2017 QCCQ 9916, 2017 QCCQ 9916

Smith c. Town of Hudson 2017 QCCQ 9916 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-016952-154 DATE: June 22, 2017 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Trevor SMITH Plaintiff v. TOWN OF HUDSON AND HANS GRUENWALD ENTERPRISES INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In the present file, Mr. Trevor Smith claims from the Town of Hudson (Hudson) and Hans Gruenwald Enterprises inc. (Gruenwald) an amount of $ 15 000, representing damages to his cedar hedge, due to the excessive quantity of salt used by Hudson in their snow removal operations. [ 2 ] According to his amended application dated December 17, 2015, Mr. Smith pretends that the damages to the hedge amount to $ 7 200, to which he adds $ 850 of legal costs.

By the amendment, Mr. Smith also claims that he suffered a loss of his property value of $ 30 000. Mr. Smith accepts to reduce the total claim to $ 15 000, to respect the Small Claims Court Division’s jurisdiction. THE FACTS: [ 3 ] Mr. Smith is the owner of a property located on Cote St-Charles Street in Hudson since 1986. At the time he bought the house, a mature cedar hedge was planted on three side of his property, which represented a clear advantage for Mr. Smith. [ 4 ] On November 6, 2014, Mr.

Smith obtains a quotation from Suburban Landscaping, evaluating the cost of a new hedge at $ 4 200 plus taxes ($ 4 828.95). [ 5 ] In his very detailed chronology and pleadings, exhibit P-5, Mr. Smith says that he did not realize the extent of the damage and the fact that the cedar hedge on Cote St-Charles was lost until Suburban Landscaping examined it and gave the above-mentioned quote. [ 6 ] As the hedge was then in a bad shape, Mr. Smith could not enjoy the privacy it was providing him before, so he decided to build a wooden fence, both to protect the remaining hedge and to ensure his privacy.

The week following this quotation, Mr. Smith engages in an exchange of emails with Mrs. Barbara Robinson, the Councillor representing Hudson, informing her that he wanted to install a 6 foot fence. It can be understood from the email dated November 7, that Mrs. Robinson came to visit Mr. Smith a week earlier. [ 7 ] He says in his email that he holds the Town responsible for the damage and requests a derogation for the fence height (2 meters), indicating that should the town refuse to agree to a 6 foot fence, he intended to proceed with legal action and leave it to the Court to determine the height permitted.

It should be said that Mr. Smith’s property is located on the corner of Cote St-Charles and Wilson Street, and some discussion could be held to decide whether the front yard was located on Cote St-Charles or on Wilson Street. According to the zoning Bylaw number 526 of Hudson, in a residential zone, there was no height limit for a hedge, but a fence had a maximum allowable height of 1.2 meters. All other yards could have a 2 meters fence.

[ 8 ] Mrs. Robinson responds to Mr. Smith the next day saying that “the Town will not take responsibility for the state of your hedge and cannot make a derogation for the Bylaw stating the maximum of 1.2 meters in height for a fence.” She suggests that Mr. Smith go through his insurance company to make a claim with the Town and then, the Town’s insurance company could deal with his claim. [ 9 ] Mrs.

Robinson reiterates what she said earlier in the second email dated November 13, 2014: “after many discussions there is a general consensus of no wrong doing by the Town. (…) There will not be a derogation for the height limitations as decided by the Town.” [ 10 ] Mr. Smith answers on November 17, that he is forced to do something before the winter begins, and that a 1.2 meters fence “standing in front of a dead and dying hedge is not an option with any esthetic preference.” [ 11 ] Surprisingly, Mrs. Robinson answers Mr.

Smith on the same day by saying the following: “with regards to 6 foot fence there are many people involved in derogation and that did not work out. I realize that your property is a corner lot but it would still not be incorrect to erect a 6 foot fence.” [ 12 ] Mr. Smith interpreted this last sentence as a permission to install a 6 foot fence, which he did at the end of the month. [ 13 ] On November 28, 2014, Mr. Smith receives from Hudson a letter signed by the assistant municipal inspector Étienne Lavoie, advising him that the fence he installed was contrary to the zoning Bylaw. Mr.

Smith is asked to take the necessary measures in order to conform to the regulation within 5 days. [ 14 ] Mr. Smith answers that letter through his attorneys (exhibit P-1) on December 12, 2014, and asked for damages in the amount of $ 7200 ($ 4800 for damages to the hedge and $ 2400 to install the fence). [ 15 ] A Statement of offence is issued by the Municipal Court against Mr. Smith on February 18, for an offence against

article 519 of Bylaw number 526, Mr. Smith being therefore liable to a fine of $ 1000, and costs of $ 279, to which Mr. Smith pleaded non-guilty. [ 16 ] On June 10, 2015, Mr. Smith opens his file in the Small Claims Division, claiming $ 8050 against Hudson, being a first amount of $ 7200 referred to in his letter of demand, and $ 850 as legal costs. [ 17 ] Hudson files their contestation on July 6, 2015, arguing three grounds of defense, namely that the Town was not responsible for the damages to the hedge, that the claim was time-barred as per

Section 585 and 586 of the Cities and Town’s Act , and that the email by Mrs. Robinson could not have priority over the terms of Bylaw 526. Hudson also mentions that they are opened to a mediation. [ 18 ] There seem to have been some discussion between Mr. Smith and Hudson, as appears from a fax he sent to the Court clerk on November 1, 2015, in which he requests that a hearing date be set, as he understands that Hudson has no real interest in mediation, after a meeting and discussion with Hudson’s general director. [ 19 ] A hearing date is then scheduled for March 4, 2016.

The Town of Hudson requested a postponement of that hearing, arguing that their expert was on vacation, and that they could not find an employee who was not an attorney who could represent the Town for the hearing. Despite Mr. Smith’s strong opposition, the postponement was granted. [ 20 ] On March 15, 2016, the trial at the Municipal Court is held. As per exhibit D-4, Mr. Smith was found guilty by Mr. Justice Chaloux, and fined $ 300 plus costs to be paid within a delay of 30 days. Mr. Justice Chaloux considered whether the fence on Cote St- Charles was placed on a front yard or not, whether Mr.

Smith could claim for vested rights; he does not decide on the question of who caused damages to Mr. Smith’s hedge, and finally considers that Mrs. Robinson’s email could not give Mr. Smith any right to contravene to the zoning Bylaw. [ 21 ] In June 2016, three other accusations are filed against Mr. Smith under the zoning Bylaw for infractions committed on June 20, 21, and 22, 2016, which, according to the Municipal Court docket will be heard for trial on August 30, 2017. [ 22 ] On June 23, 2016, Mr.

Smith filed a complaint to the Human Rights Commission. [ 23 ] A second hearing date was set for June 30, 2016, which was met by a second demand for postponement by Hudson, for the same reasons. As the Court could arrange another hearing date in a short delay, this second demand was granted and a hearing date was scheduled for August 4, 2016. [ 24 ] On June 28, 2016, Mr. Smith, by a fax to the Court clerk, requests that a mediation meeting be arranged to discuss and possibly mediate the claim. [ 25 ] He also asks formally in writing a derogation to Hudson, by a letter dated June 28, 2016.

He pleads in his demand that he was the only Hudson resident to ever be penalized for his fence height, and pleads that Mrs. Lavoie (director of the Service d’urbanisme) did not have the authority to manage or inforce Bylaw 526 until June 6, 2016. [ 26 ] On July 4, 2016, Mr. Smith requested a postponement for the hearing scheduled for August 4, 2016. He argues that he was advised by several people that the damages might be much higher than he first estimated.

He adds that he has to decide whether to amend his claim in Small Claims Court to the maximum of $15 000 or to change Court and sue for an amount greater than $ 40 000. He says he has consulted with two different arborists, but neither of them is available for the August 4 hearing date. [ 27 ] Mr.

Smith also argues that he made a formal complaint to the Quebec Human Rights Commission as Hudson has denied his request for accommodation for disability, saying he filed proof of his disability and its relevance concerning the hedge and the 6 foot fence prepared by a psychologist. [ 28 ] A judgment was rendered on July 18, 2016, granting Mr. Smith’s request for a postponement, but ordering nevertheless that the

parties be present on August 4 to transform the trial in a case management conference. [ 29 ] Mr. Smith also makes contact with the Legion on July 7, 2016 to have their assistance in his request for accommodation, as Mr. Smith’s disability is related to him being a Veteran. [ 30 ] On July 19, 2016, the Royal Canadian Legion, branch 115, answers Mr. Smith’s demand for assistance, by saying that it appears that municipal law is involved, and they believe that this is a matter outside of their terms of reference. [ 31 ] Mr.

Smith receives a confirmation on July 28 from the Dominion Secretary of the Royal Canadian Legion in Ottawa that the advocacy the Legion does for veterans is centered solely on providing benevolence to veterans in need and to provide assistance and representations to veterans entering into the V.A.C. system. He adds that the issue Mr. Smith is having with the Municipality is beyond their expertise and area of responsibility, as this is a legal matter. [ 32 ] Mr.

Smith suspects a conflict of interest by the Legion, as Counsellor Robinson, who sent him the email about his hedge for Hudson, is also the treasurer for the Legion. [ 33 ] To the surprise of the Court, no Town representative was present at the case management conference on August 4, 2016. The Court held that conference only with Mr. Smith, during which the following was discussed: • The file would be sent to a Court mediator, as settlement discussions were held between Mr. Smith and Hudson; • The possibility that Mr. Smith would amend his claim, which he was to decide after the negociations; • Mr.

Smith was then advised that no trial date would be scheduled before the Court be informed by Mr. Smith of his decision to amend his claim in the Small Claim Division or to a higher amount in the Civil Division; [ 34 ] The mediation was held on September 20, 2016, but no settlement was agreed upon. [ 35 ] On December 6, 2016, Mr. Smith informs the Court clerk of his intention to amend his claim to the limit of $ 15 000, and to add Gruenwald as a co-defendant.

His amended claim was filed on December 17, 2016. [ 36 ] On January 6 and February 27, 2017, Gruenwald filed its contestation, and the Town filed an amended contestation. [ 37 ] The trial was heard on March 24, 2017. QUESTIONS TO BE DECIDED BY THE COURT: [ 38 ] The Court will first address the question of the Charter complaint by Mr. Smith against the Town. [ 39 ] As Mr. Smith rightly pointed out at the trial, this case regarding the cedar hedge is a battle between two experts, and the Court will decide which opinion shall prevail. ANALYSIS AND DECISION: Charter complaint [ 40 ] During his testimony, Mr.

Smith exposed all the facts related to his claim, including that he feels his fundamental rights were breached by the refusal by Hudson to grant him an accommodation due to his disability as a veteran. [ 41 ] Mr. Smith also mentioned at the hearing that there was a file pending before the Human Rights Commission. [ 42 ] When Mr. Smith wanted to argue his Charter complaint in front of the Small Claims Division, the undersigned explained to Mr. Smith that she could not hear such arguments, as Mr. Smith was not claiming any amount in damages for the refusal of Hudson to grant him a derogation for his fence height.

As noted before, Mr. Smith’s claim is to be reimbursed of amounts spent for erecting the fence, the cost of replacement of the cedar hedge, legal costs, and the loss of his property value, as per the report of Mr. Paul Ligeti, appraiser. [ 43 ] During the period in which the case was taken under advisement, Mr. Smith transmitted to the undersigned copy of the letter sent to him by the Human Rights Commission on May 23, 2017, saying that their file was closed, as Mr. Smith exercised his rights in another forum. [ 44 ] It is important then to specify that the question of the breach of Mr.

Smith’s rights was not argued in front of the undersigned, considering

Section 10 of the Code of civil procedure that says that “the Courts cannot adjudicate beyond what is sought by the parties.” Damages to the cedar hedge [ 45 ] Mr. Smith’s expertise was drafted by Mr. Travis Hiscox, certified arborist, on February 17, 2015. This expertise was filed as exhibit P-6. According to

Section 293 of the Code of civil procedure, the report of the expert stand in lieu of his testimony. [ 46 ] Hudson’s expertise was drafted on June 20, 2016, by Mr. Luc Nadeau, forest engineer, and also arborist. According to

Section 294 of the Code of civil procedure, Hudson chose to have his expert testify at the hearing. [ 47 ] In his report, Mr. Hiscox concludes as follows: “It is evident that the primary cause for this damage has been excessive salt from winter maintenance operations. The plowing and

pushing and piling of snow on this property across the ditch, against the hedge and particularly the application of salt (with sand and melted) on the road and that has been also contained in the snow plowed against the hedge and sprayed against the hedge by the road traffic has been the critical problem here.” [ 48 ] In his expertise, Mr. Nadeau does not agree that the salting operations may be the cause of the hedge problems, considering that it is the shade of the trees already on Mr. Smith’s property that is the cause.

He speaks as follows: « Or, la présence de tous ces grands arbres à plus ou moins grande proximité a pour effet de jeter un ombrage important sur plusieurs portions de la haie faisant face à la rue St-Charles, et ce une bonne

partie de la journée. Nous sommes d’opinion que cette situation explique en grande

partie pourquoi la haie est si peu garnie en feuillage dans sa

partie supérieure du côté faisant face à la rue St- Charles. » [ 49 ] The opinion of the experts is summarized in the following table: HISCOX NADEAU Salt • The ground cover was indicative of salt problems.

The level of damage seen indicates the level of salt exposure. • The distance of the hedge from the road is not a key factor – the high traffic level, the large plows used on the main roads, and amount of road salt spread and snow plowed on Cote St-Charles explains the level of damage compared to the same hedge on Wilson Street. • The road salting has been a growing source of complaints by residents. • The Town’s road salting is excessive for the natural environment in Hudson compared to other communities. • The contract between Hudson and the contractor includes the purchase of 1800 tons of road salt and Hudson uses almost three times the amount of road salt per capita than the average in Canada. • Snow is pushed on the side of the street, in the grass near the hedge. • The hedge on Wilson is closer to the street than the one on St-Charles but is not damaged. • The less dense part of the hedge is the upper part, and it is difficult to imagine that snow plowing could cause damage to this height. • It is not likely that damage may have occurred by the roots because of the ditch on St-Charles. • On Cote St-Charles, there is 3.5 m between the street and the fence. • If salt is spread on the thuyas over their tolerance limit, leaves will be burned which we don’t see.

If salt is in the ground, the thuya will dry out, evenly on all the tree. • If salt was the cause the situation should have been better with the fence. Shade • Minor factor considering the severity of the damage, which is just as severe on the street side which gets considerable afternoon sun. • The large trees behind the hedge have not been problematic for the last three decades. • The damage and thinning of the hedge has been worse on the north end where the silver maple is considerably less dense and produces less shade than the larger denser Norwegian Spruce.

If shade was a problem one would see more damage in front of it. • On the property there are two big silver maple trees with two Norwegian Spruce. On the other side of the street there is one big limetree and a poplar. • The shade is the main reason as we can observe moss and agrega on the ground between the street and the hedge plants that grow in the shadow.

On Wilson, where there is more sun, there is only grass. • The superior part of the trees is inclined toward the street, because they search for light. [ 50 ] As per Paul Boudreau’s testimony, Hudson used 1500 tons of salt/sand mix in 2011-2012, 1750 tons in 2012-2013, 1960 tons in 2013-2014, and 1700 tons in 2014-2015. [ 51 ] What is used on the streets is a mix of 65 % sand, 20 % rocks, and 15 % salt, according to Mr. Jean St-Pierre of Gruenwald. On Cote St-Charles, on a distance of 15 meters from the intersections, the above-mentioned mix is spread with an equal quantity of salt.

Pure salt is only used on the sidewalks. [ 52 ] In appreciating the experts’ reports, the Court must keep in mind that it is Mr. Smith who has the burden of proving that the damage to his cedar hedge was caused by the salt used by Hudson (Section 2803 of the Quebec civil Code ). [ 53 ] Considering that Mr. Nadeau’s testimony was very convincing, and that the cause he suggests is plausible, Mr. Smith did not succeed in demonstrating to the Court by preponderance that his cedar hedge was damaged by Hudson. [ 54 ] Due to this conclusion, it will not be necessary to decide whether or not Mr.

Smith’s Demand was time-barred.

[ 55 ] Considering the delays caused in part by Hudson’s handling of the file, the Demand will be dismissed without costs. FOR ALL THESE REASONS, THE CO URT: DISMISSES Plaintiff's claim; THE WHOLE without costs. __________________________________ CÉLINE GERVAIS, J.Q.C.