2020 QCCQ 1554, 2020 QCCQ 1554

Carey c. Municipalité de Val-des-Monts 2020 QCCQ 1554 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” NO.: 550-32-024430-180 DATE: April 9, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE PATSY BOUTHILLETTE, J.C.Q. ______________________________________________________________________ MARGARET C. CAREY [...] Val-des-Monts (Québec) [...] Plaintiff v.

MUNICIPALITÉ DE VAL-DES-MONTS 1, route du Carrefour Val-des-Monts (Québec) J8N 4E9 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] The plaintiff claims $3,560 from the defendant municipality as compensation for the destruction or loss of her property markers. [ 2 ] The defendant denies the claim arguing prescription, the absence of a fault, and that the damages are exaggerated and unfounded. ISSUES [ 3 ] The issues are as follows :

i) Is the plaintiff’s claim prescribed? ii) Did the defendant commit a fault, making it liable for the damages caused to the plaintiff's property? iii) If so, what is the amount of damages to which the plaintiff is entitled? ANALYSIS

i) Is the plaintiff’s claim prescribed? [ 4 ] The defendant municipality pleads that, under the Municipal Code , the short prescription period of six months applies in this case. [ 5 ] The facts alleged against the defendant municipality took place on November 29, 2017. [ 6 ] On November 30, 2017, by email, the plaintiff sent a formal notice to the defendant municipality denouncing the events of November 29, 2017, namely the removal or destruction of property markers by the Municipality's ditch cleaners. [ 7 ] It was not until August 21, 2018, that the plaintiff instituted this action, nearly nine months after the alleged events. [ 8 ] The evidence establishes that the plaintiff is claiming damages from the defendant for property damage following the destruction or loss of her property markers, but not for physical or bodily injury. [ 9 ] This distinction is important since the courts have recognized the application of the short six-month prescription period of the Municipal Code in similar cases. [ 10 ] Only a claim for bodily injury, as referred to in

article 2930 of the Civil Code of Québec , is exempted from this short prescription period. [ 11 ] Ms. Carey seems to argue that it was impossible for her to act before since she did not have the means to pay for new property markers, and then subsequently claim them from the defendant.

[ 12 ] The Court disagrees with this statement since this ground does not justify the suspension of prescription. [ 13 ] The prescription period in this file is six months and the Court sets the starting point for prescription on the day of the intervention, that is, on November 29, 2017. [ 14 ] Under

article 2904 of the Civil Code of Québec , there can be a suspension of prescription, except that in this case, the various steps and actions taken by Ms. Carey, including her inability to have the markers reinstalled, are not grounds for the suspension of prescription. [ 15 ] For these reasons, the Court concludes that the damages claimed are solely property damage. Given that

section 1112.1 of the Municipal Code applies, an action instituted more than six months after the facts is prescribed. [ 16 ] In light of the answer to the first question, the Court does not have to decide the other questions. [ 17 ] The Court, however, wishes to make it clear that the plaintiff had the burden of establishing fault [1] (the alienation or destruction of the marker), which she could not establish in a preponderant way without the assistance of a land surveyor.

The plaintiff had to establish that the marker was actually situated on her property, as opposed to the Municipality’s property, and that, by the same token, its disappearance after the defendant's intervention led to the conclusion that the employees had damaged or removed it. [ 18 ] As for legal costs, the first paragraph of

article 340 of the Code of Civil Procedure states: 340. Legal costs are owed to the party that was successful, unless the court decides otherwise. [ 19 ] In this case, the Court finds that this is a situation that justifies deviating from the usual rule since this case could easily have had another outcome. FOR THESE REASONS, THE COURT: [ 20 ] DISMISSES the application, each party to pay its own costs. __________________________________ PATSY BOUTHILLETTE, J.C.Q. Date of hearing: February 17, 2020