2012 QCCQ 1444, 2012 QCCQ 1444

Barber c. Montreal (City of) 2012 QCCQ 1444 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-116680-093 DATE: March 2, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ PAUL SIDNEY BARBER Plaintiff v. CITY OF MONTREAL and LES EXCAVATIONS SUPER INC. Defendants / Plaintiffs in warranty and TERRAMEX INC.

Defendant in warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Paul Sidney Barber claims from the City of Montreal and Les Excavations Super Inc. an amount of $7,000 for alleged damages following a fall on an uneven portion of a street beside a sidewalk in Old Montreal. [ 2 ] In defence, the City of Montreal denies having committed any fault and pleads not being the insurer of any pedestrian.

The City of Montreal calls in warranty the general contractor hired to perform work where Mr Barber fell, Terramex Inc. [ 3 ] Les Excavations Super Inc. acted as Terramex Inc.'s sub-contractor and alleges not being responsible for any damages incurred by Mr Barber, its work being terminated on May 20, 2008. [ 4 ] Terramex Inc. denies any responsibility with the work performed, having been executed following the rules and standards duly accepted by the City of Montreal. Question in dispute [ 5 ] Does Mr Barber establish any fault from the City of Montreal and Les Excavations Super Inc. justifying his claim ?

The facts and analysis [ 6 ] On August 29, 2008, around 11:00 in the morning, when crossing the intersection of Saint-François-Xavier and Saint- Jacques streets in Old Montreal, Mr Barber alleges having stepped "on an uneven portion of the road where it meets the sidewalk. Twisting and injuring my left ankle, I am searching compensation to the amount of $7,000 for the injuries I sustained". [ 7 ] Mr Barber's claim is based on

Article 1457 of the Civil Code of Québec : " 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.»

[ 8 ] In order to succeed, Mr Barber has the burden of establishing, through preponderant evidence, that a fault is committed either by the City of Montreal or by Les Excavations Super Inc. [ 9 ] After carefully reviewing the evidence adduced, the Court concludes that Mr Barber fail to establish any fault, for the following reasons. [ 10 ] Mr Barber's fall occurred in the morning of a sunny day. From the pictures produced, recent pavement work had been done on the street, beside the sidewalk. Even though the work performed will not receive any price for its aesthetic quality, it cannot be qualified as a "trap".

In other words, any reasonable and vigilant pedestrian would have seen said recent work that cannot constitute a trap or a surprise. [ 11 ] In the demand letter sent by his lawyer to the City of Montreal and Les Excavations Super Inc., dated April 9, 2009, Mr Barber alleges having put his feet on an enormous pothole (nid-de-poule). With all due respect, no such pothole exists where Mr Barber twisted his left ankle. [ 12 ] Mr Barber is victim of an unfortunate accident due to his lack of attention when he was walking on the sidewalk and on the street at said intersection.

He cannot blame anyone but himself for said accident. [ 13 ] Given all of the above, the Court has no other choice but to dismiss Mr Barber's claim against the City of Montreal and Les Excavations Super Inc., due to the absence of evidence establishing any fault but, exercising its discretion, does not allow any costs. This being the case, the action in warranty against Terramex Inc. follows the same result.

THEREFORE, the Court: DISMISSES Paul Sidney Barber's claim against the City of Montreal and Les Excavations Super Inc.; DISMISSES the City of Montreal and Les Excavations Super Inc.'s action in warranty against Terramex Inc.; THE WHOLE , each party paying its own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: February 21, 2012