2019 QCCQ 4829, 2019 QCCQ 4829

Dorion c. Buddle 2019 QCCQ 4829 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-708168-192 DATE: June 5, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ IAN EDWARD DORION Plaintiff v.

CHRISTOPHER BUDDLE And FABRICE LABEAU And LINE THIBAULT And YVES BEAUCHAMP And ALI MARTIN-MAYER And PIERRE BARBARIE And CHRISTOPHER CARSON And MCGILL UNIVERSITY Defendants ______________________________________________________________________ JUDGMENT ON EXCEPTION TO DISMISS ______________________________________________________________________ [ 1 ] Ian Dorion seeks $5,000 in damages from the Defendants on the grounds that his access to IT resources offered to him as a McGill University alumni was wrongfully terminated (“Claim”).

His suit was initially directed against 7 McGill University employees, who subsequently impleaded their employer McGill University. [ 2 ] Four of the 7 employee-Defendants, namely Ali Martin-Mayer, Pierre Barbarie, Yves Beauchamp and Christopher Carson (collectively the “Moving Defendants”) ask this Court to dismiss Mr.

Dorion’s Claim on the grounds that it is unfounded in fact and in law even if the facts alleged therein are true. [ 3 ] The Moving Defendants argue that the Claim does not contain any allegation of fact which, even if considered true, would constitute the commission of a fault by them which caused the damages Mr. Dorion claims. Issue Is it plain and obvious that Mr. Dorion’s claim against the Moving Defendants is unfounded in law even if the facts alleged are true? Context [ 4 ] In February 2019, Mr.

Dorion filed a claim against seven McGill University employees, including the four Moving Defendants, from whom he claims punitive and moral damages of $5,000. [ 5 ] He alleges that as an alumni of McGill University, he was entitled to use McGill University’s IT resources, which includes access to the university email system.

However, he asserts that in September 2018, the Defendants wrongfully terminated his use of this service. [ 6 ] Initially, the Claim was only brought against 7 McGill University employees and not against their employer, McGill University. [ 7 ] In March 2019, the Defendants filed their Contestation in which they allege that McGill University was justified in terminating Mr. Dorion’s use of the university IT resources because he used his email account in violation of the rules governing the use of such services.

[ 8 ] The Defendants also impleaded McGill University. As such, McGill University was added as an eighth Defendant to Mr. Dorion’s claim. [ 9 ] The Moving Defendants also brought the present application to dismiss which was heard on May 9, 2019. Analysis and Decision [ 10 ] The Moving Defendants invoke

article 168 paragraph 2 of the Code of Civil Procedure (“ C.C.P. ”) in support in of their exception to dismiss: 168. A party may ask that an application or a defence be dismissed if: (1) there is lis pendens or res judicata ; (2) one of the parties is incapable or does not have the necessary capacity to act; or (3) one of the parties clearly has no interest. The party may also ask that an application or a defence be dismissed if it is unfounded in law even if the facts alleged are true . Such an exception may pertain to only part of the application or defence.

The party against which the exception is raised may be allowed a period of time to correct the situation but if, on the expiry of that period, the correction has not been made, the application or defence is dismissed.

The dismissal of an application may be urged even if the exception to dismiss was not raised before the first case management conference. [Underlining added] [ 11 ] The following are the principles of law applicable to an exception to dismiss [1] : • The allegations in the originating application or the defence must be assumed to be true, which includes the exhibits filed in support thereof; • Only the alleged facts must be assumed to be true, not their characterization by the plaintiff; • The Court need not decide on the plaintiff’s likelihood of success nor whether the facts alleged are well founded.

It is up to the judge on the merits to decide whether the facts alleged have been proved, after hearing the evidence and arguments; • The Court must allow the action to proceed if the allegations in the motion to institute proceedings are liable to eventually give rise to the relief sought; • The purpose of an exception to dismiss is not to adjudicate the parties’ legal arguments before a trial is held.

Its sole purpose is to determine whether the conditions for the proceedings are supported by the facts alleged, which requires not only an explicit, but also an implicit, examination of the law invoked; • An exception to dismiss should not be dismissed on the pretext that it raises complex issues; • The application of art. 168 para.

(2) C.C.P. favours the sound and effective management of judicial resources. The power of the courts to dismiss actions at a preliminary stage “is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial; • When considering an exception to dismiss, caution is required. Where there is uncertainty, litigation should not be ended at an early stage; • Dismissing an action at a preliminary stage can have very serious consequences, however.

The courts must therefore be cautious in exercising this power. As a result, an action will not be dismissed at this point in the proceedings unless it is plain and obvious that it lacks a basis in law; • In case of doubt, the plaintiff must be given an opportunity to be heard on the merits. [ 12 ] Mr. Dorion alleges the following in his Claim: 1. The Plaintiff is suing the Defendant for the following reasons: Compensation for loss of services which are promised to McGill alumni. Punitive/moral damages.

The contract that arises between me and McGill is akin to an implied contract and could also be described as a gratuitous contract under art. 1381 Civil code . The defendants should restore my IT access and also compensate me for time and expense involved in suing them. 2. The facts occurred on or around September 7, 2018, at Montreal (Quebec). 3. The amount of the claim is $5,000.00.

4. The Plaintiff makes the following clarifications to the facts set out above: On September 7, 2018, Fabrice Labeau, McGill's interim Deputy Provost, wrongfully ordered the termination of my IT access at McGill. This entailed the loss of my username " [...]@mail.mcgill.ca" and all the applications for which this username is necessary. This termination was done suddenly and without a valid reason, and led to the loss of my email account and files, as well as the loss of access to many applications which students and alumni access using their username .

Labeau used the false pretext of repeated violations of McGill’s IT Policy. However, the real reason was the lobbying of the defendants, especially Buddie , whom I am already suing for breach of contract. These agitations were mid to late Aug. 2018 around the time I had cc’d Thibault on an email to small claims court re: the electronic submission of evidence in the other file (500-32-156936-173). They could assume that I had evidence against them in my email files. The last email I ever sent using my McGill acc’t was on Aug.20, 2018 re: a grade grievance hearing.

Buddie has been a trouble-maker since cleaning and security staff got me wrongfully arrested on April 5, 2017.1 was prosecuted, but then acquitted. Buddie reneged on his promises in April 2017 and then kept trying to get me re-arrested and charged. He is acting out of vengeance due to the law suit and due to my criticism of him. On Sept.18, 2018, Buddie filed a false criminal complaint against me and made false accusations. He instigated the termination of my IT access, a breach of my Alumnus-University contract with McGill, out of vengeance and to prevent me from accessing files to be used as evidence in court.

McGill promises email for life to its alumni, as well as other services which require a username. I lost these services without a valid reason. I wrote to Labeau, S. Barqueiro, and E. Rogowska, to complain and seek the restoration of my IT access. No reply. I did not send a mise en demeure because they would have ignored it. For these reasons, the Plaintiff asks the court to: Solidarily order the Defendant to pay an amount of $5,000.00 to the Plaintiff, with interest at the legal rate, plus the additional indemnity stipulated in

section 1619 of the Civil Code of Quebec . Order the Defendant to pay, to the Plaintiff, the court fees of $103.00 associated with this claim. [Underlining added] [ 13 ] Mr. Dorion’s claim against McGill University is contractual [ art. 1458 Civil Code of Québec “ C.C.Q. ” )] and is premised on an alleged breach of a contract to provide email and IT resources to university alumni. [ 14 ] The claim against the 7 McGill University employee Defendants is extra-contractual (art. 1457 C.C.Q. ) It will only succeed if Mr.

Dorion proves that one or more of the employees committed an extra-contractual fault and that this fault caused him to suffer the damages which he alleges. [ 15 ] The fault which Mr. Dorion asserts the employee Defendants committed is alleged in paragraph 4 of the Claim. He contends that the termination of his access to IT resources and his email account was done without valid reason.

He further adds: “However, the real reason was the lobbying of the defendants…” [ 16 ] Can a person (i.e., the 7 employees) who is not a party to the contract yet who encourages, induces or lobbies another person ( i.e . , McGill University) to breach its contract with its co-contracting party commit an extra-contractual fault under art. 1457 C.C.Q. ? [ 17 ] The courts of this province have held that such conduct may constitute an extra-contractual fault.

It is essentially a question of fact. [ 18 ] Indeed, as professors Jobin and Vézina write in Les obligations : Inciter quel​qu'un, en toute con​nais​sance de cause, même implicitement, à violer son engagement contractuel envers un autre constitue indéniablement la violation ​d'une « règle de conduite qui, suivant les circonstances [et] les usages [...] ​s'impose » à cette personne, selon l'heureuse formule de ​l'

article 1457 du Code civil du Québec . [2] [ 19 ] This principle was recently applied by Justice Peacock in Simms Sigal & Co. Ltd. v. Costco Wholesale Canada Ltd. where he decided that Costco committed an extra-contractual fault of contractual interference against Simms Sigal & Co. Ltd. (“Simms”) when it induced a manufacturer of clothing with who Simms had an exclusive distribution agreement to sell clothing to Costco in violation of Simms’ exclusivity rights.

He writes: [90] However, as the doctrine notes: « L’opposabilité des contrats a connu depuis une cinquantaine d’années un développement phénoménal et de nombreuses ramifications … Si le tiers se rend complice de la violation du contrat par une des parties, il commet une faute et l’autre

partie peut exercer les droits extracontractuels contre lui ». [91] “Contractual interference” is an extra-contractual fault under CCQ art. 1457 which arises where a third party either (

i) incites a contracting party to breach its contractual obligations or (ii) participates with that party in breaching those obligations. This fault of “contractual interference” is established according to the jurisprudence and doctrine where: a. a plaintiff proves: (

i) the wrongdoer’s sufficient knowledge of the contractual obligation which is being breached; and (ii) the wrongdoer’s incitement or complicity in the breaching or termination of that contractual obligation; and b. a plaintiff need not prove intent to do harm.

However, the Court agrees with legal scholars Lluelles and Moore cited in Costco’s authorities that the wrongdoer must be shown to have “… conscience que son comportement était très probablement susceptible de causer un préjudice à ce contractant ” and act, in the minimum, with “ un mépris caracterisé des intérêts d’autrui …” [3] [ 20 ] In the case at bar, Mr. Dorion alleges that McGill University’s termination of his email account and IT resources was done without a valid reason and was notably caused by the lobbying of the employee Defendants. [4]

[ 21 ] At this stage of the proceedings, the Court must take this allegation of fact as true. The Court does not have to decide whether Mr. Dorion will be able to prove his lobbying allegation. This task is best left to the judge who will hear the merits of the claim, after hearing all the evidence and the arguments. [ 22 ] If the lobbying allegations are proven, and if Mr. Dorion proves causation and that he suffered a prejudice therefrom, they are likely to give rise to the relief sought by Mr.

Dorion as such conduct could qualify as the fault of contractual interference under art. 1457 C.C.Q . [ 23 ] Hence, it is not plain and obvious that Mr. Dorion cannot succeed against the 7 employees if he proves all of the allegations in his claim, notably the allegation whereby they allegedly lobbied McGill University to terminate the email and IT access contract. [ 24 ] The Moving Defendants argue that Mr.

Dorion will suffer no prejudice if their exception to dismiss is granted because he would still be able to pursue his Claim against the 3 other employee Defendants and McGill University. [ 25 ] That is not the test that the Court must follow. [ 26 ] Rather the Court must determine whether it is clear that Mr. Dorion cannot succeed against the Moving Defendants even if he proves the allegation of lobbying. [ 27 ] The Court is not convinced that it is plain and obvious that he will not succeed if he proves these alleged facts. The Court simply cannot conclude at this stage of the proceedings that Mr.

Dorion’s Claim against the Moving Defendants is unfounded in law and has no chance of success. [ 28 ] The Court must be cautious before granting an exception to dismiss and in case of doubt, the matter should proceed to trial. [ 29 ] Accordingly, the Moving Defendants’ Exception to Dismiss must be dismissed. FOR THESE REASONS, THE COURT: [ 30 ] DISMISSES Ali Martin-Mayer, Pierre Barbarie, Yves Beauchamp and Christopher Carson’s Exception to Dismiss. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: May 9, 2019