2014 QCCQ 6530, 2014 QCCQ 6530

Lohner c. Dollard-des-Ormeaux (Ville de) 2014 QCCQ 6530 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-126867-110 DATE: July 10, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ EDWARD LOHNER […] Dollard-des-Ormeaux, Quebec, […] Plaintiff v.

VILLE DE DOLLARD-DES-ORMEAUX 12001 De Salaberry Blvd Dollard-des-Ormeaux, Quebec, H9B 2A7 Defendant and CONSTRUCTION GARNIER LTÉE 3980 Leman Blvd Laval, Quebec, H7E 1A1 Impleaded party ______________________________________________________________________ JUDGMENT [ 1 ] Edward Lohner, the owner of the home situated at […] in Dollard-des-Ormeaux (“D.D.O.”), sues D.D.O. for damages to the unistone paving of the driveway at his residence that he alleges occurred as a result of infrastructure works carried out by D.D.O. in July 2007. [ 2 ] The work to rehabilitate D.D.O.’s water and sewer system involved tearing up part of Mr Lohner’s driveway and using heavy equipment on it. [ 3 ] While the contractor to whom the work was awarded, Garnier Construction Ltée (“Garnier”) carried out its restoration work, coming back a numerous times to comply with deficiency lists, Mr Lohner was not satisfied at the end of the process.

He alleges that a five foot wide

section of the unistone driveway should be replaced and a pressure wash process should be carried out to provide for uniform finish, all for a cost of $ 3,249.10. [ 4 ] Mr Lohner sues for $ 7,000.00, the maximum permitted in the Small Claims Division.

[ 5 ] D.D.O. relies upon

Section 604.3 of the Cities and Town Act to avoid liability. That provision provides that a city will be exonerated for prejudice caused by the fault of a constructor or entrepreneur to whom construction, renovation or maintenance works have been awarded by contract. [ 6 ] As its usually done in this type of case, D.D.O. impleads Garnier as a third party. This has the effect of making Garnier both a Co-Defendant, as if the Plaintiff had sued him directly, and as a Defendant in Warranty who could be condemned to indemnify it if the City should be found liable, notwithstanding

Section 604.3. The contract documents entered into between D.D.O. and Garnier contain an indemnity provision that would require Garnier to hold D.D.O. harmless in the event that it was liable. ISSUES [ 7 ] To resolve this conflict, the Court must determine: 1) Did Garnier restore the property to its original quality and condition at the end of the work? 2) If it did not, what is the value of the prejudice to Mr Lohner for Garnier’s failure to do so? [ 8 ] Mr Lohner provided the Court with detailed photographic evidence of the works carried out by Garnier that summer.

These works were very intrusive on his property, because of the need to dig deep into the soil to replace conduits and the re-profiling of the street. A significant portion of the driveway was torn up and the paving stones set aside to be re-used.

Some of them were in fact replaced by paving stones of the same provenance as the existing ones, but it is possible to detect a slight difference of colour, presumably because the stones were of a different age and came from a different fabrication batch. [ 9 ] Throughout the process Mr Lohner was given assurances by persons working for the City that his property would be entirely restored to its original condition at the end of works.

Mr Lohner complains that, at various times during the construction process, his wishes for the least amount of interference with his property were not always abided by nor were verbal agreements kept concerning the manner which the works would be carried out. [ 10 ] He is particularly upset about the presence of a digging machine on his driveway and the use of a tarpaulin over the paving stone to store granular materials for the nearby excavation.

As well, it is significant to mention that the restoration of the property did not occur spontaneously at the end of the project but, was subject to repetitive visits to comply with deficiency lists issued to Garnier. [ 11 ] In fairness to Garnier, the record shows that it continued to return to the property each time new deficiencies were noted and at no time did Garnier abandon the work or try to evade its obligation to carry out a complete restoration. [ 12 ] Mr Lohner presents an estimate from a paving contractor who proposes replacing a portion of the paving stone as well as part of the side borders, and carrying out as well a power wash with a particular product designed to eliminate differences in the finish of the stone for the best possible aesthetic effect.

ANALYSIS [ 13 ] The City’s position in invoking the exoneration provision of the Cities and Towns Act is entirely correct as is its claim that Garnier must stand in its place as the responsible party towards Mr Lohner, should there be any deficiencies remaining in respect of the restoration of Mr Lohner’s property at the end of the project. [ 14 ] While the Court is satisfied that Garnier did it best to restore the property to its original condition, there is an aesthetic prejudice that remains, because some of the paving stones are of a different color and this difference will diminish only over time and, in the meantime, constitutes a minor aesthetic prejudice to the owner.

[ 15 ] The evidence is not sufficient to support Mr Lohner’s allegation that the restoration works are structurally inadequate.

Photographs taken in 2013 and 2014 do not disclose any visible flaw to the works and no expert evidence was given for the Court to rely upon to establish Mr Lohner’s allegation. [ 16 ] As well, the well-documented compliance with deficiency lists has a certain degree of probative value to counter the suggestion that, from a technical point of view, the restoration work was not adequate. [ 17 ] Finally, in respect of the allegation that there needs to be replacement of the polymer finish between the tracks, it is not entirely evident that this is a result of poor restoration; the polymer finish is designed to prevent the growth of grass and weeds in the cracks, but it is not an absolute panacea and there does come a time where polymer finishes need to be replaced.

Again, there is, in the absence of expert proof, insufficient bases upon which the Court could not find conclusively that Garnier committed any fault in this respect. [ 18 ] Aesthetic prejudice is difficult to establish, because it is a non-pecuniary matter and because, to a certain degree, its effects differ subjectively from one person to next. [ 19 ] Given that Mr Lohner enjoyed the aesthetic of very well-executed paving landscape work, he should not have to tolerate the aesthetic impact of slightly different colors of the stone that have been replaced.

While this will diminish over time, it is necessary to arbitrate an amount that seems fair to the Court in order to compensate him. [ 20 ] The Court arbitrates an amount in this case at $1,000.00. This amount is owed by Garnier only, given the exoneration of the City of D.D.O. [ 21 ] As well, Garnier will be responsible for judicial fees. FOR THESE REASONS, THE COURT: CONDEMNS the Impleaded party, Construction Garnier Ltée, to pay the Plaintiff the sum of $ 1,000.00, plus interest at the legal rate of 5% per annum and the additional indemnity provided for by

article 1619 of the Civil code of Quebec , calculated from September 22, 2010; CONDEMNS the Impleaded party, Construction Garnier Ltée, to pay the Plaintiff judicial fees of $ 159.00, and to the Defendant, City of Dollard-des-Ormeaux, judicial fees of $ 194.00. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 29, 2014