2020 QCCQ 2257, 2020 QCCQ 2257

Attias c. Tito 2020 QCCQ 2257 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-704451-188 DATE : June 17, 2020 ______________________________________________________________________ PRESIDED BY THE HONORABLE CATHERINE PILON J.C.Q. ______________________________________________________________________ ELIRAN ATTIAS Plaintiff/Cross-Defendant c.

FARHAD TITO Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Eliran Attias and Farhad Tito were neighbors for almost three years. Their relation as neighbors was unfortunately difficult which led Mr. Attias to bring a $10,000 claim against Mr. Tito for harassment. Mr. Tito countered with a cross-claim of $15,000 alleging it was Mr. Attias who was harassing him and causing him to lose enjoyment of his property by being abnormally noisy. Context [ 2 ] Mr.

Attias purchased a new condominium unit in a 51-unit building in February 2017 in which he moved the following April. His unit was situated on the third floor, while Mr. Tito’s unit was on the second floor directly below. Mr. Attias’s unit was unoccupied for two years before he bought it such that Mr. Tito and his family did not have an upstairs neighbor during that period. [ 3 ] According to Mr. Tito, Mr. Attias would host parties with several people who were rowdy. He would walk loudly at night and listen to his television at a sound level so high that he could hear it in his own unit. Mr.

Tito called the police on several occasions, at least 15 to 20 times because of the noise. He also felt that Mr. Attias would purposefully walk by his unit every day although he lived on the floor above. So he had to film him, and that Mr. Attias stole this camera. In addition, he blamed him for having tried to break the front door of the building which he based on surveillance video footage. [ 4 ] According to Mr. Attias, he met Mr. Tito for the first time in the garage of the building on May 1 st , 2017. Mr. Tito told him that the building was improperly built and that the floors were noisy.

He asked him not to wear his shoes in the house and to install carpet. Mr. Tito soon began complaining about hearing footsteps, either by texting Mr. Attias or by knocking on the ceiling. He would often call the police whenever he had anyone over. Mr. Tito would also scream obscenities at Mr. Attias from his balcony and left him a threatening note that he was watching him on camera. Analysis [ 5 ]

Article 976 of the Civil Code of Quebec (the “ CCQ ”) provides the standard of tolerance to which neighbors are subjected: 976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage. [ 6 ] The Court must therefore determine whether the respective behaviors of Mr. Attias and Mr. Tito were reasonable. On the one hand, did Mr. Attias create noise beyond what is to be expected and tolerated within the context of proximity of condominium units? On the other hand, did Mr.

Tito act in such a way in reaction to the noise that this would constitute a fault and harassment of Mr. Attias? [ 7 ] Before analyzing the evidence, which is largely contradictory, the Court deems necessary to lay down the applicable rules of evidence contained in the CCQ : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. [ 8 ] As a result, both parties had the burden of proving the facts in support of their claim.

[ 9 ]

Article 2804 CCQ provides as follows in respect of the degree of evidence required to meet the burden of proof: 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 10 ] Each Mr. Attias and Mr. Tito had the burden of convincing the Court that their version of the facts was more likely than the other version. a. Did Mr. Attias create noise beyond what is to be expected and tolerated within the context of proximity of condominium units? [ 11 ] To support his claim, Mr.

Tito played a number of video recordings at the hearing. In his view, these recordings demonstrate the unreasonable level of noise coming from Mr. Attias’s unit. [ 12 ] The Court does not share this view. [ 13 ] In one of the recordings inside Mr. Tito’s unit, the Court could not hear any noise while listening to the recording contrary to his asssertion. It is only when Mr. Tito walked up to the third floor with his camera that noise could be heard near Mr. Attias’s door. There were also a few other recordings outside Mr. Attias’s door where the television could be heard. [ 14 ] Mr.

Attias confirmed that his television set was located near the door of his apartment. The Court does not believe that he realized that the sound level from his television set could heard outside his door. It would have been a lot simpler for Mr. Tito to kindly advise him that that was the case to allow him to either move the television set to another area of his living room or to lower the volume. [ 15 ] A few co-owners testified that there were occasions when they could hear noise or music coming from Mr. Attias’s unit. However, none of these co-owners who purportedly testified to support Mr.

Tito’s position lived of the third floor where the noise could actually be heard coming from the television set. [ 16 ] According to Mr. Tito, all neighbors in the building complained about Mr. Attias, but the Court was somewhat perplexed that no one living on the third floor, where the alleged noise would have been heard the loudest, testified at the audience. [ 17 ] In respect of Mr. Tito’s complaint about footsteps, when a person chooses to live in an apartment building where there is an upstairs neighbor, it is usually to be anticipated to hear steps.

One cannot expect for somebody not to walk in their own apartment. If Mr. Tito had a particular intolerance to noise, he would have been better advised to choose a place to live without an upstairs neighbor. [ 18 ] The evidence did not support that the noise caused by Mr. Attias’s walking was unreasonable or with the intent to bother Mr. Tito and his family. He would walk without his shoes and usually settle for the night between 11pm and midnight. The Court finds that this was reasonable. [ 19 ] In addition, Mr. Attias cannot be blamed if the building was poorly soundproofed. [ 20 ] Mr.

Tito’s daughter testified that she would constantly hear heavy footsteps during weekdays to an extent where she could not concentrate on her studies. She further testified that Mr. Attias would constantly party and made their life miserable. [ 21 ] The Court cannot give weight to her testimony. [ 22 ] First, Mr. Attias worked every weekday, and only from home once in a while, in addition to sometimes being absent for a number of days because he was travelling for work. It is not possible that Ms. Tito could have heard footsteps during the day as often as she claimed.

Moreover, her testimony appeared so exaggerated and on a mission to support her father’s own testimony that it lost all credibility. [ 23 ] In terms of constantly having parties, the evidence is that Mr. Attias would have three of four friends come over on Saturday evenings and they would listen to music before going out, around 10pm. Mr. Attias was entitled to have guests in his apartment as long as they were not unreasonably loud. Mr. Tito failed to demonstrate by preponderance of evidence that the presence of guests in Mr.

Attias’s unit created the level of noise and annoyance that he alleges. [ 24 ] Another reproach addressed to Mr. Attias by Mr. Tito is that he would take the staircase from the third to the second floor, and then take the elevator on the second floor for the sole purpose of walking in front of Mr. Tito’s unit. He therefore installed a camera above his door with which he would film Mr. Attias every time he walked by his unit. [ 25 ] The Court viewed the entire footage at the hearing. It was a tedious and useless exercise. Mr. Attias is indeed seen on a number of occasions walking by Mr.

Tito’s unit, as he was entitled to as a co-owner given that the hallway forms part of the common areas of the property. This reproach is unfounded. [ 26 ] Mr. Tito also attempted to blame Mr. Attias for having tried to break the front door of the property. In support of his assertion, he played footage of the surveillance camera at the entrance of the building. The footage shows Mr. Attias trying to enter the building by punching a code on an electronic board which is defective and leaves him unable to get in. He has to wait several hours for somebody to eventually come out and let him in.

At one point, he becomes frustrated and tries unsuccessfully to break the door open. [ 27 ] The Court cannot see how this supports Mr. Tito’s assertion that Mr. Attias vandalized the building. In the first place, the door was not broken. In the second place, Mr. Attias was understandably exasperated that he was incapable of getting in. And in any event, it would have been up to the Syndicate to raise this issue had any damage been caused, not Mr. Tito individually as a co-owner. [ 28 ] For all these reasons, the Court finds that Mr. Tito did not meet his burden of proving that the behavior of Mr.

Attias, and in particular the noise that he created, was an annoyance beyond the limit of tolerance that he owed him pursuant to

article 976 of the CCQ .

The fact that Mr. Attias’s unit was unoccupied for two years gave him a false sense of the potential noise level, but this is not something for which Mr. Attias can be blamed. [ 29 ] The cross-claim is unfounded and is dismissed. b. Did Mr. Tito act in such a way in reaction to the noise that this would constitute a fault and harassment of Mr. Attias? [ 30 ] The Court is of the view that Mr. Tito’s behavior amounted to harassment which constituted a fault creating a prejudice to Mr. Attias for the following reasons. [ 31 ] Mr. Tito would knock on the ceiling when he heard footsteps.

He denied this at the hearing, but the preponderant evidence is otherwise. [ 32 ] Mr. Attias played video footage at the hearing recorded before he went to bed. Knocking can distinctly be heard from the floor of Mr. Attias’s bedroom. This knocking necessarily came from Mr. Tito’s unit. He testified that would also hear him screaming when he heard the sound of footsteps. [ 33 ] Mr. Attias’s position is supported by the testimony of his father who indicated that when he would visit his son, he heard Mr. Tito knocking on his ceiling or yelling when he perceived noise.

He tried to have a conversation with him to reason him, but to no avail. [ 34 ] A friend of Mr. Attias also testified of two instances when Mr. Tito expressed his discontent. On one occasion, they were watching a movie at a normal sound level when they heard knocking coming from the ceiling below, and then Mr. Tito came out on his balcony to scream at them. On another occasion, knocking was heard on a Saturday evening as they were getting ready to go out. [ 35 ] The Court does not believe Mr. Tito when he says that he did not knock on the ceiling. The recordings and the testimonies prove it. [ 36 ] Mr.

Attias also produced a video where Mr. Tito can be seen and heard yelling obscenities like “mother fucker” in the direction of Mr. Attias’s balcony while he was having friends over. Mr. Tito admitted this at the audience, but argued that it was not directed at Mr. Attias in particular. Again, this explanation is not credible. [ 37 ] Mr. Tito called the police 15 to 20 times, by his own admission, when Mr. Attias would have friends over. This became so embarrassing to Mr. Attias that he had to stop inviting guests. All these calls were dismissed when the police would arrive at Mr.

Attias’s apartment, except three which led to tickets being issued. These tickets are currently contested by Mr. Attias. [ 38 ] Furthermore, Mr. Attias found a note on his doorstep in November 2017 saying: YOU ARE ON HIDDEN DOOR CAMERA FUCKIN’ GUY!!! WATCH OUT [ 39 ] Mr. Tito admitted having written this note, but denied having left it at the doorstep of Mr. Attias. The Court does not believe this explanation. The installation of the camera targeted Mr. Attias specifically and it was a direct threat against him. The Court believes Mr. Attias that he found the note on his doorsteps. [ 40 ] Mr.

Tito also accused Mr. Attias of stealing the camera he installed on his door and again called the police. Mr. Attias allowed them to search his apartment and they did not find the camera. Mr. Tito eventually withdrew his complaint. Again, the Court views this as an attempt to make life difficult for Mr. Attias. [ 41 ] Mr. Tito’s behavior was menacing and uncooperative. The Court sees it as a way of intimidating a younger man. Notwithstanding the noise, which was not unreasonable, there was no justification in harassing Mr.

Attias the way he did by incessant knocking, yelling, calling the police, and invading his privacy by watching him on camera, including by obtaining the building’s video footage of him without his permission. [ 42 ] As a result of Mr. Tito’s harassment, Mr. Attias sold his unit and as of the date of the hearing, he was to move in March 2020. [ 43 ] The conduct of Mr. Tito engaged his extra-contractual liability to Mr. Attias as provided by

article 1457 CCQ : 1457 . 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. [ 44 ] Accordingly, Mr.

Tito must indemnify Mr. Attias for the prejudice that he has caused him. The Court assesses this prejudice at $2,000, an amount sufficient and reasonable to compensate the harm he suffered.

FOR THESE REASONS, THE COURT : GRANTS in part the Demand of the Plaintiff/Cross-Defendant; CONDEMNS the Defendant/Cross-Plaintiff to pay the Plaintiff/Cross-Defendant $2,000 with interest at the legal rate and additional indemnity provided at

article 1619 of the Civil Code of Quebec since the demand letter of January 16, 2018; CONDEMNS the Defendant/Cross-Plaintiff to pay the Plaintiff/Cross-Defendant the Court costs of $187; DISMISSES the Cross-claim of the Defendant/Cross-Plaintiff. __________________________________ CATHERINE PILON, j.c.q. Date of hearing : January 31, 2020