2016 QCCQ 70, 2016 QCCQ 70

Jaimungal c. Masud 2016 QCCQ 70COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-120351-095 DATE: January 11, 2016 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ GRACE JAIMUNGAL Plaintiff vs.

RAJA AMIR MASUD & RAJA HOME RENOVATION Defendant ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ Revocation of judgment [ 1 ] Raja Amir Masud presents a motion for revocation of judgement of the decision rendered on November 21, 2014 against him and Raja Home Renovation, condemning them to pay $2,600 plus interest and additional indemnity provided by

article 1619 C.C.Q., as of November 26, 2009. [ 2 ] In his Application, Raja Amir Masud alleged that he learned of the judgment rendered against him and his company on October 6, 2015.

He signed the Application on October 20, 2015. [ 3 ] The possibility to seek and obtain the revocation of a judgment aims to reconcile or find a balance between, on one hand, the principle of finality of judgments and, on the other hand, the right of any party to be heard [2] and present a full defence [3] . [ 4 ] Given that the principle of finality of judgments is necessary for the proper administration of justice, the reasons supporting a request for revocation of judgment must be serious.

The procedure should help to protect the rights of both parties and challenging of decisions through revocation of judgment must remain the exception. [ 5 ] Because it derogates from the principle of the finality of judgments, granting an application for revocation of judgment must be exceptional [4] . Only those who could not attend the hearing for a reason deemed sufficient can get the revocation of the judgment rendered against them. [ 6 ] The applicant must convince the judge that the alleged ground for the revocation is well founded in fact and in law.

Only if the judge concludes that it is the case, may she revoke the judgment, after which the parties may present the evidence pertaining to the merit of the case. [ 7 ] Our courts have recognized that the negligence of a party in the management of his business is not a valid reason for a revocation of judgment, unless negligence to protect his rights was caused by circumstances out of the control of the party itself, which would not be the case, for example, if the party has not made adequate monitoring of his case [5] or failed to notify the Registry of a change of address. [8] The application for revocation of judgment must be filed within fifteen (15) days of knowledge of the judgment (Art. 990 al.1 CCP). [9] That delay may be prolonged only where there are serious reasons to justify extending it [6] . [10] Raja Amir Masud alleged that he learned of the judgment rendered on November 21, 2014 on October 6, 2015.

He filed his application on October 20 th , 2015. [11] It appears however from the proceedings in the file and the testimonies of Sajida Kausar and Akhtar Mahmood, respectively wife and brother of Raja Amir Masud, that the Defendant has been made aware of the judgement rendered on November 21, 2014 on September 28, 2015, on the day a bailiff came to his home to execute the judgment rendered by seizing his movable belongings. [12] Consequently, the fifteen (15) day delay to file the application for revocation of judgment was not respected and no valid or serious reason was given to explain and justify the delay to file the Application. [13] In fact, rather than requesting to obtain a prolongation of the delay to file his Application, the Defendant chose to indicate the wrong date as being the date that he acquired knowledge of the judgment he is now asking revocation of, to give the wrong impression that he had respected the delay to file the Application. [14] As for the motive given in support of the Application, the Defendants alleged that the reason why they did not attend the July 7, 2015 hearing is that they did not receive the notification of the hearing. [15] The notification of hearing was addressed to the Defendants at the address Raja Amir Masud gave to the Court in his contestation.

It was delivered as it did not come back to the Court as having been sent to the wrong address. [16] The Defendant had not notified the Court of his change of address between 2009 and 2014, having, according to his wife, changed addresses twice during that period of time. [17] As mentioned above, the Court has already established in other cases that mismanagement of a case or failure to notify the Court registry of a change of address is not a valid reason to justify someone applying for revocation of judgment. [18] WHEREFORE THE COURT: [19] REJECTES Defendants’ Application for revocation of judgment.

Opposition to the seizure [20] As for the opposition to the seizure that has been made on September 28, 2015 in execution of the judgment rendered on November 21, 2014, the Judgment is as follows : [21] Sajida Kausar and Akhtar Mahmood, respectively wife and brother of the Defendant Raja Amir Masud, are opposing to the seizure executed by Plaintiff alleging that the goods seized belong to one or the other opposing party. [22] Raja Amir Masud and his wife have been living at the same address as Akhtar Mahmood since April of 2014.

Akhtar Mahmood is the owner of the residence both families live in, located at 47 Dubois in DDO. [23] The Defendant moved into his brother’s new home sometime in April 2014, right after his brother purchased the home.

Akhtar Mahmood only moved into the residence in July of 2014, after the expiry of the lease of the dwelling he was residing at with his family. [24] Sajida Kausar has provided the Court documentation evidence that the car that was seized in execution of the judgement of November 21, 2014, was hers. [25] The Court is satisfied that she has established that she is the owner of the Chevrolet registered into her name with the licence plate M35 CGM, bearing serial number 1GNDV33L15D217428 [7] and therefore the Court grants the opposition to the seizure in regards to that good. [26] Akhtar Mahmood also opposes the seizure, alleging that the electronic devices that have been seized are his. [27] A third party that claims ownership of a property has the burden of establishing his claim by preponderance of evidence ( Art. 2803 and 2804 Civil Code of Québec ). [28] Although testimonial evidence can be admissible to establish ownership of goods, the Court is not satisfied that Akhtar Mahmood has established ownership of the goods that he claims are his. [29] In the opposition to the seizure, it is indicated that the seizure has been performed on October 15, 2015, but it appears from the Court’s record that it actually has been performed on September 28, 2015. [30] The opposing parties could not explain why they referred to the wrong date when referring to the date of the seizure, when they both testified that they were present when it was performed.

This is the first element that affects there credibility. [31] When questioned on the matter, Mrs Kausar contradicted herself as to what effects her family moved in with when they moved to Akhtar Mahmood’s home at 47 Dubois in DDO.

[32] At first, she said that the Defendant and she took nothing of their belongings to 47 Dubois, to later change her testimony to say that they took the kitchen ware, blankets and inflatable mattresses. [33] She justified not having taken any of the electronics they owned by declaring that her brother-in-law, Akhtar Mahmood, with whom they were moving in with, did not want them to take anything because they had cockroaches in their home and he did not want to risk that they bring any in the new home. [34] Alleging that cockroaches hide in electronic devices, she declared that the Defendant and she did not take any with them to move to 47 Dubois, where the movable seizure has been performed. [35] The explanation as to why they would have left all their electronics behind when they moved to 47 Dubois does not make any sense when the family moved with their kitchen ware and blankets.

For that reason, the Court does not believe the testimony. [36] Furthermore, Akhtar Mahmood did not provide any evidence of ownership of the goods he is claiming ownership of, simply declaring that he did not keep any invoices or proof of ownership, not even the purchase receipt of the Ipad tablet that he purchased in 2014. [37] In light of the fact that Sajida Kausar testified that before moving in with Akhtar Mahmood, her and her husband, the Defendant, owned a Sony television, considering that the parties are all related and that their testimonies do not provide sufficient guarantee of credibility, the Court does not grant Akhtar Mahmood’s opposition to the seizure. [38] WHEREFORE THE COURT: [39] GRANTS in part the opposition to the seizure in execution; [40] STAYS the proceedings relating to the seizure performed on September 28, 2015, regarding the automobile vehicle Chevrolet Uplander 2005 bearing licence number M35 CGM and serial number 1GNDV33L15D217428; [41] ORDERS the bailiff to bring back to the clerk part of the writ of seizure regarding said vehicle of which Sajida Kausar has been recognised as the owner; [42] CANCELS the seizure in regards to that vehicle and GRANTS a release; [43] DISMISSES the rest of the opposition; [44] WITH THE LEGAL COSTS . __________________________________ MAGALI LEWIS, J.C.Q.

Date of hearing: January 11, 2016