2017 QCCQ 1830, 2017 QCCQ 1830

Vartanian c. Vartanian 2017 QCCQ 1830 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147866-158 DATE: January 31, 2017 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ ARTIN VARTANIAN Plaintiff vs.

HAMO HAMZASB VARTANIAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming $15,000 in damages from the Defendant for having shown bad faith in hiding from him the fact that he was an heir to his father for an amount of $12,500, forcing him to resort to the Court. [ 2 ] Plaintiff claims reimbursement of the legal fees and expenses he paid to the attorneys that represented him first before the Superior Court for him to get access to his father’s last will and then before the Québec Court to obtain payment of his inheritance, as well as damages and punitive damages. [ 3 ] Alleging time limitation, Defendant contests the claim.

Subsidiarily, Defendant argues that Plaintiff is responsible for the situation, having failed to liquidate his mother’s estate since 2007, depriving him of his inheritance and having attacked him and caused him damages. QUESTIONS AT ISSUE [ 4 ] To decide this matter the Court will respond to the following questions:

a) Is Plaintiff claim prescribed?

b) If not, is it well founded and if so, for what amount? CONTEXT [ 5 ] The parties are brothers. Their father, Raffi Vartanian, passed away in March of 2008. The Defendant was the liquidator to the estate. Plaintiff was named particular legatee in his father’s last will. [ 6 ] Because the Defendant refused to consent to the notary in charge of the liquidation of Raffi Vartanian’s estate to communicate copy of their father’s last will to Plaintiff, he filed a claim before the Superior Court in file bearing number 500-14-032029-084 asking that the notary be ordered to provide him with a copy of his father’s will.

Judgement was rendered in his favour on October 14, 2008 [1] . [ 7 ] Because the Defendant later refused to pay his inheritance to Plaintiff after payment became due in accordance with the terms of the will, he later filed a second claim against the Defendant before the Civil Chamber of the Québec Court in the case bearing number 500-22-187080-117, requesting payment of the amount bequeathed to him by his father. [ 8 ] Justice Scott Hughes, who heard Plaintiff’s later claim, writes the following in his judgement dated June 22, 2102: [11] As Plaintiff’s attorney argues, the Will is clear.

It created a conditional particular legacy. By accepting the undivided share of the property, Defendant obliged himself personally to the condition. He must therefore pay the sum of $12,500.00 to Plaintiff.

[ 9 ] The Defendant satisfied to the judgement on July 5, 2012 [2] . [ 10 ] Plaintiff is seeking reimbursement of all the legal fees and expenses he paid to assert his rights in both court files. He claims reimbursement of $6,591.63 in legal fees and expenses paid in 2008 by his sister in relation to the case before the Superior Court [3] . He is also seeking reimbursement of the amount $3,462.71 he claims he paid to his attorney to represent him in the case before the Québec Court [4] .

Plaintiff cannot explain why he is claiming reimbursement of $3,462.71, when his attorney’s invoice dated July 17, 2012 is for an amount of $2,737.71 [5] . [ 11 ] In total it is $10,054.34 that Plaintiff claims in reimbursement of legal fees and expenses. He also claims $5,000 for waste of time and punitive damages. He reduces his claim to $15,000 in order to benefit from the rules applicable to the recovery of small claims.

ANALYSIS [ 12 ] Anyone who wants to assert a right shall prove the facts that sustain his claim with clear and convincing evidence that makes the existence of the facts he wishes to establish more probable than there nonexistence [6] , to satisfy the test of balance of probabilities. [ 13 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical.

It is sufficient that it makes probable the disputed facts [7] . [ 14 ] In the case of an action for damages the plaintiff must demonstrate, under the same rules of evidence, the fault of the party being sued, the damage suffered and the casual link between the fault and the damage. [ 15 ] If the evidence is not compelling enough, or if it is contradictory and the judge is unable to determine where the truth lies, the one upon whom falls the burden of persuading the court of the merits of the claim loses [8] .

a) Is Plaintiff claim prescribed? [ 16 ]

Article 2925 of the Civil Code of Québec provides that an action to enforce a personal right is prescribed by three years . [ 17 ] The fees paid in relations to the Superior Court case have been paid more than eight years ago.

Clearly, the time limitation has elapsed and this part of Plaintiff’s claim is prescribed. [ 18 ] For Plaintiff to be granted reimbursement of the legal fees and expenses he paid to assert his right to payment of his inheritance, the Court must conclude that the Defendant’s contestation of the claim that was decided by Justice Hughes was vexatious and frivolous. [ 19 ] Plaintiff contends that Defendant’s refusal to pay him his inheritance and his contestation of his claim to obtain payment were frivolous. [ 20 ] The courts have long established that the mere fact that a claim is dismissed because it is not well founded in fact or in law, as was Defendant’s contestation before Justice Hughes, does not make it an abusive procedure.

The abuse is not presumed and the Court must conclude in this sense. To do so, the court must have heard the parties’ respective contentions on the original issue [9] . [ 21 ] Plaintiff did not file the plumitif of the case nor any of the proceedings that were filed by the parties in the file that opposed them regarding the payment of Plaintiff’s inheritance.

This Court is therefore not in a position to determine whether his contentions in the file were frivolous or vexatious. [ 22 ] One thing this Court knows however is that if Defendant’s contentions were frivolous and vexatious they were so from the time he filed his Plea to the time he argued the case before Justice Hughes on May 30, 2012. [ 23 ] Defendant’s alleged fault and the damage it caused Plaintiff were materialised by that latter date and his right of action was prescribed on July 2, 2015 when he filed the present claim [10] .

Even if the Court would have accepted Plaintiff’s contention that his rights of action materialised on the day Justice Hughes granted his claim, which it does not, the judgement being date June 27, 2012, Plaintiff’s claim was prescribed by June 27, 2015.

b) If not, is it well founded and if so for what amount. [ 24 ] Plaintiff cannot claim reimbursement of the legal fees and expenses paid by his sister in relation to the 2008 Superior Court case when he has not established according to the balance of probabilities that he owes her the money.

Plaintiff indeed did not establish that his sister, who paid the attorney’s invoices in 2008 in part because she benefited from the legal services, has ever asked him in seven years to reimburse the money. [ 25 ] Plaintiff was claiming damages for time wasted, stress and aggravation. [ 26 ] He testified at length about how his relationship with the Defendant has always been acrimonious and how everything got worse when his mother passed away in 2007.

Plaintiff and his sister are liquidators to the estate of their late mother, estate which to this day is not liquidated. [ 27 ] In the context where the parties are accusing each other of bad faith and stilling what is not theirs in relations to the liquidation of their mother’s estate, it appears that the cause of Plaintiff’s wasted time, stress and aggravation is not the two court cases that opposed them before the Superior Court and the Québec Court regarding the liquidation of their father’s estate, but rather their long term acrimonious relationship and the fact that their mother’s estate is still not liquidated. [ 28 ] The Court further notes that the court cases that opposed the parties in relation to the liquidation of their father’s estate appeared to have been straight forward and Plaintiff, who was represented by attorney in both instances, has failed to establish having wasted any time.

Punitive damages [ 29 ] The award of punitive damages is not automatic. They are deterrent and preventive and can only be granted where legislative provisions so provide.

The amount awarded depends on the circumstances of the case, including the debtor's fault and his financial situation. [ 30 ] A civil fault must not be confused with the unlawful and intentional interference with a right guaranteed by the Charter Rights and freedoms of the person [11] . [ 31 ] To have been entitled to punitive damages, the defendant should have demonstrated an unlawful and intentional interference with the peaceful enjoyment of a Charter right. [ 32 ] Falling evidence to that effect, this part of the claim would also have been dismissed. Legal fees [ 33 ]

Article 340 of the Code of Civil Procedure provides that the losing party is entitled to legal costs, unless the court decides otherwise. [ 34 ] Because of the particular circumstances of this file the Court does not award the legal fees to the Defendant. [ 35 ] WHEREFORE, THE COURT: [ 36 ] REJECTS the claim. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: January 12, 2017