2012 QCCQ 7154, 2012 QCCQ 7154

Albilia c. Alipoor 2012 QCCQ 7154 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-161124-097 DATE: July 5, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GAD ALBILIA -and- MOMI ALBILIA Plaintiffs v.

MIKE ALIPOOR -and- AZITA ZANDIAN Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] This case raises questions about procedural error and misuse and the recourses available to an affected party. [ 2 ] The Plaintiffs, Gad Albilia and and his father, Momi Albilia, entered into a contract known as an exclusive buyer's mandate with the Defendants, Mike Alipoor and Azita Zandian, who worked together as real estate agents, in the context of an offer to purchase a residential property in the spring of 2007. [ 3 ] The Plaintiffs sue the Defendants for damages including punitive damages and extrajudicial legal fees related to the present action based on two key allegations:

a) that the Defendants served on them a demand letter in the name of a third party, who did not authorise them to do so, the brokerage from Groupe Sutton Performer Inc.;

b) they filed in the name of this third party a legal proceeding in the Small-Claims Division without having the requisite authorisation to do so; [ 4 ] It is alleged that both of these actions on their part were "deliberate with an intent to improperly extract money from the Plaintiffs which were not owed by way of manufacturing documents and instituting unauthorized legal proceedings to achieve their ends;" [ 5 ] The heads of damages claimed for the two Plaintiffs are in the aggregate more than $44,500, consisting in legal consulting fees, moral damages such as aggravation, pain and suffering, etc, and loss of time, damages to reputation, punitive damages and extrajudicial legal fees in the action itself alleged to be owed because of conduct forcing the Plaintiffs to institute the action and the Defendants "abusive contestation the present action leading to a final hearing on the merits".

[ 6 ] The Defendants plead that they had a serious cause of action for the collaborating agent's share of the brokerage compensation generated by the purchase of the residence.

In regard to the proceedings entered in the Small-Claims Division, they allege that the Defendant Mike Alipoor acted in good faith according to the instructions given by the Court clerk. [ 7 ] They also allege that, in response to the introductory motion, he formerly offered to pay all legal fees incurred as a result of this action, which offer was refused by Plaintiffs. [ 8 ] The Defendants also seek a declaration that the Plaintiffs' motion is abusive.

ISSUES [ 9 ] The Court must determine: 1. whether the Plaintiffs have established that the Defendants' extrajudicial claim for an amount of $5,305.13 purportedly on behalf of Groupe Sutton Performer Inc. ("Sutton Performer") and the application filed in the Small-Claims Division for the same amount constituted a fault that has caused prejudice to the Plaintiffs; And if so, 2. it must determine:

i) the amount of compensatory damages, pecuniary and moral and; ii) whether the fault committed is an unlawful and intentional interference with a right of freedom recognised by the CHARTER OF HUMAN RIGHTS AND FREEDOMS [1] permitting the Court to condemn the Defendants to punitive damages; And, if so; iii) establish the amount of punitive damages.

FACTS The sale [ 10 ] In 2007, the Defendants, who are a married couple, were both working as chartered real estate agents recognised by the Association des courtiers et agents immobiliers du Québec ("ACAIQ") . [ 11 ] They worked for the brokerage company known as Sutton Performer, a chartered broker. [ 12 ] Sutton Performer had the mandate from the owner to sell a property situated at […] in Dollard-des-Ormeaux, Quebec, Azita Zandian being the listing agent. (Exclusive brokerage contract dated March 29, 2007 and Listing produced as exhibit D-6.) [ 13 ] The Plaintiff, Gad Albilia, and his wife were interested in purchasing the property, and visited it with Benjamin Simhon, an agent working with Royal Lepage Village-DDO ("Village").

Gad Albilia made an offer to purchase the property for $240,000 dated April 2, 2007 (D-1).

The copy that is in the file is left blank at the place where the seller acknowledges receipt. [ 14 ] Gad Albilia testifies that, after he submitted the offer through Mr Simhon, and received no response, he went back to the property, noted the telephone number on the sign and called, speaking to the Defendant, Azita Zandian. [ 15 ] Gad Albilia and his family visited the property and expressed an interest in purchasing it. [ 16 ] Gad Albilia testifies that at a meeting held at his house, the Defendant, Mike Alipoor, ripped up the offer that he had on hand from Benjamin Simhon saying that if the Albilia's wanted to make an offer they must do so through them, meaning through the Defendants. [ 17 ] A promise to purchase (P-5) was prepared for a sale price of $230,000. [ 18 ] Gad Albilia testifies that he did not realise he was also signing an exclusive brokerage contract, (P-4). [ 19 ] This is a document that provides for a broker's compensation to Sutton Performer in the amount of 2%.

It reads, under the heading "OBJECT AND TERM OF THE CONTRACT" : 2.1 The BUYER retains the exclusive services of the BROKER to search for an immovable as described in 3 and to act as intermediary in order to make a purchase. This contract expires at 11:59 P.M. on June/30/2007 . 3. ESSENTIAL FEATURES OF THE IMMOVABLE 3.1 […] D.D.O. […] [ 20 ] Gad Albilia testifies that, if he had been told that he would pay a commission to the brokers, he would have refused to sign such a document.

[ 21 ] The offer was countered by the vendor at $240,000 and through a counter-proposal the price was agreed at $235,000 on certain conditions (P-5). [ 22 ] The deal closed with the deed of sale on June 19, 2007 at the agreed price of $235,000. The offer to purchase was made jointly by Momi Albilia and Gad Albilia who also jointly signed the exclusive brokerage contract (P-4).

The commission [ 23 ] During the closing, the adjustment sheet (P-7) shows a commission of $11,389.13 to Sutton Performer. [ 24 ] Momi Albilia corroborates Gad Albilia's version of the events concerning the tearing up of the first offered (D-1). According to him, Mike Alipoor, who prepared the offer to purchase (P-5) said words to the effect that "we cannot do anything unless we destroy the first offer" . [ 25 ] Momi Albilia confirms that he had no intention, as purchaser, to pay any commission.

Having purchased other buildings, he believed that the purchaser does not normally pay a commission. [ 26 ] In cross-examination, he admitted that he had not been aware of the first offer his son had made, nor event that his son had previously visited the property. [ 27 ] The testimony of Mike Alipoor and Azita Zandian concerning this signing session is different. [ 28 ] Mike Alipoor asserts that the father and son were given time to read the contracts, which they did in a separate room, and that he explained to them, in reference to P-4, that they would be working exclusively with him and Azita Zandian for the purchase of this property or any other property. [ 29 ] Obviously, no other properties were shown because the offer on the Donnaconna property resulted in a sale. [ 30 ] As to the offer (D-1) made through Benjamin Simhon, Mike Alipoor denies having been aware of it at the time of the signature of P-4 and P-5.

He says that he only became aware of it through proceedings with the MONTREAL REAL ESTATE BOARD (the "Board"). [ 31 ] As far as he is concerned, the offer was never presented to him and Azita Zandian nor delivered to the office of Sutton Performer at the time. [ 32 ] In his testimony, Mike Alipoor asked rhetorically why he would tear up the document knowing that several other copies of the document exist. [ 33 ] At the time of the closing of the sale, Sutton Performer received its normal commission. [ 34 ] As previously mentioned, there was no mention in the closing documents of the exclusive brokerage contract, P-4. [ 35 ] This is to be expected because, pursuant to paragraph 6.3, the broker's entitlement to a commission from the contract is subordinated to its duty to collect any other compensation it is owed from the transaction and any such compensation reduces the commission owed under the contract.

Because the commission received from the seller was higher than 2%, no amount was payable by the purchaser under the exclusive brokerage contract. [ 36 ] The employment records of Sutton Performer indicate that the Defendants ended their employment with Sutton Performer on November 29, 2007. [ 37 ] At the beginning of the summer 2007, the Defendants began working as agents for the real estate broker incorporated as 9187- 4826 Québec Inc., doing business as "Solid Invest Immobilier", controlled by them.

The claim of the first broker [ 38 ] Benjamin Simhon, having become aware of the transaction and the commission paid to Sutton Performer, initiated a process that led to a conciliation meeting held on December 17, 2007 at the Board.

The two brokers, Sutton Performer and Village reached an agreement through the conciliation resulting in a payment of $2,350 plus taxes from Sutton Performer to Village. [ 39 ] Benjamin Simhon initiated this process on the basis that he had presented an offer for the purchase of the building by Gad Albilia and that his offer had not been presented by the listing broker. [ 40 ] The conciliation agreement was essentially a means of restoring to Simhon and/or the broker for which he was working, a suitable share of the commission on the basis that they were really the collaborating brokers. [ 41 ] As part of this arrangement, the Defendants accepted to pay back the part of the seller's commission they had been paid.

The exact figures were not shown to the Court, but Mike Alipoor testified that the amount they were charged was approximately $3,000. The claim for a commission from the purchaser [ 42 ] Mike Alipoor also testified that Linda Mandanici, the director of Sutton Performer suggested that they could claim a commission directly from the purchasers pursuant to the exclusive brokerage contract.

[ 43 ] There is no collaboration of this assertion in the testimony of Linda Mandanici. [ 44 ] She denies any involvement in the invoice dated January 16, 2008 (P-8), whereby Sutton Performer claims from Gad and Momi Albilia a commission of $4,700 plus taxes for a total of $5,305.13. [ 45 ] The invoice is in the form of a letter signed by "KSotelsek". [ 46 ] Katia Sotelsek was called as a witness. She testified that her functions at the time included the entry of data given to her in sales reports filled out by agents.

She states that the format of P-8 is unusual, she does not recall who asked her to prepare the bill and does not recall whether she showed it to Linda Mandanici. [ 47 ] Mike Alipoor testifies that he was asked to file the buyer's contract with the office and that the office prepared the bill thereafter. [ 48 ] Mike Alipoor does not know whether Linda Mandanici had any involvement in the sending of the bill. [ 49 ] On August 20, 2008, Azita Zandian signed a document (P-9).

It is on ordinary paper, i.e. not on a stationary of Sutton Performer but it purports to be from Sutton Performer represented by Azita Zandian, addressed to Gad Albilia and Momi Albilia. [ 50 ] The text of the letter puts the Albilias on notice to pay the amount of $5,305.13 with reference to the invoice of January 16, 2008, threatening legal proceedings if the amount is not received within ten days. [ 51 ] Mike Alipoor testifies that he called Sutton Performer around that time to ask about the invoice of January and learned that had remained unpaid.

He says that in response to his question what the next step should be, a person from the accounting department, probably Katia, told him "you guys have to at the Court for your commissions". The purchasers' reaction to the claim [ 52 ] Azita Zandian testifies that, based on that advice, she sent the letter claiming the commissions owed, purportedly as a representative of Sutton Performer. [ 53 ] On receipt of the letter, Gad Albilia communicated with Linda Mandanici.

Their discussion led to Linda Mandanici signing P- 10, a letter on the stationary of Sutton Performer promising not to sue the buyers for any commission, stating that all accounts have been settled and further stating that she will not support any lawsuit brought by Azita Zandian. [ 54 ] Linda Mandanici explains that she signed the letter in order to put an end to the matter and she had no intention of it leading to legal proceedings against the former agents Mike Alipoor and Azita Zandian.

The Small-Claims Application [ 55 ] Meanwhile, on September 5, 2008, Mike Alipoor signed an application in the Small-Claims Division in the district of Montreal. It is a simple action alleging the brokerage contract, that the Plaintiff provided professional services to Gad Albilia and Momi Albilia leading to the purchase of the property and that the invoice for $5,305.13 remains unpaid despite the letter of demand of August 20, 2008. [ 56 ] The Plaintiff named in the application is Sutton Performer. [ 57 ] On page 2 of the application, under the

section entitled: "OATH" is found the text whereby Mile Alipoor asserts that he represents the Plaintiff and that the facts supporting the claim are true. [ 58 ] It is worthwhile reproducing exactly the standard form text and way that it is filled out. OATH I, the undersigned, MIKE ALIPOOR , declare under oath that : 1- I an the Plaintiff or the Plaintiff's mandatary. or I represent the Plaintiff in my capacity as: officer person bound exclusively to the Plaintiff under a contract of employment .

At all times, during the 12-month period preceding this action, the Plaintiff, i.e. a partnership, an association or a legal person, had under its direction or control not more than five persons bound to it by a contract of employment. 2- The sum claimed is due and payable. 3- All the facts alleged herein are true. And I have signed

(

s) Mike Alipoor ___________________________ Plaintiff or mandatary Sworn before me At Montréal, on September 5, 2008 (

s) Marius Lupu ___________________________ Clerk or Commissioner for oaths MARIUS LUPU, gacq [ 59 ] Upon receiving service of the action, Linda Mandanici communicated with the clerk of the Small-Claims Division sending a letter dated September 17, 2008 (P-12), referring to the affidavit signed by Mike Alipoor. She states: I have never authorized Mr. Alipoor to take an action against either Gad Albilia of Momi Albilia in the name of Groupe Sutton Performer Inc. If Mr. Alipoor has used my company as the Plaintiff in this proceeding, he has done so without my permission, consent, or even knowledge. in addition, Mr.

Alipoor has not been an employee of Groupe Sutton Performer Inc., since 2007. Therefore, when he signed the affidavit dated September 5 th 2008, which is attached to the proceedings, any affirmation he made that he is an employee or represents Groupe Sutton Performer Inc. was simply not true. [ 60 ] She seeks confirmation that the proceedings have been withdrawn. In response to this letter, a representative of the Small- Claims Division, Jocelyne Jacques, replied: […] during the appointment with the Court's clerk, on September 5, 2008, Mr Mike Alipoor has presented himself as representing Groupe Sutton Performer.

Given the fact that Mr. Alipoor has presented the necessary and pertinent documents related to the pursuit, such as the Promise to purchase, Couter-Proposal to a promise to purchase, statement of account and Formal Notice sent to the Defendant, with the proof of sending and of reception , the Court's clerk has no reason to doubt about the quality of Mr. Alipoor acting as a mandatary of Groupe Sutton Performer. More than that, Mr. Alipoor has signed under oath an Affidavit to sustain the Application and this is the regular manner to proceed for the clerk in such situation according with the Court's rules.

However, if you want to withdraw to Application, please sent us, by mail an original signed Discontinuance . [ 61 ] The discontinuance form, in French, sent by Linda Mandanici, dated September 22, 2008, in the Small-Claims Division is found both in a fax form arriving September 23 rd , 2008 and in the original form. [ 62 ] Also, on September 22 nd , Mike Alipoor filed a discontinuance using the English form.

He states that he was speaking to his lawyer on other business and mentioned his own uncertainty as to whether he could really sign on behalf of Sutton Performer. [ 63 ] He states that his decision to file the discontinuance came as a result of his lawyer's opinion on the matter that he could not. [ 64 ] He went to the office of the Small-Claims Division, asked the person at the counter what to do to discontinue the demand, was given the form and signed it on September 22 nd .

He asserts that he was not aware that a discontinuance had been or would be filed by Linda Mandanici as well. [ 65 ] He denies having been made aware of the complaint by the Albilias and asserts that his motivation was simply his own uncertainty on the matter as confirmed by his attorney. [ 66 ] Linda Mandanici confirms that the text of the letter (P-12) was presented to her by Gad Albilia as a text that his lawyer had prepared for him.

She states that P-10 was drafted for her by her accountant. [ 67 ] Mtre Orenstein's bill (P-13) includes a charge for "draft release, letter to clerk" . [ 68 ] As to the period between the letter of demand and the Small-Claims action, Gad Albilia testifies that he spoke to Azita Zandian who stated that the commission was owed and that if he does not pay "we will sue" .

He states that after receiving the letter P-10, he called Azita Zandian back telling her that he had the letter and questioning why the claim is being made. [ 69 ] According to his testimony, she insisted that he would have to pay. [ 70 ] He also testifies that Mike Alipoor told him "pay us or tell it to the Judge" and when he complained that he could not afford this amount, Mike Alipoor offered to reduce the taxes if he would pay cash.

[ 71 ] In speaking about these confrontations, Gad Albilia speaks of feeling dehumanised, in a state of shock, etc. [ 72 ] No letter of demand is filed as part of the exhibits, in the present action, although there is a letter dated July 15, 2009, to which the Defendants' attorneys refer in a response dated August 25 th , 2009. [ 73 ] The action, as initially drafted on July 21, 2009, seeks, in addition to legal consulting fees of $1,715,70, several heads of moral damages and punitive damages as well as an estimate of $5,000 of legal fees relating to the action itself for a grand total of $23,715.70. [ 74 ] The Defendants' attorneys replied (D-2) offering to cover the costs of legal consultation, exclusive of the preparation of the introductory motion and as well to pay all of the judicial disbursements as well as the legal honorarium based on an action settled before defence for the amount of $1,750.70. [ 75 ] The offer, made without any admission of liability, did not result in a settlement of the matter.

ANALYSIS [ 76 ] The Defendants did not make any legal tender, which is consistent with their position of denying any liability. It is obvious that the Plaintiffs were not prepared to make any concession on their claim for substantial damages; they take the position that the trial itself is rendered inevitable because of the Defendants' position.

Rights of the parties [ 77 ] Before discussing the implications of the filing of the Small-Claims action and the prior letter of demand, it is worthwhile discussing, briefly, the rights of the parties in respect of a claim relating to the purchase of the immovable. [ 78 ] The claim articulated in the Small-Claims application and in Sutton Performer's letter of demand and that the letter was sent, purportedly, on the latter's behalf by Azita Zandian is based on 2% of the sale price. [ 79 ] Sutton Performer was initially compensated with a full commission, i.e., $11,750.

As a result of the conciliation agreement it paid to Village an amount of $2,350 plus taxes so that its net compensation was less than the full commission. [ 80 ] Pursuant to clauses 6.3 and 6.1, Sutton Performer would not have been entitled to anything under the exclusive brokerage contract per se because its commission received from the vendor was greater. [ 81 ] The belief that Mike Alipoor and Azita Zandian may have had that they were entitled to some payment relates to another issue. [ 82 ] Because the Albilias introduced themselves to the situation unaccompanied by a broker and, presumably because Sutton Performer had no awareness that they had, in fact, been led to the property by a collaborating agent, Sutton Performer billed for the entire commission as if there was no collaborating broker and Alipoor and Zandian received their share of the full commission on that basis. [ 83 ] When the competing broker, Village, surfaced and made its claim with the Board, Sutton Performer decided, to settle the matter to avoid any further litigation, using funds provided by Alipoor and Zandian. [ 84 ] As far as Sutton Performer was concerned, the question of whether Benjamin Simhon had, in fact, introduced the purchasers to the situation was resolved as a business matter. [ 85 ] Linda Mandanici may have had some awareness that her agents were contemplating making a claim directly to the purchaser and the bill was prepared by her staff.

But when the purchasers objected to the claim, she quickly backed down, preferring, again, to avoid any litigation. [ 86 ] Alipoor and Zandian find themselves in the present situation because of the way they managed their own sense of entitlement to the amount that they were called upon to pay back from their share of the commission, approximately $3,000. [ 87 ] If they were entitled to be compensated for this payback, it would not be through a commission of 2% under the exclusive brokerage contract, it would be as a result of being misled.

According to their version of the story, they only learned of the existence of Benjamin Simhon when a copy of his offer to purchase came to light in the conciliation proceedings of the Board. [ 88 ] The sense of injustice they claim to feel is to have done the work, for which they would normally have been remunerated based on a full commission, while their clients had withheld from them all information concerning their previous activities with another agent, and to have their compensation reduced when the information came out. [ 89 ] While the Court heard the conflicting testimony of the parties concerning the events, whatever impressions the Court may have about the respective credibility of the witnesses, there is a remaining anomaly. [ 90 ] The copy of the offer to purchase received by Benjamin Simhon does not show any acknowledgment of receipt. [ 91 ] If Benjamin Simhon proceeded to make his claim with the Board, logically, he must have asserted that he remitted this offer to Sutton Performer. [ 92 ] But the Court is not privy to what was said during the proceedings of that board and did not hear testimony from Benjamin Simhon.

There is no independent evidence, in the present proceeding, that the offer was presented.

[ 93 ] If the Court were to accept the testimony of Gad Albilia and his father as being preponderant, namely that they made an offer of $230,000 knowing that their previous offer of $240,000, that they had intended to present to the vendor, had just been torn up, this leads to another question. [ 94 ] How could they think it normal that a vendor's agent would tear up an offer made for an amount that is $10,000 higher than the offer that they were about to make?

Would not the normally intelligent person perceive this as unfair to the vendors, because they are deprived of a better offer, and to the agent that they had originally been working with because he was deprived of a potential commission? [ 95 ] When Gad Albilia realised that the offer he had made through Mr Simhon had not led to any response, why did not he communicate with Mr Simhon to get some news? [ 96 ] Gad Albilia did not speak to his father about the initial offer to purchase. [ 97 ] Finally, as Mike Alipoor pointed out rhetorically, an experienced broker would know that tearing up a copy of an offer to purchase would not prevent a broker who has kept his copy from proving its existence.

So why would he tear it up? [ 98 ] In so far as the underlying right is concerned, the Court cannot determine, on the incomplete and sometimes-incoherent story conveyed, that Alipoor and Zandian did not have a colour of right. If they could prove their version of the facts in an action in damages, they would have had an arguable case, though the Court express no opinion on its merits. The procedure used [ 99 ] The means taken to exercise that possible right is another matter. Substantively, the exclusive brokerage contract did not provide for payment in these circumstances.

Procedurally, Mike Alipoor did not have the standing to make a claim in the Small-Claims Division, because he was no longer an employee of Sutton Performer. [ 100 ] This would have been the case even if Sutton Performer had approved of his initiative, because, according to the rules set out in the Code of Civil Procedure [2] , Sutton Performer would have to be represented by an officer or an employee, not a former employee. [ 101 ] If Mike Alipoor's testimony is accurate, he was aware there might be a problem in the way he had proceeded, because he sought advice and immediately took steps to end the litigation he had just initiated, before going any further. [ 102 ] In

summary, the duo, Alipoor and Zandian, may have had a grievance about having been misled, depending on proof of fault, causality and damages, but they were misguided in the conceptualisation of the right and the means to enforce it. [ 103 ] Mike Alipoor took a legal proceeding without having the quality to represent the party named and, in doing so, signed an affidavit containing an inaccurate statement about his relationship with Sutton Performer: he stated the relationship as employment.

At the time of the events relating to the alleged rights, he was an employee, at the time of the proceedings, he was no longer an employee.

The legal consequences of the procedural error and the factual inaccuracy [ 104 ] This is to some degree a question of perception, that of a bystander of Mike Alipoor's conduct in respect of the irregular nature of the proceedings and, as well, his own perception of his claim and the legitimacy of the steps he was taking to assert it. [ 105 ] The Plaintiffs make much of the fact that there is a falsity in the affidavit: Alipoor is not an employee at the time he signs the affidavit. [ 106 ] The form used in the Small-Claims division follows the text of

article 959, aliena 2 CCP: 959. […] The State, legal persons, partnerships and associations may only be represented by an officer or another person bound exclusively to them under a contract of employment. […] [ 107 ] The text does not elaborate on a number of questions that might arise in the mind of the ordinary person without legal training. Does the representative have to have been an employee at the time of the event? Can the representative initiate a case during the employment and continue it afterward? Is it enough that the person was an employee at the time of the generation of the right?

And, is he given the authorisation to institute the action even if he is no longer an employee at the time of the institution of the action? [ 108 ] The correct answer is that the representative's status is determined at the time of the filing, and, at trial, irrespective of the person's status at the time of the events.

This is perhaps counter-intuitive, because the representative chosen is, typically, a person who knows the facts and will testify at the hearing, typically a person who also met the requirements of the status of representative at the time of the events. [ 109 ] The falsity of the affidavit depends on understanding the correct meaning of "bound" in

article 959 CCP and in the form. It would be convenient to have a form where, on the date signed, the person states that he is currently an employee and has no other employer. The present form is clear as a reproduction of the language of the Code, but not necessarily explicit for a person in Alipoor's position. [ 110 ] To obtain a remedy for a proceeding that is improper, it is not sufficient for a Plaintiff to demonstrate that his opponent is

wrong. A higher level of an impropriety must be shown. 54.1. […] The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate. [3] [ 111 ] The jurisprudence provides examples of abuse.

The Plaintiffs cite Markarian [4] . [ 112 ] When one reads the enumeration of faults appearing at paragraph 693 of the judgement, there is no comparison with the actions of the Defendants in the present file. [ 113 ] In Markarian, CIBC stubbornly and maliciously continued, uselessly, proceedings that were manifestly invalid: Comme dans l’affaire Construction Val d’Or ltée , la défenderesse a prolongé inutilement un débat qu’elle avait elle-même provoqué, bien qu’elle était informée de l’invalidité de P-6 et P-7 et des témoignages et preuves unanimes en ce sens.

Elle s’est entêtée à nier ce que toutes les preuves démontraient et s’est enfermée dans sa malice pour poursuivre inutilement le débat judiciaire sur la validité de P-6 et P-7. [ 114 ] In the present file, the judicial demand, for a small amount, was ill-founded because the invoice did not represent an amount due to the broker, but the Defendants believed that they had a right which they did not entirely understand and which they lacked the legal vocabulary to properly articulate. [ 115 ] Confronted by the procedural error related to Mr Alipoor's status as an ex-employee and acting on their own initiative in obtaining professional advice, the Defendants immediately took the quickest and most efficient measure to cancel the effects of the legal proceeding. [ 116 ] The Defendants do not admit that they had no legal interest in a claim against the Plaintiffs nor as it been established that their grievance would have been clearly unfounded if it had been litigated. [ 117 ] In other words, the facts do not demonstrate that they were clearly wrong, although the way that they articulated their right was doomed to failure because it was procedurally incorrect in a fundamental way. [ 118 ] Realising that their recourse was defective, they simply took the quickest end most direct step at the first opportunity to end the proceedings. [ 119 ] When confronted with their error, they spontaneously offered to pay the legal fees that had been incurred by the Plaintiffs. [ 120 ] This willingness to do something significant to remedy the situation is inconsistence with the theory that they were acting maliciously. [ 121 ] By not accepting the offer, which was not, by definition, an admission of fault although it was an admission that the legal proceeding was not valid, the Plaintiffs themselves showed a stubbornness and a desire to bring the conflict to a higher level. [ 122 ] In the Court's view, the Defendants' error does not constitute fault in the sense of the Viel case [ 5] and articles 54.1 and following of the Code of Civil Procedure . [ 123 ] Even if it could be considered wrongful under those criteria, the only real detriment suffered by the Plaintiffs was a direct exposure to some modest legal fees to represent their interests.

Once the case had been abandoned and it been clarified that the broker did not wish to proceed against them, the Plaintiffs should have realised that they no longer had an axe to grind. [ 124 ] The Plaintiffs insist on moral damages alleging that they were affected by the impact of these proceedings. [ 125 ] While the Plaintiffs may have plausibly sustained some stress, the Court finds the claim to be greatly exaggerated and qualitatively disproportionate to any inconvenience or stress that they may have really suffered. [ 126 ] It is an exaggeration when Gad Albilia speaks of feeling dehumanised. [ 127 ] Legal conflicts are often stressful and litigants can feel the effects of the opposing side's aggressivity or lack of courtesy, but a certain amount of this is normal and must be tolerated in a society where we permit conflicts to be expressed, exposed, litigated and resolved through a process that is largely voluntary although its effects be compulsory. [ 128 ] It is part of the social contract that a certain amount of inconvenience and bother is associated with legal proceedings.

When these proceedings are very small and contained and quickly dealt with they should not give rise to the type of litigation that we see in the present file. [ 129 ] Although the Court finds that the Plaintiffs do not succeed in the present action, it will not support the Defendants' cross-demand because, again, in legal proceedings, being unsuccessful is not, in itself, a fault. [ 130 ] There was nothing in the conduct of the Plaintiffs in the lawsuit, either from the point of view of their testimony, or the way in which their lawyer handled the file, that would give rise to any serious allegations of fault. [ 131 ] Hoping that this series of errors can be put to an end without further conflict, the Court exercises its discretion to not award costs to either party.

[ 132 ] The Plaintiffs' recourse to argument ad hominem , in bringing out the Defendants' disciplinary troubles in another forum is unfortunate because it did not bear directly on the issues of credibility in the present case. [ 133 ] It is also unfortunate that the Defendants were put to a great expense in the defence of the case but they were not altogether helpful in reducing the time of trial because of the way Mike Alipoor testified, giving long responses and avoiding direct answers in a way that prolonged his testimony.

At the same time, the case was prosecuted by the Plaintiffs in a way that reinforced this prolongation, rather than containing it. [ 134 ] The Plaintiffs were more phlegmatic and stoic in their presence at trial but their claims were inherently flawed and the claims made were quantitatively disproportionate to the object claimed. FOR THESE REASONS, THE COURT: DISMISSES the action and the cross-demand; Without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Mtre Jeff Orenstein ORENSTEIN LAW INC.

Attorneys for the Plaintiffs Mtre Cyrille Duquette DUQUETTE DUBOIS, avocats Attorneys for the Defendants Dates of hearing: May 4 and 5, 2011 and February 9 and 10, 2012