2012 QCCQ 7095, 2012 QCCQ 7095

Larocque c. Diaz Cortes 2012 QCCQ 7095 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-014669-123 DATE: September 19, 2012 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ TANIA REGINA LAROCQUE and ROBERT LAROCQUE Plaintiffs - Cross-Defendants v.

ALEJANDRO HERNAN DIAZ CORTES Defendant - Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This file raises the question of the jurisdiction of the Court of Quebec, Small Claims Division, in a litigation between two neighbors related to a cedar hedge. THE FACTS: [ 2 ] The parties are neighbors on Lalonde Street, in Vaudreuil-Dorion since May 2006, when Robert and Tania Regina Larocque bought their property.

Alejandro Hernan Diaz Cortes was already the owner of his property since 2002. [ 3 ] Between the two properties is a cedar hedge that was planted in May 1968 by Mr. DeMontigny, the previous owner of Mr. and Mrs. Larocque's property. [ 4 ] A first part of the hedge was cut by Mr. Diaz Cortes before the Larocques bought their house. In 2009, a second part of the hedge was cut and a fence was erected. [ 5 ] On May 7, 2010, Mr. Diaz Cortes informs Mrs. Larocque that he will install a fence and asks her to keep her dog away from the site. [1] Mrs.

Larocque answers by inquiring about what will happen with the hedge. [2] [ 6 ] Mrs. Larocque notices on August 20 th , 2011, that Mr. Diaz Cortes is preparing to cut the hedge. She then calls the police and Mr. Diaz Cortes project is interrupted. On September 12, 2011, as she comes back from a long weekend in the United-States, Mrs. Larocque realizes that the hedge was cut during the weekend. ARGUMENTS OF THE PARTIES AND CLAIMS: [ 7 ] Both parties pretend to be the owners of the hedge. Mr.

Larocque says in a declaration filed as Exhibit P-17 that he does not pretend to be the owner of the hedge, he is the owner of the hedge. [ 8 ] Mrs. Larocque mentions in her testimony at the hearing that she and her husband are owners of the hedge by acquisitive prescription, since the hedge was planted by her predecessor more than 40 years ago. She argues that as Mr. DeMontigny was the owner of the hedge and that he, as well as herself, have always took care of it, they became the owner of it, even if it is planted on Mr. Diaz Cortes' land.

[ 9 ] As mentioned in Mr. Larocque's declaration, he claims not only monetary damages, but also that the Court "settles our claim to reverse the Defendant's encroachment on our property" , regarding Mr. Diaz Cortes' fence. [ 10 ] Mr. Diaz Cortes relies on two certificates of location that prove, according to him, that the hedge is on his property. [ 11 ] Mr. and Mrs. Larocque claim 7000$ as damages from Mr. Diaz Cortes, who illegally cut their hedge, replaced it by a wooden fence, and deprived them of their privacy. [ 12 ] Mr. Diaz Cortes, in a Cross-Demand, also claims 7000$ from Mr. and Mrs.

Larocque, part of it being the cost of the equipment he rent to cut the hedge on August, 2011, and that he had to stop because Mrs. Larocque called the police. He also claims the cost incurred to consult a lawyer, and damages for tarnish to his reputation, because the police was called, and various trouble and inconveniences.

It can be noted that the Small Claims Division does not have jurisdiction to hear suits for slander, as per s. 953 of the Code of civil procedure. [ 13 ] The Court has to decide first if it has jurisdiction to hear this litigation, as the parties clearly do not agree on the ownership of the hedge. [ 14 ]

Section 953 of the Code of civil procedure defines the jurisdiction of the Court for " the money claimed in an action involving a small claim, that is (

a) a claim not exceeding $7000, exclusive of interest". [ 15 ] In 2008, Justice Richard Landry in Gauvreau v. Clec'h explains the law regarding the jurisdiction of the Small Claims Court, after studying various authorities on the matter. He says that the Small Claims Court can judge a recourse in damages taken by an owner against another when the suit is based on a title that appears to be clear.

Inversely, if the titles are ambiguous or contentious, or if the dividing line between the properties is contested, the validity of titles or the exact location of a dividing line have to be clarified by the Tribunal that has the jurisdiction to do so, before it can be decided on the damages claimed [3] . [ 16 ] This Court has also consulted the judgment rendered in Bergeron v. Laliberté , which is very similar to this file [4] . In that decision, Mr. Bergeron was suing three of his neighbors that had cut a cedar hedge. Both Bergeron and Laliberté pretended to be the owners of the hedge.

Justice Alain Trudel said that the proof he heard clearly showed that the parties were contesting the dividing line between their properties. In those circumstances, he decided that before the Court could determine if the cutting of the hedge was or not

an act of possession or an intrusion on someone else's property, an hearing before the competent jurisdiction had to take place first, in order to establish the dividing line. [ 17 ] Mrs. Larocque pleaded at the hearing a similar case, Daviault v. Boisvert [5] . This case was heard by the Court of Quebec, civil division, and not before the Small Claims Division. Also, the location of the hedge was not in dispute. [ 18 ] The Court cannot decide if Mr.

Diaz Cortes committed a fault in cutting the hedge if it is not established first whether or not he is the owner of such hedge. [ 19 ] This question cannot be decided by the Small Claims Division, and in consequence, both the Demand and the Cross-Demand will be dismissed as being premature. [ 20 ] The Court will reserve the parties' rights against each other until such determination is made.

FOR ALL THESE MOTIVES, THE COURT: DISMISSES Plaintiff's claim; DISMISSES Defendant's cross-demand; RESERVES parties' rights against each other; THE WHOLE , each party paying its own costs. __________________________________ CÉLINE GERVAIS, J.Q.C.