2012 QCCQ 3472, 2012 QCCQ 3472

Centre dentaire Amical c. Marier 2012 QCCQ 3472 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-125900-102 DATE: April 27, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ CENTRE DENTAIRE AMICAL Plaintiff v.

ROBERT MARIER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Centre Dentaire Amical (« Centre ») claims from Robert Marier $890 for dental services rendered and expenses incurred. [ 2 ] Mr Marier does not contest in time the Centre's application and a judgment by default is rendered against him on June 2, 2011.

After the issuance of a writ of seizure, Mr Marier learns of this judgment on December 28, 2011. [ 3 ] On January 6, 2012, Mr Marier files an application for revocation of judgment alleging that he was never aware of the Centre's application before a phone call from his "very senior mother" whose furniture and other goods were seized following the judgment rendered by default.

He specifies that "I have never resided at unit 502 located at 80 Lakeshore drive, Pointe-Claire", where the goods were seized. [ 4 ] At the trial, Mr Marier invokes two grounds of contestation: - The absence of jurisdiction of the Small Claims Division of the Court of Québec because the Centre had more than five persons under its direction or control as employees at all times during the 12-month period preceding the application; - The Centre's claim is prescribed. [ 5 ] As for Mr Marier's application for revocation of judgment, the Court concludes that it is well founded both in fact and in law and must be granted.

This being, the judgment rendered by default on June 2, 2011 is annulled for all legal purposes. [ 6 ] The last paragraph of

Article 953 of the Code of Civil Procedure, R.S.Q., c. C-25 (" C.C.P . "), reads as follows: " 953. […] A legal person, partnership or association may, as creditor, avail itself of the provisions of this Book only if, at all times during the 12- month period preceding the application, not more than five persons bound to it by contract of employment were under its direction or control." [ 7 ] In support of his first ground of contestation, Mr Marier files a document from the Enterprise Registrar establishing that the Centre is a sole proprietorship operated by a natural person named Anthony Vassiliadis.

This document establishes that the number of persons working for the dentist Anthony Vassiliadis is between six and ten. [ 8 ] The Centre being a sole proprietorship operated by a natural person, is not "a legal person, partnership or association" within the meaning of the last paragraph of

article 953 C.C.P. [ 9 ] Thus, the Small Claims Division of this Court has jurisdiction, the Plaintiff being in fact a natural person, namely Dr Anthony Vassiliadis, doing business under the name of the Centre. [ 10 ] As for Mr Marier's second ground of contestation, the Court refers to

Article 2925 of the Civil Code of Québec : " 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established." [ 11 ] From the evidence adduced, the "billed treatments" from the Centre to Mr Marier were provided from September 14, 2005 to

October 25, 2005. [ 12 ] Mr. Marier's payments to the Centre were from September 14, 2005 to June 8, 2006. [ 13 ] The Centre's representative, Mr Zsolt Patakfalvi, testifies that Mr Marier made no other payment after June 8, 2006. [ 14 ] The Centre files its application on November 11, 2010. [ 15 ] This being the case, the Centre's claim is clearly prescribed because it should have been instituted within three years of June 8, 2006. [ 16 ] For that reason of prescription, the Court has no choice but to dismiss the Centre's application, with costs.

THEREFORE, the Court: GRANTS Robert Marier's application for revocation of judgment; ANNULS , for all legal purposes, the judgment rendered by default on June 2, 2011; DISMISSES Centre Dentaire Amical's application; CONDEMNS Centre Dentaire Amical (Dr Anthony Vassiliadis) to pay to Robert Marier $121 as judicial fees. __________________________________ Henri Richard, J.C.Q. Date of hearing: April 16, 2012