2019 QCCQ 2862, 2019 QCCQ 2862

Choueke Legal Inc. c. Ville de Montréal 2019 QCCQ 2862 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702356-173 DATE: May 10, 2019 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ CHOUEKE LEGAL INC. Plaintiff v.

VILLE DE MONTRÉAL Defendant ______________________________________________________________________ RECTIFIED JUDGMENT [1] ______________________________________________________________________ [ 1 ] Choueke Legal Inc. ( Choueke Legal ) is suing the Ville de Montréal (“ City of Montreal ” or “ City ”) for $2,218.28 on the basis of damages principally sustained to a vehicle that it owns and that were allegedly caused by a very large pothole in the road.

Question in Issue Has Plaintiff proven that the circumstances of the incident, including the presence and magnitude of the pothole in question, constituted a gross fault on the part of the City? Context [ 2 ] Choueke Legal is a law firm owned and operated by Mr. Eric Choueke, attorney and member of the Quebec Bar. In order to render its services, Choueke Legal owned and operated a vehicle, namely a BMW 535 IX, model 2011 [2] (“ vehicle ”). [ 3 ] On January 30, 2017, Mr.

Choueke was carrying out his usual morning week-day routine, which includes driving the vehicle from his home in the City of Côte Saint-Luc, a West End municipality adjacent to the City of Montreal, dropping off his children at school and then heading off to work downtown. A usual part of that route is to drive on a segment of Côte-Saint-Luc Road located in the City of Montreal. [ 4 ] At 9:15 a.m. on that day, while driving on Côte-Saint-Luc Road at a normal speed, approximately at the corner of Grand Boulevard, he states that his vehicle suddenly fell into a wide hole in the pavement surface of the street.

He refers to a “giant hole” and a circular “crevasse” in the road surface. The two (2) front wheels fell first into the hole and sustained the principal impact. The whole car shook.

[ 5 ] Immediately after that impact, while continuing to drive, the car began to shake and Mr. Choueke heard, for the first time, unusual creaking sounds from the front of the car. [ 6 ] Mr. Choueke immediately drove the vehicle slowly to his mechanic. [ 7 ] Upon examination of the vehicle, which included lifting it on an hydraulic mount, the mechanic informed Mr. Choueke that the two (2) front strut arms of the vehicle, which form part of its suspension system, were broken and had to be replaced. [ 8 ] The mechanic informed Mr.

Choueke that immediate repairs were required and that the car could not be driven in its broken state. Mr. Choueke authorized the repair work for the vehicle. [ 9 ] Mr. Choueke was obliged to take Uber rides to his work and for the next day in order to get to work and perform his responsibilities as an attorney. The cost of the Uber rides was $43.75 ($14.52 + $9.26 + $20.01) [3] . [ 10 ] On January 31, 2017, Mr. Choueke took possession of the repaired vehicle.

The total cost of the repairs was $1,218.28 [4] . [ 11 ] Choueke Legal also claims $956.25 for trouble, stress and loss of time caused by the incident and the repair to the vehicle. [ 12 ] The total amount of damages claimed by Choueke Legal is therefore $2,218.28. [ 13 ] On February 14, 2017, Choueke Legal gave the required notice of a claim to the City. Annexed to the claim was the invoice for the car repairs of $1,218.28. [ 14 ] On June 6, 2017, the City notified Choueke Legal that its claim was rejected. [ 15 ] On July 14, 2017, Choueke Legal filed the present legal proceedings.

Analysis and Decision Has Plaintiff proven that the circumstances of the incident, including the presence and magnitude of the pothole in question, constituted a gross fault on the part of the City? [ 16 ] The City pleads that Choueke Legal’s recourse is unfounded in fact and law on the basis of Articles 585 (7) and 604.1 of the Cities and Towns Act ( CTA ). These articles read as follows:

(7) Nonobstant toute loi générale ou spéciale, aucune municipalité ne peut être tenue responsable du préjudice résultant d’un accident dont une personne est victime, sur les trottoirs, rues, chemins ou voies piétonnières ou cyclables, en raison de la neige ou de la glace, à moins que le réclamant n’établisse que ledit accident a été causé par négligence ou faute de ladite municipalité, le tribunal devant tenir compte des conditions climatériques. 585

(7) Notwithstanding any general law or special Act, no municipality may be held liable for damage resulting from an accident, of which any person is the victim, on the sidewalks, streets, roads, walkways or bikeways, by reason of the snow or ice, unless the claimant establishes that the said accident was caused by the negligence or fault of the said municipality, the court having to take into account the weather conditions. 604.1 La municipalité n’est pas responsable du préjudice causé par la présence d’un objet sur la chaussée ou sur une voie piétonnière ou cyclable.

Elle n’est pas non plus responsable des dommages causés par l’état de la chaussée ou de la voie cyclable aux pneus ou au système de suspension d’un véhicule . 604.1 The municipality is not liable for damage caused by the presence of an object on the roadway or on a walkway or bikeway.

Nor is it liable for damage caused by the state of the roadway or bikeway to the tires or suspension system of a vehicle . [Emphasis added.] [ 17 ] As regards the condition and maintenance of its public roads, a municipality has a duty of prudence and diligence with respect to the users of such roads but which duty is subject to the applicable legislation [5] . [ 18 ] This obligation results from the application to municipalities of

Article 1457 of the Civil Code of Quebec ( C.C.Q. ) which reads as follows: Toute personne a le devoir de respecter les règles de conduite qui, suivant les circonstances, les usages ou la loi, s’imposent à elle, de manière à ne pas causer de préjudice à autrui. Elle est, lorsqu’elle est douée de raison et qu’elle manque à ce devoir, responsable du préjudice qu’elle cause par cette faute à autrui et tenue de réparer ce préjudice, qu’il soit corporel, moral ou matériel.

Elle est aussi tenue, en certains cas, de réparer le préjudice causé à autrui par le fait ou la faute d’une autre personne ou par le fait des biens qu’elle a sous sa garde. Every person has a duty to abide by the rules of conduct incumbent on 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 liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [ 19 ] This rule of law applies to municipalities but its application is subject to the special laws by which they are constituted and other laws which may be applicable [6] .

Article 1376 C.C.Q. [7] states as follows: Les règles du présent livre s’appliquent à l’État, ainsi qu’à ses organismes et à toute autre personne morale de droit public, sous réserve des autres règles de droit qui leur sont applicables. The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them.

[ 20 ] Accordingly, the special legislative immunity granted to a municipality by

Article 604.1 C.T.A. is in respect to conduct or omission of the municipality which could be qualified as negligence under

Article 1457 C.C.Q. [ 21 ] Nevertheless, the jurisprudence is clear that

Article 604.1 C.T.A. does not provide a blanket immunity to municipalities regarding any damage to a suspension system of a vehicle. [ 22 ] In particular,

Article 604.1 C.T.A. does not operate to exclude liability of a municipality with respect to its gross negligence [8] . [ 23 ] The applicable rule is set out at

Article 1474 C.C.Q. which also defines the term of “gross fault” in Quebec law. This

article reads as follows: Une personne ne peut exclure ou limiter sa responsabilité pour le préjudice matériel causé à autrui par une faute intentionnelle ou une faute lourde; la faute lourde est celle qui dénote une insouciance, une imprudence ou une négligence grossières.

A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence. [ 24 ] In its Court action, the Plaintiff specifically alleges the commission by the City of gross fault in the circumstances [9] . The burden of establishing a gross fault by the City rests on the Plaintiff [10] .

Gross Fault [ 25 ] Upon review of the evidence of the incident, the Court is of the view that Plaintiff has established the commission of a gross fault on the part of the City, for the following reasons: 1) According to the evidence, the hole or the absence of pavement in the road that damaged the vehicle was exceptionally large. Mr. Choueke testified that the hole was at least six feet in diameter (or the width of separation between the wheels of the vehicle) and between six (6) inches and one (1) foot in depth. It resembled more of a crater in the road than a “standard” pothole.

The photographs filed into Court of the repaved area confirm that approximate size [11] . To repair the hole or lack of pavement of this size, the photographs confirm that the City excavated an area of approximately ten (10) square feet around the hole without pavement, filled in that area and then put an entirely new road surface to eliminate the hole; 2) At the time of the incident, according to the testimony of Mr.

Choueke, there were no cones or barriers placed by the City to warn drivers of the existence of the crater in the road surface or to warn them to navigate around it in order to avoid damage to their vehicles; 3) According to the evidence, and this was admitted by the City’s representative, the road in question, Côte-Saint-Luc Road (Chemin de la Côte-Saint-Luc) is a principal artery in the West End of Montreal for drivers and vehicular traffic.

It is in constant use by drivers going to and from the City of Côte Saint-Luc, the Town of Montreal West, the Town of Hampstead and the City of Montreal’s Borough of Notre-Dame-de-Grâce/Côte-des-Neiges to the principal roads and highways that connect to downtown Montreal. It is necessarily a high volume and essential roadway for thousands of motorists who use it every day. It is not a secondary or side road.

The Courts have decided that the high volume use or strategic location of a road is a factor to be considered in the evaluation of whether a gross fault was committed by a municipality [12] ; 4) The type of damage sustained by the suspension system of the vehicle objectively supports the excessive physical magnitude and dimension of the hole in the road in issue. The damage to the vehicle’s suspension system did not result from multiple impacts with conventional potholes over time [13] . Instead, the damage occurred in one moment when the vehicle “fell” into the road crater.

The two front strut arms of the car immediately

broke. The mechanic who examined the vehicle immediately after the incident ascertained that the damage rendered the vehicle unfit to drive; 5) Given its magnitude and size, it is clear that the hole in the pavement did not appear suddenly or overnight. It existed for some time. According to the weather report filed [14] , there were no dramatic changes or inclement weather conditions in the days previous to the incident. Despite the continued existence of the hole, the City did not proceed to make any repairs.

As previously noted, neither did the City place cones or other barriers to warn drivers of the existence of the hole; 6) The City’s representative acknowledged that it had received, previous to the incident, recurrent calls regarding the condition of the pavement surface of Côte-Saint-Luc Road. However, the City chose not to make any proof regarding (

i) the nature or number of maintenance interventions deployed by the City with regard to the hole in question, nor (ii) efforts or work carried out to ensure the regular maintenance of the pavement surface on the road in question. Damages [ 26 ] Mr. Fernand Wagner is a car mechanic expert retained by the City. He testified that part of the vehicle repair work claimed was, in all probability, unrelated to the incident. In particular, Mr. Wagner stated that the removal and replacement of an ABS sensor on the vehicle was unconnected to the incident. Plaintiff objected to this testimony since Mr.

Wagner did not examine the vehicle. However, the preponderance of the evidence supports Mr. Wagner’s view in that regard. The Court will therefore not grant the claim for the charges regarding the replacement and repair of the ABS sensor ($127.80 + $75, plus taxes) [15] . [ 27 ] Mr. Wagner’s testimony did however confirm that the damage to the two struts of the vehicle was consistent with the type of incident described by Mr.

Choueke. [ 28 ] As the Uber charges ($43.75) are reasonable and were incurred because the vehicle was out of commission and non-operational as a result of the incident, they will be granted. [ 29 ] The Court will not grant the amount claimed for trouble, stress and loss of time. The owner of the vehicle is a corporation having a legal personality distinct from that of the driver. Moral damages of a company are not in principle claimable [16] .

There was no evidence that Choueke Legal itself suffered alleged damages of trouble, stress or loss of time. [ 30 ] The damages caused by the incident are: • Replacement of two (2) front strut arms (both sides) (parts) $536.80 • Removal of old strut arms and installation of new ones (labour) $225.00 • Wheel realignment $75,00 Total (not including taxes) : $836.80 Depreciation of the claim as a result of the age of the vehicle [ 31 ] In determining the amount of damages, the Court must take into account the factor of depreciation of the vehicle at the time of

the incident. At that date, the vehicle was six (6) years old. [ 32 ] The evidence presented to the Court was contradictory as to the normal duration of expected use of a suspension system in the type of car concerned. Mr. Wagner, the City’s car mechanic expert, testified that city driving tends to increase the rate of deterioration of a suspension system more than highway driving. Mr. Choueke stated that 40% of his driving in the vehicle is normally on the highway. [ 33 ] Mr. Choueke stated that he always ensured that his car was maintained at the highest level.

He also emphasized that the vehicle in question is a luxury brand and is known for the high quality of its manufacturing. [ 34 ] The Court arbitrates that the normal duration of the expected use of the suspension system of the vehicle was twelve (12) years. In order to avoid an enrichment by Choueke Legal, the Court will reduce the amount claimed for the replacement struts by 50%.

The Court will therefore grant $268.40 instead of the $536.80 claimed in that regard. [ 35 ] In the circumstances, there is no reason to depreciate the labour costs for the installation of the replacement struts or for the wheel alignment since these services were rendered necessary by the premature damage to the vehicle caused by the incident. [ 36 ] Accordingly, Plaintiff has established damages of $697.26 ($268.40 + $225 + $75 = $568 .40 + $85.11 (GST: $28.42; QST: $56.69)) + $43.75 .

FOR THESE REASONS, THE COURT: CONDEMNS the Ville de Montréal to pay Choueke Legal Inc. $697.26 , with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the date of the Notice of Claim [17] dated February 14, 2017; CONDEMNS the Ville de Montréal to pay Choueke Legal inc.’s legal costs of $150 (Court Stamp Fee). __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: April 8, 2019