RESPONSE (ART. 186 (1) C.p.c.)

Transcription

1 C A N A D A PROVINCE DE QUÉBEC DISTRICT DE MONTRÉAL NO: PETER VENIEZ, S U P É R I O R C O U R T BRIGITTE GIRARD WILLIAM MITCHELL CORPORATION DES PRATICIENS EN MÉDECINE DOUCE DU QUÉBEC (CPMDQ), vs. Plaintiffs Mr. VICTOR CAYER FONDS D ASSURANCE RESPONSABILITÉ DU BARREAU DU QUÉBEC Defendants RESPONSE (ART. 186 (1) C.p.c.) TO ONE OF THE HONORABLE JUDGES OF THE SUPERIOR COURT, FOR THE DISTRICT DE MONTRÉAL, PLAINTIFFS FURTHER SUBMIT THE FOLLOWING IN RESPONSE TO DEFENDANTS DEFENCE : 1. They take act of the admission contained in paragraph 1 of the Defence; 2. Join issue with the allegations contained in paragraph 2 of the Defence; 3. Take act of the admission contained in paragraphs 3 and 4 of the Defence; 4. Join issue with the allegations contained in paragraphs 5 11 inclusively of the Defence; 5. Take act of the admission contained in paragraph 12 of the Defence; 6. Join issue with the allegations contained in paragraph 13 of the Defence;

2 7. Take act of the admissions contained in paragraphs of the Defence; 8. They categorically deny the allegations made in paragraph 19 of the defence adding that Peter Veniez and Brigitte Girard personally delivered the files from Me Mongeon s office to Me Cayer s office in June 2009; 9. Take act of the admission contained in paragraphs of the Defence; 10. Deny the allegations made in paragraph 24 of the Defence relying completely on the judgment communicated as Exhibit D-6; 11. Join issue with the allegations made in paragraphs 25 & 26 of the Defence; 12. Admit the fact the fact that Motion to Institute Proceedings were issued in March 2008 and join issue with all else as alleged in paragraph 27; 13. Admit the allegations made in paragraph 28 of the Defence; 14. They categorically deny the allegations made in paragraph 29 of the defence adding that Peter Veniez and Brigitte Girard personally delivered the files from Me Mongeon s office to Me Cayer s office in June 2009; 15. Admit the allegations made in paragraphs inclusively; 16. Deny the allegations made in paragraph 34; 17. Take act of admission in paragraph 35 of the Defence adding that it is due to Defendant Cayer s fault that the CPMDQ et al. were unable to pursue the matter as outlined in the defence and cross demand of file for reasons directly imputable to Me Cayer s failure to keep safe Plaintiffs file allowing it to be lost or stolen as admitted to on Page 44 of the examination on discovery of Me cayer held on February 7, 2014, the whole as will be made further evident at trial; 18. Join issue with the allegations made in paragraphs inclusively of the Defence; AND FURTHER PLEAD THE FAULT 19. Due to Defendant Cayer s failure to appear not only was a judgement obtained by Standard Life in file number he also failed in obtaining a release of the seizures effectuated on all assets including their personal property and family residence despite the fact that the underlying lease communicated

3 herewith as Exhibit P-5 was entered into by the CPMDQ alone and not by Brigitte Girard, William Mitchell or Peter Veniez; 20. The personal guarantee contained in P-5 agreed to by Mr, Peter Veniez, the President of the CPMDQ was only valid until September , covering the first year of the term which had long expired at the time of instituting those proceedings not to mention the time of the seizures effectuated as a direct result of Defendant s fault 21. Furthermore, there is no evidence of service by Mr Cayer upon the officer charged with executing the judgment of the Motion for Revocation and of the certificate attesting that it has been received in conformity with article 486 of the Code of Civil procedure; 22. This further failure is the reason why the seizures were not suspended and Plaintiffs were left in state of financial limbo unable to do anything; 23. This additional failure extends the scope of his professional fault and is the cause of the Transaction signed under duress on July by Plaintiffs as they were unable to access their funds, pay their bills, finance their business and preserve their home, the whole as will be made evident at trial; 24. This lack of access to their money also deprived Plaintiffs from pursuing their counterclaim in the amount of $, the whole as will be made evident at trial; 25. Defendant FARPBQ is responsible for adding an additional three (3) years of wasted time and energy to the entire ordeal by deliberately keeping Plaintiffs busy supplying them with additional documents, elements of proof and responding to inane requests for further useless details without ever seriously analysing the underlying claim; 26. In fact an entire year passed from the time that the file was opened in February 2011 and April 2012 when Mr. Andrew Penhale, the representative of FARPBQ finally refused the claim in a motivated letter prompted not by the obligation to treat claimants fairly, but rather as a direct result of the intervention of the Autorité des Marchés Financiers, the whole as evidenced by the letter annexed hereto as Exhibit P-6; 27. During the examination on discovery held on February 7, 2014, Mr. Andrew Penhale made it abundantly clear that his role was not that of protecting the public, but rather as with any insurance company, to minimize the financial impact or exposure on the professional order by systematically refusing claims knowing that it would be very difficult, if not impossible to find an attorney willing to handle the file and pursue their own professional liability insurance provider;

4 28. FARPBQ did absolutely nothing further in their investigation of Me Cayer s conduct further compounding the stress and inconvenience of the entire ordeal thereby increasing the frustration felt by Plaintiffs who up until then thought they would be dealt with fairly; THE DAMAGES 29. In addition to what was has already been claimed, Plaintiffs do hereby claim direct damages in the amount of ONE MILLION THREE HUNDRED AND SIX THOUSAND AND SEVENTY FIVE DOLLARS AND SIXTY TWO CENTS ( $) itemized as follows: a $ representing legal fees incurred to deal with the failures of Me Cayer, the whole as may be seen from the spreadsheet attached; b $ representing the loss of students, the whole as may be seen from the spreadsheet attached; c $ representing the loss of members, the whole as may be seen from the spreadsheet attached; d $ representing the loss of the counterclaim in file due to Me Cayer having lost/had stolen from his car the original file containing all relevant evidence in relation thereto; THE CAUSAL RELATIONSHIP 30. The damages suffered are a direct result of both Me Cayer s failure to appear, his failure to protect his clients files as entrusted to him personally in June 2009 as well as his failure to suspend the multiple seizures practiced on their personal property without colour of right pursuant to the judgments rendered by default; 31. The present action is well founded in fact and in law. FOR THESE REASONS, MAY IT PLEASE THE COURT : GRANT the present the present Action; CONDEMN Defendants jointly and solidarily to compensate Plaintiffs in the amount of ONE MILLION FIVE HUNDRED AND THIRTY ONE THOUSAND ONE HUNDRED AND ELEVEN DOLLARS AND FIFTY TWO CENTS ($ ), the whole with interest at the legal rate from the date of service as well as the additional indemnity provided for in article 1619 of the Civil Code of Québec; THE WHOLE with costs. MONTRÉAL August 11, 2014.

5 Centre de ressource juridique du WI Inc. Par : Me Elaine Rosenberg Procureur des demandeurs