2023 QCCQ 4000, 2023 QCCQ 4000

Bassel c. Kakone 2023 QCCQ 4000 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-266493-215 DATE: June 15, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ FONDA SIEGEL BASSEL Plaintiff v.

ANNIE KAKONE and ABRAHAM ALBERT MALKA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On July 24, 2019, defendant Abraham Malka left the following voice mail on plaintiff’s lawyer’s phone: “Good afternoon Sir. My name is Abraham Malka. I’m calling you about the file n o 500-22-266493-215 concerning a property that I sold 2 years ago on 41 Cleve. You sent me a lawsuit for $90,000.00, because I cut 2 small trees that belongs into my property, and I put a fence to protect my family.

So I don’t know where you came up from, that this guy who sent… your claim, you can tell him he’s gonna get a dick up his ass you motherfuckers. K? You’re not gonna get nothing from me, you or him. You can go to hell. I’m gonna take you to Court. You send me a letter of lawyers. You can go fuck yourselves, too.” [ 2 ] These highly offensive words, both vulgar and disturbing, constitute the backdrop of this case.

THE FACTS [ 3 ] Plaintiff is the owner of a property situated at [...], in the City of Hampstead. [ 4 ] At all relevant times, defendant Annie Kakone was the owner of [...], Hampstead, which is situated directly behind plaintiff’s property. Malka is Kakone’s husband. [ 5 ] In July, 2016, defendants, who had recently moved into [...], decided to erect a fence between the 2 properties. In the process, and as admitted by Malka in the above voice mail, defendants and their workers cut down trees (cedars) belonging to plaintiff.

More particularly, Malka and the workers (pre-trial examination, pages 9, 15, 16, 26, 28) trespassed on plaintiff’s property and obliterated 7 mature cedars, 4 meters wide and 2 meters high, the whole without prior written notice to or authorization from plaintiff (this was contrary to the conditions attached to city permit, exhibit P-11b). [ 6 ] When plaintiff witnessed this, she ran outside in a state of shock and panic to demand that Malka and his workers stop doing what they were doing.

Plaintiff declared feeling very “upset” and “horrified” at the time. [ 7 ] On August 2, 2016, plaintiff sent defendant the following demand letter (exhibit P-1):

Dear Madam: We have been requested by our clients Ms. Fonda Siegel Bassel and Howard Bassel, residing at [...], Hampstead, Quebec, to communicate with you in respect to the following matter. Our clients have recently determined that you and/or your duly authorized representatives for who you are all responsible have proceeded without colour of right and without our clients knowledge or consent to destroy a substantial number of mature trees bordering the rear of our clients’ immoveable property.

As you are well aware, all of said affected trees have at all times formed part of and are located on our clients’ immoveable property. Your aforesaid illegal actions have served to cause to our clients a most serious prejudice. Our clients are currently in the process of assessing the full extent of the damages which they have sustained as a direct result of your said illegal actions and we will shortly advise you of the outcome of said assessment.

In the interim, you are hereby called upon to communicate with the undersigned in order that the appropriate steps may be taken to amicably resolve this matter to our clients’ satisfaction and thus avoid the necessity of instituting legal proceedings. You are hereby requested to govern yourselves accordingly . (sig.) GORDON ZELMAN [ 8 ] Defendants did not bother to respond. [ 9 ] Believing that the cedars would grow back, other than to consult an arboriculturist, who told them that they would grow back, plaintiff did not take any remedial action until 2019.

However, when plaintiff realized that this wasn’t the case, she instituted proceedings against Kakone, on July 15, 2019. [ 10 ] Following the suit, Malka went to plaintiff’s home, and proceeded to grievously insult her and her family; and then called plaintiff’s lawyer, and left the above-cited disturbing and verbally violent message. [ 11 ] Clearly, defendants had no intention of conducting themselves in a responsible, reasonable and neighbourly manner. [ 12 ] On September 25, 2020, defendants filed these very laconic oral grounds of defence: 1.

Plaintiff authorized Defendant Abraham Albert Malka to cut the branches that were on his side of the property; 2. Plaintiff’s claim is clearly frivolous, replete with false allegations, ill founded and devoid of evidence as per Defendants' expert report; 3. The damages claimed are exaggerated, absurd and unsupported by evidence having no legal ground; 4. Specifically as concerns Defendant Abraham Albert Malka, the claim is prescribed; 5.

Defendants hereby specifically reserve their right to claim their legal fees in light of the Plaintiffs’ abuse of procedure pursuant to 51 and 341 CPC. [ 13 ] The proceedings were tense and lengthy. The trial itself lasted 4 ½ days, despite the Court’s recommendation that the parties attempt to settle the matter amicably. DISCUSSION AND CONCLUSION A.

LIABILITY [ 14 ] First of all, the Court wishes to underscore that it accords absolutely no credence or credibility to Malka’s testimony. [ 15 ] Anyone who behaves as he did (trespassing on neighbour’s property; destroying neighbour’s property; disregarding neighbour and her property; insulting neighbour and her family; showing arrogance both at pre-trial examination (page 19, question and answer 41, and page 28) and at trial, when he sarcastically stated that he used the severed branches to make soup, adding, « Je lui ai dit d’aller se faire foutre en anglais . », and saying to the lawyer, « Je vous ai dit que vous êtes un imbécile ») does not deserve to be believed.

These are not the words and actions of a respectful and responsible neighbour or individual. [ 16 ] At her pre-trial examination (page 19, Q. 97), Kakone stated, “My husband is a good man, he’s a good neighbour”. The evidence proved otherwise. [ 17 ] What is more, Malka’s testimony was rife with contradictions. At trial, he stated, “I never cut no branches.”, although at his pre-trial examination (transcript, pages 9, 15, 16, 17, 18 and 19) and when he left the above-cited phone message, he said the contrary. [ 18 ] At trial, Kakone also admitted, on more than one occasion, that her husband felled the cedars.

[ 19 ] Sections 985 and 1457 of the Civil Code of Quebec read as follows: 985. If branches or roots extend over or upon an owner’s land from the neighbouring land and seriously obstruct its use, the owner may request his neighbour to cut them and, if he refuses, compel him to do so. If a tree on the neighbouring land is in danger of falling on the owner’s land, he may compel his neighbour to fell the tree, or to right it. 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. [ 20 ] Neither Kakone nor Malka acted accordingly. [ 21 ] Moreover, s. 1480 and 1526 C.C.Q. state the following: 1480.

Where several persons have jointly participated in a wrongful act or omission which has resulted in injury or have committed separate faults each of which may have caused the injury, and where it is impossible to determine, in either case, which of them actually caused the injury, they are solidarily bound to make reparation therefor. 1526.

The obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra-contractual. [1] [ 22 ] Defendants would have the Court believe that Kakone is not liable, as she did not participate in the felling of the vegetation. [ 23 ] The Court does not believe this for an instant. [ 24 ] It is clear from the evidence that the internal and external renovation of [...], including the installation of the fence, was a joint project of the defendants, and that they made decisions together (pre-trial examination of Kakone, p. 10, Q.41; p. 11, Q.45; p. 12, Q.49). [ 25 ] Furthermore, at trial, Kakone made numerous statements to the effect that she was clearly involved in the installation of the fence: she signed the contract with Clôtures Montréal Inc. (exhibit P-10); she applied for and obtained the permit from the City of Hampstead (exhibit P-11); she, along with Malka, gave instructions to the workers; she supervised the work from inside the house; and she called Bell and Hydro-Québec. [ 26 ] The defendants would also have the Court believe that they are not liable, as they only used scissors and a rake on plaintiff’s property.

This cannot be the case, as the destruction of the vegetative wall and felling of the cedars, as seen in all of the pictures filed into evidence, clearly required the use of more than just scissors and a rake. B. PRESCRIPTION [ 27 ] As regards prescription, there is none, in virtue of s. 2892 and 2900 C.C.Q.: 2892. The filing of a judicial application before the expiry of the prescriptive period constitutes a civil interruption, provided the demand is served on the person to be prevented from prescribing not later than 60 days following the expiry of the prescriptive period.

Cross demands, interventions, seizures and oppositions are considered to be judicial applications. The notice expressing the intention by one party to submit a dispute to arbitration is also considered to be a judicial application, provided it describes the subject matter of the dispute to be submitted and is notified in accordance with the rules and time limits applicable to judicial applications. 2900.

Interruption with regard to one of the creditors or debtors of a solidary or indivisible obligation has effect with regard to the others. [ 28 ] As per defendants’ admissions, prescription of plaintiff’s recourse was acquired on August 1, 2019 (defendants’ pleadings, par. 20). [ 29 ] Plaintiff filed her originating motion on July 8, 2019. Accordingly, prescription with regard to both defendants was interrupted at that date. [2] C.

DAMAGES [ 30 ] The amount of the claim is exaggerated. • Material Damages [ 31 ] Given that the expert reports were, for all intents and purposes, diametrically opposed, the Court appointed its own expert, with a view to shed light on the true nature and extent of the damages.

[ 32 ] The conclusions of the Court-appointed expert, Bruno Paquet, are as follows: 11. PRÉJUDICE TOTAL Après avoir considéré les coûts et charges et pris en compte les facteurs de condition et de localisation établis précédemment, j’établis la valeur monétaire totale du préjudice subi par madame Bassel à 14 700 $ . Ce résultat est détaillé dans la fiche Valeur de remplacement composée, constituant l’Annexe IX. 12.

DOMMAGES EXEMPLAIRES Considérant que les employés du défendeur ont nécessairement dû traverser la ligne de propriété et empiéter sur le terrain du plaignant, une réclamation peut également être exercée sous la forme de dommages exemplaires découlant de la disposition légale connue sous le nom de Loi sur la protection des arbres. 13. BREF COMMENTAIRE SUR LES RAPPORTS DES EXPERTS L’approche retenue dans chacun des rapports préconisait l’enlèvement de la haie dans sa totalité et l’implantation d’une nouvelle haie de cèdres (10 à 14 arbres).

Dans un cas, ces plants de grande dimension aurait nécessité l’utilisation d’une grue afin de déplacer ces arbres massifs dans la cour. Ce qui m’est apparu déraisonnable dans le contexte en plus d’avoir un impact négatif majeur à court et moyen terme sur l’apparence de la cour pour la plaignante. (report dated October 13, 2022) [ 33 ] Paquet testified at trial, and confirmed all of the above. [ 34 ] In par. 53 of her re-amended originating application dated December 21, 2022, plaintiff made the following admission: 58.

Plaintiff reiterates that she has no desire to plant new cedars only to affect their changes of thriving and, accordingly, accepts Mr. Paquet’s opinion, with respect to the height of the cedars, as prudent and reasonable; 59. Accordingly, Plaintiff accepts Mr.

Paquet’s opinion with respect to the assessment of her material damages at $14,700 (section 1 of the report); [ 35 ] Accordingly, the Court awards plaintiff material damages in the amount of $14,700.00. [ 36 ] In addition to material damages, plaintiff is claiming moral and punitive damages, as well as experts’ fees. • Moral Damages [ 37 ] Plaintiff is claiming $27,500.00 for moral damages, past and future. [ 38 ] Plaintiff alleges stress; loss of privacy and function of the cedar wall; loss of enjoyment of the backyard and the aesthetic beauty of the cedar wall; loss of time; and a reduction in the value of her property. [ 39 ] More specifically, plaintiff’s damages are broken down, as follows, in par. 66 of her re-amended application: 66.

In liqht of the forqoinq, Plaintiff requests that this Honourable Court condemn Defendants solidarily to pay Plaintiff moral damages in the sum of $27,500 , with legal interest and the additional indemnitv as of the judgment: a. $500 per year for 5 vears (qiven the five summers where Plaintiff loss enjoyment of her backyard since the incident occurred in 2016) totalinq $2500; b. $3000 per year for the next 5 vears (qiven the siqnificant temporary loss of privacv and aesthetic loss to occur followinq the transplant) totalinq $15,000; c. $1500 per year for the following 5 vears (qiven the reduced loss of privacv and aesthetic loss) totalinq $7500; d. $500 per year for the last 5 vears (qiven the reduced loss of privacv and aesthetic loss) totalinq $2500; [ 40 ] There is no doubt that plaintiff lost enjoyment of her property and incurred much stress, trouble and inconvenience, as a direct and immediate result of defendants’ faults and omissions.

[ 41 ] Plaintiff’s testimony, as well as that of her witnesses Howard Bassel, Chelsea Bassel, Neil Siegal, Michael Morris, Robert Cantatore, Giovanni Narducci and Allessandro Ventura, clearly demonstrated the extent to which she was affected by the loss of privacy and the partial loss of the garden’s aesthetics (arts. 2803 and 2804 C.C.Q.). [ 42 ] However, in order to quantify said damage in an equitable manner, the Court must take into account the fact that, up to the date of the trial, plaintiff had taken no remedial steps to speak of in order to mitigate the damages. [ 43 ] Plaintiff and her husband cited several reasons for not having done so; however, these actions and decisions belong solely to them and cannot be invoked to justify their failure to act sooner (s. 1479 C.C.Q.). [ 44 ] The Court must also take into account the fact that expert Paquet’s monetary assessment is based, in part, on the loss of privacy and of the aesthetics suffered by plaintiff (pages 6 and 7). [ 45 ] That being said, the Court must also factor into its assessment of the damages, defendants’ bad faith and egregious behavior, and, based on Paquet’s comments in

section 10 of his report (page 9), awards plaintiff an aggregate amount of $15,000.00 ($3,000.00 per year x 5 years) as reparation for the stress, trouble, inconvenience and loss of privacy and quality of life incurred. • Punitive damages under the Tree Protection Act [3] [ 46 ] An additional amount of $500.00 is granted to plaintiff under the Tree Protection Act . • Expert Fees [ 47 ] Given the diametrically opposed opinions and conclusions of the parties’ respective experts and given that they were of limited use, the Court shall only partially grant the expert fees incurred by plaintiff, namely an amount of $3,000.00 (vs $6,383.99, invoice exhibit P-30). [ 48 ] However, defendants are also liable for the entirety of Bruno Paquet’s fees, totalling $2,255.00.

WHEREFORE THE COURT HEREBY: GRANTS , in part, Fonda Siegel Bassel’s originating application as re-amended on December 21, 2022; CONDEMNS Annie Kakone and Abraham Albert Malka jointly and severally to pay Fonda Siegel Bassel the sum of $30,200.00, plus interest at the legal annual rate and the additional indemnity provided for in

section 1619 of the Civil Code of Quebec , from July 11, 2019; [ 49 ] THE WHOLE , with legal costs, plus $3,000.00 for Karl Goupil’s fees and $2,255.00 for Bruno Paquet’s fees. __________________________________ ELIANA MARENGO, J.C.Q. Me Louis Chronopoulos SEGAL SANTILLO s.e.n.c. Lawyers for Plaintiff Me Christina Muccari LEGAL LOGIK INC. Lawyers for Defendants Dates of hearing: May 3, 4, 5, 6, 2022, and March 22, 2023