2019 QCCQ 1153, 2019 QCCQ 1153

Johnson c. Talab Bendiab 2019 QCCQ 1153 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-700992-177 DATE: February 1, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MATHEW JOHNSON Plaintiff v.

MOHAMED AMINE TALAB BENDIAB Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Mathew Johnson, obtained a default judgment against the defendant Mohamed Amine Talab Bendiab for a condemnation of $ 2,106.00 plus interests and judicial costs, on April 19, 2018. [ 2 ] The Claim was based on the allegation that the Defendant had taken possession of a 2005 Honda Accord Hybrid V6 belonging to Mr Johnson and that he undertook it to sell it for $ 2,000.00 and that he would also get for Mr Johnson a clean 2008 Honda Accord. [ 3 ] Mr Johnson alleged that the relationship broke down and that he was never given the $ 2,000.00 nor the replacement vehicle. [ 4 ] Mr Talab Bendiab based his Application for revocation of the default judgement on the ground that he did not receive service of the Claim when it was instituted on March 2, 2017: “La preuve de signification n’est pas ma signature”. [ 5 ] The

summary statement of his grounds of defence raises the allegation that he was not the person to whom a mandate was given to sell Mr Johnson’s Honda: “La procuration n’est pas à mon nom”. [ 6 ] Mr Talab Bendiab did not file any more complete allegations in support of his contestation after his application for revocation was received by the Court. [ 7 ] In cases as such as this one, the Court proceeds, first on the basis of the evidence given at the hearing, to decide whether the grounds of revocation are valid and, if they are, the Court proceeds to hear the merits of the dispute after having annulled the default judgement. [ 8 ] In the present matter, however, the facts concerning the grounds for revocation and the facts concerning the case on the merits were the closely linked and it was more convenient to hear all of the evidence and then to decide the application of revocation at the end of the hearing. [ 9 ] In taking the case under advisement, the Court advised the parties that, in its written judgement, it would rule first on the revocation and proceeded to the judgment on the merits in the event that the revocation was valid. [ 10 ] The Court’s decision on the revocation is as follows. [ 11 ] When a Defendant has not received service of the Claim and, through no fault of his own, he is unaware that it has be instituted, it becomes impossible for him to contest the matter.

In the absence, therefore, of his contestation, the case can be decided by default on the basis of the Plaintiff’s evidence alone. [ 12 ] The Defendant typically will only learn of the judgement when he receives a copy in the mail. [ 13 ] In such cases, revocation is often granted and the Defendant can file a written contestation and contest the Claim during a new trial if the revocation is awarded by the presiding judge. [ 14 ] This was the basis on which Mr Talab Bendiab’s Application on revocation was received. [ 15 ] At the trial however, he admitted that he had received his copy of the Claim at the outset but that he did not take any step to contest it based on information he says he received from the Court clerk that he could either file a Contestation or settled the matter directly with the Plaintiff.

[ 16 ] He testified at great length as to his communications and interactions with Mr Johnson during which he attempted to reach an agreement whereby Mr Johnson would retake possession of the Honda after paying a certain amount of money. [ 17 ] Mr Talab Bendiab stated that he did this despite the fact that he had nothing to do with the matter, having acted at all times as an employee of another party who he referred to as “Québec inc.” without further details as to the identity of this employer. [ 18 ] He also admitted that he had never given the name of this employer to Mr Johnson at the time that the agreement was formed.

Sadly, these discussions led to a stalemate. [ 19 ] Mr Johnson refused to take back the car and to accept the financial considerations proposed. Mr Talab Bendiab left the car parked in the street. He says he is unaware of what became of the car, and denies that it was sold under his control, despite the fact that Mr Johnson had left it with him initially with a partially completed procuration.

Thus, the matter was never resolved through a settlement. [ 20 ] When questioned as to why he did not then contest the Claim, his answer was that, since he had nothing to do with the contract formed between Mr Johnson and “Québec inc.”, he had nothing further left to do in connection with the Court proceedings. [ 21 ] In the Court’s consideration, the Application for revocation of judgement is without merit.

It is not true that the Defendant was unaware of the legal proceedings because he did not receive them, as alleged in his application. [ 22 ] His assertion that he had nothing to do to defend the case is untenable.

The fact that he believed the action against him was unfounded is not a reason exempting him from contesting the Claim: rather it is the reason why he must take the necessary steps to contest it. [ 23 ] Unless he makes a contestation and proves his version of the facts before the judge or special clerk assigned to the case, a judgement can and will be issued against him, it the Plaintiff’s case warrants it. [ 24 ] Rather, he simply neglected to bring his Contestation after the failure of his attempts to resolve the matter amicably. [ 25 ] It is simply inconceivable that he would have believed, based on the clerk’s encouragement that he should try to settle, that, if the settlement failed, the case would nevertheless be discontinued.

He had every reason to believe that, if the case was not settled, the Plaintiff would have his day in Court and, if his evidence was sufficient, be successful. [ 26 ] Nor can Mr Talab Bendiab have believed that the case was settled: the evidence that the Court heard concerning the discussions between the parties makes it clear that they were nowhere near a settlement and that the case ended in a very acrimonious conflict. [ 27 ] Since the Application for revocation cannot succeed, the default judgement stands and the Court will not give its own judgement on the merits.

BY THESE REASONS, THE COURT: DISMISSES the Defendant’ s Application for revocation of judgement; CONFIRMS the judgement by default rendered by the special clerk in this matter on April 19, 2018. __________________________________ David L. Cameron, J.C.Q. Date of hearing: January 28, 2019