2017 QCCQ 3827, 2017 QCCQ 3827

Silver c. Wong 2017 QCCQ 3827 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No. 500-32-149608-152 DATE: March 24, 2017 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD ______________________________________________________________________ LOUIS SILVER and ESTHER LIFSHITZ-SILVER Plaintiffs v.

MARY WONG Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The parties are next-door neighbours and occupy an immovable known as a “semi-detached”. [ 2 ] Following a flood in their property, Mr. Silver and his wife, Ms. Esther Lifshitz-Silver, discovered that it was caused by a defect in the sewer pipe that is shared by the two adjacent properties. [ 3 ] They are therefore claiming $4,962.56 from Ms.

Wong, which represents half of the costs to permanently correct the source of the infiltration, as shown in the breakdown of their claim appearing in the table filed as Exhibit P-35. [ 4 ] In her contestation, Ms. Wong alleged that Mr. and Ms. Silver are liable for the damages to their property and that they must assume the costs of the repairs since the said damages resulted from plumbing works that they had performed a few years earlier. [ 5 ] Also, Ms. Wong pleaded that she consulted a representative of her insurer, who was of the opinion that the Silvers’ claim was excessive. QUESTIONS in dispute [ 6 ] (

a) Are the parties undivided co-owners of the defective sewer pipe that caused the infiltrations in the Silvers’ immovable? (

b) Is Ms. Wong required to share the costs assumed by the Silvers as a result of the flood? (

c) If so, what are the amounts to which the Silvers are entitled? Context and analysis [ 7 ] As previously stated, the parties are next-door neighbours and share an immovable that is separated by a common wall, better known as “semi-detached”. [ 8 ] At the end of April 2015, a flood occurred in the immovable of Mr. and Ms. Silver. [ 9 ] In order to find the source of the flood, they retained the services of a plumber who, among other things, carried out a video camera inspection. [ 10 ] The plumber observed that the sewer pipe servicing the properties of both parties had collapsed.

[ 11 ] Mr. and Ms. Silver therefore retained the services of an excavator to replace the defective pipe. [ 12 ] Ms. Wong and her spouse were informed, as they agreed to pay the excavator for half of the work-related costs. [ 13 ] During the excavation, it was confirmed that the properties of the parties were serviced by a single sewer pipe and that it had collapsed.

That pipe was replaced by two separate pipes, which were installed in compliance with municipal by-laws in force in 2015. [ 14 ] Although the defective sewer pipe serviced both properties, it was primarily located under the front portion of the land belonging to Mr. and Ms. Silver. [ 15 ] The Silvers’ claim is broken down as follows: - 50% of the cost for the plumber to find the source of the flood: $614.92; - 50% of the cost for a plumber consulted by Mr. and Ms.

Silver: $100; - 50% of the cost for the permit issued by Ville de Montréal: $1,376.75; - 50% of the difference between the amounts paid by the parties for the excavation works: $444.72; - Expenses for certified letters sent to Ms. Wong: $24; - 50% of the cost to repair the earthwork in Mr. and Ms. Silver’s yard: $1,955.73. [ 16 ] The undisputed evidence shows that the source of the flood inside the property of Mr. and Ms. Silver was caused by the collapse of the sewer pipe that belonged to the parties in equal shares. [ 17 ] That said, under

article 1019 of the Civil Code of Québec , the parties must share one-half of all the common charges related to that pipe: 1019. Co-owners are liable proportionately to their shares for the costs of administration and the other common charges related to the undivided property. [ 18 ] After analysis, the Court concludes that the Silvers’ claim is well-founded, except for the following elements. [ 19 ] Mr. and Ms. Silver are claiming $100 from Ms. Wong for the consultation of a plumber.

However, they did not file an invoice in support of that part of their claim, so the Court cannot allow it. [ 20 ] As for the difference in the amounts billed by the excavator to the parties, the Court notes that no evidence was provided to explain that difference. Consequently, the Court concludes that the matter falls within the contractual relations that existed between the parties and the excavator. Therefore, the Court cannot intervene in that regard. [ 21 ] Moreover, as for the amounts claimed to repair the earthwork in the yard, the Court notes that Mr. and Ms. Silver acted reasonably so that Ms.

Wong would not be required to pay for their improvement costs, as they are claiming only the amounts related to the repairs. [ 22 ] Lastly, the Court concludes that Ms. Wong’s reasons for contesting are ill-founded, and that referring to any prior problem is in no way relevant to settle this dispute. THEREFORE, the Court: GRANTS in part the claim of Louis Silver and Esther Lifshitz-Silver against Mary Wong; CONDEMNS Mary Wong to pay Louis Silver and Esther Lifshitz-Silver $3,971.40, plus interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec as of April 21, 2015; CONDEMNS Mary Wong to pay Louis Silver and Esther Lifshitz-Silver $171 for legal costs. __________________________________ Henri Richard J.C.Q. Date of hearing: January 10, 2017