2017 QCCQ 2123, 2017 QCCQ 2123

Sinacore c. Garcia-Sousa 2017 QCCQ 2123 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147146-155 DATE: March 16, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ ADA L. SINACORE Plaintiff v.

MARIA GARCIA-SOUSA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, who is her neighbour, in damages, for $15,000.00. [ 2 ] Plaintiff alleges the following, inter alia , in her application: “ 2. The Defendant is liable for the damage for the following reasons: I cannot determine the date in which the balconies were attached to my building, therefore, I have put the approximate date of discovery.

The defendant without my knowledge or permission removed bricks from my building, attached her balconies to where the bricks were removed, put nails in my building and as a result the bricks where the balconies are attached are deteriorating due to the damage caused by the attached balconies. And damage caused by the fact that water cannot drain, further damaging the bricks. […] 5. The Plaintiff claims an amount of $15,000.00 for the following reasons. I am asking the defendant to remove her balconies and replace them at her own expense.

I am asking for $10,000.00 to cover the repair of the brick on my building, and for reimbursement of expenses related to the damage including, the silicone application and engineers report, as well as any additional expenses that might be incurred as a result of this action. 5000.00$ for loss of time; lack of cooperation; aggressive behavior towards the plaintiff; compensation for intimidation; unresponsiveness; stress related to dealing with the problem and lack of resolution; inconvenience.” [ 3 ] Plaintiff has the burden of proof (arts. 2803 and 2804 of the Civil Code of Quebec ).

It is her onus to prove fault, injury and a causal link between the two, according to a preponderance of evidence. [ 4 ] Unfortunately, plaintiff failed to do this. [ 5 ] Plaintiff bought the property in 1995. [ 6 ] Plaintiff is asking that defendant be ordered to remove her balconies, although said balconies have been in place, in their present state, since at least May 7, 1986 (certificate of location, exhibit D-4). [ 7 ] What is more, plaintiff’s expert, engineer Richard Edwards, himself, stated at trial that destroying the balconies would be

“inappropriate”. [ 8 ] Furthermore, this Court does not have jurisdiction to render an order enjoining defendant to perform a particular act or operation (art. 751 Code of Civil Procedure). [ 9 ] Regarding the position of the balconies; the alleged deterioration of bricks; and the cause thereof, defendant’s expert, engineer Benoît Moreau, credibly disputed plaintiff’s allegations to the effect that said balconies are “an encroachment” on her property and that they compromise the structural integrity of the north wall (written expertise, exhibit D-6; testimony of Moreau; and certificate of location D-4). [ 10 ] According to Moreau, the building dates back to 1859; the bricks are very old; the balconies were installed approximately 16 years ago, in accordance with the building standards which were in effect at the time; [1] and there is no evidence of structural damage.

Furthermore, there is no evidence of active deterioration of the bricks. Based on certificate of location D-7 (pars 5.1 and 7.3c thereof), he is also of the opinion that there is no encroachment on plaintiff’s property, as the balconies are anchored on a common wall ( art. 1003 Civil Code of Quebec ). [ 11 ] Given that Moreau credibly disputed Edwards’ opinion and recommendations (report, page 7, exhibit P-2), plaintiff did not succeed in proving, by preponderance of evidence, that defendant committed a fault. [ 12 ] Given the absence of fault, there is no need to address the question of damages.

WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's application, each party paying its own costs, including experts’ fees. __________________________________ ELIANA MARENGO, J.C.Q. Dates of hearings: June 13, 2016 and January 31, 2017 [1] Construction Kiraction inc. c. Montambault , 2015 QCCS 3611 .