Nour c. Estephan  
2022 QCCS 2996  
SUPERIOR COURT  
C A N A D A  
PROVINCE OF QUEBEC  
DISTRICT OF MONTREAL  
N° :  
500-17-095253-160  
DATE : July 26, 2022  
______________________________________________________________________  
PRESIDING :  
HONOURABLE ANDRÉ WERY, J.C.S.  
______________________________________________________________________  
ELIE ABDEL NOUR  
Plaintiff  
v.  
CAMILLE ESTEPHAN  
CHARBEL YOUWAKIM  
and  
9114-6480 QUEBEC INC.  
Defendants/Cross-Claimants  
______________________________________________________________________  
J U D G M E N T  
______________________________________________________________________  
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I.  
OUTLOOK  
[1] This case consists in determining if the Departure Agreement agreed to by  
the parties and under which Plaintiff paid a departure fee of $1 924 493 must be  
declared null and void because its object was illegal. Moreover, was Plaintiff’s  
consent to that agreement vitiated?  
[2] It further consists in determining if the Defendants caused disparaging  
comments to be made on Plaintiff to his clients causing him, for this reason, to lose  
many of them.  
[3] Moreover, was a portion of the commissions Plaintiff earned while he worked  
at the Defendants’ branch between 2006 and 2013 surreptitiously and illegally kept  
by the Defendants?  
[4] Finally, should Plaintiff be awarded moral and punitive damages or should  
the Defendants be awarded the reimbursement of their extrajudicial costs and  
punitive damages on account of the abusive nature of Plaintiff’s proceedings and  
procedural conduct?  
[5] On all of these contested issues, the Court finds for the Defendants.  
II.  
CONTEXT  
[6] Manulife is a financial institution dealing in securities and mutual funds.  
[7] It operates more than 450 branches in Canada. These branches are owned  
and operated by independent branch owners and their advisors. At all relevant  
times, there were more than 1 500 Manulife advisors in Canada.  
[8] Defendants ESTEPHAN and YOUWAKIM were properly licensed to act as  
financial advisors. They owned and were operating Manulife’s largest and most  
successful branch in Canada, the Dorval Branch. Defendant 9114-6480 Quebec  
Inc. (“9114”) was their management company.  
[9] Plaintiff met YOUWAKIM at a job fair at McGill University in 2004. In March  
2005, ESTEPHAN and YOUWAKIM hired him. They trained him in all there was to  
know in the highly competitive market of financial and investment advisors.  
[10] He started down the latter as an associate at the Dorval Branch, where he  
was paired with licensed senior advisors and went out in the field. This way, he  
was shown the ropes of the trade. He was also given courses and lectures every  
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week by YOUWAKIN and ESTEPHAN. He then followed the proper courses and  
obtained his financial advisor licence in June 2006.  
[11] With hard work, Plaintiff quickly became within a few years one of Manulife’s  
best financial advisors in Canada.  
[12] As Plaintiff said, business was always good. He made a lot of money very  
quickly.  
[13] But with success came ambition.  
[14] Around 2013, after some very lucrative years that kept getting better every  
year, Plaintiff felt that he had reached a plateau and that ESTEPHAN and YOUWAKIM  
had taken their foot off the pedal. In his view, it was only the branch’s advisors that  
were doing the heavy lifting.  
[15] Plaintiff was then among Manulife’s best advisors in Canada. He started  
thinking about opening his own Manulife branch.  
[16] He first approached Manulife’s Head of Sales, GEORGES GARNER for  
counsel. He did not say a word to the Defendants. He wanted first to find out if  
Manulife would agree to the opening of a new branch and how to break the news  
to the Defendants.  
[17] This had the effect of putting Manulife in a very tight spot. One of their best  
advisors in the country wanted to part ways with their best branch in Canada. But  
they agreed on the condition that Plaintiff would come to an agreement with the  
Defendants as to the conditions of his departure.  
[18] In the summer of 2013, Plaintiff informed the Defendants of his decision to  
leave the Dorval Branch in order to open his own Manulife branch in Oakville in  
the province of Ontario.  
[19] Things did not go exactly as planned, but the parties were nonetheless able  
to finally agree on the general terms of not only Plaintiff’s departure, but that of  
eight (8) other of the Dorval Branch advisors.  
[20] Although the parties had agreed in August 2013 to the general terms under  
which Plaintiff’s departure would take place, the negotiations of the final terms took  
a bit of time and brought its lot of frustrations.  
[21] On January 27, 2014, a formal Departure Agreement was finally signed,  
well after Plaintiff had left the Dorval Branch in late August 2013.  
[22] Under that agreement, Plaintiff paid a departure fee of $1 924 493 to the  
Defendants and was able to keep servicing his clients from his new branch.  
[23] The years passed and Plaintiff was able to develop his Oakville Manulife  
branch.  
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[24] Then, almost three years later, without prior notice, complaints or demand,  
Plaintiff served his proceedings in damages to the Defendants.  
[25] First, Plaintiff alleges that the Departure Agreement was illegal because it  
was an accessory to another contract he had signed in 2008 (the “Letter of  
Agreement”) that should be declared null on the basis that his consent to that  
agreement had been obtained under duress. The nullity of the latter bringing the  
nullity of the former.  
[26] Second, he argues that irrespective of the validity of the Letter of  
Agreement, the Departure Agreement is null and void because its object is  
impossible and illegal and because he was forced to accept its terms.  
[27] Third, Plaintiff claims that at the time of his departure, the Defendants had  
made disparaging comments about his integrity as an ethical advisor during phone  
calls to his clients causing him to lose many of them and incur a loss of  
commissions.  
[28] Fourth, Plaintiff adds that he did not receive all the commissions he was  
entitled to receive while working at the Dorval Branch between 2006 and 2013.  
[29] And finally, Plaintiff claims $500 000 for moral damages and $100 000 for  
punitive damages.  
[30] The Defendants produced a statement of defense and a counter-claim on  
the basis that Plaintiff’s proceedings and procedural conduct were abusive. They  
claim the reimbursement of their extrajudicial costs ($270 811) along with $30 000  
for punitive damages.  
[31] On the procedural front, trial was punctuated by some disturbing  
occurrences.  
[32] First, just before trial, Plaintiff amended his proceedings to add an additional  
claim for $156 000 and to adjust the amount claimed for loss of clientele. He also  
filed a lengthy supplemental report from his expert.  
[33] The Defendants objected to the production of that report.  
[34] The objection was heard at the beginning of trial.  
[35] Plaintiff’s expert had been unable to produce his supplemental report before  
because he had been given copy of the Defendants’ expert report that dated back  
to 2018, only weeks before trial.  
[36] Except for the sections of the supplemental report that dealt with the  
conclusions of the Defendants’ expert report, the filing of the supplemental report  
was denied.  
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[37] Second, prior to Argument, Plaintiff again amended his proceedings in order  
to withdraw one of his of $156 000 claim and to reduce, once again, by more than  
$1 M, his claim for loss of clientele, further to a conciliatory meeting between the  
experts that was held at the Court’s request.  
[38] Finally, after Oral Argument, Plaintiff’s attorneys responded to the Court’s  
request for additional authorities on one of the litigated issues. The attorneys  
produced additional authorities, but they added an element of proof to which the  
Defendants’ attorneys objected.  
[39] The Court informed Plaintiff’s attorneys that if they wished to produce this  
element of proof, they would have to proceed by way of a formal motion under  
article 323 (2) of the Code of Civil Procedure, which they did.  
[40] In a separate written ruling dated March 17, 2002, the Court dismissed  
Plaintiff’s motion and at that date, the case was taken under advisement.  
III. CONTESTED ISSUES  
[41] This case raises many contested issues among which the determining ones  
are the following:  
Is the Departure Agreement null and void?  
Consequently, is Plaintiff entitled to be reimbursed of the departure  
fee he paid under the Departure Agreement?  
Did the Defendants attempt to dissuade Plaintiff’s clients from  
transferring their accounts to his new branch by making disparaging  
comments about him?  
Did Plaintiff lose clients on account of those disparaging comments?  
Did Defendant 9114, or any other Defendant, improperly retain or  
diverted any portion of Plaintiff’s commissions while he worked at  
the Dorval Branch?  
Did Plaintiff suffer moral damages (stress and inconvenience) on  
account of the Defendants’ wrongful conduct?  
Is Plaintiff entitled to punitive damages?  
Should the Defendants be ordered to pay instead of being  
condemned to pay?  
Is Plaintiff entitled to the execution of a favourable judgment  
notwithstanding appeal?  
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Are Plaintiffs’ proceedings and procedural conduct abusive,  
justifying an award for reimbursement of the Defendants’  
extrajudicial costs?  
Are the Defendants entitled to punitive damages?  
IV.  
ANALYSIS  
[42] The Court shall now examine each of these issues in that order.  
A. IS THE DEPARTURE AGREEMENT NULL AND VOID?  
[43] In order to be authorized by Manulife to open his own branch in Oakville,  
Plaintiff had to negotiate an agreement (the “Departure Agreement”)1 with the  
Defendants along the terms contained in Manulife’s letter of August 3, 2013, to  
which the parties had agreed in principle2.  
[44] That is what the parties ultimately did on January 27, 2014.  
[45] Under the provisions of the Departure Agreement, Plaintiff paid to the  
Defendants a departure fee of $1 924 493.  
[46] Plaintiff submits that the Departure Agreement must be declared null and  
void and that the Court must order the reimbursement of the departure fee.  
Ironically, as we shall see, he is also seeking damages on the basis that the  
Defendants acted in violation of said Departure Agreement.  
[47] Plaintiff raises many arguments in support of his declaration of nullity.  
[48] First, he advances that the Departure Agreement is illegal because its object  
is the sale of clients which is impossible under the law. Second, he argues that the  
Departure Agreement is null and void because it was linked to the Letter of  
Agreement he had signed in 2008 and which is itself null and void for lack of a valid  
consent. Consequently, the ancillary Departure Agreement must follow suit. Third,  
Plaintiff submits that, in any event, his consent to the Departure Agreement was  
also vitiated. And fourth, he finally claims that the Departure Agreement was illegal  
because it was 9114 that received payment of the departure fee although it was  
not licensed to deal in securities.  
1
Exhibit P-12.  
Exhibit D-31.  
2
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1. Is the object of the Departure Agreement possible and legal?  
[49] Plaintiff claims that the object of the Departure Agreement, the sale of  
clients, was illegal because it was impossible to realize. The “book of business” he  
bought when he paid the departure fee is just another way of describing Plaintiff’s  
clients and clients cannot legally be sold because they are nobody’s property. In a  
nutshell, what Plaintiff accepted to pay for, the Defendants were legally unable to  
deliver.  
[50] Moreover, the transfer from one branch to another of all the clients’ personal  
data, files and records is regulated by law and could not have been transferred  
without the clients’ prior acceptance and authorization. Thus, the Defendants could  
not legally deliver on their obligations (the sale of clients and the transfer of their  
personal data, files and records) under the Departure Agreement.  
[51] Plaintiff refers the Court to the Quebec Civil Code which provides that:  
1378. A contract is an agreement of wills by which one or several persons  
obligate themselves to one or several other persons to perform a prestation.  
[…]  
1373. The object of an obligation is the prestation that the debtor is bound  
to render to the creditor and which consists in doing or not doing something.  
The debtor is bound to render a prestation that is possible and determinate  
or determinable and that is neither forbidden by law nor contrary to public  
order.  
1413. A contract whose object is prohibited by law or contrary to public  
order is null  
[The Court underlines]  
[52] He then cites the authors Lluelles and Moore:  
1049.6 Si l’exigence de possibilité ne pose généralement pas de difficultés  
en ce qui concerne la prestation elle-même, tant il est improbable qu’une  
personne s’engage sérieusement à l’impossible- arrêter le temps, par  
exemple (!)-, elle peut se révéler pertinente quant à l’objet de la prestation.  
Ainsi, est impossible l’obligation de délivrance d’un bien individualisé qui,  
au moment de la formation du contrat, n’existe déjà plus, ou qui n’appartient  
pas au vendeur- on ne peut céder un droit que l’on ne détient pas.  
L’obligation est ici absolument impossible-et n’a pu naître. Quant à la «  
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chose de genre », on ne peut imaginer l’Impossibilité de livrer un bien qui  
n’existe plus dans le commerce ou encore dont l’importance est prohibée.3  
[Underlined added]  
[53] It is odd to see that despite his present legal stance about the legal  
impossibility to own clients, Plaintiff himself, throughout his proceedings, speaks  
of the “ownership and control of his clients”4. In his statement of defense filed in  
2019 in another proceeding where he is himself sued by former agents of his  
Oakville Branch, he speaks of his “propriety interest” in a similar book of business5.  
[54] Be that as it may, Plaintiff’s argument is easy to understand: you cannot  
buy, sell or transfer what’s not yours.  
[55] But in the Court’s view, Plaintiff’s legal theory does not apply to the  
circumstances of our case.  
[56] It is obvious that you cannot buy, sell or transfer clients. But here, there is  
no such sale or transfer. It is of course the clients who ultimately decide to stay  
with or leave their advisor or their financial institution. Here, the clients were asked  
to decide and the overwhelming part decided to stay with Plaintiff.  
[57] It was only their personal data, files and records that changed locations from  
Dorval to Oakville and this, as we shall see, was very much legal. It was only  
Plaintiff himself who transferred to his new branch. Nothing happened to the clients  
or to their assets under administration (“AUA”) which stayed with Manulife.  
[58] Moreover, the evidence has shown that the expression “book of business”  
used in the Departure Agreement to describe the object of the contract is an  
expression of the trade to describe, not the clients per se, but refers rather to the  
compensation for the economic loss from the transfer of the commissions  
associated with those clients’ AUA from one branch to another.  
[59] The assurance of a steady flow of commissions without any hindrance from  
the Defendants was paramount for Plaintiff and that is what he was buying from  
them.6. The solicitation of and the competition for his clients by the Defendants was  
what could cause him damages7.  
3
LLUELLES, Didier et MOORE, Benoît, Droit des obligations, 2e éd., Montréal, Les Éditions  
Thémis, 2012, 2 432, par. 1049.6.  
Paragr. 76 of his Amended Originating Application.  
Exhibit D-50, paragr, 55.  
We can clearly see this from Plaintiff’s own proceedings against Manulife in 2019 Exhibit D-47  
4
5
6
paragr. 120 ss.  
Exhibit D-50, paragr. 45.  
7
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[60] In exchange for the departure fee, Plaintiff was getting all of what he was  
looking for and which were all very possible under the law:  
Manulife’s authorization to open his own branch in Oakville;  
Manulife and the Defendants’ “full cooperation and assistance in order  
to allow for his transfer to the Oakville Branch” which included the  
transfer of all his clients’ personal data, files and records;8  
Manulife’s and the Defendants’ acceptance of the transfer to his  
Oakville Branch of eight (8) advisors from the Dorval Branch;  
A formal five (5) year undertaking of non-solicitation and non-  
competition of those clients from the Defendants and every one of the  
Dorval Branch’s advisors and, consequently, the assurance of being  
able to collect a steady flow of commissions and overrides related  
thereto without interference or hindrance of any kind on the part of the  
Defendants;  
And, finally, Manulife’s financing of most of the operation.  
[61] In his proceedings, Plaintiff explicitly confirms this understanding of what  
the departure fee he paid was all about:  
76. In fact, the whole idea of the Departure Agreement was that in exchange  
of the payment of the departure fee, NOUR was entitled to retain ownership  
and control of his clients, files and records serviced at the Dorval Branch,  
and he further had complete and unfettered authority to manage, service  
and transfer these clients at it sole and absolute discretion, without  
interference or hindrance of any kind on the part of Defendants.9  
[62] It was of the utmost importance for Plaintiff to make sure the Defendants  
could not interfere in any way with the servicing of his clientele. Plaintiff wanted a  
guarantee that he and he alone would keep on servicing his clients without  
interference from the Defendants. That is why Plaintiff’s own attorney had drafted  
8
In his Amended Originating Application, Plaintiff recognizes that the departure fee pays at least  
in part for his clients’ files and records. Paragraph 60 reads as follows: “The departure  
agreement renewed the terms stipulated in the Letter of Agreement and further reiterated at  
paragraph 2.1, NOUR’S obligation to pay the departure fee in order to retain ownership of his  
clients, files as well as records forming part of his business unit”. [Underlined added]. See also  
Paragr. 70 of the Amended Originating Application.  
8
Id.  
9
Id., paragr. 76.  
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a particularly stringent non-solicitation and non-competition clause which reads as  
follows:  
The parties shall not, for a period of five (5) years, directly or indirectly,  
furnish to any of Nour’s clients, or to any additional clients obtained by Nour,  
any services which are similar to or competitive with the services provided  
to them by Nour or contact, solicit or otherwise communicate with any of  
Nour’s clients for such purpose.10  
[63] Again, these non-solicitation and non-competition undertakings were so  
important for Plaintiff that, as we shall see in the section hereafter, in his original  
proceedings against the Defendants, he complains that a few hours of solicitation  
by the Defendants had caused him a $60 million loss of AUA and a $2,7 million  
worth of lost commissions and overrides attached thereto.11  
[64] Plaintiff’s own conduct acknowledged that the Departure Agreement was  
proper and that it aimed at protecting a legitimate interest. As a matter of fact, a  
few weeks after his leaving the Dorval Branch, Plaintiff had the advisors working  
at his new branch in Oakville sign a similar document12. In that contract Plaintiff  
writes:  
Whereas the Branch owner therefore has a legitimate interest in protecting  
against the negative repercussions that would result from any decision by  
the Registered representative to cease collaborating with the Branch  
Owner; and  
Whereas the registered representative acknowledges the advantages of  
collaborating with the Branch Owner and agrees that such advantages are  
valuable consideration for entering into this Agreement with the Branch  
Owner.  
[65] Moreover, in 2018, Plaintiff even sued one of his advisors based on a similar  
agreement13.  
[66] It is consequently untrue to say that the object of the Defendants’ obligation  
(their prestation) under the Departure Agreement was illegal or impossible to  
accomplish under article 1373 Q.C.C.  
[67] This obligation or “prestation” of non-solicitation and non-competition is  
surely something ESTEPHAN and YOUWAKIM could bind themselves and cause the  
other branch’s advisors to undertake. And that is something that enabled Plaintiff  
10  
Article 4.1 (a) of the Departure Agreement (Exhibit P-12).  
See paragr. 72 to 80 of Plaintiff’s Originating Application.  
Exhibit D-45.  
Exhibit D-46.  
11  
12  
13  
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to keep servicing, without the Defendants’ interference and/or competition, the  
clients he had at the Dorval Branch, bringing him the steady flow of commissions  
and overrides attached thereto.  
[68] An assurance of being protected “against any form of solicitation of his  
clients from by the Dorval Branch’s advisors was an essential condition for which  
Plaintiff was ready to pay the departure fee.  
[69] Plaintiff raises the argument that the Defendants could not legally transfer  
the clients’ personal data, files and records without the clients’ prior acceptance  
and authorization because, under the law, this information is regulated.  
[70] In the Court’s view, this argument must be discarded.  
[71] Once again, it is ironic to see Plaintiff advance such an argument about the  
transfer of his clients’ files and personal data which is crucial to his ability to keep  
on servicing their accounts.  
[72] Be that as it may, from the evidence, it is clear that both YOUWAKIM and  
ESTEPHAN were authorized by Manulife to handle the clients’ personal data, files  
and records. In their Formulaire d’ouverture de compte, the clients were informed  
by Manulife and had agreed to this utilization:  
À qui communiquons-nous vos renseignements?  
Les personnes avec lesquelles Placements Manuvie traite dans le cadre de  
l’administration de leurs comptes.  
Votre conseiller, le[s] employés, agents et représentants autorisés de  
Placements Manuvie ou leurs délégués et sociétés affiliées dans l’exercice  
de leurs fonctions.14  
[73] In support of his argument, Plaintiff submits, as a precedent, an arbitration  
ruling rendered by Me André Rochon, a retired and respected justice of the  
Quebec Court of Appeal, in which he had declared a contract similar to the  
Departure Agreement illegal and consequently null and void.  
[74] Essentially, Me Rochon’s reasoning was that 9114 which was not licensed  
to deal in securities and thus, could not deliver on its undertakings under the  
contact15. In that case, ESTEPHAN and YOUWAKIM were not parties to that contract16.  
[75] Here, Plaintiff goes on and on exposing the same argumentation about  
9114’s legal incapacity to deliver under the Departure Agreement.  
14  
Exhibit D-23, at p. 33. See also Exhibit D-22.  
Paragr. 162 and 163 of Exhibit P-18.  
Id., paragr. 139.  
15  
16  
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[76] But there is a fundamental problem with the applicability of this argument in  
the context of our case. Me Rochon’s arbitration decision cannot help Plaintiff  
because, in our case, the Departure Agreement involves not only 9114, but  
YOUWAKIM and ESTEPHAN as well, who are indeed licensed to deal in securities and  
who are in a position to deliver their prestation under the agreement.  
[77] In other words, what 9114 could not do in the case before Me Rochon, the  
Defendants ESTEPHAN and YOUWAKIM can indeed do and cause the branch’s  
advisors to do in our case.  
[78] It is obvious that before Me Rochon, there was a big problem with a contract  
where a company which was not licensed to deal in securities was paid among  
other things to refrain from soliciting and competing which it could not do under the  
law. But that is not our case.  
[79] The Defendants ESTEPHAN and YOUWAKIM can legally bind themselves and  
the other branch’s advisors not to solicit or compete because they are legally  
licensed to deal in their respective fields. They can also bind themselves to the  
transfer of the clients’ personal data, files and records to Plaintiff, contrary to 9114  
who could not in the case before the arbitrator Me Rochon.  
[80] That is why this arbitral decision and its underlying reasoning cannot apply  
to our case.  
[81] From the whole, the Court concludes that the object of the Departure  
Agreement was a possible and legal one. Thus, the Departure Agreement may not  
be annulled for this reason.  
2. Is the Departure Agreement an accessory to the Letter of Agreement?  
[82] Another argument raised by Plaintiff points out to the fact that the Departure  
Agreement is an accessory or is the consequence of the Letter of Agreement he  
had signed under duress in 2008.  
[83] He adds that the Departure Agreement must be considered as an  
amendment to the Letter of Agreement.  
[84] Consequently, he argues, the Departure Agreement must be considered  
invalid because his consent to an accessory agreement had been obtained under  
duress. Both agreements must be declared null and void.  
[85] In 2008, YOUWAKIM and ESTEPHAN had experienced a situation where a  
certain number of the branch’s advisors had left with their clients’ AUA for another  
financial institution The Dorval Branch had consequently suffered a substantial  
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loss of business without any kind of reparation. They wanted to protect themselves  
from the recurrence of such an event.  
[86] They had asked all the branch’s advisors to sign the Letter of Agreement  
that regulated the parties’ rights and obligations in case an advisor decided to  
leave the branch and Manulife for another financial institution.  
[87] Reluctantly, Plaintiff had signed the Letter of Agreement fearing that if didn’t,  
he would lose his job.  
[88] Plaintiff argues that the Letter of Agreement had been imposed upon him  
and all the other branch advisors and that consequently his consent “was not given  
in a free and enlightened manner”17.  
[89] The Court must dismiss Plaintiff’s arguments for many reasons.  
[90] First, the two agreements are not linked to one another. Second, Plaintiff’s  
consent to the Letter of Agreement had not been obtained by fear. Third, if the two  
agreements must be considered as linked to one another, by signing the Departure  
Agreement, Plaintiff ratified his consent to the Letter of Agreement. And fourth, in  
order to declare the Departure Agreement null and void, the Court would first have  
to declare the Letter of Agreement null and void. But prescription would then apply  
and the time elapsed since the signing of the Letter of Agreement and Plaintiff’s  
proceedings (around eight (8) years) would bar Plaintiff from claiming for its  
annulment.  
[91] Plaintiff pleads that the Departure Agreement is “an accessory”18 to the  
Letter of Agreement and that it “renewed the terms stipulated in the Letter of  
Agreement”19.  
[92] The problem with this argument is that nothing in Letter of Agreement  
needed to be renewed. In other words, if Plaintiff had not decided to leave the  
branch to open his own Manulife branch, there was no need for an amended or a  
new agreement.  
[93] Moreover, the Departure Agreement cannot be considered as amending or  
forming part of the Letter of Agreement because that is what is clearly stated at  
paragraphs 4.2 and 6.7:  
4.2 The 9114 parties acknowledge and agree that neither the Advisor nor  
any of the Team Members have any other obligations towards them  
pursuant to the Letter of Agreement or pursuant to any other agreement  
17  
Paragr. 83 of the Amended Originating Application.  
Id, paragr. 85.  
Id., paragr. 60.  
18  
19  
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whether written, verbal or implied, entered into between the Advisor and  
14  
any of the Team Members or any of the 9114 Parties or at law.  
6.7 This agreement constitutes the entire agreement among the Parties  
pertaining to the subject matter of this Agreement and supersedes all prior  
agreements understandings, negotiations and discussions, whether oral or  
written, including the Letter Agreement.  
[94] The Court sees no reason to ignore the parties’ will specifically expressed  
in the provisions of their contract.  
[95] In the case of Restaurachoosent, Justice Tingley reminded us the purpose  
of such integration clauses:  
[…] the « Entire Agreement » or integration clauses mentioned above and  
the acknowledgements and admissions made therein must be applied to  
close the door to proof of any representations that are not contained in the  
Agreements themselves. These integration clauses are admissions that the  
Agreements contain within their four corners the entire agreement between  
the parties.20  
[96] Furthermore, the purpose of the two agreements is of a different nature: the  
first one governs the “collaboration between them”21 when Plaintiff worked at the  
Defendants’ branch while the second deals exclusively with the cessation of this  
collaboration.  
[97] The first applies when the advisor leaves, but for another financial institution  
whereas the second when the advisor leaves for another branch while staying with  
the same financial institution (Manulife):  
Whereas in the event the advisor were to decide to cease his collaboration  
with Quebec Inc. and to pursue his activities with another financial  
institution he may choose.22  
[Underlined added]  
[98] Plaintiff’s counsel argued that the words “financial institution” here above in  
the Letter of Agreement must be construed as meaning 9114 and that,  
20  
Restaurachoosent E.S.R. Inc. c. Restaurants Prime du Québec Inc., AZ-50079724 (C.S.),  
paragr. 38  
Exhibit D-33 (d) in the first “Whereas”.  
The 2008 Letter of Agreement (Exhibit P-6).  
21  
22  
500-17-095253-160  
15  
consequently, it is essentially the same situation than the one provided for in the  
Departure Agreement.  
[99] In the Court’s view, that argument is without substance.  
[100] To argue that 9114, instead of Manulife, must be considered to be the  
financial institution under the umbrella of which Plaintiff was dealing in securities  
is not what the facts established. That is why, most probably, that question was  
never raised with any of the advisors and the other witnesses, not even with  
Plaintiff himself. In the Court’s view, if the question was never raised, it is for a very  
simple reason: all the witnesses would have promptly rejected the suggestion.  
[101] The undisputable evidence established that everything that had to do with  
investment products and securities passed through Manulife, not 9114 which was  
only ESTEPHAN’S and YOUWAKIM’S management company. One might easily  
imagine the clients’ reaction if they had been told that the “financial institution”  
handling their savings was not Manulife, but 9114.  
[102] If both agreements dealt with the same situation, one wonders about the  
necessity to negotiate another agreement unless the new agreement was  
supposed to replace the old one.  
[103] Plaintiff advances that the best indication that the Departure Agreement was  
indeed the necessary consequence of the Letter of Agreement is that absent the  
latter, there would have been no need for the former. In other words, if it were not  
for the Letter of Agreement, there would have been no reason to negotiate the  
Departure Agreement.  
[104] The Court finds that the evidence does not support that argument either.  
[105] The only reason why Plaintiff had to negotiate his departure from the Dorval  
Branch with the Defendants is that Manulife insisted that this would be the only  
way for Plaintiff to obtain its authorization for an opening of a new branch in  
Oakville.  
[106] If the parties decided to negotiate the Departure Agreement, it is because,  
in their view, the Letter of Agreement was not suitable to settle the situation at  
hand.  
[107] Plaintiff recognizes all of this in his proceedings when he explicitly writes  
that each contract “was signed for a specific reason” and for “different instances of  
their business relationship”:  
16. As defined below, each contract was signed for a specific purpose and  
was intended to define the parties’ obligations at different instances of their  
business relationship which commenced in 2006.  
500-17-095253-160  
16  
[Underlined added]  
[108] That takes care of Plaintiff’s argument to the effect that the two agreements  
being linked to one another, the annulment of the first would necessarily bring  
about the annulment of the second.  
[109] The Court shall now examine Plaintiff’s argument that his consent to the  
Letter of Agreement as well as to the Departure Agreement was vitiated by fear.  
3. Was Plaintiff’s consent to the agreements vitiated by fear?  
[110] Under the Quebec Civil Code, a contract may be annulled if one of the  
parties’ consent was vitiated:  
1399. Consent must be free and enlightened.  
1403. Fear induced by the abusive exercise of a right or power or by the  
threat of such exercise vitiates consent.  
[111] Plaintiff advances that in 2008, the Letter of Agreement was imposed upon  
him and all the other branch advisors. He had to sign it if he wanted to stay at the  
Dorval Branch. in his view, this was equivalent to fear under article 1403 of the  
Civil Code.  
[112] In the Court’s view, the evidence does not support the proposition that  
Plaintiff’s consent was vitiated by fear.  
[113] As we know, it is not just any kind of fear that will rise up to the level of  
vitiating the validity of one’s consent. The stability of contracts requires a more  
secure and robust legal foundation. That is why the fear required under our Civil  
Code is one that is the direct consequence of an illegal or abusive conduct.  
[114] In the case of Construction Polaris, Justice Pinsonneault says that the  
source of the menace must be “illégitime”23.  
[115] The relevant case law gives us multiple examples of situations susceptible  
of creating a justifiable fear:  
23  
Construction Polaris Inc. c. Hydro-Québec, 2018 QCCS 1652, paragr. 380.  
500-17-095253-160  
[…] la violence psychologique, beaucoup plus subtile, se retrouve  
17  
un peu plus fréquemment en jurisprudence. La menace de  
diffamation, de divulgations confidentielles, de chantage sous  
toutes ses formes sont les illustrations les plus fréquentes de ce  
genre de violence.24  
[116] In 2008, the Defendants had a legitimate reason to ask the signing of the  
Letter of Agreement in order to protect the branch against an advisor’s departure  
who would join the competition under the umbrella of another financial institution.  
They had had such a painful experience and they wanted to regulate similar  
departures in the future.  
[117] Demanding that all its advisors sign such an agreement if they wanted to  
stay with the branch was not equivalent to an “abuse exercise of a right or power”  
or a threat thereof under article 1403 of the Civil Code.  
[118] Plaintiff has not pointed out to any of the provisions of Letter of Agreement  
which could be interpreted as having been abusive in the circumstances.  
[119] He still had a choice to make: (1) leave altogether and go to another branch  
or at another financial institution or open his own branch like he did five years later,  
in 2013, and face competition from the Defendants for his clients or (2) sign the  
Letter of Agreement stay with the Dorval Branch, the largest and most successful  
branch in the country, keep developing his clientele while working with the best in  
Canada and enjoying the financial rewards that came with it.  
[120] Plaintiff decided to choose the easy and most profitable way for him at the  
time.  
[121] To put everything in perspective, one must remember that at the time  
Plaintiff was a rising star at Manulife, his revenues had gone up from $72 00025 in  
2006 when he started to $277 639 the following year in 200726.  
[122] That is why the Court finds that the Letter of Agreement cannot be declared  
null because Plaintiff’s consent had been vitiated by fear.  
[123] The Defendants submit other arguments against Plaintiff’s claim for nullity  
of the Letter of Agreement.  
[124] First, in order to declare null and void the Departure Agreement on the basis  
that it was linked to the Letter of Agreement which is itself null and void, they argue  
24  
Audet c. Audet, 2015 QCCS 5374, paragr.17.  
His projected earnings for that year (Exhibit P-15).  
Exhibit D-9.  
25  
26  
500-17-095253-160  
18  
that the Court would have first to declare the nullity of the latter. This in itself poses  
a problem of prescription.  
[125] The Court agrees.  
[126] The Letter of Agreement was signed on April 28, 2008, while Plaintiff’s claim  
for its annulment comes more than eight (8) years later with his August 19, 2016  
Originating Application. His claim for a declaration of nullity would be consequently  
prescribed.  
[127] This is so obvious that Plaintiff’s conclusions do not seek a formal  
declaration of nullity of the Letter of Agreement.  
[128] Second, the Defendants also advance that if the Court were to accept  
Plaintiff’s argument that the two agreements are linked to one another and that  
they cannot stand alone or be dissociated from one another, it would have to  
accept the unescapable consequence that Plaintiff’s signature of the Departure  
Agreement had the effect of ratifying his consent to the Letter of Agreement.  
[129] In order to escape this ominous conclusion, Plaintiff objects that his consent  
to the Departure Agreement was also vitiated by fear.  
[130] He advances that he was forced to agree to the terms of the Departure  
Agreement not only by the Defendants, but by GEORGE GARNER of Manulife27.  
[131] At the time, Mr GARNER explains that he had made it clear to Plaintiff that if  
he wanted to leave the Dorval Branch to open his own Manulife branch in Oakville,  
he had to come to terms with the Defendants.  
[132] Plaintiff accepted and was represented by counsel throughout these  
negotiations. But the negotiations were dragging, Plaintiff was making offers that  
were unacceptable to the Defendants. Even worse, the Defendants learned that  
Plaintiff had “aggressively” 28 solicited eight (8) of the branch’s advisors to leave  
with him. No wonder the Defendants and Manulife grew weary and insisted in  
closing out the Departure Agreement.  
[133] The evidence showed that the negotiations for the Departure Agreement  
spanned over a period of five (5) months between August 2013 and January 2014.  
During that whole period, Plaintiff was represented by counsel (Me Howard Levine)  
who was in charge of drafting the agreement.  
27  
See paragr. 24 of Exhibit D-47.  
That is what four (4) of them allege in a proceeding against Plaintiff (Exhibit D-44, paragr. 28).  
28  
500-17-095253-160  
19  
[134] Moreover, in the Departure Agreement, Plaintiff acknowledged having been  
“afforded the opportunity […] to obtain independent legal advice [and having  
indeed obtained it] in connection with the transactions contemplated”.29  
[135] It is reasonable to think that, if in Plaintiff’s mind the Letter of Agreement  
was linked to the proposed Departure Agreement, he had informed his attorney of  
the invalidity of his consent. If he did, Me Levine would surely have indicated that  
it was then too late to do anything about it because of prescription. If he did not, it  
is either because he considered the two agreements were not linked to one  
another or because he considered that the Departure Agreement had the effect of  
settling any lingering questions between the parties.  
[136] In that context, for Plaintiff to advance that he was forced by Manulife to  
sign the Departure Agreement is hard to swallow. Especially when one considers  
the glowing October 7, 2013, email Plaintiff had sent MANULIFE’S GEORGE GARNER:  
I would also like to thank you for all the work you have done to help me get  
my own branch.30  
[137] It’s either that Plaintiff was truly satisfied about the outcome of the  
negotiations, or that what he says or write cannot be taken at face value.  
[138] In the Court’s view, Plaintiff wouldn’t have sent such an email if he felt he  
had been forced against his will to agree to the terms of the Departure Agreement.  
[139] The situation Plaintiff complains of was of his own making. He was the one  
who initiated the whole thing. He approached Manulife during Spring of 2013 in  
order to obtain its blessings to open a branch in Oakville. He was able to get it, on  
the condition that he work out an agreement with the Defendants.  
[140] In the process, what was initially supposed to be a one advisor’s transfer  
became an eight supplemental advisors’ transfer.  
[141] During the whole process, Plaintiff was able to rely on his attorney’s  
counsel.  
[142] The fact that Plaintiff would have preferred better terms does not mean that  
his consent had been vitiated31.  
[143] That is why the Court agrees with the Defendants’ counsel that even if the  
agreements were to be considered somewhat related, in signing the Departure  
Agreement after having had the benefit of legal advice, Plaintiff ratified the Letter  
of Agreement and renounced to ask for its nullity on the basis of lack of consent.  
29  
Article. 6.9 of the Departure Agreement (Exhibit P-12).  
Exhibit D-40.  
Id.  
30  
31  
500-17-095253-160  
20  
[144] Moreover, in June 2014, Plaintiff used a provision of the Departure  
Agreement to obtain a partial reimbursement of the departure fee adjusted to the  
AUA as of March 31, 2014, and gave a formal release to the Defendants32. The  
Court shall get back to that question in more details later on.  
[145] Moreover, even if the Court were to conclude that the Letter of Agreement  
can and must be declared null and void, it would not do the same as to the  
Departure Agreement because first, the two agreements are not between the same  
parties33 and second, they are neither “genuinely interdependent” or “closely  
connected” for a “common purpose”:  
As a rule, the nullity of an act cannot extend to other distinct juridical acts.  
However, an act may by its nature be incidental to another, or they may  
be genuinely interdependent, in which case the nullity of one, results in  
the nullity of the other. This doctrine of the accessory applies to security  
interests, for example. The nullity of the principal contract may also  
extend to the credit contract used to finance it. This is the case in Quebec  
under s. 116 of the Consumer Protection Act, R.S.Q., c. P-40.1, which  
provides that a consumer who has used the net capital of a contract for  
the loan of money to make full or partial payment for the purchase or the  
lease of goods or services may, if the money lender and the vending or  
leasing merchant regularly work together with a view to the granting of  
loans of money to consumers, plead against the money lender any  
ground of defence that he may urge against the vending or leasing  
merchant. However, other than in specific legislation so providing,  
extended nullity occurs only exceptionally. It applies to other juridical acts  
only when the two acts are closely connected and were made by the  
same parties for a common purpose.34  
[References omitted and underlined added)]  
[146] Finally and perhaps more importantly, the Court believes that the Departure  
Agreement cannot be annulled because of the impossibility for Plaintiff to restitute  
their prestations to the Defendants.  
[147] Plaintiff asks the Court to declare the Departure Agreement null and that he  
be restored with his prestation (the departure fee he had to pay).  
[148] Article 1422 of the Civil Code provides that:  
1422. A contract that is null is deemed never to have existed.  
32  
Exhibit D-33 (f).  
33  
ESTEPHAN and YOUWAKIM were not parties to the Letter of Agreement (Exhibit P-6), only 9114  
was.  
34  
Fortin v. Chrétien, 2001 SCC 45 (), [2001] 2 SCR 500, paragr. 38.  
500-17-095253-160  
21  
In such a case, each party is bound to restore to the other the prestations  
he has received.  
[The Court underlines]  
[149] This is easy to understand, if a contract is annulled, each party has to give  
back what it received (the other party’s prestation) under the contract.  
[150] That is what Plaintiff clearly understood the parties’ obligations to be in his  
proceedings:  
87. Nour submits that as per the effects of the nullity of contract, the Letter  
of Agreement and the Departure Agreement are deemed never to have  
existed, and therefore each party is required to restore to the other the  
prestations he has received in virtue of these contracts.  
[Underlined added]  
[151] Moreover, Plaintiff refers the Court to the Supreme Court case of Octane  
Stratégie inc. where the Court writes:  
L’article 1422 C.c.Q., lequel prévoit les effets de la nullité, crée  
expressément une obligation de restitution. Il s’agit d’un renvoi explicite au  
régime de la restitution des prestations codifié aux art. 1699 à 1707 C.c.Q.  
La restitution des prestations est ainsi la conséquence naturelle de  
l’anéantissement rétroactif d’un contrat (Lluelles et Moore, n° 1224).  
L’article 1699 al. 1 C.c.Q. ne laisse d’ailleurs aucun doute à ce sujet : la  
restitution a lieu « chaque fois » qu’un acte juridique est rétroactivement  
anéanti. Comme l’expliquent D. Lluelles et B. Moore, au n° 1229, au sujet  
de l’art. 1699 al. 1 C.c.Q. : « Le ton impératif de ce texte montre bien que  
le juge n’a pas d’autre choix que de prononcer les restitutions au terme de  
l’annulation […].35  
[Underlined added]  
[152] But, as we can see, when the law speaks of restitution, it specifies clearly  
that it is the restitution by both of the contracting parties.  
[153] In our case, the problem with this proposition is obvious. While Plaintiff may  
easily be restored with the reimbursement of the departure fee, he, on the other  
hand, is unable to restore the Defendants with their “prestations” which, among  
35  
Montréal (Ville) c. Octane Stratégie inc., 2019 CSC 57, paragr.115.  
500-17-095253-160  
22  
other things, was their obligation not to solicit or compete in order to not interfere  
with the servicing of those clients by Plaintiff for a period of five (5) years.  
[154] How can Plaintiff “reimburse” the Defendants of five (5) years of non-  
solicitation and non-competition of his clients? The answer is of course obvious.  
He cannot.  
[155] If Plaintiff’s argument were to be accepted, it is not each party who would  
be restored, but only one. The conundrum is so obvious that Plaintiff confines  
himself into asking to be reimbursed of the departure fee he paid under the  
agreement without offering any kind of restitution or restoration. But, as we all  
know, facts are stubborn, and ignoring them doesn’t make them go away.  
[156] The only part of the Defendants’ prestation Plaintiff could possibly materially  
return would be the clients’ personal data, files and records but still, he abstains  
from offering that for obvious reasons.  
[157] If the Court’s judgment were to declare the Departure Agreement null and  
void more than eight (8) years after its signature, and allow Plaintiff to recuperate  
the departure fee, it would be totally unfair to the Defendants. Plaintiff would have  
enjoyed the execution of their obligations during the five (5) year period  
contemplated by the agreement essentially for free. In other words, such an  
annulment would be the legal equivalent of enabling Plaintiff to have his  
contractual cake and eat it too.  
[158] As we can plainly see, the restitution here is impossible without creating a  
grave injustice to one of the parties while giving the other an unjustified advantage.  
[159] The Court of Appeal has suggested that the solution to such a problem is  
to dismiss the claim for the nullity of the contract:  
61. La partie qui demande la nullité d’un acte et la restitution des prestations  
doit offrir de restituer la prestation qu’elle a reçue en contrepartie de celle  
qu’elle a donnée. La Ville prétend que l’omission de Bixi d’offrir de restituer  
le prêt constitue une fin de non-recevoir à la demande de nullité. Pourtant, la  
jurisprudence qu’elle cite au soutien de la proposition ne mentionne pas de  
fin de non-recevoir. Ces jugements illustrent que, dans certaines  
circonstances, un tribunal peut refuser d’annuler un contrat, notamment au  
motif que l’un des prestataires n’offre pas de restituer la prestation reçue ou  
lorsque la restitution est impossible.36  
[References omitted and underlined added]  
36  
Ville de Montréal c. Litwin Boyadjian Inc. (Syndic de Société de vélo en libre-service), 2019  
QCCA 794, jj. Kasirer, Savard et Roy.  
500-17-095253-160  
23  
[160] In our case, we find ourselves in both situations: restitution is impossible  
and Plaintiff makes no such offer, not even by equivalence under article 1700  
Q.C.C. which provides that:  
1700. Restitution of prestations is made in kind, but, if this is impossible or  
cannot be done without serious inconvenience, it may be made by  
equivalence.  
Equivalence is assessed as at the time when the debtor received what he  
is liable to restore.  
[161] Moreover, in waiting three (3) years before instituting his proceedings while  
enjoying during that period the benefit of the non-solicitation and non-competition  
from the Defendants towards Manulife’s clients37, the Court finds that Plaintiff  
renounced his right to ask for annulment and restitution.  
[162] The amount paid to the Defendants was to compensate them for the loss of  
many of their advisors and their book of business, for allowing Plaintiff and the  
advisors that followed him to have “complete and unfettered authority to manage,  
service and transfer these clients at [their] sole and absolute discretion without  
interference or hindrance of any kind from the defendants”38 and, finally, for the  
disruptive effect such a departure had among the rest of the Dorval Branch’s sales  
force.  
[163] Plaintiff obtained what he paid for and he cannot ask for reimbursement  
after having placed himself in a situation where it is impossible for him to restore  
the Defendants.  
[164] For that reason, the Court believes he cannot ask for reimbursement of the  
departure fee.  
4. Was the Payment of the Departure Fee Illegal?  
[165] In a last ditch effort, to find some reason to have the Departure Agreement  
declared null and void, Plaintiff argues that not being licensed, 9114 “is not  
registered as a firm or an independent partnership in accordance with the  
Securities Act and an Act respecting the distribution of financial products and  
37  
One must remember that most if not all these clients were (and still probable are) from the  
Dorval Branch’s area.  
Paragr. 76 of Plaintiff’s proceedings.  
38  
500-17-095253-160  
24  
services and therefore, is not authorized to receive any form of remuneration  
arising out from the activities and services within the securities industry”39, hence  
it could not legally receive the payment of the departure fee made to it.  
[166] In his proceedings, Plaintiff writes:  
84. In fact 9114-6480 Quebec Inc. is not registered as a firm or an  
independent partnership in accordance with the Securities Act and Act  
respecting the distribution of financial products and services and therefore,  
is not authorized to receive any form of remuneration arising from the  
activities and services within the securities industry.  
[…]  
86. Therefore 9114 Quebec Inc. was not entitled to request nor receive the  
payment of the departure fee as consideration for NOUR’S accounts and  
book of business at the Dorval Branch, particularly as the Securities Act is  
of public order.  
[Underlined added]  
[167] In the Court’s view, this argument must be discarded because it has no  
factual foundation.  
[168] The payment of the departure fee was made in two installments. A first  
payment of $750 000 was made by check to YOUWAKIM and ESTEPHAN,  
personally40. Hence, Plaintiff’s argument cannot apply to that portion of the  
payment.  
[169] A second instalment of $1,2 million was indeed made to 9114 and comes  
from Manulife’s financing.  
[170] It is ironic for Plaintiff to raise this issue in view of the fact that it was him,  
through his attorney, who had made the check to the order of 9114 instead of to  
the Defendants YOUWAKIM and ESTEPHAN. The check was cashed by the company  
and repaid immediately to ESTEPHAN and YOUWAKIM.  
[171] The fact that the check had been incorrectly drawn-up by Plaintiff’s own  
attorney to 9114. doesn’t change the reality about who were the parties who were  
to be paid and who had to deliver on their prestation.  
39  
Paragr. 84 of the Amended Originating Application.  
Exhibit D-39.  
40  
500-17-095253-160  
25  
[172] Plaintiff understood this. That is why when he asked for an adjustment of  
the departure fee in April 2014, he addressed his letter to ESTEPHAN and YOUWKIM,  
not to 911441.  
[173] Moreover, the amount paid under the Departure Agreement came from the  
financing Manulife had provided to Plaintiff. It had absolutely nothing to do with a  
“remuneration arising from the activities and services within the securities  
industries”. The payment was in no way related to the clients and was paid not  
from any of them, but from Plaintiff himself who had secured personal loans from  
Manulife Bank and Manulife Insurance in completely separate operations.  
[174] This payment had no more to do with the securities industry than the  
payment of rent and administrative expenses made by the advisors to 9114.  
[175] Finally and notwithstanding, the evidence shows clearly that Plaintiff, while  
being represented by counsel, gave the Defendants a complete release and  
discharge in regard to the departure fee.  
[176] Plaintiff had been specifically asked by the Defendants for such a release.  
And that is what he did in writing with his letter of June 4, 2014:  
[…] all of our respective obligations pursuant to the above-referenced  
Departure Agreement […] regarding the payment of the Departure Fee […]  
will be fulfilled.42  
[Underlined added]  
[177] As we know, a transaction needs no formality:  
Le contrat de transaction n’est pas assujetti à des formalités  
particulières. Il pourrait être conclu verbalement ou, comme en  
l’espèce, par correspondant. Il pourrait s’inférer également des  
gestes des parties ou de leur mandataire, comme pour n’importe  
quel autre contrat.43  
[178] At the time of the June 4, 2014, letter, Plaintiff was dealing through his  
attorney and it is reasonable to infer that he could count on his counsel when he  
was asked for a release following the adjustment of the departure fee by the  
Defendants.  
41  
Exhibit D-5.  
Exhibit D-33 (f)  
42  
43  
Morin c. Villeneuve, 2000 18417 (QC CS), paragr. 61, j. William Fraiberg.  
500-17-095253-160  
26  
[179] In the Court’s view, this letter constituted a transaction that gave the  
Defendants a complete release and discharge about the parties’ mutual obligations  
pertaining to the departure fee.  
[180] For all these reasons, the Court shall not annul the Departure Agreement  
and therefore Plaintiff’s claim for reimbursement of $1 924 494 shall be dismissed.  
B. THE CLAIM FOR LOSS OF CLIENTELE  
[181] Plaintiff also claims for the loss of clients he says was caused by  
disparaging comments made about him during telephone calls made by some of  
the Dorval Branch’s advisors at the time he left the branch at the end of August  
2013.  
[182] In his Amended Originating Application, he describes his reproaches  
against the Defendants in the following way:  
72. To his great surprise, on or about August 22nd 2013, while NOUR’S had  
attained its highest value – $188,000,000 - ESTEPHAN and YOUWAKIM  
contacted NOUR’S clients for the first time directly by phone in order to inform  
them of NOUR’S departure from the Dorval Branch, and to purposely attempt  
to dissuade them from transferring their accounts to the Oakville Branch.  
73. Unbeknowst to NOUR, during their telephone exchanges with NOUR’S  
clients, both ESTEPHAN and YOUWAKIM made disparaging comments about  
NOUR’S character to his most valued clients, accusing him of conducting  
fraudulent activities within the industry and tarnishing his reputation as a  
trustworthy and respectable investment advisor.  
[…]  
103. Defendants engaged in a smear campaign which decreased the value  
of Nour’s portfolio by $30,000,000 in assets.  
[Underlined added]  
[183] As to the damages claimed, Plaintiff alleges that that the Defendants’  
“smear campaign” brought his portfolio of clients’ AUA from $188 million down to  
$128 million, a decrease of $60 million.  
[184] In his report of November 2017, Plaintiff’s expert based his calculations for  
loss of clients on a list of clients that had been given to him by Plaintiff44. The list  
44  
The list is attached to his report under Appendix 5.  
500-17-095253-160  
27  
indicated that the value of the lost AUA was not $60 million but that was rather  
$30 400 237.  
[185] Plaintiff amended accordingly his Originating Application, but he did it only  
four years later, just before trial, in October 2021 and reduced the amount of  
damages claimed from $2,7 million to $1 562 million. As we shall see, during trial,  
he had to lower yet again that number to $560 000.  
[186] As we can see from the very start, all this reveals Plaintiff’s propensity for  
approximation and exaggeration. Now, if we look at the evidence, we see that that  
proclivity takes up even more steam.  
[187] The evidence shows that indeed some of the Dorval Branch’s advisors  
working with the Defendants did call some of the clients serviced by Plaintiff. For  
a few exceptions45, there are no details as to who and how many advisors called  
who and how many clients. All we know is that the calls stopped within a few hours.  
[188] The evidence also revealed that some of the calls, not all, raised doubts  
about Plaintiff’s ethics.  
[189] It must be noted though that none of the clients produced by Plaintiff said  
that they had been told that he had been “conducting fraudulent activities within  
the industry”46 like it is alleged in Plaintiff’s Amended Originating Application.  
[190] Moreover, even if YOUWAKIM recognizes that he was the one who had  
prompted the calls to be made, he is adamant that he never asked his advisors to  
make disparaging comments which, as he says, could have tarnished the branch’s  
reputation as a whole.  
[191] The purpose of the calls was to inform the clients that Plaintiff was leaving  
the Dorval Branch in order to retain their accounts. YOUWAKIM explains that at that  
time, Plaintiff seemed to be avoiding or delaying the signing of the Departure  
Agreement while he was settling in at his new branch. So, YOUWAKIM had started  
to become impatient towards Plaintiff’s belatedness about the signing of the  
Departure Agreement to which he had already agreed to in principle47.  
[192] In some of the calls, clients were told that Plaintiff had been let go and that  
it was because he had made unethical investments. Nobody explained the concept  
of “unethical investment” and what it entails. Does it mean investing in companies  
producing petroleum products or trading on the Chinese market? We do not know.  
The definition might also differ from one client to another. But everyone took for  
granted that the nature of these remarks was disparaging.  
45  
Some clients were identified and testified, as we shall see hereinafter.  
Paragr. 73.  
August 3, 2013 Letter of Georges Garner of Manulife (Exhibit D-31).  
46  
47  
500-17-095253-160  
28  
[193] The evidence also shows that in reaction to these calls, Plaintiff himself had  
decided to send an email to all of his clients informing all of them about the calls  
and the doubts raised about his ethics:  
Dear Clients,  
Several of my clients have been receiving calls today from advisors at the  
Manulife Securities Dorval Branch indicating that I am no longer with the  
company, that I have been allegedly fired and have been investing the  
client’s money unethically [...].48  
[Underlined added]  
[194] In retrospect, Plaintiff recognizes that this email wasn’t his best move,  
adding that it had the effect of compounding the problem and of pouring more gas  
on the fire by breaking the news to every one of his clients about what had been  
told presumably to only some of them.  
[195] In his email, Plaintiff says that the Dorval Branch’s advisors had told clients  
that he had been let go because of unethical investments49. But two of the clients,  
who produced sworn written statements, say nothing about having been told of  
Plaintiff’s unethical investments. In other words, it seems that what was originally  
a communication to a limited number of clients instantly became an email by  
Plaintiff to all of his clients whereby Plaintiff himself informed them that the Dorval  
Branch was raising concerns about his ethics.  
[196] Plaintiff’s emails invited his clients to reach directly Manulife’s CEO and many  
did.  
[197] That is why Plaintiff quickly agreed to Manulife’s proposal to send a letter to  
his clients in order to set the record straight.  
[198] Some of these clients testified at trial. Others submitted sworn written  
statements. Globally, they say that they were called by someone at the  
Defendants’ branch and, except for two, that they were told that Plaintiff had been  
let go for unethical investments.  
[199] As we saw, YOUWAKIM acknowledges that he had told the advisors who had  
worked with Plaintiff and who had chosen to stay with the branch to call the clients  
they were servicing with him. He rejects the proposition that he told them to make  
disparaging comments about Plaintiff and he doesn’t believe that they did. This is  
not in the culture of the branch and it is not the way we do business, he insists.  
48  
Exhibit P-19.  
Exhibit D-43.  
49  
500-17-095253-160  
29  
[200] It is true that asking the advisors to make these kind of comments could  
have created more problems for the reputation of the branch as a whole.  
Defendant YOUWAKIM is convinced that it is the email Plaintiff sent to his clients  
wherein he himself raises this allegation towards him that might have confused  
them.  
[201] Be that as it may, three clients testified at trial that the person calling from  
the branch made such comments to them. Two others, who testified by way of  
sworn written statement, do not mention any disparaging comments50. They say  
that they had only been told that Plaintiff had been “laid off”51 or simply that he did  
not work (“ne travaille plus”)52 with the branch any more.  
[202] From the whole, the Court concludes that it is fair to say that calls were  
made to a limited number of clients and that disparaging remarks about Plaintiff  
were not made to all of them. One client responded that he was never called53.  
[203] The email that Plaintiff sent to all his clients had a disruptive effect. It put  
Manulife in a situation where the president himself had to return numerous calls  
from concerned clients.  
[204] Nonetheless, it is noteworthy that neither of the clients who testified in  
person or by way of sworn statements stayed with the branch. They all decided to  
go with Plaintiff. As Plaintiff testified, it is hard to lose a client who is happy with the  
returns on his investments.  
[205] As we shall examine more closely later on, of all the clients Plaintiff alleges  
he lost, he was unable to produce a single one that had left him on the basis of  
those calls.  
[206] Plaintiff advances that even after he had signed the Departure Agreement  
and paid the departure fee, the Defendants, “still went after his clients” and  
“solicited”54 them. Yet, except for Plaintiff’s allegations, no evidence of that ever  
happening was presented at trial. In other words, the only occurrence where the  
Defendants’ had gone after Plaintiff’s clients was the August 22, 2013, phone calls.  
[207] All of Plaintiff’s clients had been contacted by Manulife and had been  
informed that Plaintiff was leaving the Dorval Branch and was opening his own  
Manulife branch in Oakville. They were presented an opting out proposition that  
50  
Anastasios Savvidis on October 28th, 2021 (Exhibit P-23 (A)) and Denyse Vigeant on October  
28th, 2021, (P-23 (B)).  
51  
Anastasio Savvidis, Id., paragr.4.  
Denyse Vigeant, Id., paragr.4.  
Exhibit D-43.  
52  
53  
54 Pre-trial Examination of January 25th, 2017, p. 36.  
500-17-095253-160  
30  
unless they contacted Manulife within 30 days, i.e. by September 30th, they would  
be deemed to have chosen to stay with Plaintiff.  
[208] By September 28, Plaintiff’s advances that his clients’ assets’ portfolio had  
plummeted by $60 million. He had to bring down that number to $30 M when his  
expert produced his report in 2017, but he amended his proceedings only four (4)  
years later55. He argues that that loss resulted directly and entirely from the  
Defendants disparaging comments of August 22.  
[209] What is problematic for Plaintiff’ argument is that, as we saw, none of the  
clients, who testified at trial or who produced a sworn statement, were lost by him.  
Hence, the argument that all the lost clients were lost because they had been told  
by the Defendants’ branch about Plaintiff’s so-called unethical conduct is not  
substantiated by the evidence.  
[210] One can reasonably argue from the clients that did testify that these calls  
did not have an overwhelming and irremediable negative effect on Plaintiff’s affairs.  
[211] As we saw, all of Plaintiff’s clients were later contacted and informed about  
the reality. How many, despite the information coming directly from Manulife,  
remained unconvinced and decided to leave Plaintiff because of the disparaging  
remarks? In all probability, as will show the numbers hereinafter, none.  
[212] As Plaintiff said, he was completely dedicated to his clients and they all  
highly appreciated his work. That is why he was so successful. As we saw, once  
somebody becomes your client, they will not change if they are happy. In such  
circumstances, losing a client was rare. At trial, another advisor, Gene Kim, says  
that even though his clients had been heavily solicited when he left the Dorval  
Branch, he had only lost 5% of them.  
[213] If we delve more deeply into Plaintiff’s expert initial report, the numbers  
simply do not support Plaintiff’s allegations that he lost clients because of the calls.  
[214] The undisputed evidence also establishes that after he left the Dorval  
Branch, Plaintiff’s affairs did not go bad at all. In 2016, he was number 4 out of  
Manulife’s top 300 best agents in Canada56. In 2017, he was 5th.57 His book of  
business had gone from $44 121 511 in 2009 to $66 463 000 in 2010 to $77 435  
145 in 2011 to $92 281 159 in 2012, and finally to $115 341 653 in the year he left  
the Dorval Branch in August 201358.  
[215] As we can see, the year he left (2013) was by far his best year (almost $23  
million dollars over the previous year) in spite of the fact that four out of these 12  
55  
Amended Originating Application of October 27, 2021.  
Exhibit D-12.  
Exhibit D-13.  
Exhibit D-20.  
56  
57  
58  
500-17-095253-160  
31  
months (September to December) were after he had left the Dorval Branch and  
during which logically he would have lost most of the clientele he argues he lost  
because of the calls.  
[216] During trial, after the Court had asked the experts to confer as provided by  
the Code of Civil Procedure, Plaintiff’s expert testified that he agreed with many of  
the Defendants’ expert conclusions and indicated that, among other things,  
Plaintiff’s claim for loss of clientele should consequently be amputated by no less  
than one million dollars from $1 562 million59 down to $560 00060.  
[217] Moreover, it appears that many of Plaintiff expert’s calculations were based  
on assumptions rather than on facts because, as the expert puts it, he had not  
been provided with the proper information by his client. In a nutshell, he had had  
to work only with what he was given by his client and that information was not  
optimal.  
[218] It seems that even if many of the documents or reports needed were in his  
client’s hands or that they could have been obtained by Plaintiff himself or by way  
of undertakings during Defendants ESTEPHAN and YOUWAKIM lengthy examination  
out of court, it was only just before or during trial that Plaintiff and his expert  
examined the proper and relevant documentation. And it was also only during trial,  
at the insistence of the Court, that Plaintiff’s expert, who had not participated to the  
hearing, except for his own testimony, conferred with the Defendants’ expert who  
was able to give him all the explanations he needed to review his conclusions on  
the basis of hard, concrete and relevant evidence.  
[219] The Court can only sympathize with Plaintiff’s expert’s ordeal. He was asked  
literally at the last minute and was rushed into producing a supplemental report in  
response to a report that had been produced more than three years before in 2018  
by the Defendants. All this while he was preparing for and/or participating to  
another trial.  
[220] All this leaves an impression of amateurism which is not conducive of  
confidence in the expert’s conclusions. Moreover, Plaintiff’s expert made no  
independent efforts of his own to corroborate his client’s allegations in light of the  
proper and relevant documentation.  
[221] This brings the Court to say a few words on the expert evidence presented  
in this case.  
59  
Amended Originating Application of October 27, 2021.  
Amended Originating Application of November 24, 2021.  
60  
500-17-095253-160  
The Credibility and Reliability of the Experts  
32  
[222] As we shall see, hereinafter, considering the evidence presented, the  
analysis of the experts’ conclusions reveals that the opinion of one is much more  
credible, reliable and reasonable than the other.  
[223] Expert evidence is a very special mode of evidence. In a court of law, the  
expert is the only witness that is allowed to give his opinion on a matter.  
[224] The expert’s obligations are exclusively to the Court. The expert is not there  
to help his client win his case, he is there to assist the Court in arriving at the right  
conclusions on technical issues which are beyond the scope of the Court’s  
expertise.  
[225] The Code of Civil Procedure provides that:  
22. The mission of an expert whose services have been retained by a single  
party or by the parties jointly or who has been appointed by the court,  
whether the matter is contentious or not, is to enlighten the court. This  
mission overrides the parties’ interests.  
Experts must fulfill their mission objectively, impartially and thoroughly.  
[226] This concept now codified in our laws is sometimes difficult to apply in the  
reality of the adversarial contest which remains the cornerstone of our judicial  
process.  
[227] It is sometimes a real challenge for an expert, who is getting paid by his  
client, to resist the temptation of helping him recuperate at least some of this  
remuneration with a favourable judgment. This tendency is well known and is often  
referred to by the metaphor that experts tend not to bite the hand that feeds them.  
That is why, despite their best intentions, experts sometimes fall into that trap.  
[228] That might be what happened here with Plaintiff’s expert. When questioned  
about the lack of documentation to support some of the conclusions of his report,  
the expert defended himself by saying that he solely relied on what his client had  
given him. He was quick to add that his mandate was not to do a forensic  
investigation.  
[229] In response to that justification, the Defendants’ expert, Ms. PASCALE  
GAUDREAULT, says that the role of an expert entails much more than to be a mere  
calculator. She draws the Court’s attention to the “Normes d’exercice des missions  
de jusricomptabilité” developed and adopted by the “Association des comptables  
professionnels agréés du Canada” in 2006 which state the following:  
500-17-095253-160  
33  
Collecte et analyse de l’information  
Généralités  
01. Les praticiens en juricomptabilité doivent faire preuve d’un esprit  
d’investigation dans l’identification, la recherche, l’analyse et l’évaluation  
des informations pertinentes par rapport à chaque mission de  
juricomptabilié, en étant conscients qu’elles sont susceptibles d’être  
biaisées, fausses, non fiables ou incomplètes.  
02. Tout au long de la mission de juricomptabilité, ils doivent faire  
preuve d’un esprit d’investigation […]  
[Underlined added]  
[230] The investigative spirit referred to and envisaged by those norms is defined  
as follows:  
L’esprit d’investigation nécessite que l’on fasse preuve d’un certain degré  
de scepticisme dans l’identification, la recherche, l’analyse et l’évaluation  
des informations pertinentes par rapport à chaque mission en étant  
conscient qu’elles sont susceptibles d’être biaisées, fausses ou  
incomplètes. L’esprit d’investigation est notamment présent dans  
l’identification et l’évaluation des questions pertinentes, l’analyse de la  
plausibilité des hypothèses sous-jacentes, l’analyse de la primauté de la  
substance sur la forme, et l’élaboration d’hypothèses de travail pour ses  
recherches sur les divers éléments faisant l’objet de l’enquête.  
[Underlined added]  
[231] Although, Plaintiff’s expert indicated that his report had been prepared  
followings the same rules of the Association des comptables professionnels  
agréés du Canada61, the Court finds that many parts did not show this investigative  
and skepticism spirit.  
[232] The expert almost entirely and exclusively relied on what Plaintiff or his  
attorneys told him or gave him. In his report, the expert writes that he had not  
“verified the accuracy or completeness of the data provided “ and that he “assumed  
that the information was provided in good faith and that the documents submitted  
[…] were accurate”.62 The evidence showed that his assumptions were wrong.  
[233] The expert did not shed a critical light on what Plaintiff was feeding him. In  
other words, he took everything his client was telling him as granted. In the Court’s  
61  
Exhibit D-52.  
62  
PSBBoisjoli Expert report of November 20, 2017, at page 5.  
500-17-095253-160  
34  
view, that approach might have been appreciated by the client, but it is not at all  
helpful to the Court.  
[234] At the end of the trial, Plaintiff’s expert, who was then in possession of the  
relevant information, had to agree with the Defendants’ expert on several key  
issues. The trial revealed, furthermore, that some of that information had been in  
Plaintiff’s possession all along or that it could have been obtained by him.  
[235] In contrast, the Defendants’ expert report and testimony are much more  
reliable.  
[236] PASCALE GAUDREAULT is a partner at Deloitte’s. She is a member of the  
Quebec Order of Chartered Accountants, of the American Institute of Certified  
Public Accountants and of the Canadian Institute of Experts in Business  
Evaluation.  
[237] Her curriculum vitae63 shows that in the past twenty years, she has acted  
as an expert witness in a large number of cases before the courts. All of these  
cases are listed and identified in her resume. By so doing, the expert gives the  
Court a chance to check the quality of her work in a litigation setting.  
[238] Moreover, in this case, her report and her testimony have shown that she is  
also accustomed to the new rules that govern her role before a court of law. Both  
her report and her testimony have revealed an acute understanding of her  
obligations towards the Court.  
[239] When asked by the Court to hold a conciliation meeting with Plaintiff’s  
expert, Ms. GAUDREAULT did so in such an efficient way that she was able to  
convince Plaintiff’s expert on 14 of the 16 contested issues discussed between  
them.  
[240] On that note, the Court must commend Plaintiff’s expert for his open mind  
in this regard.  
[241] Be that as it may, his change of behaviour revealed to be too little too late.  
In the Court’s view, it did not redeem the reliability of the expert’s other conclusions  
which seem more aimed at getting his client something than helping the Court  
arrive at the right conclusion.  
[242] Throughout his testimony, Plaintiff’s expert showed a tendency of always  
trying to justify his client’s claims rather than to objectively help the Court. The  
proof of that tendency can be found in the numerous parts of his report that  
revealed to be more of the nature of argument.  
63  
Exhibit D-63.  
500-17-095253-160  
35  
[243] Here again, the Court understands that Plaintiff’s expert was put in a very  
dicey situation when asked to react quickly to the Defendants’ expert report  
considering that, as we have seen, it was given to him only a few weeks before  
trial.  
[244] Moreover, the expert, it seems, was testifying in another case during most  
of the 11 days of our trial. During his absence, he was represented by a junior  
member of his firm, who revealed to be most helpful to the Court on certain  
questions, and who kept him abreast of the evidence presented at trial. Not an  
ideal situation to say the least.  
[245] The Defendants’ expert, Ms. GAUDREAULT, on the contrary, was present for  
the whole trial and was able to see and hear in real time all the witnesses. Her  
analysis and conclusions are consequently far more attuned to the facts.  
[246] In a well thought-out report, based on hard facts, under the title “Travail de  
corroboration de Richter”64, Ms. GAUDREAULT arrives at conclusions that are far  
more anchored in reality and in the evidence rather than on assumptions and  
suppositions.  
[247] A few clear and overwhelming examples will suffice to illustrate this  
conclusion.  
[248] In his original report, Plaintiff’s expert took for granted that the list of lost  
clients given to him by his client was accurate. He just took his client’s word that  
the 140 clients on the list provided to him were all lost clients.  
[249] This assumption revealed to be mistaken.  
[250] A mere glance at his client’s Originating Application would have shown him  
that in his proceeding Plaintiff’s was claiming that he had lost $60 million worth of  
AUA while his list indicated a number closer to $30 million. Right there and then  
was a red flag that should have put the expert on his guard and warned him that  
his client’s allegations ought to be taken with utmost suspicion.  
[251] Plaintiff’s explanations that he had problems obtaining information from  
Manulife doesn’t hold water. If someone must have known exactly who were his  
clients, it is Plaintiff. He had been given all their files well before he signed the  
Departure Agreement on January 27, 2014, almost three (3) years before the  
institution of his proceedings.  
[252] The Defendants’ expert did not make the same mistake.  
64  
Richter Report, 13.  
500-17-095253-160  
Did Plaintiff lose clients because of the calls?  
36  
[253] MS. GAUDREAULT’S report established that out of the list of 140 allegedly lost  
clients totaling AUA of $30 million, at least 125 totaling AUA of $25 million simply  
cannot qualify as clients at all.  
[254] Out of those 125 so-called clients, as much as 63 were simply not Plaintiff’s  
clients, 17 had ceased to be his clients even before he had announced his  
departure from the Dorval Branch. Another 23 were still Plaintiff’s clients on March  
30, 2014, 7 months after his departure. Five (5) had no AUA with Manulife before  
Plaintiff had left the Dorval Branch. Six (6) were not even clients of the Dorval  
Branch. For 89 of those 140 so-called clients, Plaintiff had not told his expert that  
he was earning only overrides.  
[255] And finally, for 11 of those clients, we have no information as to the reason  
why they elected not to follow Plaintiff. For one of them, his AUA were of $70 877  
instead of $300 000.  
[256] As we saw earlier, after a conciliation meeting between the experts,  
Plaintiff’s expert finally acknowledged that only 11 clients of that list had transferred  
their accounts from Plaintiff between August 28, 2013, and March, 7, 2014.  
Consequently, Plaintiff had to amend his proceedings and lowered his claim from  
$1 562 000 to $560 000 ($477 000 of commissions and $83 000 of overrides).  
[257] But, as expert GAUDREAULT points out, the experts could not say if any of  
those eleven (11) clients had chosen not to follow Plaintiff because of disparaging  
comments made by some of the Dorval Branch’s advisors on Plaintiff in August  
2013. For Ms. GAUDREAULT, this was the Court’s job to determine not the experts.  
[258] That is why that as their last witness, the Defendants called JASON KAPLAN,  
a Dorval branch advisor.at the time Plaintiff left. He testified that he knew very well  
one of those eleven (11) so-called lost clients, Dr. JOSEPH SANOUSSIAN (and his  
wife DALIDA MOURADIAN).  
[259] Dr. SANOUSSIAN was his cousin. They both came from Lebanon. When he  
started in the financial business at the Dorval Branch, he brought him over as  
client. He managed their mutual funds portfolio which constituted the biggest share  
of their assets while Plaintiff took care of the securities portion of the portfolio.  
[260] Dr SANOUSSIAN and his wife had AUA of $1 845 637 at the Dorval Branch.  
[261] The only reason why they did not follow Plaintiff, Mr. KAPLAN adds, is that,  
as a family member, they simply wanted him to handle their account. That is what  
they had done when he arrived at the Dorval Branch. They had transferred all  
500-17-095253-160  
37  
theirs assets from Scotia Bank. The only reason why Plaintiff’s had been involved  
was because he was licensed in securities.  
[262] Plaintiff did not offer contradictory evidence.  
[263] Moreover, out those eleven (11) so-called lost clients with AUA of  
$6 million, ten (10) had left Plaintiff between December 24, 2013, and March 7,  
2014, between four (4) to six (6) months after the calls made by the Dorval Branch  
advisors. One might think more reasonable to believe that if clients had decided to  
leave on the basis of disparaging comments made about him during those calls,  
they would not have waited that long to do it.  
[264] Only one client left Plaintiff on August 28, 2013, in the days following the  
calls, but we do not know the reason of his leaving Plaintiff. It seems that to be  
completed these things take more than a few days and that, consequently, the  
decision to leave Plaintiff by that client might have been taken most likely before  
the calls.  
[265] Plaintiff did not provide a shred of evidence as to the reasons those few  
clients had decided to leave him. Was it because they were unsatisfied about the  
service Plaintiff provided them from his new branch in Ontario? Was it because  
they realized that it was more convenient for them to have someone nearby in  
Dorval? Was it because of Manulife’s tactics and maneuvers? Was it because of  
Manulife’s bad faith which delayed his transition to his own branch? That is what  
Plaintiff himself clearly alleges in another proceeding he instituted against Manulife  
Securities in 2019:  
36. Pursuant to the Amending Agreement, and notwithstanding Nour’s  
protest, Manulife proceeded to distribute a letter to all clients whose  
accounts were, on September 10, 2013, serviced by Nour in order to notify  
them of his departure from the Dorval Branch and to seek instructions as  
the handling of their accounts;  
37. The letter emanating for Manulife to Nours clients, clearly mentioned  
and facilitated the possibility for them to stay with the Dorval Branch instead  
of transferring with Nour, hence solicitating Nour’s clients to stay with the  
Dorval Branch.  
62. After Nour’s departure from the Dorval Branch, Manulife continued its  
conduct of singling out and bindering.  
259. Furthermore, Manulife’s bad faith led to Nour’s supervision which  
delayed for about two (2) years his transition to his own brokerage firm and  
led to the loss of clients in the process.  
500-17-095253-160  
260. Nour is entitled to damages in the amount of $2,100,000.00  
38  
representing the loss of revenue and clientele during the two (2) years he  
was unable to start his own brokerage firm.65  
[266] In that proceeding, Plaintiff goes on describing Manulife’s conduct as  
“cumulated tactics and maneuvers”66 and “illegal solicitation of clients”67 to hinder  
his departure. Even worse, he states that its conduct was “abusive, dishonest and  
designed in bad faith”.68  
[267] One can wonder if Plaintiff, with his two proceedings, is not seeking the  
same damages from both the Defendants and Manulife Securities.  
[268] As we can see, in Plaintiff’s mind, the cause of his alleged loss of clientele  
might also have been linked to Manulife’s so-called tactics and maneuvers.  
[269] The Court must therefore conclude that Plaintiff did not discharge his burden  
of proof that he has lost clients on the basis of the disparaging comments made to  
some of his clients during those telephone calls of August 22, 2013.  
[270] As we have seen, the only clients that were called to testify on behalf of  
Plaintiff all stayed with him, three of them despite some disparaging comments  
while two others do not even mention having been told of any disparaging  
comments.  
[271] Some of Plaintiff’s witnesses announced to testify in the Déclaration  
commune did not. Here again we do not know why. It is reasonable to infer that it  
is because Plaintiff decided they were not necessary. It is even more reasonable  
to suppose that if one of them was there to say that he had left because of the  
August 22, 2013, calls, Plaintiff would have insisted on having him or her testify.  
[272] Moreover, the evidence does not even establish if these few allegedly lost  
clients were among those who had been called by the Dorval Branch advisors. The  
Court was not provided with an explanation as to why Plaintiff had not subpoenaed  
those few individuals, or at least one of them to testify, as to why they had decided  
to stay with the Dorval Branch.  
[273] As we have seen, Plaintiff did produce witnesses that were indeed called  
but, as we know, all of them stayed with him despite the calls.  
[274] The Court knows that sometimes it is difficult to gain the collaboration of  
someone who has decided to cut business ties. But considering the context we  
have seen, the Court cannot presume that if those clients left, it was necessarily  
linked to the disparaging comments.  
65  
Exhibit D-47.  
Id., paragr. 65 and 66 (a).  
Id., paragr. 66 (a) (iii) and paragr. 108.  
Id., paragr. 120 and 238.  
66  
67  
68  
500-17-095253-160  
39  
[275] In the case of Hinse, the Supreme Court explained that:  
An unknown fact will not be proven if the known facts cause another fact  
that is inconsistent with the fact the plaintiff wants to prove to be more or  
less likely, or if they do not reasonably rule out another possible cause of  
the damage he or she suffered.69  
[276] Here, the context and even Plaintiff himself suggest that other reasons or  
other persons might have come into play.  
[277] Consequently, all we are left with is Plaintiff’s assumptions and conjectures.  
But, as the popular saying goes, ten pounds of speculation is not worth an ounce  
of evidence.  
[278] It was Plaintiff’s burden to establish by preponderance of proof that he had  
lost $560 000 of revenues stemming from a loss of clientele that was caused  
immediately and directly70 by the disparaging remarks made by the Dorval  
Branch’s advisors.  
[279] In the Court’s view, he failed to do so.  
[280] Had Plaintiff genuinely felt that these calls had the devastating effect of  
making him loose around $60 million worth of AUA71, he would certainly not have  
accepted to sign the Departure Agreement almost five months later on January 27,  
2014, and pay the departure fee without raising the question.  
[281] This brings us to the issue of determining if Plaintiff gave a complete and  
final discharge and release with regard with the transfer of his clients and the  
payment of the departure fee.  
Did Plaintiff give a complete and final release and discharge?  
[282] Even if the evidence had shown that Plaintiff had lost clients on account of  
the calls, the Court finds that by his subsequent conduct, he has given the  
Defendants a complete release and discharge for any loss resulting therefrom.  
69  
Hinse v. Canada (Attorney General), 2015 SCC 35 (), [2015] 2 SCR 621, paragr. 72.  
Article 1607 of the Quebec Civil Code provides that: The creditor is entitled to damages for  
70  
bodily, moral or material injury which is an immediate and direct consequence of the debtor’s  
default.  
Even though Plaintiff at trial brought this number to $6 million, at the relevant times, he alleged  
71  
having been under the impression that it was rather $60 million.  
500-17-095253-160  
40  
[283] As we know, a transaction (release and discharge) does not have to be in  
writing. It can be inferred from the mere conduct of the parties:  
Le contrat de transaction n’est pas assujetti à des formalités particulières.  
Il pourrait être conclu verbalement ou, comme en l’espèce, par  
correspondant. Il pourrait s’inférer également des gestes des parties ou de  
leur mandataire, comme pour n’importe quel autre contrat.72  
[284] Plaintiff’s conduct after the calls is incompatible with a genuine claim in  
damages for lost clients.  
[285] As we saw, the calls were made on or about August 22, 2013. At that time  
the parties had not finalized their Departure Agreement. In was not before five (5)  
months later, on January 27, 2014, that the final agreement was signed.  
[286] It makes little sense to argue that at the time the Departure Agreement was  
agreed to the calls, made five (5) months earlier, had caused Plaintiff’s clients to  
abandon ship and made him lose losses $60 million in AUA. Of course, if the calls  
had been the direct and immediate cause of that loss, all this would have been  
more than apparent five months later.  
[287] If it was, how can we reasonably explain Plaintiff’s signing of the Departure  
Agreement without raising any anything specific about such a loss? One must  
remember that under the agreement, Plaintiff had to pay a considerable amount of  
money to the Defendants. No doubt that if the calls had had the effect of making  
Plaintiff lose $60 million worth of AUA, he would certainly have raised concerns  
before agreeing to make such a large payment.  
[288] But he did not.  
[289] Quite a peculiar conduct if we accept Plaintiff’s premise that the calls had  
caused him to lose $60 million worth of AUA along with the commissions and  
overrides attached thereto.  
[290] Putting aside this incongruity, an answer might perhaps be found in one of  
the Departure Agreement provisions which stated that the departure fee could be  
adjusted based on the AUA actually transferred as of March 30, 2014. In other  
words, the Departure Agreement took for granted that some clients might decide  
not to follow Plaintiff. That is why, the parties had agreed that the departure fee  
could be adjusted to reflect the possibility of this occurrence.  
[291] That is precisely what happened on April 10, 2014.  
72  
Morin c. Villeneuve, 2000 18417 (QC CS), j. William Fraiberg.  
500-17-095253-160  
41  
[292] That day, Plaintiff’s counsel, Me Levine, transmitted a letter from his client  
to the Defendants stating the that the value of AUA he had paid for compared to  
the value of the AUA calculated as of March 30, 2014, established that he was  
owed a reimbursement of $25 50673 on the departure fee.  
[293] The letter clearly shows that Plaintiff must have had all the required  
information in order to establish the amount of AUA still with him as of March 30,  
2014:  
As contemplated by the Departure Agreement, the undersigned has  
calculated the market value on September 10, 2013, of these Advisors’  
clients […] who remained under management by the undersigned or by  
members of the undersigned’s team s at March 30, 2014 […]74  
[294] It makes little sense to accept that when he made that demand of  
reimbursement, Plaintiff had no access to the proper information in regard to his  
clients.  
[295] Even if the Court were to conclude that Plaintiff had lost those clients by the  
Defendants’ fault, by asking for the reimbursement of $25 506.2175 provided for  
under the Departure Agreement, it is almost impossible not to conclude that  
Plaintiff gave the Defendants a complete release and discharge in connection to  
any additional loss of clients he might have incurred further to his departure from  
the Dorval Branch.  
[296] The Court has no doubts that if Plaintiff truly believed that he had lost a  
sizable number of clients on account of the Defendants’ calls, he would not have  
signed the Departure Agreement and would certainly not have cashed without  
reserve those reimbursement checks without raising the question.  
[297] His letters of April 10, 2014, and of June 4, 2014,76 leave no doubt that he  
had no complaints in regards to the transfer of his clientele and by not raising any,  
in a timely fashion, the Court agrees with Defendants’ counsel that Plaintiff has  
waived all additional claims regarding the departure fee and/or for loss of  
clientele77.  
[298] In summary, Plaintiff would not have acted in this manner had he felt, almost  
nine (9) months later, he had lost clients on account of those August 2013 phone  
73  
Exhibit D-5.  
Id.  
Exhibits D-33 (f) and P-13.  
Exhibits D-33 (e) and D-33 (f).  
74  
75  
76  
77  
See in this regard the case of Groupe Drumco Construction Inc. c 7321228 Canada Inc., 2017  
QCCA 145 and 3D Mobilité Inc. c Communication Mod Inc., 2014 QCCS 95, parag. 22-24, 46.  
500-17-095253-160  
42  
calls. Plaintiff’s conduct is clearly indicative, at the very least, of a tacit renunciation  
to any claim regarding a loss of clientele further to the adjustment of the departure  
fee and the Defendants’ reimbursement thereof78.  
[299] For all these reasons, the Court finds that Plaintiff’s claim for loss of clientele  
must therefore be dismissed.  
The mitigation of damages  
[300] This brings us to the question of mitigation of damages.  
[301] Before being in the position of asking for damages, Plaintiff had the  
obligation under article 1479 of the Quebec Civil Code of showing that he had  
taken all reasonable measures to mitigate these damages:  
1479. A person who is bound to make reparation for an injury is not liable  
for any aggravation of the injury that the victim could have avoided.  
[302] The evidence doesn’t show any efforts by Plaintiff to mitigate the loss of  
those clients he says he would have lost because of the Defendants’ calls. In the  
section of his report that deals with the question of mitigation of damages. Plaintiff’s  
expert states that:  
We note that Plaintiff was not allowed to contact his clients when he left the  
Dorval Branch, instead a standard letter was sent by Manulife to each client  
requesting from the client a decision as to whether he/she wants his/her  
AUA to be transferred to the Dorval Branch or remain with Plaintiff. As such,  
Plaintiff was not able to influence any of his lost clients or those of his  
Departing Advisors and accordingly mitigate his Financial Damages.  
Based on the above, the Financial Damages as included in this report do  
not require any offset due to lack of mitigation from Plaintiff.79  
[303] This is another glaring mistake.  
[304] The evidence deriving from the mere lecture of the Departure Agreement  
shows that the expert’s statement above is simply false.  
78  
Martineau c. Société Canadian Tire ltée, 2011 QCCA 2198, paragr. 72 et 73, jj. Chamberland,  
Rochette et Gagnon.  
PSBBoisjoli Report, p. 8.  
79  
500-17-095253-160  
43  
[305] The Departure Agreement, which the expert says he had examined, states  
the complete opposite of what he advances in his report:  
[…] the Advisor [Plaintiff] has full control and ownership of the Advisor’s  
Clients and complete and unfettered authority to manage, service or  
transfer the Advisor’s Clients and the client’s files, records, documents and  
information related to the Advisor’s Clients, at his sole and absolute  
discretion.80  
[Words in brackets added]  
[306] Under the Departure Agreement, it is the Defendants that undertake not to  
furnish any services which are similar or competitive to the services rendered to  
them by Plaintiff81.  
[307] Even though it was Manulife that had sent the letter to Plaintiff’s clients  
informing them of his departure from the Dorval Branch, nothing (and certainly not  
the Defendants) forbade Plaintiff from getting in touch with his clients before or  
after his departure.  
[308] The evidence doesn’t show any efforts from Plaintiff to keep those so-called  
lost clients in spite of the calls. As we have seen, this is perhaps not surprising if  
Plaintiff, as his expert, incorrectly taught the Departure Agreement forbade him to  
contact his clients.  
[309] Here again, it is most improbable that Plaintiff had been under the  
impression he was forbidden to contact his clients for whom he was about to pay  
or had already paid a considerable amount of money as a departure fee. The more  
reasonable explanation is that Plaintiff did not take any mitigation action because  
there was nothing to mitigate. He knew he had not lost any clients because of the  
calls.  
Prescription of Plaintiff’s claim for loss of clientele  
[310] Lastly, Plaintiff’ claim for loss of clientele is clearly based on the disparaging  
remarks accusing him of unethical investments.  
[311] The Defendants argue that the damages he is seeking stem from this attack  
on his reputation as an honest advisor. Thus, his claim is one of defamation.  
80  
Article 3.3 of the Departure Agreement (Exhibit P-12).  
Article 4.1 (a) of the Departure Agreement (Exhibit P-12).  
81  
500-17-095253-160  
44  
Therefore, the applicable statute on prescription is that of one year under article  
2929 of the Quebec Civil Code which reads as follows:  
2929. An action for defamation is prescribed by one year from the day on  
which the defamed person learned of the defamation.  
[312] As we have seen, Plaintiff learned about the defamation in the hours  
following the start of the calls, on or about August 22, 2013. His Originating  
Application was instituted almost three years later, on August 19, 2016.  
[313] Plaintiff responds that it was rather his dignity that was attacked by those  
disparaging comments and that, consequently, the applicable prescription is that  
of three (3) years under article 1457 of the Quebec Civil Code.  
[314] He refers the Court to article 4 of the Quebec Charter of Rights and  
Freedoms which refers specifically to this concept:  
Every person has a right to the safeguard of his dignity, honour and reputation.  
[315] In his view, citing a case of this court82, Plaintiff advances that the  
disparaging comments went farther than being a mere critic of his reputation, it  
attacked his dignity and, consequently, the prescription of article 2929 Q.C.C. does  
not apply.  
[316] The Court does not agree with this view.  
[317] It is obvious the remarks aimed at tarnishing Plaintiff’s reputation. It attacked  
him as a reputable financial advisor. It is what Plaintiff himself says in proceedings  
he instituted against Manulife in 2019:  
104. Unbeknownst to Nour, during their telephone exchanges with Nour’s  
clients, both Estephan and Youwakim made disparaging comments about  
Nour’s character to his most valued clients, accusing him of conducting  
fraudulent activities within the industry and tarnishing his reputation as a  
noteworthy and respectable investment advisor.83  
[Underlined added]  
82  
Bouffard c. Québec (Procureure générale) 2016 QCCS 5384, paragr. 67.  
Exhibit D-47, paragr. 104.  
83  
500-17-095253-160  
45  
[318] As we can plainly see, in Plaintiff’s mind, the disparaging comments  
attacked his character as a respectable and trustworthy investment advisor.  
Consequently, the potentially damaging comments clearly aimed Plaintiff’s  
reputation as an ethical financial advisor, not his dignity as a human being.  
[319] Plaintiff’s argument aimed at linking the defamation to an attack on a  
person’s dignity in order to avoid the application of the one (1) year prescription is  
not a novel strategy.  
[320] In these cases, the Court must examine the facts and determine which is  
which.  
[321] In an article on that question, Me Céline Gervais, as she then was,84 writes  
that:  
Nous croyons que si les atteintes à des droits garantis par la Charte, comme  
le droit à l’honneur et à la dignité, découlent de la diffamation ou de l’atteinte  
à la réputation, elles devraient également être soumises au délai de  
prescription de un an. La jurisprudence a reconnu que la diffamation peut  
couvrir de nombreux concepts, dont celui de l’atteinte à la dignité, de  
l’honneur et de l’intégrité. Il faut se baser sur l’origine du fait dommageable,  
et non sur le préjudice qu’il a engendré85.  
[Underlined added]  
[322] Here, there is no doubt that “l’origine du fait dommageable” is the  
disparaging remarks and the defamation that resulted therefrom aimed Plaintiff’s  
reputation.  
[323] More recently, our Court of Appeal held a similar reasoning:  
[32] La diffamation s’analyse en vertu de la responsabilité civile au sens de  
l’article 1457 C.c.Q. Bien que les demandeurs soulèvent des droits protégés  
par les chartes, les mêmes principes demeurent applicables. Autrement dit,  
« il ne suffit pas […] d’alléguer un tel dommage [découlant d’un droit garanti  
par la Charte québécoise] pour ainsi échapper à la prescription de l’article  
2929 C.c.Q. ». Sinon, il resterait peu de chose de cet article qui pourrait être  
contourné sur simple prétention d’atteinte à la dignité. […].86  
[References omitted and underlined added]  
84  
She has since been appointed as a judge to the Cour du Quebec.  
Céline GERVAIS, La prescription, Éditions Yvon Blais, Cowansville, 2009, p. 67-68.  
Gordon c. Société Radio-Canada 2009 QCCS 4149, par. 111, 112, confirmed in appeal Gordon  
85  
86  
c. Mailloux, 2011 QCCA 992.  
500-17-095253-160  
46  
[324] The Court thus concludes that Plaintiff’s claim for loss of clientele should  
also be dismissed on the basis of prescription.  
[325] For all these reasons, Plaintiff’s claim for loss of clientele must be  
dismissed.  
C. THE CLAIM FOR WITHHELD COMMISSIONS  
[326] Plaintiff also claims reimbursement of no less than seven (7) years of unpaid  
commissions, worth $1 637 M87, while he worked at the Dorval Branch between  
2006 and 2013. He accuses 9114 to have surreptitiously kept a portion of his  
commissions.  
[327] He raises two arguments: (1) the amounts kept by the 9114 on the  
commissions paid had not been agreed to by him and (2) 9114, was not “registered  
with the AMF”88, pursuant to the applicable securities legislation and,  
consequently, it was not authorized to receive any sums or forms of remuneration  
arising from activities and services related to the securities industry.  
Was there an agreement as to Plaintiff’s payout?  
[328] As we have seen, YOUWAKIM and ESTEPHAN were operating Manulife’s  
largest and most successful branch in Canada. When the advisors were hired at  
the Dorval Branch, many of them were new to the securities industry. They were  
required to sign a contract called Principal Agent Agreement (the “PAA”)89.  
[329] The agent’s remuneration (his “Payout”) was entirely commission based:  
Commission Split  
(a) Personal Payout  
Your Personal Payout for each calendar year will be a percentage of the  
total gross commissions and revenues earned by you through Berkshire  
and received by Berkshire during the year. […]  
87  
In his Amended Originating Application of November 24, 2021 following an agreement between  
the experts.  
88  
Paragr. 97 of the Amended Originating Application.  
Exhibit P-4.  
89  
500-17-095253-160  
47  
[330] Berkshire which was the financial institution with whom Plaintiff originally  
signed this PAA and which was later on acquired by Manulife.  
[331] It is under this PAA that Plaintiff’s payout was determined.  
[332] Those facts are not contested.  
Was it 9114 that paid Plaintiff’s commissions?  
[333] Plaintiff argues that what he describes as “unlawfully withheld”90  
commissions were kept from him by the Defendants. In paragraph 8.2 of his  
Amended Originating Application, he describes his claim in the following way:  
8, NOUR seeks to obtain compensation as follows:  
[…]  
8.2 Reimbursement of the sums which Defendants retained on NOUR’S  
commissions between 2006 and September 3rd 2013 from NOUR’S gross  
commission and which should have been paid out to NOUR in full, […]  
[334] In his Amended Originating Application, he adds that the commissions were  
paid by Manulife to 9114 which “was to distribute said commissions to the  
advisors”91 although it was not properly licensed to do so:  
25. 9114-6480 Quebec Inc. was also responsible for receiving from  
Manulife Securities Inc. and distributing to all of the advisors, including  
Nour, the commissions to which they were entitled to, given the revenues  
they generated for the branch.  
90. Manulife Securities therefore distributed to its branches commissions in  
conformity to the above payout rate, and each branch was to redistribute  
said commissions to the advisors.  
93. NOUR did not receive the full commissions which he was entitled to,  
because 9114 Quebec Inc. was retaining an important part of that  
compensation.  
90  
Title B, at page 12 of the Amended Origination Application of October 27, 2021.  
91 At paragr. 90.  
500-17-095253-160  
100. In addition, 9114-6480 Quebec Inc. was in fact not even allowed to  
48  
retain any percentage given the fact that it did not fulfill the requirements of  
the applicable legislation for registration with the AMF.  
101. Thus, 9114-6480 Quebec Inc. should in fact have remitted to Nour all  
amounts it retained for itself as it was not permitted to receive any  
commission or part therefore (sic) as it did not fulfill the legal requirements  
of registration with the regulating authorities […]  
[Underlined added]  
[335] The reality, as the evidence has shown, is that none of the Defendants, and  
certainly not 9114, ever paid, distributed or redistributed any of their advisors’  
commissions.  
[336] Only Manulife did. And it did it directly to the advisors.  
[337] As clearly explained by Manulife’s GEORGES GARNER and MICHEL  
DESCHÊNES, and also by defendants ESTEPHAN and YOUWAKIM, no commission has  
ever been paid to 9114 described by Plaintiff himself as only being the Defendants’  
management company. That company was a “société de portefeuille” dealing in  
management (“service de gestion”)92. It had absolutely nothing to do with “activities  
and services related to the securities industry”.  
[338] No evidence was presented showing that payments made by Manulife were  
directed to other than properly licensed individuals including Defendants ESTEPHAN  
and YOUWAKIM.  
[339] As we have seen earlier, the only payment directed to 9114 was not for  
commissions or overrides, but for the payment of the departure fee under the  
Departure Agreement. And this payment had been incorrectly made by none other  
than Plaintiff’s own attorney. The check was cashed by 9114 and the proper  
amounts were then immediately directed to ESTEPHAN and YOUWAKIM.  
[340] Out of sheer despair, Plaintiff attempted to draw an argument of text that  
commissions must have been indeed paid to 9114, on the basis that the Manulife  
grid for payment referred to the “Branch Gross Commission”. In his view, the  
branch could only have been 9114.  
[341] Nothing can be further from the truth.  
[342] Plaintiff’s myopic interpretation argument amounts to nothing more than  
wishful thinking. Moreover, it is contradicted by all involved.  
92  
Exhibit D-1.  
500-17-095253-160  
49  
[343] Manulife and the clients had no relations with 9114 and most, if not all, didn’t  
even know of its existence. As for the agents, their only exchange with the  
company was about managerial support.  
[344] For Manulife and for the advisors, with regard to the investments, securities  
and mutual funds aspects of the operations, the “branch” meant the owners  
ESTEPHAN and YOUWAKIM. Period.  
[345] The evidence clearly established that 9114 was not involved in the  
investment business. It never received any commissions or overrides from  
Manulife in regard to services rendered to investment and securities clients  
[346] Mr. DESCHÊNES was very clear and convincing in that regard. In a detailed  
and meticulous testimony, he explains that it was Manulife’s responsibility to make  
sure that all payments of commissions and overrides were made to the properly  
licensed advisors and exclusively to them. He never made any payments of  
commissions or overrides to 9114 adding not having even known of its existence.  
[347] The Court finds Mr. DESCHÊNES’ testimony most persuasive. Moreover, it is  
corroborated by the documentary evidence and, except for Plaintiff’s assumptions  
and suppositions, by all involved in the business.  
[348] There is simply no evidence to support Plaintiff’s claim that the payment of  
commissions was made to 9114. None.  
[349] Out of probably tens of thousands of payments over the years when he  
worked at the Dorval Branch, Plaintiff was unable to produce a single occurrence  
of a payment of commission or overrides made by Manulife which had been  
directed to 9114 or to any other unlicensed entity.  
[350] The undisputable evidence shows that 9114 was nothing more than  
ESTEPHAN’S and YOUWAKIM’S management company in charge of providing various  
services to the advisors such as office space and supporting clerical and  
administrative services.  
[351] It was clear for everyone involved that the branch was owned and run by  
YOUWAKIM and ESTEPHAN. The fact that they had created a management company  
for tax purposes did not make that company involved in the securities business.  
[352] To advance that YOUWAKIM and ESTEPHAN, who were both licensed in their  
respective fields, would have chosen to trade with their clients and Manulife  
through their management company, who was unlicensed, is simply preposterous.  
Even if YOUWAKIM and ESTEPHAN had been reckless enough to do this, the  
evidence shows that Manulife would not have tolerated it.  
500-17-095253-160  
50  
[353] Plaintiff understood that 9114’s only involvement was with regard to the  
material and administrative management of the branch. That is exactly what  
Plaintiff writes in his proceedings:  
24. While at the Dorval Branch, Nour paid monthly rent to 9114 Quebec Inc.  
in the amount of $1,170.00, in addition to service fees, maintenance and  
cleaning fees, and other office disbursements […]  
[354] Plaintiff’s attorneys recognize the same thing in their written submissions:  
[…] la preuve révèle que 9114 n’investit rien, son apport se limitant à un  
rôle de soutien administratif.93  
[355] It is hard to understand how Plaintiff could have chosen to advance such a  
misleading proposition.  
[356] If we accept, for the sake of argument, and that’s a big if, that he did not  
know how and by whom his commissions and overrides were paid at the time he  
worked at the Dorval Branch, he certainly could not seriously pretend that he did  
not know after having been operating his own branch for almost three years when  
he instituted his proceedings.  
Did Plaintiff’s know and accept how his payout was established?  
[357] To support his claim, Plaintiff claims that he never knew how is  
remuneration was established and consequently he never agreed to it.  
[358] The evidence shows that he did.  
[359] Plaintiff knew perfectly well how and by whom the payment of his  
commissions were made.  
[360] Since the beginning, the owners of the branch, YOUWAKIM and ESTEPHAN,  
were paid under a predetermined grid94 by Manulife. In virtue of that grid, the  
branch received a commission based on a percentage of the gross commissions  
produced by the amount of the AUA of the branch. In other words, the higher the  
AUA, the higher the branch’s commission rate awarded to the branch. It was  
93  
Plan d’argumentation du demandeur, p. 6.  
Exhibit P-14.  
94  
500-17-095253-160  
51  
consequently very appealing for everyone to be associated with a successful  
branch.  
[361] As we saw, the Dorval Branch was Manulife’s largest and most successful  
branch in Canada. The branch’s AUA enabled it to get the highest percentage rate  
of commission from Manulife, i.e., 86%.  
[362] But out of this 86%, Manulife let the branch owners determine the advisors’  
share at their sole discretion. The percentage of the advisor’s commission was  
based on numerous factors such as, among other things, experience,  
responsibilities in the supervision and formation of younger advisors and, of  
course, on the AUA brought in and serviced by that advisor.  
[363] Typically, an advisor would start with a commission of 50% on the gross  
commission generated by the assets he brought to the branch. This commission  
could eventually go as high as 70%. An advisor could also get an override on  
commissions paid to another advisor. This override was also determined by the  
owners of the branch at their sole discretion.  
[364] In the “Déclaration commune”, Plaintiff indicates that one of the contested  
issues is as follows: “Did Defendants fail to conform to Manulife Securities  
compensation schedule and payout rates given the revenue the Dorval Branch as  
well as Plaintiff were generating?”  
[365] To that specific question, the unequivocal answer from the Defendants and  
from Manulife itself is that they did not.  
[366] Throughout his stay at the Dorval Branch between 2006 to 2013, Plaintiff  
was paid, directly by Manulife along these parameters without complaint. But he  
argues that he should have received the totality of the commissions. He asks  
consequently to be reimbursed of the amounts he alleges were kept illegally by the  
branch.  
[367] Translated into amounts, he maintains that the difference between what he  
received and what he should have received is $1 637 M.  
[368] As we can see, except for the percentage kept by Manulife, Plaintiff  
advances that he was entitled to almost the entirety of the commissions. This is in  
and of itself problematic for essentially one reason: it leaves close to nothing to the  
owners of the branch. If this constituted Manulife branches’ business model, one  
wonders why would anyone be interested in becoming a branch owner?  
[369] Plaintiff adds that the Defendants even tried in to cover their tracks about  
the payment of his commissions and overrides. In his proceedings, he argues that  
500-17-095253-160  
52  
these payments were made by 9114 which “hid behind complex accounting that  
left no room for transparency”95:  
95. In fact, Nour was receiving payment with no details as to the actual  
calculations of such payments, while 9114-6480 Quebec Inc. hid behind  
complex accounting that left no room for transparency.  
[370] Here again, this allegation finds no echo in the evidence.  
[371] If someone had been hiding behind complex accounting, it could not have  
been 9114 because, as we saw, it was Manulife, not 9114, that was making the  
payments and tabulating the numbers.  
[372] Moreover, all the relevant details about what Plaintiff was receiving was out  
there for him to see on Manulife’s website where he could count on a weekly  
generated Income and Expenses Summary96.  
[373] The evidence clearly established that from the outset, Plaintiff knew or could  
have known, if he had bothered to look at Manulife’s website, the exact percentage  
of his commissions and that of his overrides. He could have known the percentage  
kept by Manulife and by the branch’s owners. He never expressed any concerns  
until the institution of his proceedings nearly three years after his departure from  
the Dorval Branch and the opening of his own branch in Oakville, and close to ten  
years after he had started working at the Dorval Branch.  
[374] There was nothing wrong with the way the Defendants were operating as  
regard Plaintiff’s remuneration. So much so, that Plaintiff replicated the same  
model when he opened his own branch in Oakville.  
[375] If Plaintiff genuinely believed that parts of the commissions that were owed  
to him were not paid, why did he not sue Manulife? In argument, to that specific  
question raised by the Court, Plaintiff’s attorneys acknowledged that their client  
had not claimed from Manulife for these unpaid commissions or overrides97.  
Plaintiff had sued Manulife about other things98, but not about that.  
[376] It was with Manulife that Plaintiff had signed the PAA99 regarding his payout,  
not with the Defendants. It was with Manulife that Plaintiff had a direct lien de droit  
in that regard. If what Plaintiff argues had any merits, was it not Manulife that had  
been making these payments to allegedly the wrong entities.  
95  
Paragr. 95 of the Amended Originating Application.  
Exhibit D-21.  
Exhibit D-47.  
Id.  
96  
97  
98  
99  
The PAA, (Exhibit D-50).  
500-17-095253-160  
53  
[377] The Court finds it very hard to believe that Plaintiff, who is an intelligent,  
driven and successful advisor, did not know how, by whom and how much he was  
getting paid and who got what.  
[378] Another advisor, Gene Kim, who arrived at the Dorval Branch at the same  
time in 2004 says that the payout structure had been explained to him by the  
Defendants. Another advisor, Jonathan Flowers, says that he knew all about the  
branch’s sub-grid that was determined by the owners. Both also knew that 9114  
was only a management company that took care of administrative tasks and that  
it had nothing to do with the securities operations.  
[379] The Court finds it more probable that the same had been explained to  
Plaintiff and that he knew exactly what was going on and that he agreed with it.  
[380] The evidence shows that there was indeed an understanding between the  
parties as to what Plaintiff would receive. That’s exactly what Plaintiff himself  
clearly admits in his pre-trial examination100:  
Q. Okay. And was there any percentage of commission that was agreed  
about?  
A. I went with what they paid me. I had no idea what the rate was. It was that  
was not something that was transparent to the advisor, but I found out what  
the payout was two (2) years, or three (3) years in the business …  
Q. Okay.  
A. … that people get paid based on a certain amount of revenue that they  
bring in.  
Q. Okay.  
A. I knew what they told me it will be, but I didn’t know how much the  
company paid for the advisors.  
Q. So what was the percentage?  
A. It was fifty percent (50%) payout.  
[Underlined added]  
[381] In the Court’s view, Plaintiff’s testimony that he only learned a couple of  
years after he had started what he was getting paid also makes little sense. It  
would have been rather odd for any person, paid exclusively on commissions, not  
100  
January 25, 2017, p. 6.  
500-17-095253-160  
54  
to know the amount of AUA he was bringing in, the amount of commission he was  
getting and figure out what was the percentage of that commission.  
[382] As the evidence revealed, every advisor had an easy electronic access to  
all this information from Manulife’s website. As we saw, Kim and Flowers, who  
arrived at the Dorval Branch at around the same time, had been explained all about  
it from the start.  
[383] It is, furthermore, difficult to maintain that Plaintiff did not know he was not  
receiving the totality of the commissions when you consider the text of the PAA  
that speaks of the agent’s Personal Payout as being “a percentage of the total  
gross commission”. A percentage of cannot be the totality of.  
[384] Incapable of ignoring the obvious101, Plaintiff’s attorneys cleverly submit that  
even if their client might have known that a portion of the commissions generated  
by his portfolio stayed with Manulife and that another portion was paid as overrides  
to other advisors, or to the branch’s owners, their client did not know the minute  
details of these payments.  
[385] Here again, the Court finds that this assertion is contradicted by Plaintiff  
himself who admits that he had “found out what the payout was (2) two or three (3)  
years in the business”102. Did he express any concerns about this? From the  
evidence, it seems that he did not.  
[386] So, Plaintiff knew, and agreed, to what he was getting paid. Remember what  
he said: “I went with what they paid me”103. To advance that Plaintiff, who was one  
of Manulife’s most successful advisors did not have access or that he did not know  
how to have access to the details of his clients’ AUA and of the commissions and  
overrides he was making is simply implausible.104 His numerous emails where he  
writes about his commission rate and his overrides clearly show that he was well  
aware about all of this.  
[387] The Court finds that Plaintiff knew everything he could have wanted to know  
about his commissions and about the overrides on other advisors he was  
making105.  
101  
In their written argumentation, at page 24, Plaintiff’s attorneys write that “Il est vrai que M. Nour  
sait qu’il ne reçoit pas 100% de ce qu’il génère, mais il n’a aucune idée de comment les  
sommes qu’il ne reçoit pas sont réparties ».  
Pre-Trial Examination of January 25, 2017, p. 6.  
102  
103  
Id.  
104  
See Exhibits D-20, D-57 and P-31.  
See Exhibits P-16, D-21, D-26 and D-27.  
105  
500-17-095253-160  
55  
[388] Finally, as we have seen, if Plaintiff’s argument were to be accepted, this  
would leave close to nothing for the owners of the branch despite the importance  
of their contribution into Plaintiff’s success.  
[389] Plaintiff tried to downplay their contribution in his success by arguing that  
he had always been his own man and that he didn’t require or need any support  
from the branch. In argument, his attorney went as far as pleading that there was  
no advantage for his client to have been associated with the Dorval Branch.  
[390] Here again, the Court finds that the evidence shows the opposite.  
[391] To start, being associated with the Dorval Branch made it possible for the  
advisors and the owners to get the highest commission rate (86%) from Manulife.  
[392] More importantly, it is disingenuous not to see the benefit associated with  
the help, support and formation provided to Plaintiff at the beginning when he  
started fresh out of school with no experience in the field. Even later on, as a full-  
fledged advisor, the evidence showed that Plaintiff could count on the help and  
counsel of branch personnel to guide him as for example on tax planning which  
constituted the branch’s secret weapon for profitability and client’s satisfaction.  
[393] The Court finds that it is more reasonable to conclude that Manulife’s most  
profitable and successful branch in Canada constituted a most fertile professional  
training ecosystem for Plaintiff‘s development and success in this very competitive  
business environment.  
[394] Ironically, the Court’s conclusion, on the added value brought to its advisors  
by the branch, seems to be shared by Plaintiff himself when he refers to his own  
branch in Oakville.  
[395] In his statement of defense and cross-application in another proceeding  
against some of his own advisors106, Plaintiff speaks very highly of the branch’s  
contribution referring to an agreement he had asked his own advisors to sign at  
his Oakville Branch:  
(A) The Branch Owner will be making a significant investment in the  
supervision and administration of the registered Representative (the  
advisor) by providing the Registered representative with the necessary  
tools and resources to generate the business leading to transactions from  
which the Registered Representative derives income;  
(B) The Branch owner will be entrusting the registered Representative with  
access to clients and business opportunities with confidential information  
pertaining thereto;  
106  
Exhibit D-50, paragr. 54.  
500-17-095253-160  
(C) Certain persons who support the activities of the Registered  
56  
representative will derive a portion of their income from the income  
generated by the Registered representative;  
(D) The Branch Owner has a legitimate interest in protecting against the  
negative repercussions that would result from any decision by the  
Registered Representative to cease collaborating with the Branch  
Owner;  
(E) The Registered representative acknowledges the advantages of  
collaborating with the Branch Owner and agrees that such advantages  
are valuable consideration for entering into this Agreement with the  
Branch Owner.  
[396] Plaintiff says that his branch’s investment in the administration,  
development and supervision of advisors is “significant”107. He goes even further  
in saying that his branch had “invested considerable resources in order […] to  
provide […] the necessary resources (both financial and human)108 allowing [its  
advisors] to become successful investment advisors”109.  
[397] So, as we can see, what Plaintiff says about the important and crucial  
services provided by his branch to its advisors, yet he is not ready to concede that  
the Dorval Branch did exactly the same for him who quickly became one of  
Manulife’s best agents in Canada.  
[398] The Court concludes that Plaintiff benefited at least as much from the Dorval  
Branch than what he says his own advisors benefited from his Oakville Branch. As  
the saying goes: What’s sauce for the goose is sauce for the gander.  
[399] Plaintiff learned from the best branch in Canada. It is misleading for him to  
argue that what the Dorval Branch brought him wasn’t worth anything.  
[400] The Court believes that Plaintiff knew the particulars of the situation so well  
that it is that specific knowledge that prompted his leaving the branch. Otherwise,  
how could he have arrived at the conclusion that it was a better deal for him to  
open his own branch? How could he have arrived at the conclusion that YOUWAKIM  
and ESTEPHAN were not pulling their weight?  
[401] Moreover, if he had really believed he was not paid what he was entitled to  
get and that the Defendants were illegally keeping a portion of his commissions,  
he would certainly have said something to Mr. GARNER about it.  
[402] But, as we know, he said nothing of the sort.  
107  
Exhibit D-50, paragr.95.  
Id., paragr. 95.  
Id., paragr.127.  
108  
109  
500-17-095253-160  
57  
[403] Instead, he talked to him about wanting to open his own branch. And the  
only reason he did that is because he knew all about the branch’s sub-grid and he  
wanted to have the same with his own agents in his own branch.  
[404] In conclusion, it is obvious that Plaintiff is trying here to obtain what he did  
not get from the Defendants while he was working at the Dorval Branch. His  
commission rate had gone from 50% to 70% (not counting his overrides) but he  
wanted a bigger piece of the pie, and the Defendants were not raising his  
commission rate fast enough in their sub-grid.  
[405] He simply accepted what his commissions were and “went with what he was  
paid”. This, we must bear in mind, had nevertheless put him among the very best  
paid Manulife’s agents in Canada.  
[406] For all these reasons, Plaintiff’s claim for unpaid commissions must be  
dismissed.  
Are Plaintiff’s proceedings prescribed?  
[407] Notwithstanding, the Defendants raise a final and alternative argument  
which is that Plaintiff’s claim with regard to unpaid commissions would be  
prescribed.  
[408] The alleged unpaid commissions ran from June 22, 2006, through  
September 3, 2013110, while Plaintiff proceedings were instituted on August 19,  
2016. The three year prescription of article 2925 of the Quebec Civil Code would  
apply and, consequently, except possibly for a period of 2 weeks between August  
20 and September 3, 2016, none of the claims for allegedly unpaid commissions,  
could be granted.  
[409] Moreover, neither in his proceedings nor at trial did Plaintiff raise an  
impossibility in fact to act (“impossibilité en fait d’agir”) under article 2904 of the  
Quebec Civil Code which could possibly have explained and possibly excused the  
delay in taking the proceedings. During oral Argument, Plaintiff’s attorneys did not  
even bring up the question. Their written Argument is silent as well.  
[410] One can perhaps surmise that Plaintiff might have raised the fact that  
prescription could not have started to run before he started his own branch in 2013  
when he discovered the details of a branch advisor’s remuneration.  
[411] But that explanation, if it had been given, would not have convinced the  
Court. The fact that Plaintiff did not know all the intricacies and the reasons of his  
110  
Paragr. 91 of Plaintiff’s Amended Originating Application of November 24, 2021.  
500-17-095253-160  
58  
remuneration is difficult to accept given the context we know. One thing is  
uncontested though, he could have known if he had wanted to.  
[412] Moreover, the PAA that established the foundations of his payout provided  
that:  
(d) Payments Made to You  
Berkshire will make available to you, on its advisor website or otherwise  
statements showing all commissions paid to you, together with a  
reconciliation of any amounts owing by you to Berkshire. We mutually agree  
that each of us has an obligation to ensure that the commissions paid to  
you are accurate. Each of us agrees that unless one of us provides written  
notice to the other within ninety (90) days of the date of the statement, then  
the statement shall be conclusively deemed to be accurate and accepted  
by both of us.  
[Underlined added]  
[413] There is no proof that Plaintiff sent such written notice within that ninety (90)  
day time period.  
[414] If Plaintiff did not know, it is not because of Manulife nor the Defendants. He  
is the only one to blame for his claimed ignorance.  
[415] Even if it existed, this self-inflicted ignorance would not have constituted an  
acceptable reason to raise a defense of impossibility to act. Plaintiff’s alleged  
ignorance cannot excuse his inaction:  
Admettre l’ignorance comme cause de suspension équivaut, à toutes fins  
pratiques, à mettre de côté le principe que la prescription court contre  
toutes les personnes. En effet, l’inaction du titulaire d’un droit résulte le plus  
souvent de l’ignorance de son droit. Règle générale, ce sont ceux qui  
ignorent leur droit qui vont négliger d’agir pour le protéger. Leur reconnaître  
le bénéfice de la suspension voudrait dire que l’application serait très  
limitée. Ceci semble contraire à l’économie de cette institution et à  
l’intention du législateur; celui-ci a voulu que la suspension ait lieu à titre  
exceptionnel et que, en cette matière, on s’en tienne à une interprétation  
restrictive pour donner aux règles de la prescription la plus large mesure  
d’application.111  
[416] The Court believes that this simple truth explains why Plaintiff did not raise  
specifically this defense. Plaintiff knew about his personal payout that had gone  
111  
Pierre MARTINEAU, La prescription, coll. Traité élémentaire de droit civil, Montréal, Les  
Presses de l’Université de Montréal, 1977, p. 220.  
500-17-095253-160  
59  
from 50% when he started to 70% when he left112. He knew about his own  
overrides on other agents113. He knew about YOUWAKIM and ESTEPHAN overrides  
on him and that of other senior advisors114.  
[417] When asked about the branch owners’ overrides, he answered that this  
“was a given” and that was the way it was. As we have seen earlier, he went along  
with it. He never raised an objection, never ask a question, never expressed  
concerns.  
[418] So, he knew and if not, he should have known and was able to find out115.  
[419] If he did not know, the PAA, as we have seen, provided that Plaintiff had 90  
days to complain, failing which his remuneration would be deemed accurate and  
accepted by him.  
[420] For all these reasons, the Court finds that Plaintiff’s claim for withheld  
commissions must be dismissed.  
[421] In view of the foregoing, it is not necessary to analyze in detail the amounts  
claimed in this regard except to say a few words.  
[422] Plaintiff claims that he is entitled to the difference between what Manulife  
paid to the Defendants and what he himself actually received.  
[423] These amounts are flawed for a very simple reason: they do not take into  
consideration the amounts that would have been received by Plaintiff himself and  
those that would have been paid to other advisors or associates working with him  
as overrides.  
[424] The Court also believes that Plaintiff’s expert opinion that we should take  
into account a return rate of investment on the amounts owed should be dismissed.  
[425] The Court believes that Plaintiff’s expert reasoning for adding this amount  
to the withheld commissions is mistaken in the circumstances. Nothing in the  
evidence presented before the Court suggests that if they had been paid at the  
time they were owed, the withheld commissions would have all been invested and  
would have produced a steady flow of revenues116.  
[426] Moreover, if such a loss had occurred, it would not qualify as a direct and  
immediate consequence of the Defendants’ conduct117.  
112  
Exhibits D-24, D-26 and P-16.  
Exhibit D-42.  
Exhibits D-27, D-29, D-42 and P-16.  
Argun c. Brouillette, 2020 QCCS 4654, paragr. 55-56, 62-64.  
Sanche c. Wepfer, 2006 QCCS 2818, paragr. 56-63.  
Groupe d’action d’investisseurs dans Biosyntech c. Tsang, 2016 QCCA 1923, paragr.22, 23  
113  
114  
115  
116  
117  
and 32; Presmy c. Branco, 2021 QCCS 2922, appeal dismissed, 2021 QCCA 1610, paragr.  
121-124, 164-168.  
500-17-095253-160  
60  
[427] In the Court’s view, the payment of the legal interest and the additional  
indemnity would have constituted a more reliable remedy to cover for the delay in  
payment of these commissions had they been granted by this judgment.  
[428] For all these reasons, Plaintiff’s claim for withheld commissions must be  
dismissed.  
D. PLAINTIFF’S CLAIM FOR MORAL DAMAGES  
[429] Plaintiff seeks moral damage of $500 000 caused by the disparaging  
comments on his reputation during the calls of August 22, 2013 made to some of  
his clients by some of the Dorval Branch’s advisors.  
[430] Moral damages are non-pecuniary in nature. The Supreme Court of Canada  
has defined them as including:  
[…] loss of enjoyment of life, esthetic prejudice, physical psychological pain  
and suffering, inconvenience, loss of amenities, and sexual prejudice.118  
[431] Plaintiff describes the moral damage he suffered as being “stress and  
inconvenience”:  
106. Nour respectfully requests that the defendants be ordered to pay moral  
damages of $500,000.00 for stress and inconvenience.  
[432] The evidence he presented at trial to support his claim was as brief as the  
17-word allegation in his proceedings.  
[433] The question of moral damages was also totally absent from the Plaintiff’s  
counsel written Argument where it was not even listed on his description of the  
contested issues (“Questions en litige”) therein.  
[434] In oral Argument, counsel limited himself to saying essentially that what his  
client had to live was difficult. The question was so superficially pleaded that the  
Court had to ask for supplemental case law to be produced in support of such a  
staggering claim of $500 000.  
118  
Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3  
S.C.R. 211, paragr. 63.  
500-17-095253-160  
61  
[435] It appeared clear to the Court that Plaintiff’s lawyers had some reserve  
about this claim and more particularly about the amount claimed.  
[436] In the Court’s view, they were right.  
[437] In his testimony, Plaintiff was not more expansive. He limited himself to  
saying that the whole period where he had to negotiate his departure both with  
Manulife and the Defendants brought its share of stress and anxiety. The same  
about the incident of August 22, 2013.  
[438] To be compensated, moral damages, like all other damages, must be  
proven.119 And the evidence must be more than “tenuous”120.  
[439] The evidence presented at trial as to the stress these events might have  
caused on Plaintiff was at best sketchy.  
[440] As we know, a claim of moral damages for stress must rise-up to a  
substantive level in order to be compensated. As humans, we all experience a  
certain level of stress which is a normal component of life.  
[441] That is why, to be compensable in law, stress must attain a level that  
actually caused harm.  
[442] The Supreme Court Chief Justice explains this idea as follows:  
[…] psychological disturbance that rises to the level of personal injury must  
be distinguished from psychological upset. Personal injury at law connotes  
serious trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p.  
42; Page v. Smith, at p. 189; Linden and Feldthusen, at pp. 425- 27. The  
law does not recognize upset, disgust, anxiety, agitation or other mental  
states that fall short of injury. I would not purport to define compensable  
injury exhaustively, except to say that it must be serious and prolonged and  
rise above the ordinary annoyances, anxieties and fears that people living  
in society routinely, if sometimes reluctantly, accept. The need to accept  
such upsets rather than seek redress in tort is what I take the Court of  
Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific  
Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60).  
Quite simply, minor and transient upsets do not constitute personal injury,  
and hence do not amount to damage.121  
[Underlined added]  
119  
Jean-Louis Baudouin et Yvon Renaud, Code civil du Québec annoté, cited in Syndicat des cols  
bleus regroupés de Montréal, (SCFP, section locale 301) c. Coll, 2009 QCCA 708 () at  
paragr. 100.  
120  
In Orchestre métropolitain du Grand Montréal v. Rescigno, 2006 QCCA 6 (), paragr. 34,  
the Court of Appeal quashed an award of $50 000 for moral damages on the basis that the  
proof in that regard was at best very teneous.  
Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, [2008] 2 S.C.R. 114, paragr. 9.  
121  
500-17-095253-160  
62  
[443] Baudouin and Renaud, commenting on the case of Aubry c. Éditions Vice-  
Versa inc., 1998 817 (CSC), [1998] 1 R.C.S. 59 write that:  
La difficulté inhérente qu'il peut y avoir à chiffrer un préjudice non  
économique ne doit pas pour autant équivaloir, d'une part, à une dispense  
de rapporter une preuve de sa survenance et, d'autre part, à une dérogation  
à la règle générale de la prépondérance de la preuve et de l'obligation de  
la partie demanderesse d'y satisfaire au moins de façon minimale. Le  
simple fait que le préjudice ne serait que moral ne permet pas pour autant  
de se contenter d'une simple affirmation générale. L'on ne saurait imputer  
des dommages extrapatrimoniaux du seul fait qu'il y a eu atteinte à un droit  
garanti par la Charte des droits et libertés de la personne (L.R.Q., c. C-12).  
L'allocation de dommages et intérêts symboliques n'est pas non plus  
justifiée quand les tribunaux veulent sanctionner la violation d'un droit  
subjectif qui produira le plus souvent un préjudice minime; cela irait à  
l'encontre des principes de responsabilité civile. Les dommages doivent,  
par conséquent, être prouvés.122  
[Underlined added]  
[444] Here, the Court faces a paucity of evidence as regards to whatever stress  
related injuries Plaintiff might have suffered from.  
[445] Plaintiff did not give any details as regards the stress he claims  
compensation for. It is like he had taken for granted that the moral damage was  
self-evident without the necessity of giving any evidence or at least of describing  
it, leaving the whole thing to the Court’s own imagination. But, as we know, the  
Court cannot imagine what was the nature or the extent of the moral damage a  
person may have suffered. The same set of circumstances may affect different  
people in different ways. That is what Justice Brossard of the Court of Appeal was  
saying when he described the fundamental difficulty in establishing moral damages  
in class-action suits123.  
[446] All this leaves the impression that there is here no compensable moral  
damage for stress at stake.  
122  
Jean-Louis Baudouin et Yvon Renaud, Code civil du Québec annoté.  
Syndicat des cols bleus regroupés de Montréal, (SCFP, section locale 301) c. Coll, 2009 QCCA  
123  
708 (), starting at paragr. 96.  
500-17-095253-160  
63  
[447] Plaintiff had the burden of presenting evidence to support his claim for  
stress124. The Court finds that he failed to establish anything that would rise-up to  
a level of a personal injury compensable at law.  
[448] For or all these reasons, the Court finds that Plaintiff’s claim for stress must  
be dismissed.  
[449] The second component of Plaintiff’s claim for moral damages deals with the  
inconveniences and worries caused to him.  
[450] Here, the evidence is more robust. It showed the mayhem the August 22,  
2013 events caused to Plaintiff. Although the episode was brief, it had nonetheless  
lingering consequences that caused Plaintiff quite a lot of inconveniences and  
worries both with his clients and with Manulife.  
[451] The Defendants tried to downplay their involvement in all of this, stressing  
the fact that it was rather Plaintiff’s own email that was the main culprit by adding  
more fuel to the fire.  
[452] The Court does not agree.  
[453] It is always easy, in hindsight, to say Plaintiff might have done things  
differently. He is the first to admit it. But it was the calls with the disparaging  
comments that put him in this difficult situation. We have seen all the difficulties  
and the worries Plaintiff had to go through in order to mitigate the possible negative  
effect of those calls.  
[454] Plaintiff’s reputation is essentially what he sells. It is his most precious stock.  
If we put ourselves into Plaintiff’s shoes, it is not hard to understand what kind of  
angst and worry if not panic he must have felt. As we have seen, the situation was  
so tense that it made him do things that might have had the effect of pouring more  
fuel on the fire. One must remember that at the time, Plaintiff had no way of  
knowing how many of his clients had been called. And all this was happening at a  
most crucial time, while he was starting up his own branch.  
[455] The evidence showed all the troubles and difficulties Plaintiff had to go  
through to settle the problem with his clients. It also had the effect of putting him in  
very tight and delicate situation with Manulife at a key moment in their relationship.  
[456] The Court finds that these very troublesome moments were an ordeal for  
Plaintiff. Being falsely attacked on his professional integrity is probably the worst  
thing that can happen to any financial advisor.  
124  
Camping KOA Montréal-Ouest c Gauthier, 2015 QCCA 1261 at paragr. 38; Syndicat des cols  
bleus regroupés de Montréal, (SCFP, section locale 301) c Coll, 2009 QCCA 708 (motion for  
leave to the Supreme Court of Canada dismissed – 2009 54509 (CSC), para 99-100.  
500-17-095253-160  
64  
[457] YOUWAKIM testified that he had not asked his agents to attack Plaintiff’s  
reputation. The Court thinks he did not need to. At the time, he was angry about  
the snail-paced negotiations with Plaintiff about the Departure Agreement. This  
context was particularly well suited for half-truths, insinuations and innuendoes to  
escape during a conversation about convincing clients to let go of their advisor.  
[458] The Court finds that considering the circumstances, YOUWAKIM should have  
taken particular care of making it clear to his agents, before they made these calls  
that they were not, under any circumstances, to make any comments susceptible  
of shedding a negative light on Plaintiff’s reputation as a financial advisor. One of  
the very best Manulife’s agents in Canada.  
[459] He did not and what was almost certain to happen happened.  
[460] The scope of the damages was limited to the worries, difficulties and  
inconveniences that Plaintiff had to go through in order to settle the problems  
created by the Defendants’ actions on August 22, 2013.  
[461] Even if these damages were limited in time, they were nonetheless high in  
intensity. That is why, the Court believes an award of $25 000 for the  
inconveniences and the worries caused by the Defendants’ actions of August 22,  
2013, would have been in order.  
[462] But, notwithstanding, the claim must be dismissed because of prescription.  
[463] It makes no doubt that Plaintiff’s claim for moral damage is related to the  
disparaging comments. In his Amended Originating Application, Plaintiff’s first  
refers to one of the Departure Agreement provisions:  
The parties shall not make any disparaging remarks regarding NOUR  
having the effect of harming his reputation.125  
[464] He then describes under the heading untitled FAULT what he reproaches the  
Defendants:  
Unbeknownst to NOUR, during their telephone exchanges with NOUR’S  
clients both ESTEPHAN and YOUWAKIM made disparaging comments about  
NOUR’S character to his most valued clients accusing him of conducting  
fraudulent activities within the industry and tarnishing his reputation as a  
trustworthy and respectable investment advisor.126  
[Underlined added]  
125  
Paragr. 71.  
Paragr. 73.  
126  
500-17-095253-160  
65  
[465] As we have seen earlier, prescription for defamation is one (1) year. Here,  
almost three (3) years had passed since the events of August 22, 2013 when  
Plaintiff instituted his proceedings on August 19, 2016.  
[466] Consequently, as we have seen earlier, Plaintiff’s claim for moral damages  
is prescribed.  
[467] For all these reasons, Plaintiff’s claim for moral damages must be  
dismissed.  
E.  
PUNITIVE DAMAGES  
[468] Plaintiff also seeks $100 000 as punitive damages.  
[469] The basis for Plaintiff’s claim is two folds: (1) the Defendants intentionally  
violated their contractual obligations with the “specific purpose”127 of interfering  
with the transfer of his practice to Oakville and (2) they enabled 9114 “to receive  
sums and remuneration arising from activities and services within the securities  
industry”128 for which, as we have seen above, it was not licensed.  
[470] As to Plaintiff’s last argument, the Court has already dealt with that question  
and decided that the evidence did not support Plaintiff’s allegation that 9114 had  
received sums and remuneration arising out from activities and services within the  
securities industry.  
[471] As to Plaintiff’s first argument concerning the Defendants’ interference with  
his transfer to Oakville, it is clear that Plaintiff refers, once again, to the August 22,  
2013 phone calls.  
[472] There is little doubt in our law that wrongly raising doubts about the integrity  
of someone constitutes an abuse of rights129. Of course, what was said about  
Plaintiff was clearly untrue, and it was inexcusable. The remarks amounted to  
defamation. An award for Punitive damage would consequently be in order.  
[473] But only YOUWAKIM was involved with the calls and, as we have seen, he  
denies ever having asked for disparaging comments to be made on Plaintiff. And  
nobody says he did.  
[474] The fact that some agents did while others did not seem to corroborate this.  
The comments might have come from some of the agents’ own initiative. As we  
127  
Paragr. 106 of the Amended Originating Application.  
Id., paragr 107  
GVE Global Vision Inc. v. Tesson, 2018 QCCA 873 (), paragr. 54.  
128  
129  
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66  
have seen, it would have been rather silly for the owner of the branch to make  
accusations that could tarnish the branch’s reputation as a whole.  
[475] Disparaging remarks were made by some the agents, but we do not know  
by whom.  
[476] The Court has determined that although he might not have asked for  
disparaging remarks to be made, YOUWAKIM was nevertheless responsible for not  
having told specifically his agents not to make such defamatory comments about  
Plaintiff.  
[477] YOUWAKIM’S fault is thus different than that of the agents that did make the  
disparaging comments. It lacks the element of bad faith present in the agent’s fault.  
[478] Punitive damages cannot be awarded on a solidary basis (solidairement).  
In other words, punitive damages cannot be awarded by association so to speak,  
but only against the person(s) responsible of bad faith.  
[479] In the case of Cinar, the Supreme Court of Canada explains the reasoning  
behind this concept in the following way:  
129. It has been argued that awarding punitive damages on a solidary basis  
against the co-authors of an intentional interference with Charter rights  
would contribute to the preventive purpose of these damages. [translation]  
“In some cases, such a condemnation cannot help but encourage  
individuals to refuse to participate in civil faults such as this for fear of  
having to pay punitive damages in the place of a co‑author”: Genex, at para.  
135, per Dalphond J.A.  
130. I agree that the possibility of being ordered to pay punitive damages  
on a solidary basis may have a deterrent effect. However, a properly  
tailored award of punitive damages, which takes into account the factors  
enumerated by art. 1621 of the CCQ and all other appropriate  
circumstances, will already achieve sufficient deterrence. Adding solidarity  
to a properly tailored award will only create a risk that the amount of punitive  
damages exceeds what is sufficient to ensure prevention. This would be  
the case where one of the defendants is insolvent, which would prevent co-  
defendants from recovering that defendant’s share of the damages and  
effectively increase the punitive damages for which they are liable: Jobin  
and Vézina, at p. 716.  
131. I add this. In St-Ferdinand, this Court awarded punitive damages on a  
solidary basis. L’Heureux-Dubé J. (writing for the Court), held that “nothing  
… would prevent joint and several liability [from] operating” in the context  
of an award of punitive damages, “as it does in respect of other kinds of  
damages” (para. 131). However, St-Ferdinand was decided under the  
provisions of the Civil Code of Lower Canada. In my view, the legislative  
and jurisprudential developments since that ruling, in particular the  
500-17-095253-160  
introduction of art. 1621 of the CCQ, justify departing from the precedent  
67  
set in that case.  
132. For these reasons, I conclude that the trial judge erred by awarding  
punitive damages under the Charter on a solidary basis.130  
[Underlined added]  
[480] Considering the whole, the Court finds that an award for punitive damages  
could not be granted against the Defendants, including YOUWAKIM, in the  
circumstances.  
[481] Finally, as we have seen, any claim for punitive damages, which is to be  
considered as an accessory to the principal claim for defamation, would also be  
submitted to the one year prescription of article 2929 Q.C.C.:  
-1-402 – Prescription – La prescription du recours en dommages punitifs avait  
suscité, sous l'empire du Code civil du Bas-Canada, une certaine controverse.  
En général, les tribunaux considéraient cette réclamation comme le simple  
accessoire de la demande principale de dommages compensatoires et  
appliquaient donc la prescription de cette dernière. Le Code civil du Québec a  
simplifié les règles. La réclamation pour dommages punitifs, qui reste une  
action pour faire valoir un droit personnel, se prescrit par trois ans (art. 2925  
C.c.) ou par un an dans le cas d'atteinte à la réputation (art. 2929 C.c.), sous  
réserve des dispositions de la Loi sur la presse. Compte tenu des récentes  
modifications apportées au Code civil, si le recours en est un pour  
compensation d'un préjudice corporel, la prescription est alors de dix ans si  
elle découle d'un acte criminel, alors que le recours est imprescriptible s'il  
s'agit d'une agression sexuelle.131  
[Reference omitted and underlined added]  
[482] For all these reason, Plaintiff’s claim for punitive damages must be  
dismissed.  
130  
Cinar Corporation v. Robinson, 2013 SCC 73 (), [2013] 3 SCR 1168, paragr. 129 to  
132. See also 10009431 Canada inc. v. Librairie Renaud-Bray inc., 2021 QCCS 5094, j. S.  
Lussier, paragr. 48.  
131  
Jean-Louis Baudoin, Patrice Deslauriers et Benoit Moore, La responsabilité civile, 9e éd., vol.  
1 « Principes généraux », Montréal, Éditions Yvon Blais, 2020, paragr. 1-402. See also  
Publication Léonardo ltée v.Ville de St-Lambert, 2019 QCCA 329, paragr. 30 et 31 and Bourque  
v.Bellemare, 2004 55051 (QC CS), paragr. 21 et 22.  
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68  
F. THE CONCLUSIONS OF PLAINTIFF’S PROCEEDINGS  
1. The Orders for payment  
[483] It must be noted that in his proceedings, Plaintiff is not asking for the  
Defendants to be condemned to pay damages, he is seeking that they rather be  
ordered to pay damages.  
[484] Of course, the Court cannot order the Defendants to pay for a very simple  
reason: because if it did, Defendants ESTEPHAN and YOUWAKIM could run the risk  
of imprisonment if it turned out they were unable to pay.  
[485] Imprisonment for civil debt has been taken off our laws for a long time132.  
What Plaintiff is seeking from the Defendants is an obligation to pay, not an  
obligation to do (de faire)133.  
[486] No explanations were given as to what would be the justification for such  
orders in our case. Surprisingly, in similar proceedings against Manulife  
Securities134, Plaintiff is seeking that the defendant be condemned to pay and not  
ordered.  
[487] The evidence does not reveal a situation that would be comparable to the  
one described by our Supreme Court to justify such an order:  
The courts are also particularly reluctant to hold someone in contempt of  
court who has not complied with an order to pay a sum of money, since  
imprisonment for debt has been abolished. The conduct of the debtor must  
indicate a certain degree of intention to evade his or her obligations. As the  
Court of Appeal has observed, contempt of court cannot be reduced to a  
mere means of enforcing judgments.135  
[References omitted and underlined added]  
[488] For these reasons, Plaintiff’s conclusions for payment should not take the  
form of an order.  
132  
Provident, compagnie d’assurance vie et accident c. Chabot, REJB 2004-64711, [2004] R.R.A.  
721 (C.A.), paragr. 28, jj. Gendreau, Forget and Morissette.  
Code de procédure civile, Commentaires et annotations, Le Grand Collectif, sous la direction  
de Me Luc Chamberland, 2019, 4e éd., Éd. Yvon Blais, p. 2305.  
133  
134  
Exhibit D-47.  
135  
Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; see  
also Dunkin Donuts (Canada) ltée c. 9066-1703 Québec inc., 2001 25389 (QC CS),  
paragr. 21, j. Pierre Dalphond.  
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69  
2. The execution of judgment notwithstanding appeal  
[489] In the conclusions of his proceedings, Plaintiff asks that the Court order the  
provisional execution of a favourable judgment notwithstanding appeal.  
[490] Article 661 of the Code of Civil Procedure opens up this possibility:  
661. If bringing an appeal is likely to cause serious or irreparable prejudice  
to one of the parties, the judge may, on an application, order provisional  
execution, even for part only of the judgment. The judge may also make  
provisional execution conditional on a surety being furnished.  
If provisional execution is not ordered by the judgment itself, it cannot be  
ordered subsequently except on appeal, with or without a surety. A judge  
of the Court of Appeal may also stay or lift provisional execution if it has  
been ordered, or order that a suretyship be provided by a party that was  
exempted from doing so by the court of first instance.  
[Underlined added]  
[491] The problem with this conclusion though is that the Plaintiff’s proceedings,  
nor the evidence, raise any such “serious or irreparable prejudice”. No justifications  
for such an exceptional136 conclusion were given to the Court.  
[492] It is also noteworthy that no such conclusion forms part of Plaintiff’s similar  
proceedings against Manulife137.  
[493] In the case of Druide informatique inc., Justice Schrager of the Court of  
Appeal explains the rare circumstances where such an exceptional order may be  
granted:  
21. The order of provisional execution with respect to the monetary  
condemnations suffers from two apparent weaknesses. Firstly, it is not the  
norm that monetary condemnations be the subject of provisional execution.  
While judges of our Court have issued or approved orders of provisional  
execution of damage awards in exceptional circumstances, such orders  
have been made where an immediate need for funds was demonstrated  
and, often, where the provisional execution was accompanied by the  
giving of security for reimbursement. [renvoi omis] As a general  
principle, the absence of reasons can be grounds for appeal and a  
weakness in a judgment. [renvoi omis] Moreover, the drafting of the new  
136  
Duchesneau c Footmaxx of Canada Inc., 2019 QCCA 124, paragr. 5-7; Druide Informatique  
inc. c Éditions Québec Amérique, 2017 QCCA 2060, paragr. 17-18, and 21-24.  
Exhibit D-47.  
137  
500-17-095253-160  
Code of civil procedure specifically requires that a prejudice be shown in  
70  
order that provisional execution of any type of conclusion be ordered. The  
judgment of the Superior Court gives no such reasons. It is silent on the  
question of provisional execution, which, while not a problem for the  
injunctive conclusions per se, is in my view fatal for the non-injunctive  
conclusions for which a justification is required by the judge.138  
[494] Neither in Oral argument, nor in their written submissions, Plaintiff’s  
attorneys gave any reasons why such an order should be granted.  
[495] In conclusion, the Court finds that no such order would have been justified  
in the circumstances of this case139.  
3. The legal interests and the additional indemnity  
[496] As we have seen, Plaintiff is also asking that interests and the additional  
indemnity on the damages be actualized as of October 31, 2021, and that they  
accrue from the date of service of his original proceedings.  
[497] Of course, if the damages claimed had been actualized as of October 31,  
2021, they could not bear interests as of the date of service the proceedings  
without creating a situation of double indemnity.  
[498] Had the Court granted the damages claimed by Plaintiff, these damages  
would not have been actualized. Therefore, it would have been on these  
« unactualized » amounts that the legal interest and the additional indemnity would  
have been granted from the date of the institution of the originating proceeding.  
[499] As for the claim of $100 000 for punitive damages, Plaintiff asks that they  
be “perfected” with interest at the legal rate, plus the additional indemnity provided  
by law to accrue, “from the date of service of the present proceedings”.  
[500] As we know, the leading and overwhelming caselaw140 is clear that when  
granted, such damages can only bear interest as of the date of judgment that  
grants them.  
138  
Druide Informatique inc. c Éditions Québec Amérique, 2017 QCCA 2060, paragr. 21.  
Exhibit D-47.  
Stamir Investments Inc. c. Kurstak, 2020 QCCA 577.  
Genex Communications inc. c. Association québécoise de l'industrie du disque, du spectacle  
138  
139  
140  
et de la vidéo, 2009 QCCA 2201, jj. Nuss, Dalphond and Duval-Hesler, see paragr. 138 à 153  
of Justice Dalphond reasons, motion for leave to appeal to the Supreme Court dismissed,  
Association québécoise de l’industrie du disque, du spectacle et de la vidéo et autres c. Genex  
Communications Inc. et autres, 2011 12174 (CSC).  
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71  
G. THE DEFENDANTS’ CROSS-APPLICATION  
[501] There are two counter-claims by the Defendants.  
[502] In the first one, Defendants 9114 and ESTEPHAN argue that some of the  
claims contained in Plaintiff’s proceedings were abusive. Consequently, they had  
to incur legal costs of $270 811 to defend against claims that had no reasonable  
chance of success.  
[503] In the second, ESTEPHAN and YOUWAKIM are seeking payment of punitive  
damages in the amount of $15 000 each.141  
[504] In support of their cross-application, the Defendants refer the Court to  
paragraphs 51 and 342 of the Code of civil Procedure which provide that:  
51. The courts may, at any time, on an application and even on their own  
initiative, declare that a judicial application or a pleading is abusive.  
Regardless of intent, the abuse of procedure may consist in a judicial  
application or pleading that is clearly unfounded, frivolous or intended to  
delay or in conduct that is vexatious or quarrelsome. It may also consist of  
a use of the procedure that is excessive or unreasonable or that causes  
prejudice to another person, or attempts to defeat the ends of justice,  
particularly if it operates to restrict another person’s freedom of expression  
in public debate.  
54. On ruling on whether a judicial application or pleading, including one  
presented under this division, is abusive, the court may order a provision  
for costs to be reimbursed, order a party to pay, in addition to legal costs,  
damages for any injury suffered by another party, including to cover the  
professional fees and disbursements incurred by that other party, or award  
punitive damages if warranted by the circumstances.  
342. The court, after hearing the parties, may punish substantial breaches  
noted in the conduct of the proceeding by ordering a party to pay to another  
party, as legal costs, an amount that it considers fair and reasonable to  
cover the professional fees of the other party’s lawyer or, if the other party  
is not represented by a lawyer, to compensate the other party for the time  
spent on the case and the work involved.  
[Underlined added]  
[505] The Defendants stress that article 51 aims the absence of merits of the  
claim while article 342 deals with Plaintiff’ procedural conduct.  
141  
In their Demande reconventionnelle remodifiée of November, 24, 2021.  
500-17-095253-160  
72  
[506] They argue that many of Plaintiff’s claims were outright baseless and that  
his procedural conduct forced them to incur legal costs that would have been  
unnecessary had he acted responsibly.  
[507] For example, as we have seen, on the eve of trial, without prior notice,  
Plaintiff filed a lengthy supplemental expert report. This forced the Defendants to  
present a motion to dismiss causing them to incur additional legal costs142.  
[508] With regard to the merits, the Defendants refer the Court to Plaintiff’s claim  
for loss of clientele which, in their view, was without any factual foundations and  
which was, furthermore, grossly exaggerated. This forced them to pour important  
legal and expert costs into the defense of a claim that should never have been  
made.  
[509] They also argue that Plaintiff’s claim for allegedly illegal withholding of  
commissions was patently prescribed. Moreover, they underline the abuse in  
Plaintiff’s allegation that payments of commissions had been illegally made to  
9114.  
[510] On all these questions Plaintiff’s attorneys’ reaction was quite mute. In fact,  
they did not address this aspect of the questions at all in their written argument.  
[511] The Court finds that the Defendants’ arguments are supported by the  
applicable law and by the evidence both on the merits and with regard to the  
breaches in the procedural conduct of the case. Therefore, their claim shall be  
granted in part.  
[512] It is of common knowledge that the mere fact that proceedings are  
dismissed is not sufficient to establish that they were abusive. Many proceedings  
are dismissed, this in and of itself is not indicative of abuse.  
[513] Through the years, our Courts have refined and defined the notion of what  
constitutes an abusive proceeding:  
126. The case law sets out that an abusive action is one that is rash and  
foolhardy, that is, one that a reasonable and prudent person in similar  
circumstance would conclude is without merit. This is an objective test that  
is to be examined regardless of intent. One needs to assess all of the  
circumstances of a case to be able to determine whether an action had a  
sound legal foundation when the procedure was taken. One must  
determine whether the Plaintiffs had a veritable chance of success.143  
142  
During the trial, the Court rendered a written ruling granting in part the Defendant’s motion to  
dismiss Plaintiff’s supplemental report.  
4379047 Canada inc. c. Papagiannis, 2017 QCCS 90, leave for appeal dismissed, 2017 QCCA  
143  
576.  
500-17-095253-160  
73  
20. La notion d’abus du droit d’ester en justice est désormais bien  
circonscrite. En 2007, dans l’arrêt Royal Lepage, le juge Dalphond précisait  
que cette notion ne se limite pas aux cas de mauvaise foi et qu’elle  
comprend également ceux où une partie fait preuve de « témérité », c’est-  
à-dire qu’elle prend l’initiative d’une procédure « alors qu’une personne  
raisonnable et prudente, placée dans les circonstances connues de [cette  
partie] conclurait à l’inexistence d'un fondement pour cette procédure ».144  
46. Que faut-il entendre par témérité? Selon moi, c’est le fait de mettre de  
l’avant un recours ou une procédure alors qu’une personne raisonnable et  
prudente, placée dans les circonstances connues par la partie au moment  
où elle dépose la procédure ou l’argumente, conclurait à l’inexistence d'un  
fondement pour cette procédure. Il s’agit d’une norme objective, qui requiert  
non pas des indices de l’intention de nuire, mais plutôt une évaluation des  
circonstances afin de déterminer s’il y a lieu de conclure au caractère  
infondé de cette procédure. Est infondée une procédure n’offrant aucune  
véritable chance de succès, et par le fait, devient révélatrice d’une légèreté  
blâmable de son auteur.145  
[Underlined added]  
[514] As we can see, short of bad faith, an element of temerity and recklessness  
must be present in the mix in order to conclude that a proceeding is abusive.  
[515] In its analysis of the facts to determine if a claim is abusive, the Court must  
always bear in mind Justice Chamberland’s cautionary warning that even claims  
standing on very thin ice, («qui reposent sur des fondements des plus ténus »)146  
do not necessarily justify a conclusion of abuse:  
L’article 51 C.p.c. couvre une panoplie de situations et le spectre  
de ces situations est large, mais, dans tous les cas, la barre est  
haut placée et elle doit le demeurer au risque de banaliser ce qu’est  
une procédure abusive et de constituer un frein à l’accès à la  
justice.147  
144  
Royal Lepage Commercial inc. c. 109650 Canada Inc., 2007 QCCA 915, paragr. 26, jj.  
Dalfond, Hilton et Giroux.  
Id., paragr. 46, also see Trudel v. Morin, 2016 QCCA 1376, jj Morissette, Gagnon et Hogue.  
Biron c. Marchand Holdings inc., 2020 QCCA 1537, paragr. 129, jj. Chamberland, Hilton et  
145  
146  
Marcotte.  
Id., paragr. 126.  
147  
500-17-095253-160  
74  
[516] It is always easy after everything has been said and done to conclude that  
a claim should never have been brought to justice. The Court must consequently  
be careful not to create unnecessary and superficial roadblocks to a free and wide  
access to our courts.  
[517] It is within these legal margins that the Court must examine the legal and  
factual foundations of some of Plaintiff’s claims and procedural conduct.  
[518] In order to succeed in their cross-application, the Defendants had the  
burden of establishing that Plaintiff’s proceedings, or at least some of the claims  
contained therein, had no reasonable chance of success that they were frivolous  
or that they were instituted simply in order to intimidate.  
[519] No one is entitled to use the judicial system simply in order to harass. Such  
conduct is patently unfair to the party who is sued. The judicial system itself cannot  
remain a complaisant bystander or serve as a passive tool to achieve such ends.  
Court time is precious and a day spent on abusive proceedings is time that cannot  
be offered to a legitimate case. That is why the Code of Civil Procedure now  
enables judges to act as gatekeepers in order to weed out, as soon as possible,  
the claims that are not worthy of consideration.  
[520] The only incident of the nature of a substantial breach in the conduct of the  
proceeding raised by the Defendants was the unannounced and late filling of a  
lengthy supplemental expert report just before trial.  
[521] This forced the Defendants to prepare, file and argue a motion to dismiss  
that report. A written judgment granted in part the Defendants’ motion authorizing  
the filing of only the sections of the report that constituted a response to the  
conclusions of the Defendants’ expert report.  
[522] In the Court’s view, this constituted a substantial breach in the conduct of  
the proceedings.  
[523] The possibility of filing such a supplemental report was not included in the  
Protocol agreed to by the parties. Moreover, the protocol clearly warned the parties  
that:  
N.B.: Le non-respect du protocole peut constituer un manquement  
sanctionné par les articles 341 et 342 C.p.c.  
[524] In the Court’s view, this unilateral and unauthorized move constituted a  
significant breach in the procedure. Plaintiff should not have proceeded like he did.  
[525] First, he should have indicated in the Protocol that he intended to possibly  
file a supplemental expert report. These supplemental reports are sometimes  
necessary to answer the conclusions of the other party’s report which were not  
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75  
discussed in the Plaintiff’s original report. They are also sometimes useful to give  
an updated version of the report based on the developments since the filing of the  
original report. But this must be discussed and agreed to by the parties in their  
protocol.  
[526] Second, if this opportunity is agreed to in the Protocol, the date for the filing  
of such reports must be set well before the date of trial.  
[527] Third, if nothing of the sort is agreed to in the Protocol, a party who wishes  
to file an additional or a supplemental report must inform the other party of his  
intention and ask for his authorization as soon as possible.  
[528] And fourth, if such consent is not forthcoming, then the party should  
proceed, as soon as possible, by way of a formal motion to the Court. Of course,  
all this must be done well before trial.  
[529] Here, as we know, none of this was done by Plaintiff.  
[530] If this was impossible, it is only because of Plaintiff’s own negligence in  
transmitting the Defendants’ expert report to his own expert only weeks before trial.  
A report that had been filed by the Defendants more than three years before in  
2018.  
[531] Had Plaintiff wanted to take his opponent by surprise, he would not have  
acted differently. By proceeding the way he did, he put the procedural onus of  
debating the question on the Defendants’ shoulders.  
[532] The timing of all this was critical. Plaintiff had asked his expert to start  
working on that supplemental report only weeks before without saying a word  
about it to the Defendants’ attorneys. It was only when the report had been  
completed that, just a few days before trial, Plaintiff filed it. He did not ask  
permission to file it, he simply filed it. This, of course, had the effect of forcing the  
opposing attorneys and their expert to scramble and work frantically as we all can  
imagine in order to respond. It put them in a situation where they had to take for  
granted that the supplemental report was part of the evidence and prepare  
accordingly.  
[533] This way of proceeding was not only disruptive and abusive, it constituted  
a clear breach in the fair and efficient conduct of the proceedings.  
[534] The Court finds that the Defendants’ costs involved in reacting and  
responding to that filing should be granted.  
[535] But the main thrust of the Defendants’ claim for abuse is that many of  
Plaintiff’s claims were either based on nothing more than suspicions without factual  
and legal foundations or that they were clearly prescribed.  
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76  
[536] They draw the Court’s attention to the claim for loss of clientele for which,  
as we have seen, there was a total absence of evidence. Moreover, the claim was  
so grossly exaggerated that Plaintiff ‘s own expert finally agreed on two occasions,  
once just prior to trial and once at the end of trial, that it had to be brought down  
from $2,7 M to $1,562 M and then finally to $560 000. A miscalculation of more  
than 2 million dollars.  
[537] The Court agrees with the Defendants’ view that this claim was abusive  
considering the context we have seen earlier. There were simply no factual  
foundations for the claim.  
[538] Plaintiff was unable to identify even a single client who had left him on  
account of the August 22, 2013 calls. Much worse, in another judicial proceeding,  
Plaintiff maintained that his loss of clients was rather due to Manulife’s “cumulated  
tactics and maneuvers”148 and “illegal solicitation of clients”149 to hinder his  
departure.  
[539] Moreover, the claim faced numerous legal roadblocks such as an absence  
of mitigation. To make matters worse, the normal and expected loss in the value  
of the AUA that might have come from the loss of clients, he had been reimbursed  
for by the Defendants. And he had given the Defendants a complete and final  
release and discharge about it.  
[540] Judicial proceedings constitute a grave and solemn act that must be treated  
as such:  
10. Déposer un acte de procédure devant un tribunal judiciaire est un geste  
grave et empreint de solennité, qui engage l’intégrité de celui qui en prend  
l’initiative. On ne peut tolérer qu’un tel geste soit fait à la légère, dans le but  
de chercher à tâtons une quelconque cause d’action dont on ignore pour le  
moment la raison d’être, mais qu’on s’emploiera à découvrir en alléguant  
divers torts hypothétiques et en usant de la procédure à des fins purement  
exploratoires.150  
[541] In the case of Mansfield Athletic Holdings Inc., the court held that a plaintiff  
has the obligation to withdraw any judicial claim as soon as he realizes that he  
detains no evidence to support it:  
Si tant est que toute personne ait le droit de présenter une demande en  
justice pour faire valoir ses droits, cette personne a également l’obligation de  
148  
Exhibit D-47, paragr. 65 and 66 (a).  
Id., paragr. 66 (a) (iii) and parag. 108.  
El-Hachem v. Décary, 2012 QCCA 2071, paragr. 10, jj. Rochon, Morrissette and Bich.  
149  
150  
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77  
retirer sa demande à la première occasion lorsqu’elle comprend qu’elle est  
non fondée.151  
[542] Here, it is true that Plaintiff amended his claim on two occasions to reduce  
the damages he was seeking, but he did it much too late, only days before trial  
and days after trial had begun. This is easy to understand, it avoids the costs of  
preparing for trial on questions that should not have been brought up.  
[543] The Court believes that Plaintiff should have treated his claim and the  
judicial process much more seriously and responsibly. In the Court’s view, if he  
had, the Defendants’ legal costs would have been considerably less.  
[544] Plaintiff’s explanations that he had problems obtaining information from  
Manulife doesn’t hold water. If someone must have known exactly who were his  
clients, it is Plaintiff. This was not rocket science. He had been given all their files  
and personal data well before he signed the Departure Agreement on January 27,  
2014, more than five months after the calls and close to three years before he  
instituted his proceedings.  
[545] It is clear that Plaintiff instituted his proceedings without professional  
accounting advice. The best example of this is that in original proceeding, Plaintiff  
was alleging that he had lost $60 M worth of AUA. When his expert produced his  
first report in 2017, his allegation for loss of AUA was reduced by half to $30 M.  
[546] The evidence presented at trial showed that that amount had to be reduced  
even further down to $6 M. The uncontested evidence ultimately showed that it  
was closer to $4 M.  
[547] Plaintiff’s expert admitted that he was not furnished with the relevant  
documentation by his client.  
[548] The Court believes that advancing such a claim under these circumstances  
shows an unacceptable indifference or carelessness about the judicial process and  
the responsibilities the institution of a judicial proceeding entails.  
[549] We must remember that Plaintiff’s proceedings were instituted almost three  
years after the events and his leaving of the Dorval Branch. That gave him ample  
time to get most if not all his factual, legal and expert ducks in a row before making  
allegations that turned out to be obvious exaggerations or brazen inaccuracies.  
[550] The Court finds that a careful review and preparation would have enabled  
Plaintiff to arrive at the same conclusion before instituting his legal proceedings  
and certainly long before the case was set for trial. If he had taken care of giving  
151  
Mansfield Athletic Holdings Inc. c. Trainor, 2020 QCCQ 576, paragr. 137, Judge Magali Lewis.  
500-17-095253-160  
78  
his expert the relevant documentation, like for example Exhibit P-31, it would have  
been so much easier, as his expert says.  
[551] In the Court’s view, a prudent and reasonable person would not have  
brought this claim forward. The sole support for that claim turned out to be only  
Plaintiff’s “soupçons” 152 and wishful thinking. That, in the Court’s view, does not  
constitute reasonable grounds for judicial action.  
[552] As regards prescription, the Defendants refer the Court to the case of  
Boggia153 in which Justice Bernard Synnott came to the conclusion that a claim  
clearly prescribed constitutes abuse.  
[553] Here, Plaintiff’s counsel did not address the question of prescription at all.  
He did not ask his client if there were reasons explaining his tardiness that could  
form the basis of an “impossibilité d’agir” justifying the delay. He did not address  
the question during Argument either.  
[554] All this left the Court in the dark.  
[555] From his argument on the merits, it seems that Plaintiff decided to place all  
his chips on the theory that it was not his reputation that was attacked but rather  
his dignity.  
[556] The Court dismissed that theory, but it cannot come to the conclusion that  
the theory advanced by Plaintiff was téméraire. It might have been far-fetched or  
tenuous, it might have stood on very thin ice, but it was not abusive. Plaintiff had  
raised some case law that seemed to support his argument that his dignity could  
have been also a victim of the Defendants’ August 22 calls.  
[557] As to the other claim regarding the annulment of the Departure Agreement  
and the reimbursement of the departure fee, the Court finds that the fine job done  
by Defendants’ counsel caused it to be dismissed by the Court. The arguments  
raised by Plaintiff, although ultimately dismissed by the Court, might have been  
tenuous, but they were not, in the Court’s view, téméraires.  
[558] This being said, one of Plaintiff’s arguments in support of his claim was that  
the departure fee had been paid to 9114 which was not licensed to deal in  
securities. As we have seen, if a portion of the departure fee was paid to 9114, it  
was only because Plaintiff’s attorney had chosen to direct the payment to the  
company instead of YOUWAKIM and ESTEPHAN. Furthermore, it was preposterous  
to suggest that the payment should have been considered as a payment of  
commission under the law. That payment had no connection whatsoever with the  
152  
Mansfield Athletic Holdings Inc. c. Trainor, 2020 QCCQ 576, paragr. 134, Judge Magali Lewis  
Boggia c. Maiello, 2021 QCCS 1710, motion for leave to appeal dismissed, 20121 QCCA 1208.  
153  
500-17-095253-160  
79  
clients and could not reasonably have been considered as being covered by the  
laws applicable to the commerce of securities.  
[559] The same argument was raised with regard to the claim for withheld  
commissions where Plaintiff submits that his commissions were directed to 9114.  
That was so ludicrous that Plaintiff’s own expert said that it was clear that no such  
commissions had been ever directed to 9114.  
[560] The gravity of the allegations raised against the Defendants ESTEPHAN and  
YOUWAKIM seems to escape Plaintiff. One can easily imagine the effect on the  
reputation and the business of Manulife and that of the Defendants of allegations  
stating that they were involved in a systemic scheme of illegal payments of  
commissions and overrides to unlicensed entities.  
[561] The Defendants add that Plaintiff’s $500 000 claim for moral damages is  
also indicative of its bad faith. The amount claimed they say is grossly exaggerated  
in light of the modest amounts ordinarily granted by our courts in similar  
circumstances154.  
[562] Although the Court agrees that the amount claimed was overstated in view  
of the circumstances, it is not ready to declare that it was téméraire.  
[563] As we have seen in granular details here above in this judgment, Plaintiff  
brought forward additional claims and made quite a number of additional  
allegations. A significant number of them were based at best on shallow legal and  
factual foundations. Even if most of them did not quite amount to being  
“téméraires”, the sheer number of these wobbly claims gives Plaintiff’s  
proceedings, instituted without prior complaints or notice, the color of abuse.  
[564] A brief reminder of some of these claims is as follows:  
Claim of originally $2,7 M reduced to $1,562 M a few days before trial  
and then again to $560 000 at trial for loss of clientele for which Plaintiff  
was incapable of presenting any factual evidence;  
Claim for a declaration of nullity of the Departure Agreement and  
reimbursement of $1,9 M:  
o for lack of valid consent although Plaintiff had benefited from legal  
counsel and which he had ratified on two ulterior occasions;  
154  
Pierre-Gabriel Jobin with the collaboration of Nathalie Vézina, Baudouin et Jobin: Les  
obligations, 7e éd, Cowansville (QC), Yvon Blais, 2013 at paragr. 784  
500-17-095253-160  
80  
o on the basis of illegal payment made to an unlicensed entity  
although it was his own attorney who had drawn up incorrectly  
the check;  
o asking for the restitution of the departure fee but without offering  
the Defendants any restitution;  
Claim of $1,7 M for reimbursement of allegedly withheld commissions:  
o on the basis that Plaintiff had not agreed to his remuneration while  
admitting that he went along with what he got;  
o on the basis that he did not know the details on his remuneration  
despite the fact that the details of his remuneration was on  
Manulife’s website;  
o in spite of prescription applying to almost the totality of the claim  
for commissions that dated back as far as 10 years before;  
Conclusions that were clearly legally unfounded:  
o As regard the orders to pay;  
o As regard the execution of judgment notwithstanding appeal;  
Allegations that Defendants ESPEPHAN and YOUWAKIM were involved in  
a scheme of illegal detournement of commissions;  
[565] All of this establishes an intention to harm by using the judicial system to  
make outlandish allegations and inflated monetary claims which turned out to cling  
only on assumptions and far-fetched legal theories.  
[566] Abuse came from Plaintiff persistence in litigating to the end issues that he  
knew or should have known had clearly no foundations:  
79. À l'inverse, peu importe qu'il y ait abus ou non sur le fond, une partie  
qui abuse de son droit d'ester en justice causera un dommage à la partie  
adverse qui pour combattre cet abus paie inutilement des honoraires  
judiciaires à son avocat. Il y a, dans ce cas, un véritable lien de causalité  
entre la faute et le dommage.  
[…]  
84. J'ajoute que l'abus du droit d'ester en justice peut naître également au  
cours des procédures. L'abuseur qui réalise son erreur et s'enferme dans  
500-17-095253-160  
81  
sa malice pour poursuivre inutilement le débat judiciaire sera responsable  
du coût des honoraires extrajudiciaires encourus à compter de l'abus.155  
[Underlined in the original]  
[567] Here, the Court believes that Plaintiff for too long pursued litigation  
unreasonably on too many issues with very feeble arguments.  
[568] Punitive damages are thus in order to discourage such judicial behaviour.  
[569] Plaintiff’s patrimonial capacity to bear punitive damages of $30 000 was not  
contested.  
[570] Consequently, Defendants YOUWAKIM’S and ESTEPHAN’S claim for punitive  
damages shall be granted.  
[571] As for the amount claimed for extrajudicial costs and disbursements, the  
question as to how much of the Defendants’ legal costs was devoted to these  
questions was not discussed at length.  
[572] The attorneys for the Defendants underline the fact that the amount claimed  
is not the totality of their legal costs. They are not seeking reimbursement of their  
former attorney’s fees who represented them until after the examinations out of  
court.  
[573] The Court finds that the attorney’s fees of the Defendants are reasonable.  
The Court shall arbitrate the amount of those costs that were caused by Plaintiff’s  
abusive conduct to 40% of the statement of account of $270 811 which represents  
$108 324.  
V.  
CONCLUSIONS  
[574] For all these reasons, the Court finds that Plaintiff’s proceedings must be  
dismissed with the judicial costs and Defendants’ Cross-Application must be  
granted in part with the judicial costs.  
THEREFORE, THE COURT:  
[575] DISMISSES Plaintiff’s proceedings in damages;  
155  
Viel c. Entreprises immobilières du terroir Ltée, 2002 41120 (QC CA), J.E. 2002-937  
(C.A.), [2002] R.J.Q. 1262 (C.A.), paragr. 79 and 84, jj. Gendreau, Forget et Rochon.  
500-17-095253-160  
82  
[576] GRANTS the Defendants’ Cross-Application;  
[577] CONDEMNS Plaintiff ELIE ABDEL NOUR to pay to the Defendants 9114 and  
CAMILLE ESTEPHAN the sum of $108 324 in reimbursement of their extrajudicial  
costs, with the legal interests and the additional indemnity from the date of this  
judgment;  
[578] CONDEMNS Plaintiff ELIE ABDEL NOUR to pay to the Defendants CHARBEL  
YOUWAKIM and CAMILLE ESTEPHAN the sum of $15 000 each as punitive damages,  
with the legal interests and the additional indemnity from the date of this judgment;  
[579] THE WHOLE with the legal costs, including the Defendants’ expert costs.  
.
__________________________________  
HONOURABLE ANDRÉ WERY, J.C.S.  
ME FÉDÉRICK ALALLI, ME ROBERT TANNOUS  
and Mr. ANDY LOUIS, stagiaire en droit,  
ALALLI BRAULT  
Attorneys for the Plaintiff  
ME MARTIN POULIN, ME ANTHONY RUDMAN, ME ANNA-MARIA NICOLAU  
and Ms. IMANE BOURAHLA, stagiaire en droit,  
DENTON’S CANADA  
Attorneys for the Defendants/Cross-Claimants  
Dates of Hearing : November 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 24, 25, 2021 and February  
1, 2022.  
Case taken under advisement on March 17, 2022, after the Court’s judgement on  
Plaintiff’s Motion to reopen.  


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