2022 QCCQ 638, 2022 QCCQ 638

Jean c. St-Mary's Hospital 2022 QCCQ 638 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-708453-198 DATE : February 23, 2022 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ ANAISE PIERRE JEAN Plaintiff c.

ST-MARY’S HOSPITAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims the bodily injuries suffered on the grounds of the Defendant. [ 2 ] The Defendant contests the claim on the basis that no fault was committed by it, the equipment was working properly and the Plaintiff was the author of her misfortune.

The context [ 3 ] On October 14, 2016, in the afternoon, the Plaintiff and her husband Jeremiah Desmarais visit the latter’s grandmother hospitalized at St-Mary’s. [ 4 ] With the help of the photos [1] , the Plaintiff explains that on the date of their visit they parked their car on Lacombe Street, a one way street from West to East, to enter St-Mary’s by the Lacombe entrance. [ 5 ] As their car was parked East of the entrance, the view they have is similar to the one depicted in photo E. [ 6 ] When they arrived at the car ramp, the Plaintiff states that on the right side of this car ramp, the yellow jerseys that we see on several photographs were on the right side, along the sidewalk.

The Plaintiff assumed that the sidewalk was obstructed. [ 7 ] She decided to take the car ramp and as she was walking, she was violently hit on the head by the gate arm, causing her to fall and sustain the injuries for which she claims. [ 8 ] She believes having lost consciousness, as she came to in the grandmother’s hospital room. [ 9 ] Following this incident, she experienced pounding headaches and nausea. [ 10 ] She consulted a doctor at the Merrimack Valley Hospital [2] , subsequently referred to Boston University Hospital [3] . [ 11 ] The Plaintiff was in therapy twice a week for a period of approximately six weeks during which she was unable to work.

She claims the reimbursement of her medical expenses, totalling $2,947.15 [4] , her loss of income of $7,380 and the plane tickets to return home for her and her spouse of $2,994.94 [5] . [ 12 ] Mr. Desmarais, who testified at the hearing, states that when they engaged the car ramp he noticed that a security guard, who was later identified as Mr. Alexandre Rozon was standing right next to the gate.

He said hello to him and when the gate arm fell, said “I’m sorry”. [ 13 ] Also, next to the sidewalk a car was parked on the right side of the car ramp at the beginning of the entrance, which is identified by X on the photograph [6] . M. Rozon was identified by the dot on that same photograph. [ 14 ] Mr. Desmarais was walking ahead of the Plaintiff when he heard her cry out. When he turned, he saw his wife on the ground. [ 15 ] Mr. Desmarais concluded by saying that he visited his grandmother on a number of occasions and they always used the same entrance.

[ 16 ] Ms. Huguette Desmarais, who, at the time of the incident, was visiting her mother. She states that for one month, every day, 30 to 40% of the time the gate was not working properly. At least three or four times she was able to use the car ramp without having to take a ticket and pay. [ 17 ] The Defendant’s witnesses present a different set of facts. [ 18 ] As appears from the photos, on the left of the car ramp are yellow jerseys placed in an L shape next to the Amano gate control box. M.

Roger Wan responsible for the installations, is categoric that the yellow jerseys are always on the left side next to the gate control box and never on the right side. [ 19 ] On the right side are orange cones.

These cones can be easily removed to allow emergency vehicles to go up the ramp without having to go through the gate. [ 20 ] Jean-Philippe Guay-Glaude, St-Mary’s representative, provides the Court with the entry and exit statistics [7] indicating that on the day of October 14, 2016, the gate was operational. 58 cars entered the gate in the one-hour period when the Plaintiff arrived at St- Mary’s. [ 21 ] Mr. Guay-Glaude also confirms that the only security agent on duty that day is Mr. Rozon. [ 22 ] Mr. Rozon also testified and is categoric that on the day of the event he never met the Plaintiff or Mr.

Desmarais. [ 23 ] He explains that he is usually next to the entrance as a valet parking is available for visitors. Next to this entrance is the key box. [ 24 ] On the day of the incident, he did receive a report of the incident and no other security agent replaced him. [ 25 ] Mr. Wan also provides the Court with the contract signed with AV-Tech Inc. who is responsible for the maintenance of the Amano gate [8] . Routinely, three inspections are done per year and AV-Tech Inc. is called for any emergency repairs. No service call was made in that period. [ 26 ] Mr.

Wan explains that the gate arm is opened when a ticket is issued at the ticket dispenser located next to the jerseys. The car is stationary at loop-A and a gate open signal is sent to raise the gate arm. The car then proceeds forward under the gate arm which will close when the end of the car is at loop-C, a distance of approximately 12 to 14 feet, which must be crossed by the vehicle to activate the gate arm to close. [ 27 ] Mr. Vladimir Osias, head of security, confirms to the Court that he was never advised of an incident occurring on that date. [ 28 ] Mr.

Laurent Lessard, claims adjuster for IndemniPro, provide the Court with photos [9] extracted from Google View showing the entrance in May 2015, July 2016, September 2016 and July 2017.

Throughout, the jerseys are always on the left of the car ramp and the orange cones always on the right of the car ramp. [ 29 ] In civil matters, the person who wishes to assert a right has the burden of proving, on a balance of probabilities, the facts upon which the claim is based [10] . [ 30 ] To meet this burden, the evidence offered must be clear and convincing; the alleged facts must not only be possible, but probable [11] . [ 31 ] The Court has no hesitation in concluding that the Plaintiff did fall, however, she did not meet the burden of proof required to show that a fault was commited by the Defendant. [ 32 ] The only hypothesis the Court may suggest is that the Plaintiff crossed the gate when the gate arm was up possibly because a car had entered the car ramp and was moving ahead. [ 33 ] The fact that a security agent was standing near the ticket dispenser was contradicted by the Defendants who in addition testified to the fact that there was no mechanical problem with the gate arm. [ 34 ] The Court concludes that the Plaintiff was the author of her misfortune, as she should have taken the more secure route, which was the sidewalk and not the car ramp.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff recourse; WITH COSTS in the amount of $308 representing the judicial stamp of the Contestation. ________________________ DIANE QUENNEVILLE, J.C.Q.

Date of hearing: December 3, 2021