2011 QCCQ 3917, 2011 QCCQ 3917

Dunn c. Trottier 2011 QCCQ 3917 COUR OF QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF AMOS “Civil Division” N°: 605-32-002429-107 DATE: April 19, 2011 ______________________________________________________________________ BY THE HONOURABLE CLAUDE BIGUÉ, J.C.Q. ______________________________________________________________________ MIKE DUNN Plaintiff V.

DENIS TROTTIER and CENTRE COMMUNAUTAIRE JURIDIQUE DE L’ABITIBI-TÉMISCAMINGUE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff Michael (Mike) Dunn claims $ 7,000.00 from a lawyer, Denis Trottier, alleging professional misconduct, and also from Legal Aid “Centre communautaire juridique de l’Abitibi-Témiscamingue” (CCJAT) for failure to provide a competent lawyer or to offer the possibility of giving a mandate to a competent lawyer.

ISSUES RAISED: [ 2 ] Did Me Trottier make any mistakes as a lawyer?

Did he show unprofessional conduct? [ 3 ] What are the duties of the Legal Aid Centre when providing a recipient with the professional services of an advocate or when giving a mandate to an advocate not employed by the Legal Aid Centre, pursuant to sections 51 and 52 of the Legal Aid Act ? [1] THE FACTS: [ 4 ] On June 18, 2006, the plaintiff was charged with three counts under the Criminal Code of Canada : driving a car under the influence of alcohol, mischief by causing damage to a pole and a street lamp, and mischief by causing damage to the interrogation room at the police station. [ 5 ] The plaintiff is a resident of the City of Ottawa.

On June, 18, 2006, he was in Amos for work. [ 6 ] When the events occurred, and at all relevant times since the events, Mr. Dunn has always been a welfare recipient. [ 7 ] The events for which he was charged took place during the night of June 18 to 19, 2006 and also the next morning. [ 8 ] The defendant Centre communautaire juridique de l’Abitibi-Témiscamingue (CCJAT) recognized that Mr. Dunn was eligible for legal aid. The services were to be rendered by the other defendant, Denis Trottier, an employed lawyer at the Legal Aid office in Amos. [ 9 ] On August 21, 2006, Mr. Trottier appeared for Mr.

Dunn at the Court House in Amos. The case was postponed “proforma” to October 2 and then to November 20, 2006. On the said date, the case was set for trial on January 19, 2007 and Mr. Dunn was immediately informed of the trial date by Denis Trottier. [ 10 ] On January 4, 2007, Judge Normand Bonin refused to postpone the trial, as requested by Me Trottier for Mr. Dunn. [ 11 ] On January 15, 2007, discussions took place between Me Denis Trottier and the plaintiff. As a result of these discussions, Mr. Dunn told Mr. Trottier that he would plead guilty.

The case was transferred to Ottawa and taken in charge by Ottawa lawyer Douglas Baum, who confirmed to Denis Trottier and to the Crown attorney that his client would register a plea of guilt. [ 12 ] On January 19, the trial was cancelled. Then, defendant Trottier was authorized by the Court to cease representing Mr. Dunn, since he had been replaced by lawyer Baum.

[ 13 ] The plea of guilt was eventually registered in Ottawa on June 5, 2007, on the count of operating a motor vehicle while impaired by alcohol. There was an application for a stay of proceedings on the two other counts as part of the settlement. [ 14 ] Mr. Dunn was sentenced to a $600.00 fine and was prohibited to drive for 12 months.

In addition, the Court issued two restitution orders, one for the benefit of Sûreté du Québec, Amos Detachment, and a second for McDonald’s Restaurant in Amos, although the mischief charges had been abandoned by the Crown attorney. [ 15 ] In February 2008, while attending the remedial program “Back on Track” in order to recover his driver’s licence, Mr. Dunn decided that he should not have registered a plea of guilt. [ 16 ] Almost one year after his plea of guilt, he made an application for a time extension to appeal his guilty conviction.

At all times since then, he acted without a lawyer, on his own behalf as a “self-litigator”, as he calls himself. He was unsuccessful at the Ontario Superior Court, then at the Ontario Court of Appeal and finally at the Supreme Court of Canada. [ 17 ] On January 14, 2010, the Supreme Court of Canada dismissed Mr. Dunn’s application for leave to appeal as well as all his ancillary motions. [2] [ 18 ] In the meantime, on January 5, 2010, he had made an application to sue lawyer Trottier and the Legal Aid Centre for 7,000.00 $ in the instant case.

In Ontario, he also filed a civil claim of $50,000.00 against lawyer Douglas Baum. [ 19 ] At the plaintiff’s request, the case was transferred to the Civil Division of the Court of Québec in April 2010, in order to have the amount claimed increased to $50,000.00. In October 2010, the case was transferred back to the Small Claims Division at the plaintiff’s request, for a claim reduced again to $ 7,000.00. [ 20 ] The hearing took place on January 7, 2011 in Amos, after two postponements were granted Mr. Dunn. A third application for postponement was denied on January 5, 2011 by judge Bigué.

ANALYSIS: [ 21 ] The case

summary exposed by the Supreme Court of Canada reviews the factual context as follows: [3] “At the relevant time, the Applicant was employed as a truck driver. He had no criminal record. He was driving his truck in Amos, Quebec. At about 10:30 p.m. on June 18, 2006, he tried to order alcohol in a restaurant, but was refused. Some employees of the restaurant saw him walking to his truck and noticed that he seemed to be severely impaired. Once inside the truck, he drove across the road to a McDonald’s restaurant. The truck collided with a pole and a street lamp in the parking lot.

People came out of the McDonald’s restaurant and informed the Applicant that the police had been called and that he should not leave. They noticed that he appeared to be impaired. He drove away in his truck. The next day, the police found him at a nearby hotel. He was still severely impaired by alcohol. He was arrested and taken to the police station, where he kicked a hole in the interview room wall. On June 5, 2007, the Applicant entered a guilty plea to the charge of impaired driving.

He was fined and prohibited from driving for 12 months.” [ 22 ] The plaintiff alleges the following mistakes by Denis Trottier: ➢ On January 15, 2007, failure to prepare a second motion to ask for the postponement of the trial scheduled on January 19, because the first motion for postponement had been denied; ➢ Scaring Mr. Dunn into pleading guilty; ➢ Failure to inform Mr.

Dunn that he was inexperienced, being an articled student at the beginning of their professional relationship; ➢ Failure to get the evidence provided by the Crown translated. [ 23 ] The plaintiff also alleges two mistakes by the Legal Aid Centre: ➢ Not providing him with an experienced lawyer, since CCJAT provided an articled student; ➢ Failure to get in touch with him when Denis Trottier, becoming a lawyer on November 24, 2006, was no longer employed by CCJAT, in order to discuss further legal representation through a Legal Aid mandate. [ 24 ] Mr.

Dunn provided the Court with a detailed letter of claim and many exhibits (97 page submission). The hearing lasted a full day in Court. A- Issues related to Me Denis Trottier; 1 o - Failure to prepare a second motion for postponement: [ 25 ] On January 4, 2007, Me Trottier prepared a detailed motion requesting the postponement of the trial scheduled on January 19, 2007. The reasons supporting the motions were: ➢ Mr. Dunn had to face additional expenses resulting from an unexpected obligation to move, notified for April 1, 2007; ➢ Mr. Dunn’s sole income is from welfare allowances; ➢ Mr.

Dunn could not afford the travelling expenses in order to be in Amos on January 19, 2007 for his trial. [ 26 ] Judge Normand Bonin refused the application for postponement. He considered that Mr. Dunn should have anticipated

travelling expenses before, since he knew in advance that this trial would be in Amos on January 19. As for the expected expenses related to the obligation to move on April 1, the judge added that obviously the accused’s financial situation would be worse after the month of April. [ 27 ] Talking on the phone with lawyer Trottier on January 15, Mr. Dunn asked him to prepare a second motion for an adjournment based on the following reason: he had already paid travelling expenses when he came to Amos in November, believing that he was coming for his trial.

He wanted postponement because his next welfare check would be issued only 15 days later. [ 28 ] Lawyer Trottier refused to draft a second motion for postponement. He said that there was no chance he could have it granted, and that he had to get final preparation in order to be ready for the trial scheduled four days later. Lawyer Trottier was right, especially because judge Bonin had already been submitted an allegation that Mr. Dunn could not afford travelling on January 19, in paragraph 4

d) of the motion: the judge rejected that pretension. [ 29 ] There is more: the alleged reason for coming to Amos in early November for Court purposes does not match what really happened. Mr. Trottier wrote letters to Mr. Dunn on July 6, August 24 and October 27; in none of them did he mention a trial date on November 6 in Amos. Also, Mr. Trottier demonstrated that he speaks English well and correctly, so this is not a case of language barrier, as alleged by Mr. Dunn in his affidavit of November 18, 2008, submitted to the Court of Appeal of Ontario. Mr.

Dunn never called Denis Trottier before travelling in early November. He came to Amos for other reasons and called Mr. Trottier only when he was in Amos. Then he never showed up at Mr. Trottier’s office. [ 30 ] Mr. Dunn came to Amos in order to make an attempt at living in Amos, as he now says, and also to see whether he could be eligible to welfare in Québec. On this account, he can only provide the Court with supporting documents for a one-night hotel stay on November 3, although he says that he was in Amos for six days.

Furthermore, there is evidence that he had bought a bus ticket on November 1, at the “station central “. This is inconsistent with Mr. Dunn’s testimony that he arrived in Amos on October 30 or 31. [ 31 ] But while he was in Amos, he phoned Denis Trottier who informed him that no trial date had been scheduled so far. Mr. Dunn decided to go back to Ottawa without meeting with Denis Trottier, although he was offered the opportunity: Mr. Trottier was surprised at that. Mr. Dunn confirmed in Court that he did not want to meet with Denis Trottier when he was in Amos for a few days. This was before November 20 and Mr.

Dunn never instructed Denis Trottier to ask for a later date of trial in order for him to gather money for future travel expenses. He went back to Ottawa to get a special welfare check. He wrote to Me Trottier on November 10, informing him that he had to go back to get his check of “immediate assistance”; he provided him a copy of the check. [ 32 ] Mr. Dunn now files, as a document, a check of $567.05 as “sums advanced”, dated November 10. On November 11, he deposited the check and withdrew $500.00 right away. On November 16, two purchases were made at the Wine Rack, totalling $33.00.

There is no evidence of travelling expenses thereafter. He did not come to Court in Amos for a hearing on November 20. [ 33 ] The Court record of November 20 indicates that Mr. Dunn was not present but represented by Denis Trottier. Mr. Dunn further admits in this Court room that he was not in Amos on November 20. Then Judge Bonin’s decision would have been the same had he be informed of Mr. Dunn’s travel to Amos in early November, at a time when the latter had no valid reason to think of an assigned Court date.

It is to be noted that he never showed up in Court after receiving the special assistance check dated November 10. [ 34 ] At last, the reason given to Judge Bonin, - I refer to the apprehended additional moving costs on April 1, 2007 -, does not match the reality. In November 2006, we have a check issued to Mr. Dunn with his address on Albion Road in Ottawa. On January 4, 2007, Mr. Dunn says he will be forced to move in April. On June 5, 2007, the transcript of the Superior Court (page 9), confirmed that his address is still on Albion Road. Furthermore, Albion Road was still Mr.

Dunn’s address on a copy of the welfare check dated April 29, 2010, sent to the Court as evidence of his status. There is consequently no evidence that Mr. Dunn was ever forced to move in April 2007. [ 35 ] Consequently, there was no chance of success for a second motion of postponement and Mr. Trottier did not commit professional misconduct by refusing to submit a second application for postponement. 2 o Claiming to be compelled to plead guilty: [ 36 ] When the first motion for postponement was refused, Mr. Dunn asked Mr.

Trottier what were the consequences of failing to show up in Court on the date of the trial. The answer given by the lawyer (warrant and possibility of detention) was not a threat, but a realistic answer. [ 37 ] Mr Trottier had sent Mr. Dunn copies of the evidence disclosed as early as October 27. Mr. Dunn confirms that, from the beginning to the end of Mr. Trottier’s mandate, he spoke to him at least twice per month, often 30 minutes at a time. Mr.

Trottier reviewed all the evidence with him on the phone, and translated for his client all the documents drafted in French. [ 38 ] On January 15, on the phone again, Mr. Trottier reviewed all the evidence once more with Mr. Dunn. He gave his opinion that the evidence of the Crown was strong, since many civil witnesses had seen his condition and his actions that night; five police officers would also confirm that he was still highly intoxicated the next morning.

Denis Trottier was honest and professional when discussing with his client the possibility to plead guilty, and to enter into what we call plea bargaining, because conviction was a serious consideration. Since Mr. Dunn’s preference was to not come to Amos, Mr. Trottier also explained that the case could be transferred to Ottawa to avoid his coming to Amos, if he chose to plead guilty. [ 39 ] However, if Mr. Dunn still wanted a trial, he had no other choice but to come to Amos.

If he were not to show up at the trial, the consequence was that a warrant for arrest would be issued against him, as prescribed by law. [ 40 ] So Mr. Dunn had a choice to make. And he did make a choice, that of pleading guilty. Mr. Dunn expressed his choice orally to Mr. Trottier. He then appointed a lawyer from Ottawa who confirmed his intention of pleading guilty over a telephone conversation with Mr. Trottier. At last, Mr. Dunn signed a clear undertaking to plead guilty, which was faxed to Me Trottier.

[ 41 ] As a result of Mr. Dunn’s decision, Denis Trottier was replaced by a new lawyer, Mr. Douglas Baum. [ 42 ] Mr. Dunn insisted to have lawyer Baum as a witness in the present case. He is the lawyer appointed by Mr. Dunn himself in order to have his case transferred to Ottawa for a plea of guilt. Lawyer Baum testified that he received rapidly a letter of confirmation by Denis Trottier and also a copy of the evidence disclosed by the Crown in Mr. Dunn’s file. Mr. Trottier also made himself available for communications over the phone in order to secure the transfer of the case to Ottawa on due time. Mr.

Baum added that Mr. Trottier worked effectively and rapidly. He provided Denis Trottier and the Crown with a request for the transfer of charges and the undertaking to plead guilty, signed by Mr. Dunn on January 17, 2007. [ 43 ] Denis Trottier communicated rapidly with lawyer Baum and with the Crown Attorney in order to have the transfer become effective on due time. The Court is mostly satisfied that Mr. Trottier fulfilled all the duties arising from

section 606 of the Criminal Code of Canada before giving effect to the transfer. As well, he reviewed the evidence with Mr. Dunn once more on January 15, 2007 and, also before that date, he informed adequately Mr. Dunn of all the consequences of a plea of guilt, if this were his choice. Mr. Trottier showed due diligence to make sure that Mr. Dunn’s guilty plea was made voluntarily before collaborating to transfer the file, and to confirm that Mr. Dunn was in a position to meet the conditions listed in

section 606 C.C.C., in order to put an end to his own mandate. [ 44 ] The Court is also satisfied that Mr. Trottier never compelled Mr. Dunn to plead guilty only to avoid failure to appear, involving eventually a warrant, arrest and jail, as he now claims. [ 45 ] Unexpectedly, Mr. Dunn changed his view concerning Mr.Trottier at the very end of the trial, now saying in Court that Denis Trottier had done really good work on his behalf. He even apologized to him at the end of the hearing. This is a huge change from the beginning of the proceedings.

For example, we can read in his letter of demand: “Shame on you Denis, you will be held accountable to God on judgment day for your betrayal.” [ 46 ] Since Mr. Dunn did not clearly withdraw his claim against Denis Trottier, the Court has to discuss all the allegations concerning lawyer Trottier in the present judgment, and will have to make a decision on the claim against Mr. Trottier. [ 47 ] Mr. Dunn had to be warned by the Court concerning attempts to ask Mr. Baum questions that were irrelevant to the present file, but only relevant to Mr. Baum’s status as a defendant in a future trial in Ontario.

This attitude is the continuation of a relentlessness expressed in many letters written by Mr. Dunn and filed in the Court’s record, when referring to Mr. Baum. Even after warnings by the Court, Mr. Dunn tried to foil. The Court had to limit Mr. Dunn’s questions within the period of his communication with Mr. Trottier and the matters related to the transfer of the case, between January 15 and January 19, 2007. Such behaviour affects the plaintiff’s credibility. As for Mr.

Baum, he testified clearly and honestly. 3 o Failure to inform the client that he had very little experience: [ 48 ] The overall evidence is that Mr. Trottier, although he was in the beginning an articled student, and after November 24, 2006 a newly appointed lawyer, performed his duties in a professional manner. Mr. Dunn never expressed dissatisfaction in 2006 and 2007 concerning Mr. Trottier. He never asked to change for another advocate. We can read: “thank you Denis” on a note written in November 2006. There is more. In all the letters sent to Mr. Dunn between July and November 2006, Mr.

Trottier signed as “stagiaire en droit” (articled student) or “legal representative”, never as a lawyer. [ 49 ] The Court sees no fault in the services rendered by Denis Trottier: appearance, two pro forma postponements, one postponement for setting a trial date, one motion for postponement of the trial, the refusal to make a second motion for postponement, and the final arrangements for the case to be transferred to Ottawa. 4 o Failure to provide the written translation of every document drafted in French: [ 50 ] As for the reproach concerning the demand for translation of each document of the disclosed evidence, Mr.

Trottier explained to Mr. Dunn that he was not entitled to obtain an official translation of every document. The Court is satisfied that Mr. Trottier gave Mr. Dunn thorough explanations and a complete unofficial translation of all the evidence. [ 51 ] Moreover, this refusal to provide a formal translation had been done no later than November 2006, more than 3 years before the claim was initiated, and on that aspect, extinctive prescription applies. We must not forget that, on the day of his arrest in Amos, Mr.

Dunn also tried to mislead the police officers upon pretending not to understand the English language, trying to make them believe that he spoke Spanish, and had a very limited knowledge of English. Such a manipulation affects one’s credibility.

B- The allegations concerning the Legal Aid Centre (CCJAT): 5 o Failure to provide an experienced enough lawyer ( s. 51 ): [ 52 ] Providing the services of an articled student meets the goals of the Bar Act, provided that an articled student can perform the same legal services as advocates, with supervision. [4] At all times Denis Trottier was supervised by senior lawyers when he was an employee of CCJAT. [ 53 ] Mr. Dunn’s case was a relatively simple one, not deserving the services of a senior lawyer: one count of impaired driving and two counts of mischief. The defendant CCJAT met its obligation pursuant to

section 51 of the Act. Moreover, Mr. Dunn never questioned that issue before 2008. Mr. Trottier committed no fault; he could also speak English very well, which was essential to representing Mr. Dunn who says he can neither understand French nor speak it. Mr. Trottier, being experienced or not, performed his work in a professional manner, before and after November 24, 2006. [ 54 ] As for the services rendered after November 24, 2006, Mr. Trottier was no longer an employee of CCJAT, especially when the case was transferred on January 17, 2007. He was then employed by the Painchaud Law Firm.

[ 55 ] At last, concerning the allegations of breach to

section 51 by CCJAT, the events referred to took place between July 2006 and November 23, 2006, when Mr. Trottier was employed by CCJAT. For all the events that occurred during the said period, the rights for action are extinguished by the three-year prescription rules. The present civil demand was launched too late, i.e. on January 5, 2010. 6 o Failure to offer an experienced private practitioner: [ 56 ] As a result of services provided by CCJAT, a trial date was set on November 20, 2006 for the trial assigned on January 19, 2007.

Instead of continuing to provide the services of an employed advocate, CCJAT made arrangements for the said file to stay in the hands of Denis Trottier, who had been in charge of the case from the beginning. Mr. Dunn appeared to be satisfied with his services, as we can read in his November 10 note. There did not seem to be any need for CCJAT to ask Mr. Dunn for his approval, especially that Denis Trottier was ready for the trial. [ 57 ] Hence the defendant CCJAT rapidly issued a mandate and confirmed to Mr. Dunn that he was still eligible for legal aid. The case was assigned to Mr. Trottier pursuant to

section 52 of the Act. A certificate of eligibility was sent to Mr. Dunn on December 8, 2006, with the mention: “At the request of the person whose name appears opposite (Mr. Dunn), we are assigning you (Denis Trottier, with his new address) the following file”. Mr. Dunn never objected. [ 58 ] When he phoned at the beginning of January 2007, the Legal Aid Office in Amos provided Mr. Dunn with Mr. Trottier’s new phone number in Val-d’Or. Mr. Dunn was able to talk with his lawyer immediately, and he instructed him to prepare a motion for an adjournment. [ 59 ] If Mr.

Dunn wanted to discuss the possibility of getting a more experienced lawyer or another lawyer for whatever reasons, he is the one who had to communicate with defendant CCJAT and ask for it. He never did. He now says that he would have picked an experienced lawyer, had he been provided with the choice to do so. Mr. Dunn alleges that an experienced lawyer would have at least applied for a second motion for postponement, and would have gotten it. This is far from certain. Mr.

Dunn puts forward the names of Me Claude Dostie, a lawyer appointed to the Bar only one year prior to Denis Trottier, and Lucien Cliche jr, a lawyer who is well known as a civil litigator. Me Cliche never handles criminal cases, and we can also note that he was Denis Trottier’s counsel for a short period when the present file was transferred to the Civil Division of the Court of Québec. All this weakens Mr. Dunn’s allegations on the subject. As for the chance of success of a second motion, I have already covered the issue. [ 60 ] Consequently, Mr. Dunn did not prove his allegations against CCJAT.

CCJAT committed no fault. Furthermore, Me Trottier was no longer an employee of CCJAT at the time of the alleged professional misconduct, between January 15 and 19, 2007. The next lawyer, Mr. Baum, was not mandated by CCJAT but by the Legal Aid Centre of Ontario. CCJAT was no longer involved in the case when Mr. Dunn pleaded guilty on June 5, 2007. There had been plenty of time for him to reconsider his decision between January and June. But he did not. He maintained and expressed his plea of guilt. C - Issue of the damages claimed: [ 61 ] Notwithstanding what has just been discussed, Mr.

Dunn did not provide the Court with any evidence concerning the alleged damages for $ 7,000.00 he would have suffered as a result of the defendants’ behaviour. [ 62 ] At some point, he said that he did not want any money and that he would not take any even if the claim was to be granted by the judge. Although Mr. Dunn expressed at the hearing that the present claim was only a matter of principle, the Court can see from the written evidence that money had been so far an important issue, in letters drafted by Mr. Dunn and also in his past motion to increase the claim to $ 50,000.00.

Here again, there are contradictions between the original allegations and their actual wording in Court. Hence the Court has to decide on all of these allegations, as originally drafted by Mr. Dunn to support his claim. [ 63 ] If Mr. Dunn suffered damages from losing his driver’s licence and from having a criminal record, these damages are not related to any fault made by Denis Trottier or by the CCJAT. Mr. Dunn could have changed his mind between January and June 2007, and have the case returned to Amos if he really wanted to plead not guilty.

He had a period of 5 months to think about it, but he did plead “guilty” on June 5, 2007, as we can read in the transcripts. D - Conclusions: [ 64 ] The overall context of this case shows that Mr. Dunn changed his mind in 2008 about the choice of pleading guilty that he had clearly announced to lawyer Trottier on January 15, 2007. The case was transferred upon Mr. Dunn’s request and under no compulsion from Me Trottier. We note that Mr. Dunn has a pattern of changing his mind repeatedly in different circumstances.

For instance, he changed his address at least three times within one year in 2006-2007: Arcola, Rialto and Albion Streets. As well, he initiated a claim of $ 7,000.00 at the Small Claims Division, upgraded it to $ 50,000.00 for a transfer to the Civil Division of the Court, then again he lowered it to $ 7,000.00 in order to come back to the Small Claims Division. In Court, he says that money is no longer important. He also withdraws his allegations against Denis Trottier at the very end of the hearing, but not the claim itself. [ 65 ] In fact, Mr.

Dunn appears to have a distorted view of the whole situation surrounding his plea of guilt and the overall circumstances related to his case in Criminal Court. He says at the trial that, whatever will be decided in Court, he “will never let this thing go”. An excessive religious pattern can also be detected in the plaintiff’s behaviour. At the bottom of all his letters filed as exhibits or sent to the Court, the plaintiff writes two times: “Jesus is lord – Christ Jesus is coming quickly! John 3:16”.

Religious patterns also appear in the content of some letters and in some of his speech in Court, which reflects Mr. Dunn’s inclination to distorting reality. If a motion had been proposed pursuant to

section 54.6 of the Code of Civil Procedure , the Tribunal would have seriously assessed the option of declaring Mr. Dunn a quarrelsome party. [ 66 ] Mr. Dunn did not meet the burden of proof, which is based on the preponderance of evidence rule as defined in

section 2803 of the Civil Code of Québec , which reads as follows: “2803. A person wishing to assert a right shall prove the facts on which his claim is based.

A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation.” [ 67 ] FOR ALL THESE REASONS, THE COURT: [ 68 ] DISMISSES the plaintiff’s demand. [ 69 ] CONDEMNS the plaintiff Mike Dunn to pay the costs, which are: ➢ Court fees paid by Denis Trottier: $146.00 ➢ Court fees paid by CCJAT: $191.00 ➢ Witness Douglas Baum’s allowance as a witness, according to the tariffs in force as ordered in paragraph 70. [ 70 ] AUTHORIZES taxation for witness Baum’s costs, and CONDEMNS the plaintiff Mike Dunn to pay these costs. __________________________________ CLAUDE BIGUÉ, J.C.Q. Date of hearing : January 7, 2011