. [ 55 ] The Court could also hear Mr. Aizenberg’s incomprehensible arguments in which he seems to mix his files before the TAQ and his tax files. [ 56 ] It is clear from the

summary of all the Court’s files involving Mr. Aizenberg in front of other tribunals that he never respects any delays and that years go by before he files procedures, many of which have been dismissed for that reason. [ 57 ] There is no reason why the Court should grant Mr. Aizenberg’s Application for revocation of judgment. [ 58 ] In clear, this means that Justice Bourgeois’ decision dismissing his demand is still in force. This is the end of this file. FOR THESE REASONS, THE COURT: DISMISSES the Application for revocation; THE WHOLE without costs. __________________________________ CÉLINE GERVAIS, J.C.Q. Mr.

Hyman Mark Aizenberg Non represented Plaintiff Me Judith Kucharsky Agence du Revenu Québec Counsel for the Defendant