2015 QCCQ 3757, 2015 QCCQ 3757

Roth-Jakubovic c. Qi 2015 QCCQ 3757 COURT OF QUEBEC «Small Claims Division»

CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-135152-124 DATE: April 20, 2015 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ ALICE ROTH-JAKUBOVIC Plaintiff vs XIE CHANG QI and HAN NING Defendants ______________________________________________________________________ [ 1 ] The Plaintiff claims $4,199.99, representing part of the cost paid in an action instituted in the Superior Court to establish the boundaries between Plaintiff’s and Defendants’ properties. [ 2 ] The Defendant contests this action.

By cross-claim, he claims damages in the amount of $7,000, representing damages suffered due to the presence of numerous cats on Plaintiff’s property.

THE FACTS [ 3 ] In 2008, the Defendant unilaterally removed the edge which was on the common property lines separating Plaintiff’s and Defendants’ properties and installed a wooden fence. [ 4 ] As the Plaintiff considered the fence had been installed on the portion on her property, she requested that boundaries be established to conform this and sued an action in Superior Court dealing with this issue. [ 5 ] On December 20, 2011, Justice Jean-François De Grandpré rendered a decision homologating the land surveyor’s plan [1] .

As appears from this judgment, one of the conclusions was to condemn the Defendant to pay to the Plaintiff the remainder of the surveyor’s cost. [ 6 ] Therefore, Plaintiff’s claim before this Court has been settled by this Superior Court decision, which was not appealed. The Court, therefore, dismisses Plaintiff’s claim. [ 7 ] As for the allegations concerning the abuse by the Defendants to the cats, Plaintiff, represented by her son, George Jakubovic, withdrew these allegations. [ 8 ] Dealing with Defendants’ cross-claim in the amount of $7,000.

Defendant states that as of 2008, Plaintiff had numerous cats, sometimes up to 20 cats, which continually went on his property, and defecated on his property. The Defendant had to install cages to capture the cats and bring them to the SPCA. [ 9 ] The Defendant complains that he had to continually clean his yard, as well as his car, because of the cats. [ 10 ] Plaintiff’s son, Mr. George Jakubovic says that the Defendant purposely left a gap in the fence in order to capture the cats. He denies that the Defendant brought the cats to the SPCA, as he inquired and never found any evidence of this.

He alleges that Defendant kills the cats and disposes of them. Moreover, the Plaintiff’s son denies that the cats belong to him or his mother. They were stray cats that they fed. He only had one cat belonging to him. [ 11 ] In fact, Mr. George Jakubovic’s version is corroborated by Mr. Alexandre Verdy, clerk of Town of Mount-Royal who provided the Court with various reports following complaints from neighbours, including from the Defendant, and in these reports, the ownership of the cats is not determined, in fact it is continually referred to as stray cats. [ 12 ] As for the damages claimed by the Defendant.

He claims an amount of $3,500, representing the cost to install a fence. This fence was installed in 2008 whereas Plaintiff’s cross-claim was filed in February 2013. This portion of the claim is therefore prescribed. [ 13 ] He claims an amount of $200, representing the work done to the balcony, which was done at the same time the fence was installed, which claim is also prescribed. [ 14 ] He claims $259, representing the cost to bring the cats, on 15 separate occasions, to the SPCA. This portion of the claim is also unfounded, as the Defendant decided to capture the cats and bring them to the SPCA.

He therefore assumed the cost of doing this work.

[ 15 ] He also claims an amount of $59.50 to obtain a copy of the reports from Town of Mount-Royal. This portion of the claim is also dismissed, as he requested a copy of these reports in the hope of proving his claim. Mr. Verdy provided the Court with several reports, none of which supported Defendant’s argument. [ 16 ] He also claims an amount of $3,872, representing the cost to clean his yard. He explained to the Court that 6 months out of 12, he cleaned his yard twice a week, which represented 30 minutes of work at $11 per hour. During the other 6 months, it was only 15 minutes by week.

Therefore, the Court calculated that this represented an amount of $214.50 per year. Assuming that the Defendant did this work from 2008 to 2013, this would represent an amount not exceeding $1,000. Moreover, part of the claim, namely for the years 2008 and 2009, is prescribed. [ 17 ] Defendant also claims an amount of $3,872, representing the cost of cleaning the motor of his cartwice a week.

Making the same calculations, this would represent an amount of $286 per year, and again, totalling less than $1,000. [ 18 ] The Court does not find Defendant’s testimony to be credible. [ 19 ] As appears from the pictures provided by both parties, it is clear that a gap was left in the fence. The Defendant could easily have taken measures to block the path way for the cats. In any event, it is difficult to believe that the Defendant spent so much time in cleaning his yard.

As for cleaning his motor twice a week because of fur founded in the motor, the Court does not find this testimony credible. [ 20 ] Moreover, no evidence was provided that the Plaintiff was the owner of the cats. Her son, George Jakubovic, admitted feeding the cats, which would have attracted them to their property, however, he is not a party to the action instituted by the Defendant. [ 21 ] As both parties instituted an action and a cross-claim, which are unfounded, the Court will not grant costs.

FOR THESE REASONS, THE COURT : DISMISSES Plaintiff’s action; DISMISSES Defendants’ cross-claim; WITHOUT COSTS. __________________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing: April 13, 2015