2023 QCCQ 7273, 2023 QCCQ 7273

Daoust c. Bai Jie 2023 QCCQ 7273 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU No.: 550-32-702398-212 DATE: October 20 th , 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ NATHALIE DAOUST Plaintiff v. JESSICA BAI JIE and CHU LIU XIAO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs.

Daoust is the owner, since the year 2000, of a property located at [...] in Gatineau. An above-ground swimming pool is also situated on the property since then [1] . [ 2 ] The Defendants are the co-owners [2] , since 2008, of a property located at [...]. It is partially adjacent to Mrs. Daoust’s lot. [ 3 ] Indeed, the two properties are situated, diagonally, back-to-back [3] . [ 4 ] The Defendants decided, in June 2020, to proceed with the extraction of a wooden fence located at the back of their property.

That fence is situated on the property line separating the Defendant’s property and 2 other lots. [ 5 ] The Defendants discuss about that situation, prior to said removal of the fence, with the owners of the properties located at [...] and [...]. [ 6 ] The Defendants mandate a contractor to proceed to the removal of the wooden fence. Nobody realizes, in a timely manner, that the fence is also shared with Mrs. Daoust’s property, for a length of 22 inches [4] . [ 7 ] “I’m sorry, I missed that part”, concedes Mrs. Bai. [ 8 ] Mrs. Daoust works, at night, in a hospital located in Ottawa.

She notices, on June 9 th , 2020, that her lot is not surrounded anymore by a complete fence, at least for that zone at the back end of her lot. The evidence demonstrates that it is now easy to get inside her land from that opened zone [5] . [ 9 ] Mrs. Daoust states that she became very worried about the situation, particularly because of her pool which was suddenly very accessible. [ 10 ] Mrs. Daoust then contacts the City of Gatineau, and her insurer, to find the best solution to remediate to such a situation. She also contacts the Defendants. [ 11 ] Mrs. Daoust states that Mrs.

Bai simply told her that she could do whatever she wanted on her property. The Defendants deny that such discussion occurred. [ 12 ] A temporary fence is installed on June 11 th , at least to prohibit any unwarranted access to Mrs. Daoust’s property. It appears that the 22-inch gap is blocked again starting on that date. [ 13 ] However, the Defendant’s contractor then proceeds to the installation of a new fence which is not located anymore on the property line.

Indeed, the new fence cannot qualify as a shared fence considering that it is now situated approximately 5 inches inside the Defendant’s property. [ 14 ] The precise location of that new fence does generate further difficulties for Mrs. Daoust. Indeed, it appears that a new gap –

ranging from 4 to 6 inches – now exists between that new fence installed by the Defendant’s contractor and Mrs. Daoust’ own perpendicular fence located on the side of her property. [ 15 ] That new gap – although for a smaller length – also worries Mrs. Daoust, particularly because of her pool. She explains that she was terrified at the idea of “ finding a young neighbor floating in her pool” on any given morning. [ 16 ] The evidence does demonstrate that a smaller gap (of approximately 1 inch) did exist prior to that contractor’s removal of the fence.

However, such gap grew in width following the extraction of the shared wooden fence. [ 17 ] All the parties submit that further discussions occurred on June 11 th . It is agreed that the contractor would give to Mrs. Daoust a piece of fence mesh (maille de clôture) to function as a bridge between the new fence and the perpendicular side fence of Mrs. Daoust’s property. [ 18 ] Originally, the remittance of that piece of fence mesh was supposed to be done at the latest a couple of days afterwards.

However, the evidence demonstrates that such a transfer only occurred on June 25 th , 2020. [ 19 ] The parties do not agree as to the effect of such installation of an additional fence mesh. The Defendants consider that a final agreement – although verbal – was entered upon with Mrs. Daoust. [ 20 ] Mrs. Daoust, however, states that this additional fence mesh was only to be considered as a purely temporary solution. It was “loose” [6] and only secured using various tie-wraps. [ 21 ] It appears that the parties simply did not agree on the same thing.

There was, most probably, a lack of communication and understanding between the parties. [ 22 ] One thing remains certain, the evidence provided does not demonstrate, preponderantly [7] , that the parties agreed then to a final agreement – a “transaction” – that would prohibit Mrs. Daoust from claiming for the damages now detailed in the Demand in front of the Small Claims Division. [ 23 ] Indeed, the solution discussed on June 11 th appears to have been purely temporary. [ 24 ] Furthermore, Mrs. Daoust explains that Mrs.

Bai clearly stated to her that she could not unilaterally decide to reconnect her own perpendicular fence to their newly installed fence. Mrs. Daoust states that Mrs. Bai said to her: “Do that and we will sue you”. [ 25 ] Again, Mrs. Bai denies the content of that discussion. [ 26 ] That being said, Mrs. Daoust tries to find a new solution in order to protect, as soon as possible, her pool. [ 27 ] Following her discussion with her insurer, she decides, even though she has no experience in such field, to erect and install a new door – on her wooden deck – to prohibit any unwarranted access to her pool. [ 28 ] Mrs.

Daoust also decides to find a new contractor in order to install a new portion of fence on that 22-inch gap at the back of her property. She obtains two quotes and retains the least expensive one provided by Entreprise MC9. [ 29 ] Following various letters of demand sent to the Defendants, as well as written responses obtained from them, Mrs. Daoust decides to mandate Entreprise MC9. She testifies that she spent an amount of 866,23$ for the material and the labor. [ 30 ] Mrs. Daoust decides to claim from the Defendants the total amount of 2 312,33$, which details as follows:

a) Costs for the material and labor from Entreprise MC9 for the construction of the new 22-inch fence: 866,23$;

b) For the cost of material for the construction of the new door on the deck: 57,34$;

c) For the time used to construct and install the new door on the deck: 250$ (10 hours of Mrs. Daoust’s time at 25$/hour);

d) For the post caps for the new portion of the fence: 2,86$;

e) For the fence dyeing and for a paint brush: 76,77$;

f) For the printing of various photos for the court file: 13,55$;

g) For the emotional stress as the owner of a pool, for the phone calls made to various contractors and because of Mrs. Bai’s alleged aggressive conduct: 450$;

h) For the loss of time, for the loss of satisfying vacation time, for all the necessary steps to find and buy the material to proceed to the work and for the time rendered necessary watching “YouTube do it yourself” videos for the construction and installation of the door on the deck: 450$;

i) Because of the period during which she was not able to have her cats wander around in her backyard, thus generating irritating meowing: 100$;

j) For the disbursement rendered necessary for new river rocks installed around the new portion of the fence: 20,67$;

k) For the costs associated with the sending of two letters of demand: 24,88$.

[ 31 ] The Defendants do not contest that a mistake was made, both by them and by their contractor. They do not deny that such a situation did generate some inconveniences to Mrs. Daoust. [ 32 ] However, the Defendants strongly contest most of the portions of the claim presented against them. They consider the amount claimed to be excessive and unreasonable. [ 33 ] Let us analyze the situation. ANALYSIS [ 34 ] Mrs.

Daoust’s claim being civil by nature, it was her burden to demonstrate, through convincing and clear evidence [8] , that it is well-founded, both as to the potential liability of the Defendants, and also regarding the various monetary claims appearing from her Demand. [ 35 ] In the circumstances, the evidence does demonstrate that the Defendants are clearly liable for the damages suffered by Mrs. Daoust. [ 36 ] The Court does not believe, in any way, that Mrs. Bai and Mr. Liu acted in bad faith [9] .

However, they certainly committed a fault by not making sufficient verifications prior to the removal of that shared wooden fence. [ 37 ] The Defendants only realized, after the removal of such a shared fence, that Mrs. Daoust’s property was also adjacent to theirs. Furthermore, they only then realized that Mrs. Daoust had a pool on her property. [ 38 ] Respectfully, that situation clearly is the result of civil negligence, thus a fault as per

section 1457 of the Civil Code of Québec ( C.c.Q. ). [ 39 ] The Court would also conclude to the Defendant’s liability even in the absence of such a fault [10] , as per

section 976 C.c.Q. which states: 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. [ 40 ] Indeed, the Court is of the opinion, in the current instance, that the Defendant’s removal – even by mistake – of a shared wooden fence does clearly qualify as an abnormal neighbourhood annoyance that exceeds the normal limit of tolerance. [ 41 ] In all eventualities, the Defendants and their contractor should have made simple verifications prior to the extraction of the shared fence.

They could have looked at the surrounding properties, notably through a second-floor window [11] located in the Defendant’s property. They could have checked their location certificate or potentially a simple website like Google maps [12] . [ 42 ] However, none of those steps were taken, with the unfortunate consequences deriving from such. [ 43 ] The real point of contention, in the current instance, relates to the various damages claimed by Mrs. Daoust. [ 44 ] Sections 1607 and 1611 C.c.Q. do establish the general principles applicable to the evaluation of prejudice. They state the following: 1607.

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and assessable is taken into account in awarding damages. [ 45 ] The Court will analyze the various portions of Mrs. Daoust’s claim.

a) Costs for the material and labor from Entreprise MC9 for the construction of the new 22-inch fence: 866,23$ [ 46 ] The Court does not doubt that Entreprise MC9 did proceed to the work associated with their quote and bill [13] . [ 47 ] Such quote was a bit lower than the one provided by its competitor [14] . [ 48 ] Of course, the costs associated with the construction of a 22-inch fence is indeed surprising when compared to the cost disbursed by the Defendants for a full 35-foot fence (1 175,50$) [15] . [ 49 ] That being said, the contractor’s estimate does refer to necessary excavation work [16] . [ 50 ] It goes without saying that such work had to be performed in a restricted area, thus probably complexifying the execution of said work. [ 51 ] The Court cannot proceed to a banal “rule of three” calculation between the costs associated with the construction of a 35-foot fence and those linked with the installation of a 22-inch fence. [ 52 ] However, the Court is indeed surprised that Mrs.

Daoust was not able to provide the proof of payment of the final bill sent by Entreprise MC9. After all, she did produce in the Court file all the receipts, even for minimal disbursements.

[ 53 ] However, the Court has no doubt that Mrs. Daoust did engage an important disbursement to have the new portion of the fence duly installed. The estimate does show that the materials were indeed bought – originally – by that contractor [17] . A photo showing the contractor performing work on the premises is also produced [18] . [ 54 ] Nevertheless, the construction of a new up-to-date fence does provide an added value to Mrs.

Daoust’s property, especially when compared to that older fence that dates back to the year 2000. [ 55 ] The evidence provided by the parties does vary as to the exact state of the wooden fence prior to its removal in June 2020. [ 56 ] The contractor, Mr. Maurice Joanisse, does state in a short “Déclaration pour valoir témoignage” that the former fence was “old and dangerous” [19] . [ 57 ] In those circumstances, the Court must take into consideration that the installation of the new fence does add value to Mrs.

Daoust’s property. [ 58 ] Civil liability can generate the obligation, for the debtor, to compensate the creditor of the damages that are suffered. However, such civil liability is not a licence permitting the Court to enrich, nor to impoverish, a creditor. [ 59 ] The Defendants do submit that the quote and the related expense should be qualified as being unreasonable and excessive.

However, they do not produce any quote establishing the necessary cost associated with that specific 22-inch fence [20] . [ 60 ] Based on all those circumstances, the Court will partially grant that portion of the claim, for an amount of 500$.

b) For the cost of material for the construction of the new door on the deck: 57,34$ [ 61 ] The documentary evidence provided does support that portion of the claim [21] . [ 62 ] Such work on the deck is the direct result of the Defendant’s refusal, at least in June 2020, of Mrs. Daoust’s proposal to connect her new portion of the fence to the newly installed fence on their property. [ 63 ] The evidence does demonstrate that this solution to install a new door protecting the pool was not excessive by nature. [ 64 ] This alternative solution appears to have been reasonable in the circumstances. [ 65 ] That portion of the claim will be granted.

c) For the time used to construct and install the new door on the deck: 250$ (10 hours of Mrs. Daoust’s time at 25$/hour). [ 66 ] The Court does not doubt that Mrs. Daoust did proceed to such work on her deck. The photos produced in the Court file clearly support that finding [22] . [ 67 ] The evidence does establish that such work was the direct result of the Defendant’s negligent removal of the shared fence. [ 68 ] However, no details are provided as to the execution of the work. No detail is given regarding that period of 10 hours. [ 69 ] Moreover, Mrs.

Daoust does concede, without any difficulty, that she is not a “manual” person. [ 70 ] In those circumstances, the Court grants an amount of 100$ for that portion of the Demand.

d) For the post caps for the new portion of the fence: 2,86$ [ 71 ] That portion of the claim is duly supported by its related receipt from Home Depot [23] . It is well-founded and will be granted to Mrs. Daoust.

e) For the fence dyeing and for a paint brush: 76,77$ [ 72 ] That portion of the Demand is also supported by the relevant documentary evidence [24] . [ 73 ] The evidence does demonstrate that such a disbursement is directly linked with the Defendant’s conduct in the removal of the shared fence. [ 74 ] That portion of the claim is well-founded and will be granted.

f) For the printing of various photos for the court file: 13,55$ [ 75 ] The photos produced by Mrs. Daoust were useful in the analysis of the situation. [ 76 ] The receipt associated with such disbursement is duly produced [25] in the Court file. [ 77 ] That claim is well-founded and will also be granted to Mrs. Daoust.

g) For all the stress and inconveniences, for the various steps taken to correct the problem,

because of the Defendant’s reaction to her grievances and for the anxiety generated by Mrs. Daoust’s cat’s meowling: 1 000$ [ 78 ] The Court considers appropriate to proceed to the analysis of those 3 elements of the Claim under the same heading. [ 79 ] As stipulated earlier, Mrs. Daoust does divide that sum of 1 000$ in 3 separate claims. After review however, it appears that most of those elements are interlinked together. [ 80 ] The Court does not doubt that Mrs.

Daoust was stressed when she discovered that a portion of the shared fence had been removed. [ 81 ] Of course, the Court must keep in mind that such removal affected a length of 22 inches. No more, no less. [ 82 ] The Court must also bear in mind that a temporary solution was put in place as soon as June 11 th , 2020. At such time, that gap – of 22 inches - was blocked. [ 83 ] Mrs. Daoust does concede that her stress level was considerably reduced at that time. [ 84 ] The Court can easily understand that such a solution was not permanent by nature.

That being said, the immediate risk generated by the whole situation was – objectively speaking - severely mitigated very early in the process [26] . [ 85 ] The new structure installed by the Defendants did generate a new gap with the existing perpendicular fence still owned by Mrs. Daoust. However, the evidence does demonstrate that a gap already existed in the past, although for an inconsequential width of approximately 1 inch. [ 86 ] That existing gap grew, because of the Defendant’s decision, to close to 6 inches. [ 87 ] The Court does not doubt that such a situation did generate various frustrations to Mrs.

Daoust. That being said, the stress associated therewith must be relativized in the circumstances. [ 88 ] Of course, the Defendant’s conduct certainly generated various loss of time to Mrs. Daoust. [ 89 ] As for the cat’s meowling, it does not appear to the Court to be a serious enough inconvenience that could justify any monetary indemnification in the current instance. Furthermore, that element appears to be, at best, an indirect consequence of the Defendant’s conduct. [ 90 ] Weighing all those elements, the Court grants an amount of 100$ to Mrs. Daoust.

h) For the disbursement rendered necessary for new river rocks (roches de rivière) installed around the new portion of the fence: 20,67$ [ 91 ] The receipt from Reno Dépôt is duly produced in the Court file [27] . At least one of the photos does illustrate that those river rocks were used in the work associated with the new portion of Mrs. Daoust’s fence. [ 92 ] That portion of the Claim is well-founded and will be granted.

i) For the costs associated with the sending of two letters of demand: 24,88$ [ 93 ] The documentary evidence [28] supports the existence of such a disbursement. [ 94 ] That fraction of the Claim will also be awarded to Mrs. Daoust. [ 95 ] Consequently, Mrs. Daoust’s Claim will be partially granted, for a total amount, in capital, of 896,07$. FOR THOSE REASONS, THE COURT: PARTIALLY GRANTS the Plaintiff’s Claim; CONDEMNS solidarily [29] the Defendants to pay to the Plaintiff the amount of 896,07$, with the legal interests and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from July 24 th , 2020 [30] ; THE WHOLE, with the legal costs in favor of the Plaintiff [31] .

__________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: September 28th, 2023