2017 QCCQ 8340, 2017 QCCQ 8340

Kahn c. Boivin 2017 QCCQ 8340 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-150420-158 DATE: June 16, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JEREMY KAHN, and KATHLEEN CONNOR, Plaintiffs v.

PATRICE BOIVIN, and DORIS POIRIER, Defendants -and- DESJARDINS ASSURANCES GÉNÉRALES INC., Intervenor ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Jeremy Kahn and Kathleen Connor, residents of a property on Davaar Avenue, in Outremont, Québec, sue their next-door neighbours, the Defendants, Patrice Boivin and Doris Poirier, in connection with a building project carried out by the Defendants to put an addition onto their home in the summer of 2014. [ 2 ] The Plaintiffs claim a total of $ 15,000, the maximum amount that can be awarded in the Small Claims Division. [ 3 ] They allege that during this construction project, the fence that divided the two properties was destroyed and that the Defendants replaced it with a new fence that was not an appropriate replacement. [ 4 ] They allege damage to their building, gardens and patio, as well as loss of specific movable property, such as bicycles, the loss of use of their backyard during the construction project that summer, as well as moral damages because of stress and inconvenience. [ 5 ] The Defendants, while acknowledging that they have the obligation to restore the property after the construction, deny that the fence that they built to replace the one destroyed is inappropriate and, apart from some minor damage, they deny any significant damage to the Plaintiffs’ property, movable and immovable. [ 6 ] They deny owing any moral damages asserting that they gave reasonable notice for the work to be performed and they deny that the use of the Plaintiffs’ backyard was impaired. [ 7 ] While the written contestation sets out various allegations of fault on the part of the Plaintiffs, no counterclaim is made in that respect. [ 8 ] The Defendants’ insurer, Desjardins Assurances Générales Inc. (“Desjardins”) , intervened in a procedure described as “conservatory”. [ 9 ] At the hearing, Desjardins’ representative confirmed that their clients’ liability was covered under the Homeowners Policy and that they would be bound by the Court’s judgment.

Desjardins’ liability policy therefore would provide for the Defendants’

indemnification if the claim is well-founded, and the indemnity would be payable directly to the Plaintiffs. [ 10 ] The Plaintiff, Jeremy Kahn, was arrested and charged during an incident where employees of the contractor complained to the police. The charges were subsequently dropped but only after Mr. Kahn had expended considerable funds for his defence. Mr.

Kahn asserts that the Defendants should be responsible for false allegations made concerning his conduct. [ 11 ] All of the amounts claimed by the Plaintiffs exceed the Small Claims maximum of $ 15,000 but the Plaintiffs agree to reduce their claim to benefit from the simplified procedure of the Small Claims Division. [ 12 ] It is not an issue between the parties that this case is governed essentially by Articles 987 and 988 of the Civil Code of Québec [1] which provides as follows: 987.

Every owner of land, after having been notified verbally or in writing, shall allow his neighbour access to it if that is necessary to make or maintain a construction, works or plantation on the neighbouring land. 988. An owner bound to give access to his land is entitled to reparation for injury he suffers as a result of that sole fact and to the restoration of his land to its former condition. [ 13 ] The issue in this case is the establishment of the proper indemnification to the Plaintiffs for the use of their property in three respects: (

i) the use of the property per se; (ii) failure to restore the property to its original condition; and (iii) damage to movable property. [ 14 ] In conjunction with the use of the property per se, the Court must evaluate the prejudice caused to the Plaintiffs by the manner in which their property was used and the duration of such use. FACTS [ 15 ] The Defendants obtained a building permit in June 2014 (P-7) to build a one-storey brick addition, measuring 4.9 meters along the back and 4.34 meters on the north-south access. [ 16 ] They signed a contract with a construction company (D-4) on July 9, 2014.

The contract foresaw the beginning and end of the works as July 14 and September 30, 2014 respectively. [ 17 ] On July 14, 2014 Patrice Boivin sent a text message to Kathleen Connor informing her that “… we are doing some constructions in the backyard. We will remove the fence for the duration of the construction (2 - 3 months) and put a new similar one after. Let me know if you want to discuss further. Have a good vacation.” [ 18 ] The dialogue that ensued by text messages over the new few days shows that the Plaintiffs had the concern that the property remain enclosed during the project because of their dog.

The other issue was the fence, over which the Plaintiffs claimed ownership. [ 19 ] Kathleen Connor wrote on July 18, 2014, “Hi Patrice, Your construction crew is trying to take down the fence right now. We did not work out how this would work, details, etc.

Can you please call them ASAP to have them stop”. [ 20 ] The debate that ensued had to do with the Plaintiffs’ concern that the city had not authorized any work that would damage their property and that all details should be worked out with them to satisfy their concerns before the project began. [ 21 ] The ownership of the fence became an issue as well, as its exact position and provenance was not necessarily known by the parties. [ 22 ] By July 18, 2014, the Plaintiffs, through these text message exchanges, were insisting upon a confirmation that the entire fence was on their land and that if not the construction should halt. [ 23 ] Kathleen Connor wrote, “I need to you to 1.) acknowledge that the fence is mine, and 2.) your assurances that the fence will not be disrupted until we have a chance to properly work out an arrangement that works for both of us.

If we have an active land dispute we need to get that settled before construction can continue. Please get back to me in the next few minutes …”. [ 24 ] Patrice Boivin replied, “No we will do the work anyway. I compensate you by installing a brand new fence and any other damage will be repair [sic] to put it back as it was.

If you stop the construction, you expose yourself to thousands in damages”. [ 25 ] As the contract proceeded, the nature of the project gradually unfolded. [ 26 ] The addition required the demolition of the gallery in the back of the Defendants’ house which was extremely close to the boundary line and, because an excavation was required to build the foundation wall there would be, during the construction, the need for the contractor to encroach upon the Plaintiffs’ property, for the purposes of the excavation and also during the bricklaying which could only be done with the workers taking over part of the Plaintiffs’ land temporarily. [ 27 ] The practical concern therefore was the means of securing the Plaintiffs’ property and the restoring of this property to its original state after the construction. [ 28 ] Unfortunately, once the fence was torn down, rather than putting up a temporary secure boundary fence to enclose the area to be used for the construction, keeping it discreet from the rest of the Plaintiffs’ land, a temporary fence was used that could be set aside at any time to provide access to the workers. [ 29 ] As a result, the Plaintiffs could no longer use their backyard in the normal fashion.

It was no longer a place where children could play with normal supervision and it was no longer possible for the Plaintiffs to allow their dog to run in the backyard.

[ 30 ] There was also damage to their patio, damage to some plantations in their border gardens along the fence, the uprooting of a tree and the destruction of the fence itself. [ 31 ] The day the fence was destroyed, the Plaintiffs had not removed their bicycles that hung on the fence with racks.

The Plaintiffs allege that the bicycles and the rack were damaged. [ 32 ] Rather than giving the Plaintiffs a complete disclosure of the exact nature of the works and the manner in which they would be carried out, the Defendants punctually, from time to time, gave very short notices as to the work that the contractor would be doing involving encroachment upon the Plaintiffs’ land. [ 33 ] Essentially, the Plaintiffs learned of the extent of the encroachment and the nature of work as it proceeded. [ 34 ] The Plaintiffs allege miscellaneous damages to the building itself, a broken window mechanism on a kitchen window because of scaffolding, concrete splattered across their balcony during repair of bricks on the front façade, broken metal on their upper balcony, a broke balcony railing and blinding from the upper bathroom, broken patio tiles, etc. [ 35 ] During the construction, which continued until mid-September 2014, there were several unfortunate incidents including one where Mr.

Kahn was arrested because he allegedly threatened a workman with a hammer. It would have been quite distressing for him to be jailed pending bail while strangers carried out a construction project using his property without his consent. [ 36 ] Be that as it may, the Defendant Mr.

Boivin also alleges that he was subject to faulty conduct on the part of the Plaintiffs, including one rather shocking allegation that someone tried to blind him with a handheld laser pointer. [ 37 ] When it was time to restore the fence, the Defendants’ contractor simply installed a fence which, although apparently properly built, is not as high as the original fence, has a different architecture and is not painted the same color.

Interestingly, the Certificate of Location shows the original fence (D-8, May 6, 2013) as being partly on the Plaintiffs’ property towards the ruelle and partly on the Defendants’ property towards the buildings. [ 38 ] Architecturally, this original fence appears to be owned by the Plaintiffs and the saturated blue color of the stain was to the Plaintiffs’ liking. [ 39 ] The Certificate of Location prepared after the end of the construction (D-9, February 12, 2015) shows the new fence installed directly on the property line as if it was a common fence. [ 40 ] The dialogue carried out on September 16, 2014 by text messages shows that Patrice Boivin nevertheless considered it to be the replacement of the Plaintiffs’ fence, (P-24): Kathleen: Hello Patrice.

Your crew has begun rebuilding the fence. Please remember that it must be the same quality and standard of the fence that was removed (height, strength, same anchoring points, color, etc.). Also, the patio will need to be repaired prior to the fence installation. We are working on providing a comprehensive list of all of the damages and the expected reparations. I expect that you will receive this document this week. Thank you. Patrice: Ok please do the list and we will do what needs to be done. No problem. We gave them instructions so far to install the same fence, same height from the brick wall to the street.

Kathleen: Hi Patrice, the anchor posts are not as high as the posts that were removed. Can you please talk to your crew, before they get much further along with this, to ensure that they are doing this correctly. Neither one of us wants a new fence put up that will need to be taken down. I did send you a photo awhile back that might help guide them with this. Also, can you please confirm that they are anchoring the posts as deep and as solid as they were previously. We need the fence to be structurally sound enough to support our bikes.

Thanks. [ 41 ] At the hearing, the Court pointed out to the parties that one of their options would be to agree upon a common fence and assume the cost in equal shares. Although Certificates of Location are not definite proof, they are, according to current practices, extremely accurate and a common fence would therefore normally be put exactly where the current reconstructed fence has been installed. [ 42 ] A photo (D-7) shows an extension that Mr. Kahn built to the fence to make it taller by using a framed latticework. Mr. Kahn admitted that this was a temporary measure and not the proper way to build a fence.

It was, however, something he felt that he needed to do to provide more privacy. ANALYSIS [ 43 ]

Article 987 of the Civil Code of Québec provides the very simple concept that a “land owner shall allow his neighbour access to his land when it is necessary in order to carry out legitimate works or constructions accruing to the benefit of his neighbour”:

987. Every owner of land, after having been notified verbally or in writing, shall allow his neighbour access to it if that is necessary to make or maintain a construction, works or plantation on the neighbouring land. [ 44 ]

Article 988 of the Civil Code of Québec provides the very simple entitlement to compensation referred to as “reparation for injury he suffers”. The drafting of the

article is very singular as it provides an entitlement for this compensation as a result of the sole fact that he has been bound to give access to his land, as well as for restoration of the land to its former condition: 988.

An owner bound to give access to his land is entitled to reparation for injury he suffers as a result of that sole fact and to the restoration of his land to its former condition. [Underlining added for emphasis] [ 45 ] In the present case, both parties were suffering under certain misconceptions. [ 46 ] Firstly, each party claimed that the fence was his own whereas, in fact, its disposition on the crossing over the property line from one end to the other made that fact very difficult to prove. [ 47 ] The dynamics between the parties shows that, in reality, they both considered it to be the Plaintiffs’ fence. [ 48 ] Another misconception was the Plaintiffs’ belief that no construction could go ahead until they had given their approval, having been satisfied that there would be no damage, that the workers would respect their property rights, etc.

The legal principle is that, given sufficient notice, they must simply tolerate the work that goes on relying on their right to be compensated for the use of the land per se and for any failure to restore it to its previous condition.

In case of an abuse of right, they may be entitled to seek redress, including injunctive relief, but this would be an exceptional circumstance. [ 49 ] The Defendants were suffering under the misconception that they could give the most minimalist notification and that they did not have the duty of imposing on their contractor proper procedures to secure the property, so that the use by the contractor would be as minimal as possible, with the greatest possible security for the neighbouring land owner. [ 50 ] Apart from these basic misconceptions, the project went ahead as the Civil Code of Québec envisages, that is that the property is used and damaged by the neighbour who is carrying out the legitimate construction project.

What did not occur was proper restoration of the property and compensation of the Plaintiffs and that explains why the parties are now before the Small Claims Division. [ 51 ] Were it not for the ineffective way in which the contractor used the Plaintiffs’ land, it would have not been necessary for the Plaintiffs to be deprived of the secure use of most of their backyard during the approximately two months of the construction project. [ 52 ] The fact that they could not rely upon constant use of their backyard throughout the project is a prejudice for which they should be compensated. [ 53 ] As for the fence, there does not seem to be any way to rebuild the fence to make it taller and it is obviously not as tall as the previously existing fence.

It also has a different architecture being of a constant height whereas the previous fence was of variable height. This was perhaps part of its charm in the eyes of the Plaintiffs. [ 54 ] Given that the parties have not agreed on a common fence, the principle of restoration would provide for the Plaintiffs to be given enough monetary compensation to rebuild a fence of their choice, similar in type and quality to the one they had before.

They would tear up the existing fence and build the new one just inside the property line. [ 55 ] There are some minor damages to the Plaintiffs’ property because of scaffolding and other legitimate works of a temporary nature set up or performed by the contractor.

Although the work itself is legitimate, there must be compensation for these fairly minor damages. [ 56 ] Coming to the issue of the bicycles, it seems probable that they were damaged when they fell to the ground during the fence demolition but compensation should be for reasonable repairs only, not for brand new bicycles. [ 57 ] Finally, the horticultural damage is apparent but minor. [ 58 ] The Plaintiffs bought a bike for $ 304.66 (P-23), they obtained an estimate of $ 10,381.51 (P-4) for the restoration of the fence, damage to bicycles, the replacement of an ornamental tree, the replacement of flowers and shrubs, the repair to the mechanics of a kitchen window, the cleaning of the front balcony, the replacement of fiberglass flooring on the back balcony, the repair of the back balcony railing, the restoration of tiles, and the restoration of the back balcony gutter. [ 59 ] The Defendants did not provide any contradictory evidence and their insurer, raising the privilege associated with the adjuster’s report, did not provide any evidence to either confirm or to contradict the quantum as assessed by the Plaintiffs. [ 60 ] The claims in general as set out in the estimate (P-4) are modest.

Take for example, the replacement of the variable height fence $ 2,675, plus tax, the repair of a kitchen window $ 440, cleaning and repairs of patio tiles, hardened concrete from the balcony, etc., all for very modest amounts. The replacement of the fiberglass flooring on the back balcony $ 2,457.38 is probably reasonable but the photos show that the Plaintiffs’ house is not in perfect repair and to completely replace the fiberglass flooring would probably provide some added value.

On the whole, with the Plaintiffs’ proof being adequate, and in the absence of proof in defense, the Court arbitrates the direct damages associated with movable and immovable property at $ 10,000, taxes included. [ 61 ] Turning to the compensation that should be given for the use of their property per se, the Court finds that the normal inconvenience of giving up a portion of their property to permit the construction would in and of itself warrant compensation.

The prejudice has been exacerbated by the fact that the contractor did not properly secure the yard, to make it clear which areas could be used without hindrance by the Plaintiffs. For that reason, the backyard became essentially a space that the Plaintiffs could no longer count on using. This was a significant inconvenience that could have been avoided. The Plaintiffs are a family with four young children and some

pets. The exclusive use of a backyard and its associated balconies is a significant advantage associated with their ownership. [ 62 ] In addition, the fact that the notices were not given with clarity and with reasonable lead time, the inconvenience to the Plaintiffs was needlessly increased. [ 63 ] The Court assesses the inconvenience at $ 1,500 per month for two months, for a total of $ 3,000.

As well, since the fence put in to restore the original fence was not sufficiently high and it did not provide sufficient privacy, the Court arbitrates an additional $ 2,000 in damages for this temporary state of affairs. [ 64 ] The total that the Court awards to the Plaintiffs is therefore arbitrated at $ 15,000. [ 65 ] As was discussed by the parties in the presence of the judge, it might be a good idea, in restoring the fence, to make it a common fence with both parties agreeing to the exact design.

This is, however, for the parties to decide as the compensation provided in the present Judgment is simply to restore for the Plaintiffs’ benefit a fence similar in quality and type to the one they had. [ 66 ] If the parties agree on a common fence, part of the award of damages could be compensated with the Plaintiffs contribution to 50% of its value but the Court leaves that to the parties’ discretion.

Since both parties treated the fence as being that of the Plaintiffs, this Court’s award includes the cost of its replacement. [ 67 ] In closing, the Court wishes to state that it hopes the parties will put the emotional issues associated with these unfortunate occurrences in the past and move on to normalizing their relations as neighbours. BY THESE REASONS, THE COURT: CONDEMNS the Defendants solidarily to pay to the Plaintiffs, the sum of $15,000, together with interest at the legal rate and the additional indemnity provided in

Article 1619 of the Civil Code of Québec , calculated from September 17, 2014; CONDEMNS the Intervenor, Desjardins Assurances Générales Inc., to indemnify the Defendants for the above conclusion pursuant to their Homeowners Policy, by paying the proceeds directly to the Plaintiffs, to the Defendants’ exoneration; THE WHOLE with judicial costs in the amount of $ 200 for the Court stamp. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: March 28, 2017