2013 QCCQ 6322, 2013 QCCQ 6322

JT 1615 Allstate Du Canada c. Marian Nagy Hadju Bardos 2013 QCCQ 6322 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-168412-107 DATE: June 19, 2013 ______________________________________________________________________ BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ ALLSTATE DU CANADA Plaintiff v. MARIAN NAGY HADJU BARDOS Defendant -and- 9224-8087 QUEBEC INC.

Intervener ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On June 10 th , 2008, part of a silver maple tree (the "Tree" ) fell on Mr. Bogdan Sopata's 1987 Empress Triple E (the "Motorized Home" ) while it was parked in the driveway adjacent to the dividing line between Mr. Sopata's property (the "Sopata Lot" ) and Defendant's property. [ 2 ] Mr. Sopata's insurer, Plaintiff Allstate du Canada ( "Allstate" ) declared that the Motorized Home was a total loss and paid $21,581.77 to Mr. Sopata.

Allstate, considering that the tree belonged to Defendant, instituted an action in damages against her and obtained judgment by default to appear on June 25 th , 2010 (the "Judgment" ). [ 3 ] Defendant claims that she learned about the Judgment only after she received a demand letter of demand from Intervener 9224-8087 Québec Inc. ( "9224" ) dated July 25 th , 2011 [1] . [ 4 ] On August 9 th , 2011, Defendant served and filed a Motion for Revocation of Judgment under

article 482 Code of civil procedure ( "C.C.P." ) which was received by this Court on October 26 th , 2012. QUESTIONS IN litigation A. Was Defendant prevented from filing her defence by a reason considered sufficient under

article 482 C.C.P.? B. Who owns the Tree? C. If Defendant is the owner of the Tree, is she liable for the damages caused by the Tree? D. In the affirmative, what is the amount of the damages?

PART I: MOTION FOR REVOCATION The relevant facts [ 5 ] Defendant is a sick elderly woman who, since at least 1983, depends upon her son Alexander Bardos ( "Mr. Bardos" ) for the administration of her affairs. She owns a fully paid vacant lot (the "Vacant Lot" ) situated between the Sopata Lot and the property of

Mr. Bardos and Mrs. Pearson in Greenfield Park. [ 6 ] Until the early 1990s, there was a house on the Vacant Lot bearing civic number 274 Regent Street. It was thereafter demolished and statements for Municipal and School taxes for the Vacant Lot were sent to 272 Regent Street c/o Mr. Bardos [2] . [ 7 ] Following its payment to Mr. Sopata, in July 2008, Allstate made several attempts to be indemnified by the owner of the Vacant Lot for the damages caused by the Tree. [ 8 ] On February 9 th , 2009, Allstate's lawyer sent a demand letter to Defendant and Mr.

Bardos at 272, Regent Street [3] . [ 9 ] On February 20 th , 2009, Me Dominique Audet replied on behalf of the Defendant only, requesting details on the amount claimed and the reasons why her client would be liable [4] . [ 10 ] Allstate's claims adjuster, Mrs. Sylvie Caron, replied directly to Me Audet and sent documents, on February 25 th , 2009 [5] . [ 11 ] On October 26 th , 2009, Allstate instituted proceedings against Mr. Bardos and Mrs. Pearson [6] , (the "First Action" ), who both appeared through Me Dominique Audet on November 10 th , 2009 [7] . [ 12 ] Allstate was advised that Mr. Bardos and Mrs.

Pearson are " not the owners of the lot where the litigious tree stands " (paragraph 17 of Mr. Bardos' affidavit, dated August 8 th , 2011) and it filed a Discontinuance of the First Action on December 3 rd , 2009 [8] . [ 13 ] Mr. Bardos testified that, as a businessman, even if he considered that his mother was not liable to pay any amount to Allstate, he mandated Me Dominique Audet to offer $5,000.00 to avoid further legal action.

On February 2 nd , 2010, Me Audet transmitted the offer to Allstate's lawyer, Me Jean-Pierre. [ 14 ] Me Jean-Pierre's note [9] indicates that on February 2 nd , 2010, Me Jean-Pierre spoke to Allstate's claims adjuster, Mrs. Sylvie Caron, who declined the offer. No counter-offer was made by Allstate. Interestingly, Me Jean-Pierre, who did not testify, noted the following: " • mode de signification spécial? • RII à signifier à Mme Bardos mère → tentera de trouver une adresse pour signification • Voir avec Me Dupaul, pour l'avocat " [ 15 ] Me Audet informed Mr.

Bardos of Allstate's refusal and the parties made no further effort to negotiate. [ 16 ] On March 11 th , 2010, Allstate instituted the present action (the " Second Action "). No courtesy copy of the introductive motion was sent to Me Audet, but Allstate went through the trouble of presenting a Motion for special mode of service that was granted on March 15 th , 2010, allowing it to serve the proceedings upon Defendant's son, Mr. Bardos, and by way of a notice, published in the Journal de Montréal on March 18 th , 2010, which neither Defendant or Mr. Bardos or Mrs.

Pearson saw. [ 17 ] The Bailiff, who had served the First Action, attempted to serve the Second Action upon Defendant, c/o Mr. Bardos, a first time on March 18 th , 2010, at 6:30 p.m. The Bailiff's return contains the following comment: "Courrier adressé au destinataire dans la boîte aux lettres et tél (xxx) xxx-xxxx". No evidence was adduced that the Bailiff attempted to call the phone number the Bailiff had for Mr. Bardos, and both Mr. Bardos and Mrs.

Pearson are adamant that the Bailiff did not call them. [ 18 ] The Baillif returned on March 19 th , 2010, at 8:15 a.m. and left a copy of the proceeding "sous pli cacheté adressé au destinataire, en déposant dans la boîte aux lettres à son domicile ou résidence" . The mailbox is situated on the outside wall of the house, close to the front door, and is large enough to contain envelopes of regular size. It also has two hooks in which a newspaper may be placed. [ 19 ] Mr. Bardos and Mrs. Pearson testify that neither of them saw the proceeding in the mailbox.

They affirm that at the time, their minor children couldn't have emptied the contents of the mailbox. They admit that on prior occasions when their mail was delivered by mistake to their tenant, the latter remitted it to them. [ 20 ] As already mentioned, the Judgment was rendered on June 25 th , 2010. Then, the following events occurred:

a) Allstate seized the Vacant Lot on July 26 th , 2010 [10] ;

b) Allstate published a legal hypothec resulting from the Judgment on August 12 th , 2010 [11] .

c) Allstate ceded its rights to the debt and the Judgment to 9224 on August 20 th , 2010 [12] . d) 9224 served a Prior Notice of its intent to take the Vacant Lot in payment of Defendant's debt in virtue of the Judgment, which was published on September 16 th , 2010 [13] .

e) On January 13 th , 2011, 9224 obtained a judgment by default to appear on its Motion for Forced Surrender and Taking in Payment (the "Motion for Forced Surrender" ) of the Vacant Lot [14] , which judgment was published on March 24 th , 2011 [15] .

[ 21 ] Evidence was adduced that service of all the above proceedings upon Defendant, including the Motion for Forced Surrender, were made at the office of the clerk of this Court. An attempt to serve the Motion for Forced Surrender upon Defendant at 274, Regent Street was made on December 1 st , 2010, but the Bailiff's return [16] rightfully indicates that there is no such civic address. [ 22 ] Mr.

Bardos admits that, after February 3 rd , 2010, aside from inquiring with Me Audet, from time to time, if she had heard anything further from Allstate, he was not proactive in attempting to settle the matter or finding out Allstate's final position. For him, Allstate had been made aware that the Tree was on the property line between the Vacant Lot and the Sopata Lot (the " Dividing Line "). For Mr. Bardos, the ball was in Allstate's court. [ 23 ] Mr.

Bardos admits that, at an unknown date, but prior to receiving the letter of July 25 th , 2011 [17] , two men showed up to take measurements of the Vacant Lot, stating they wanted to build on it. They did not give their names or phone numbers. He thought they could be part or victims of a scam aimed at the sale of the Vacant Lot. He looked on the Internet to see if the Vacant Lot was announced for sale. He never linked this incident with Allstate's claim and never asked a banker or a notary or his lawyer to clarify the situation then prevailing with respect to the Vacant Lot. [ 24 ] Mr.

Bardos arranged for Defendant to pay the 2010 Municipal and School taxes and the Court accepts his explanation as to why the 2011 Municipal and School taxes were not paid after he received the letter of July 25 th , 2011 [18] and why he also did not pay the 2012 taxes. [ 25 ] Mr. Bardos, up until receipt of the letter [19] , mowed the lawn and maintained the Vacant Lot. The representative of 9224 testifies that 9224 did not pay anything for the maintenance of the Vacant Lot in 2011. He passed by the Vacant Lot during that period but he was not then preoccupied by its state.

He did not testify that he talked or attempted to speak with Mr. Bardos. In fact, it is only after receipt of a letter from the City of Longueuil [20] , on April 16 th , 2012, that 9224 hired someone to maintain the Vacant Lot. [ 26 ] It is relevant to note that the letter of July 25 th , 2011 [21] was sent by registered mail. Canada Post was not successful in its attempt to deliver the item on the morning of July 26 th , 2011. Instead, a card was left in Mr. Bardos' mailbox and he retrieved the item the next day, July 27 th , 2011, at 6:08 p.m. Analysis A.

Was Defendant prevented from filing her defence by a reason considered sufficient under

article 482 C.C.P.? [ 27 ]

Article 482 C.C.P. reads: " 482. A party condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, by fraud or by any other reason considered sufficient, request that the judgment be revoked and that the action be dismissed. The motion, addressed to the court which rendered the judgment, must contain not only the grounds for revocation of judgment, but also the grounds of defence to the action." [ 28 ] The Court hearing an application for revocation must consider two principles: the irrevocability of judgments and the right of a party to a full and complete defence.

Furthermore, the proper administration of justice requires that the grounds mentioned in

article 482 C.C.P., as a means for the revocation of a judgment, be interpreted restrictively. [ 29 ] Plaintiff and 9224 argue that the service of the Second Action was made in accordance with the law. Plaintiff served Mr. Bardos, when it was not obliged to do so, and it had no obligation to serve Me Audet. The Court agrees, but the question here in issue is not the legality of the service of the Second Action, but its effectiveness.

Evidence that Defendant did not have knowledge of the Second Action, due to no fault of her own or her mandatary, despite the legality of the service, is admissible. [22] [ 30 ] Service via newspaper of the Second Action was in itself sufficient. From Me Jean-Pierre's note, one has to conclude that she considered, rightfully so, the possibility to serve the Second Action upon the attorney of record for the Bardos, Me Audet. Instead, she chose to serve Defendant, care of Mr. Bardos.

Her decision remains unexplained as she did not testify, but considering that Defendant had already clearly indicated her intent to vigorously contest the claim if no settlement occurred, one has to wonder why the logical choice to send a courtesy copy to the attorney was set aside when it would have allowed the achievement of Plaintiff's laudable goal to ascertain that Defendant was aware of the Second Action. [ 31 ] The Court is also puzzled by Plaintiff's decision, once it had obtained the Judgment, not to serve upon or send a copy of it to Mr. Bardos. There may have been no love lost between Mr.

Bardos and Plaintiff, after Plaintiff was forced to desist from the First Action. Yet, in the exercise of the judicial discretion conferred by

article 482 C.C.P., the Court has to keep in mind the fundamental right of Defendant to be heard prior to a judgment being rendered [23] , even if Plaintiff is upset or annoyed by what it perceives as a deliberate attempt on the part of Defendant to play hide and seek in order to avoid her liability. [ 32 ] Plaintiff and 9224 argue that Defendant cannot simply affirm that she didn't receive or didn't see the proceeding, but has the burden to establish the reason why.

In the Court's opinion, there is no such burden. [ 33 ] Plausible hypothesis were submitted by Defendant which are likely to provide some explanation as to why she and Mr. Bardos were not aware of Plaintiff's decision to litigate the file rather than to entertain settlement discussions: they don't read Le Journal de Montréal; the Bailiff didn't call them to verify when they would be home or to confirm that the proceeding had been left in the mailbox; they were at work when the Bailiff came early in the morning of March 19 th .

If they can't explain why the proceeding was not in the mailbox when they arrived home in the evening of March 19 th , after their kids' extracurricular activities, the fact is that it wasn’t there.

[ 34 ] The Court doesn't share Plaintiff's opinion that Mr. Bardos, as mandatary of Defendant, was negligent or lax in his handling of the matter. [ 35 ] On the contrary, the Court is convinced, from Mr. Bardos' demeanour and testimony during the trial, that he was so upset with Mr. Sopata's refusal, in Mr. Bardos' opinion, to take responsibility for the maintenance of the trees along the Dividing Line, that the last thing he wanted was to be held liable for the damages caused to the Motorized Home. [ 36 ] Mr. Bardos was proactive: even after the desistment in the First Action, he made an offer of settlement.

When two men came to measure the Vacant Lot, he carried out some verification, even if it were of little use and probably not the most relevant. [ 37 ] For Mr. Bardos and his family, the value of the Vacant Land is not only of a monetary nature. It also has a significant sentimental value as it has been in the family since 1963 and, even if the Vacant Lot was created by subdivision in 1991, they have not built a house on it yet. [ 38 ] Since at least 2005 [24] , Mr. Bardos has fought hard to defend the trees. The Court is convinced that if he or Mrs. Pearson had seen the Second Action in the mailbox, Mr.

Bardos would have immediately remitted it to Me Audet. [ 39 ] The factual pattern in this matter is very similar to the one considered by Justice Hélène Langlois in 3854027 Canada inc. c. Silverstone [25] where she concludes as follows (citations omitted): "[31] À tout évènement, s'il y a un doute, le Tribunal doit favoriser le droit d'une

partie à une défense pleine et entière. [32] Également, les règles édictées au Code de procédure « sont destinées à faire apparaître de droit et en assurer la sanction. » [33] Plus particulièrement, l'article 5 C.p.c. énonce que « il ne peut être prononcé sur une demande en justice sans que la

partie contre laquelle elle est formée n'ait été entendue ou dûment appelée .» [34] La requérante obtient jugement par défaut contre l'intimé alors qu'il est représenté par procureur, que ce dernier et les procureurs de la requérante sont en communication, qu'il aurait été facile de transmettre, par courtoisie, copie de la requête au procureur de l'intimé et que la dette garantie par la créance hypothécaire est fortement contestée. [35] Cette façon de procéder va à l'encontre de l'esprit des règles de procédure qui servent à faire apparaître le droit et qui ne visent pas à permettre de faire en sorte qu'une

partie puisse être condamnée à son insu. [36] Il y a là une cause suffisante justifiant de rescinder le jugement obtenu par défaut sur la requête. [37] Finalement, contrairement aux prétentions de la requérante, le Tribunal n'a pas à ce stade, à vérifier le sérieux des moyens de défense de l'intimé de la requête. Cette vérification a eu lieu au stade de la réception de la requête en rétractation alors que le Tribunal devait apprécier, prima facie , le sérieux des motifs de rétractation et de défense invoqués.

Une réévaluation, à ce stade, des moyens de défense de l'intimé équivaudrait à une révision du jugement rendu sur la réception de la requête.» [ 40 ] The Court applies the same reasoning to the facts in this case and revokes the Judgment, with costs awarded to Plaintiff as per

article 487 C.C.P.

PART II – THE ACTION The additional relevant facts [ 41 ] Mr. Sopata testifies that the trees have been subject of discussions with the Bardos since at least 2001. At that time, Hydro-Quebec wanted to cut two trees interfering with the power line [26] . Mrs. Sopata was already worried about the health of the Tree. Hydro-Québec obtained the consent of Defendant and only one tree was cut. [ 42 ] On October 5 th , 2005, the Sopatas warned Defendant in writing [27] , that they will hold her responsible for damages caused by the Tree. The reply [28] , dated October 15 th , 2005, was scathing.

Communication channels between the neighbours were certainly broken. Mr. Bardos does not hide the fact that he disliked the sight of the Motorized Home in the Sopata's driveway and the Sopatas hated having to remove from their lot, the branches falling from the trees on the Vacant Lot. [ 43 ] On June 10 th , 2008, a 20 inch branch fell on the Motorized Home.

Serge Albert, who worked for the pruning division of RéseauTel was called and the parties agreed to the following extracts of his report [29] in lieu of his testimony: " Saule de 41 " de diamètre dont une branche de 20" de diamètre est sectionnée complètement à 30 pieds de hauteur approx. de la base. Évaluation: Une branche primaire sectionnée d'un saule de 41 pouces de diamètre à la base. La longueur de l'arbre restant est d'approx 75 pieds. Une importante cavité dans le centre de la branche d'un bout à l'autre du tronc démontre clairement la dégénération et la pourriture du tronc.

L'arbre (le tronc) présente une dégénération visible, cavité et pourriture au niveau de la rupture. Cette constatation est facilement visible à partir du stationnement à la base de l'arbre." [ 44 ] In a letter addressed to the Borough of Greenfield Park on July 28 th , 2008, in reply to the Borough's request to cut and trim the trees along the Dividing Line, Mr. Bardos alluded to the fact that a tree specialist was involved, at Defendant's request, shortly after the

incident of June 10 th , 2008 [30] , to assess the health of the trees but no report was filed and no witness was heard on this subject at trial. [ 45 ] Despite another incident on April 27 th , 2010, when Mr. Bardos asked the police to act as an intermediary and request that the Sopatas remove their Motorized Home from the driveway because there were strong winds and the Tree was making cracking noise [31] and despite the Sopatas' additional contacts with the Borough of Greenfield Park regarding the need to cut the Tree [32] , the Tree is still standing today. Analysis B.

Who owns the Tree? [ 46 ] Defendant alleges that without a boundary marking, Plaintiff cannot establish where the Tree is situated relative to the Dividing Line. The Court disagrees. Considering the nature of the recourse, the obligation of Plaintiff is to establish, by a balance of probabilities, that the Tree is located on Defendant's property. [33] [ 47 ] Defendant pleads that the Tree is common because it is situated on the Dividing Line (article 1003 C.C.Q.). As additional evidence of the joint ownership, according to Defendant, all the owners of the Sopata Lot, prior to Mr.

Sopata, jointly maintained, with the Bardos, all the trees along the Dividing Line, including the Tree. [ 48 ] Considering the situation of these centennial trees and the scope of their branches, the Court cannot infer from the mere cooperation of a neighbour to maintain all trees along the Dividing Line that he became owner of the Tree by acquisitive prescription or as a result of

article 1004 C.C.Q. If a previous owner of the Sopata Lot did acquire any rights, the Sopatas’ attitude [34] towards the trees, from the time of their arrival on the Sopata Lot, confirms they were not made aware of it. In any event, this previous owner did not make the appropriate motion for legal recognition of his ownership (article 2918 C.C.Q.). No deed supports the common ownership theory. [ 49 ] The question of the ownership therefore depends on the analysis of the evidence concerning the situation of the Tree relative to the Dividing Line. [ 50 ] Mr.

St-Laurent, 9224's Vice-President, went to the Sopata Lot and measured a distance of 19 feet from and perpendicular to the wall of the Sopata's house and testified that the Tree was beyond that spot. [ 51 ] Mr. Bardos claims that the base of the Tree touches the fence in on the Dividing Line. From the photos [35] , the Court concludes that the root system, at that spot, is not covered by earth. [ 52 ] The only expert heard on the issue of where the Tree was situated is land surveyor Martin Lavoie ( "Mr.

Lavoie" ), who has extensive experience [36] and over 29,000 minutes. [ 53 ] For his report [37] , Mr Lavoie correlated his own data with those collected by land surveyor Leopold Moretti, on October 16 th , 1959 [38] , and by Land surveyor Luc Sauvé, on August 9 th , 2009 [39] .

He concludes that the Tree, 1.10 meters in diameter, is situated on the Vacant Lot, at 8 cm from the Dividing Line as follows: "Tel que montré sur la (sic) plan ci-annexé, selon mon opinion, le tronc de l’arbre visé par le présent rapport d’expertise est situé entièrement à sa base sur le lot 2 799 180" [ 54 ] This 8 cm was calculated starting right above the zone where the trunk of the Tree starts to widen as a result of the root system [40] . When asked to explain why he took it at that level and not at the base of the Tree, Mr.

Lavoie explained that to his knowledge, the base of the trunk is to be considered, not the root system. This is how it is done, even if there is no written standard to this effect. [ 55 ] Mr. Sauvé, who acted at Defendant's request, also measured the Tree's diameter at 1.10 meters [41] . This at least confirms that both land surveyors seems to agree on how and where the Tree's diameter is calculated, and it is obviously not where the base of the Tree starts to widen. [ 56 ] In 88443 Canada Limitée c.

Syndicat des copropriétaires du 4912-1914-1916-1418 Côte-des-Neiges [42] , Justice Silcoff, relying on Mignault in Le droit civil canadien [43] , concluded that the situation of the trunk of a tree determines the ownership. The Court agrees with Justice Silcoff. [ 57 ] This is also a logical conclusion considering that the C.C.Q. deals with roots and branches extending over a neighbour's property as conferring specific obligations to the owner of the trunk.

If, as a result of the growth of roots and branches, a neighbour has a right of action against the owner of the trunk, it is implicit that the situation of the trunk determines its owner and therefore the owner of the tree. C. If Defendant is the owner of the Tree, is she liable for the damages caused by the Tree? [ 58 ] Plaintiff argues that Defendant is liable for the damages caused by the Tree under the provisions of articles 1465 or 1467 C.C.Q. which read as follows: « 1465.

A person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.» « 1467. The owner of an immovable, without prejudice to his liability as custodian, is liable to reparation for injury caused by its ruin, even partial, where this has resulted from lack of repair or from a defect of construction.» [ 59 ] The Tree is an immovable (article 900 C.C.Q.) within the meaning of

article 1467 C.C.Q. and a " thing " within the meaning of

article 1465 C.C.Q. Defendant, owner of the Tree within the meaning of

article 1467 C.C.Q., is also its guardian within the meaning of

article 1465 C.C.Q.

[ 60 ] The branch that caused the damages fell without any human intervention. The conditions for the application of

article 1465 C.C.Q. are met; there is a presumption of fault on the part of Defendant. [44] [ 61 ] The conditions for the application of

article 1467 C.C.Q. are also met. [ 62 ] The Tree was over 100 years old. It had to be attended to. The branch which fell as well as the part of the Tree where it was attached were rotten [45] . From the evidence, the Court concludes that Defendant did not want to assume the responsibility of pruning the Tree. [ 63 ] Mr. Bardos was clearly of the view [46] that trimming and cutting the Tree had to be shared between Defendant and the Sopatas depending on the position of the branch on the Tree and of its overhanging over the Vacant Lot or the Sopata Lot. He was wrong.

Defendant was negligent in her maintenance of the Tree. There is a presumption of liability on the part of Defendant [47] . [ 64 ] Defendant did not rebut the presumption of fault of

article 1465 C.C.Q. or the presumption of liability of

article 1467 C.C.Q. [ 65 ] Defendant invokes a superior force to free herself from liability (article 1470 C.C.Q.), but to no avail. She alleges the strong winds and supports her statement by filing "History Data Report" and "Canadian Historical Weather Radar" for June 10 th , 2008, together with an

article entitled "Les dix évènements météorologiques canadiens les plus marquants de 2008", all published by Environment Canada [48] . [ 66 ] Unfortunately, as mentioned to Defendant's attorney before the case was taken under reserve in order to allow him to make the proper request if so desired, no expert came to explain the relevancy of the data to establish the superior force, such as the location where the data were collected relative to the situation of the Vacant Lot and the level of recurrence of the phenomenon.

These facts are not generally known; therefore, the Court cannot take judicial notice of them and infer some legal consequences (article 2808 C.C.Q). [ 67 ] The newspaper articles [49] , to the production of which Plaintiff objected, cannot make proof of the information they contain. They constitute written hearsay. [ 68 ] Plaintiff is an insurer who, under its policy [50] , could have alleged a superior force to refuse to pay Mr. Sopata but it did not. In Vezina c.

Crépeau [51] , the judge considered the insurers' acceptance to indemnify their insured as a sign that the winds were not sufficiently important to be deemed a superior force, that is to say an unforeseeable and irresistible event. This decision is a good example of the kind of evidence required by a defendant seeking to assert a defence of a superior force. [ 69 ] Defendant argues that Mr. Sopata decided to park the Motorized Home under the Tree, despite knowing the danger and therefore, he accepted the risk that occured on June 10 th , 2008. [ 70 ] Mr.

Sopata did not commit a fault in parking his Motorized Home in his driveway. [ 71 ]

Article 985 C.C.Q. reads: " 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." [ 72 ] This

article replaces

article 529 of the Civil Code of Lower Canada (" C.C.L.C. ") which reads: " 529 . Either neighbour may require that any trees and hedges which contravene the preceding

article be uprooted. He over whose property the branches of his neighbour's trees extend, although the tree are growing at the prescribed distance, may compel his neighbour to cut such branches. If the roots extend upon his property, he has a right to cut them himself." [ 73 ] Commenting on

article 529 C.C.L.C., the Court of appeal wrote, in Phaneuf c. Sylvestre [52] : "Pour que la personne lésée ait droit à des dommages, il n'est pas nécessaire non plus qu'elle ait antérieurement mis le propriétaire des arbres en demeure de les enlever: il est vrai qu'en vertu du premier paragraphe de l'article 529 C.C., une personne peut en tout temps exiger que le voisin enlève les arbres qui peuvent nuire; mais là encore, cet

article n'a pas pour but de faire perdre les droits à une compensation à celui qui, par ignorance des dangers que représentent les racines en question ou pour d'autres raisons, ne se serait pas prévalu de ce privilège." [ 74 ] This statement is applicable to

article 985 C.C.Q. [ 75 ] The Court adds that

article 976 C.C.Q. obliges neighbours to tolerate each other, to a certain extent: " 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 custom." [ 76 ] In 2005, the Sopatas sent a letter to Defendant [53] demanding action. Defendant has chosen to ignore it. The Court cannot fault the Sopatas for attempting to continue to enjoy their property. Their decision not to sue their neighbour in order to enforce their right to security did not mean they accepted the risk that their Motorized Home would be destroyed by a branch falling off the Tree.

D) What is the amount of the damages?

[ 77 ] Plaintiff is subrogated in the right of Mr. Sopata to be compensated for the loss of M. Sopata's Motorized Home. The amount has to be such that Mr. Sopata is in the same situation that he would have been if the branch had not fallen (articles 1607 and 1611 C.C.Q.). [ 78 ] Plaintiff relies on the expertises of Michael Bourque [54] , whose testimony was filed under

article 294.1 C.C.P. [55] , and of Mrs. Josée Marcil [56] and claims $21,581.77, representing the fair market value of the Motorized Home at the time of loss minus the $500 deductible. Defendant invokes the expertise of Mr. Serge Lévesque [57] that establishes the value to $8,886. [ 79 ] The opinion of Mrs. Marcil must prevail because her methodology results in a valuation of the loss, which meets the legal requirements. [ 80 ] Mr.

Lévesque owns a dealership and, no doubt has a lot of experience, but he admits that prior to the preparation of his expertise, he did not see the description of the Motorized Home prepared by Mr. Bourque that lists the equipment and the state of the Motorized Home. He did not speak to Mr. Sopata to have a description of the Motorized Home and Mr. Bardos was certainly not a reliable source of information on the subject. As a result, Mr. Lévesque's mathematical method does not take into consideration the reality of the Motorized Home.

In addition, the value used at the beginning of his calculation is an amount in 1987 dollars. The result is therefore an amount in 1987 dollars that he does not increase to reflect its value in 2008. [ 81 ] Finally, Mr. Lévesque testifies that when he did the valuation, in 2012, he saw 40 comparables of the Motorized Home, but he chose to file only four (4), out of which only one (1) is a 1987 model. Mrs. Marcil testifies that in 2008, she only found the three (3) comparables attached to her report [58] and that in April 2013, when she once again looked for comparables, only three (3) were found.

Her approach of this situation also advocates for her report. [ 82 ] FOR THESE REASONS, THE COURT: [ 83 ] GRANTS Defendant’s Motion for revocation of judgment; [ 84 ] REVOKES the judgment rendered on June 25 th , 2010, with costs awarded to Plaintiff as per

article 487 C.C.P.; [ 85 ] GRANTS Plaintiff’s action; [ 86 ] CONDEMNS Defendant to pay Plaintiff the sum of $21,581.77 together with interest at the legal rate and the additional indemnity provided for by

article 1619 C.C.Q. calculated from February 9 th , 2009; [ 87 ] CONDEMNS Defendant to pay costs to Plaintiff and to the Intervener, including the experts' costs to prepare their expertises and, in addition, Mr. Martin Lavoie's hourly fee of $200 for his preparation and presence at Court. __________________________________ MARTINE L. TREMBLAY, J.C.Q. Me Marjorie Marchand BÉLANGER SAUVÉ Procurers of Plaintiff Me Howard Barza Procurers of Defendant Me Alexandre McCormick PRÉVOST FORTIN DAOUST Procurers of Intervener Date of hearing: January 24, 25 and May 1, 2013