2023 QCCQ 9921, 2023 QCCQ 9921

Modeste c. Ville de Longueuil 2023 QCCQ 9921 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL Civil Division No: 505-32-703761-198 DATE: November 2 2023 ______________________________________________________________________ BY THE HONOURABLE LUC HERVÉ THIBAUDEAU, J.C.Q. ______________________________________________________________________ HERMAN MODESTE Plaintiff v.

VILLE DE LONGUEUIL DJAFFAR BELAMINE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I- OVERVIEW [ 1 ] Mr. Modeste claims $15 000 from defendants. He alleges that they are violating his rights by filling in municipal Court a statement of offense related to his illegal operation of an amateur radio station, of which he is found guilty on November 13, 2018. [ 2 ] Defendants contest the claim. Taking support on

article 586 of the Cities and Towns Act [1] ( CTA ), they submit that it is prescribed. They add that they act as prudent and diligent persons in completing their duties and that they respect at all times the proceedings to be followed in similar cases. [ 3 ] The Court concludes that M. Modeste’s claim must be dismissed. The claim is not filed within the prescription delay set in the CTA . [ 4 ] Here is why. II- CONTEXT [ 5 ] Mr. Modeste operates an amateur radio station from his home. He uses an antenna which is mounted on a metalic structure located in his back yard. [ 6 ] On or around December 4, 2017, Mr.

Modeste receives a note from Mr. Djafar Belamine, inspector for the City of Longueuil, informing him that he must submit an engineer report confirming the solidity of the metalic structure of his antenna [2] . Following a visit to his residence on January 10, 2018, a similar demand is sent to Mr. Modeste by Mr. Belamine on January 15, 2018 [3] . [ 7 ] On July 26, 2018, Mr. Modeste receives by bailiff a statement of offence [4] accusing him of failing to submit an engineer report on the sturdiness of the antenna metal structure he uses on his property, contravening to

article 13 of the bylaw 1408 and committing the offence stated in

article 17 of said bylaw. [ 8 ] On November 13, 2018, Mr. Modeste is found guilty of committing the infraction. He is fined an amount of $300, plus fees in an amount of $239 [5] . A delay of 90 days is granted by the Municipal Court to pay the total amount of $539. [ 9 ] Mr. Modeste sends a letter of demand to Defendants on August 11, 2019 [6] . He blames them for wrongly accusing him, resulting in the imposition of fines and making him incur transportation and parking fees.

He writes in this letter that the City’s actions made him suffer emotional, mental and physical stress, resulting in pain and suffering. [ 10 ] In his claim filed on November 29, 2019, Mr. Modeste alleges that defendants are violating his right to operate an amateur radio station. He alleges suffering damages in an amount of 15 000,00 $ representing his stress, emotional and moral damages. At the hearing, he adds that he is claiming compensation for his troubles and inconveniences. He admits not suffering any physical injury. III- ANALYSIS

A- THE BURDEN OF PROOF [ 11 ] To succeed, Mr. Modeste must prove the facts on which his application is based, by preponderance of proof, as per articles 2803 and 2804 of the Civil Code of Quebec [7] ( C.C.Q. ). Without reaching certainty [8] , Mr. Modeste must adduce convincing evidence [9] . The proof which renders a fact more probable than inexistent is sufficient [10] . However, a possibility that a fact may have happened, a hypothesis, is not enough [11] . The Court does not weigh on possibilities. Probable facts are those which bear a degree of probability of at least 50 % [12] .

To obtain the dismissal of Mr. Modeste’s claim, Defendants must demonstrate, again by preponderant proof, that the right alleged by Mr. Modeste does not exist. However, if Mr. Modeste does not meet his own burden, his application is dismissed, and Defendants do not have anything to demonstrate. B- THE APPLICABLE LAW [ 12 ]

Section 586 of the CTA states as follows : 586. Every action, suit or claim against the municipality or any of its officers or employees, for damages occasioned by faults, or illegalities, shall be prescribed by six months from the day on which the cause of action accrued, any provision of law to the contrary notwithstanding. [ 13 ] Articles 2925 and 2930 C.C.Q. provide the following : 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. 2930.

Notwithstanding any provision to the contrary, where an action is based on the obligation to make reparation for bodily injury caused to another, the requirement that notice be given prior to bringing the action or that the action be instituted within a period that is less than that provided for in this Book, cannot defeat a prescriptive period provided for in this Book. [ 14 ] In Fournier , the Superior Court rules that the prescription delay stated in

article 586 CTA applies to a claim in moral damages. This includes psychological trauma, pain and sorrow [13] . C- DISCUSSION AND APPLICATION [ 15 ] Mr. Modeste states in paragraph 2 of his demand that “ The facts occurred on or around May 17 th , 2018 in Saint-Hubert ”. The judgement of the Municipal Court is rendered on November 13, 2018. Mr. Modeste’s claim is filed on November 29, 2019, more than a year later. [ 16 ] Mr. Modeste alleges being wrongfully prosecuted by the City of Longueuil. He claims sustaining emotional, mental and physical stress, resulting in pain and suffering.

This type of prejudice is assimilated to a claim for moral damages, as recently confirmed by the Superior Court [14] . Mr. Modeste therefore seeks compensation for a moral and material prejudice. This is not a physical prejudice as per

article 2930 C.C.Q. [ 17 ] Since Mr. Modeste’s claim is not a claim for physical damages, the Court concludes that the delay of six months provided by

article 586 CTA applies. Considering the delay between the alleged fault and the institution of the claim, the court concludes that the claim is not filed within the delays provided by the CTA . [ 18 ] There is no demonstration that Mr. Modeste was in a situation where it was impossible for him to file his claim earlier. [ 19 ]

Article 586 CTA is clear. The Court has no other choice but to enforce it, and dismiss the action instituted by Mr. Modeste. [ 20 ] Considering the particular facts of this case and the discretion granted to the Court by

article 340 of the Code of civil procedure [15] , no costs will be awarded. [ 21 ] FOR THESE MOTIVES, THE COURT : [ 22 ] DISMISSES THE DEMAND, WITHOUT COSTS . __________________________________ LUC HERVÉ THIBAUDEAU, J.C.Q. Date of hearing: October 2, 2023