2014 QCCQ 5396, 2014 QCCQ 5396

Perrin c. Murray 2014 QCCQ 5396 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-133595-126 DATE: May 23, 2014 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ Glen PERRIN […]Pierrefonds, Quebec, […] PLAINTIFF v.

Scott MURRAY […] Beaconsfield, Quebec, […] DEFENDANT ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Glen Perrin, sues the Defendant Scott Murray for damages he caused to the Plaintiff's video camera on the evening of April 1, 2012. [ 2 ] The damages claimed totalling $345.52 consist in the cost of replacing the camera and its memory card including shipping costs from the USA and customs charges, as well as costs associated with the present suit such as postage and travel costs to the courthouse. [ 3 ] When the damage occurred, Glen Perrin was filming Mr Murray as he was returning his minor children to the home of the children's maternal grandfather, Darrel Perrin, Glen's brother, in Roxboro at the end of a parental visit.

Glen Perrin was asked by Darrel to intercede with Mr Murray to take custody of the children and their personal effects when they arrived. Glen decided to use his portable video camera to make an audio-visual record of the event in case it should become useful in evidence.

There had been problems in the past with conflict between Scott Murray and his family on the one hand, and the Perrins, centered around the question of custody and parental visits, and he wanted to have it on tape should anything occur that day. [ 4 ] Rather than using a tripod, he set the video camera propped up on a box in the back of his brother's SUV which was parked in the driveway with the back door open toward the street. [ 5 ] The camera was not hidden, per se, but neither was its placement, intended to record Mr Murray as he came on the property with this children, apparent to Mr Murray. [ 6 ] Mr Murray, in his written contestation, does not deny that he damaged the camera, but he does deny that the memory card was damaged.

He also alleges that the act of filming him was illegal because the camera was hidden, and Glen Perrin does not own the property on which the camera was placed. [ 7 ] The altercation was, according to Glen Perrin's testimony, related to a car seat for one of the children. The children had gone into the home when Mr Perrin asked the young man to bring his own car seat in the future rather than use the one that was provided by the mother's side of the family. Mr Murray "threw" the car seat into the back of the open SUV. The video camera popped out onto the ground.

Mr Murray then picked it up and smashed it to the ground, breaking it. [ 8 ] Mr Murray left taking the broken camera with him before the local police arrived.

He testifies that he viewed and saved to the memory of his own computer parts of the content of the video card, and that he did so with the consent of the police, who arrived at his home to recover the video camera and allowed him to do this before leaving with it. [ 9 ] As to the event itself, he states that it was the children's laundry that he tossed into the open SUV and that when he realised he was being filmed, he reacted to what he perceived as intimidation by his hostile inlaws. He maintains that the car seat was in fact purchased by his mother, Karen Taylor.

He asked her to accompany him when he returned the children. He states that the things Mr Perrin was saying to him were intended to upset him. His reaction was to toss the children's things into the car. He denies having thrown anything at Mr Perrin.

[ 10 ] He admits that, when he realised there was a hidden camera, and it fell out to the ground accidentally, he smashed it, out of anger. [ 11 ] Mr Murray's mother, Karen Taylor, corroborated that her son tossed laundry into the back seat. She also felt that he son was "violated" by the unauthorised videotaping.

Happily, she eventually spoke to the maternal grandmother, and, as a result of certain efforts on the part of the couple and the families, the situation has been normalised and civility is now re-established between the parties. [ 12 ] Mr Murray corroborates this, stating that two years of anger and conflict in the marital breakup between himself and his ex spouse have come to an end as a result of mutual efforts. [ 13 ] As far as this particular event is concerned, the Court is of the view that Glenn Perrin's conduct that day had a causal link in the chain of events that led to the damaging of the camera.

Mr Perrin admitted in his testimony that he was attempting to get a record of threats he anticipated that Mr Murray might make. The idea of surreptitiously videoing Mr Murray was the sort of thing that he ought to have known would be offensive and calculated to provoke anger should it be discovered. [ 14 ] Can a person who acts in anger damaging property be excused from fault because of a calculated provocation? He cannot, and Mr Murray must accept the responsibility that flows from his actions, which were excessive.

But, the hidden camera was also part of a wrongful act on Mr Perrin's part and its placement was, to a certain extent, a cause of the events. Firstly, by concealing the camera, he cannot complain that it fell to the ground, which may have damaged it. While the overreaction of Mr Murray was inappropriate, it is not the sole cause of the risks that were created that led to the destruction of the camera.

Taking the camera with him was also not appropriate conduct on Mr Murray's part, but no harm came of it since he gave the pieces back to the police when asked to do so. [ 15 ] It would be appropriate for the damage to the camera to be apportioned on an equal basis between the two antagonists. Mr Murray takes the position that the memory card was not damaged because he was able to extract data from it.

Mr Perrin states that he was unable to use it, that it was "unreadable", and the Court has not reason to doubt the sincerity of that assertion, but that could equally have been a problem with his computer, as with the card. [ 16 ] The costs to purchase a similar camera seem reasonable, and these costs were established at $ 258.56, including shipping, handling and taxes. [ 17 ] The Court awards 50 % of this as damages and, because of the contribution of both parties to the loss, there will be no award of judicial costs.

BY THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiff the sum of $129.28, with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from April 23, 2012. Without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: February 3, 2014