2017 QCCQ 15202, 2017 QCCQ 15202

Scott c. Lal 2017 QCCQ 15202 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » No: 500-32-153658-168 DATE: November 20, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ CLAUDETTE SCOTT Plaintiff v. SHAM LAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Claudette Scott ( Mrs.

Scott ) is suing Sham Lal ( Mr. Lal ) in order to recover $300 for the trimming and pruning of a tree located on Mr. Lal’s property, for the branches overhanging her property. [ 2 ] Mr. Lal contests and alleges that the trimming and pruning were not necessary, adding that he never consented to it. QUESTION IN ISSUE Has Mrs. Scott established her right to recover $300 from Mr. Lal for the trimming and pruning of his tree? CONTEXT AND ANALYSIS [ 3 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [1] .

The burden of proof [2] lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence [3] . [ 4 ] Mrs. Scott and Mr. Lal are neighbours [4] , since the latter bought his property on May 28, 2015 [5] . [ 5 ] A tree, located on his property, is located near the separation line of both lots. [ 6 ] Pursuant to a trimming and pruning of various trees by Hydro-Québec in order to secure its electricity lines, on August 19, 2015 [6] , Mrs.

Scott took that opportunity to ask the contractor to cut some branches of Mr. Lal’s tree, including the ones overhanging on her property. [ 7 ] Mrs. Scott never obtained a consent from Mr. Lal and never reached an agreement with him in this regard. [ 8 ] After encountering some difficulties in locating the address of Mr. Lal, not living in the property with the litigious tree, on August 31, 2015, Mrs. Scott notified him in writing of the work done and requested payment for his share [7] . [ 9 ]

Article 985 of the Civil Code of Québec reads as follows: 985. If branches or roots extend over or upon an owner’s land from the neighbouring land and seriously obstruct its use, the owner may request his neighbour to cut them and, if he refuses, compel him to do so. If a tree on the neighbouring land is in danger of falling on the owner’s land, he may compel his neighbour to fell the tree, or to right it. [ 10 ] Failing to duly notify Mr. Lal prior to having the work done or to obtain his consent, Mrs. Scott has not established that he has to pay her $300. FOR THOSE REASONS, THE COURT: DISMISSES the action of Plaintiff Claudette Scott;

CONDEMNS Plaintiff Claudette Scott to pay the judicial fees of $100 to Defendant Sham Lal. __________________________________ DOMINIQUE VÉZINA , J.C.Q. Date of trial: October 24, 2017