2012 QCCA 989, 2012 QCCA 989

Wood c. Mahon 2012 QCCA 989 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022677-124 ( 505-17-005222-114 ) MINUTES OF THE HEARING DATE: May 31, 2012 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEY DAVID H. WOOD Mtre Jean El Masri (ABSENT) EL MASRI DUGAL RESPONDENT ATTORNEY MARILYN NORMA MAHON Mtre Mona Laflamme (ABSENT) RIVEST TREMBLAY TÉTRAULT MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON APRIL 18, 2012 BY THE HONOURABLE MANON SAVARD OF THE SUPERIOR COURT IN THE DISTRICT OF LONGUEUIL

Clerk: Annick Nguyen Court Room: ——- HEARING Continuation of May 30, 2012, hearing. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] David Wood seeks leave to appeal from a judgment of the Superior Court in the District of Montreal (the Honourable Manon Savard presiding), rendered on April 18, 2012. The Superior Court dismissed Mr. Wood’s motion for judicial review of a judgment of the Court of Quebec, Small Claims Division (the Honourable Claude Laporte presiding), rendered on March 2, 2011, which had dismissed an action in civil liability brought by Mr.

Wood for damage to a cedar hedge and granted, in part, a cross demand brought by the respondent Marilyn Norma Mahon. [ 2 ] The parties are neighbours. Before the Small Claims Division of the Court of Quebec, Mr. Wood claimed that Ms. Mahon had failed to trim trees planted on the edge of her property and that this had resulted in damage to his hedge. In her cross demand, Ms. Mahon alleged that Mr. Wood had caused her unnecessary pain and suffering as a consequence of various instances of harassment, false accusations and mischief. [ 3 ] The Court of Quebec dismissed Mr. Wood’s principal claim and awarded Ms.

Mahon $1000, with interest and the additional indemnity provided for by law, as compensation for aspects of Mr. Wood’s conduct that were characterized by the Court as improper (" abusifs " was the word the judge used at para. [32]). *** [ 4 ] In his motion for judicial review, Mr. Wood alleged a series of jurisdictional errors he said were made by the trial judge both in respect of the principal demand and the cross demand. He claimed in particular that the trial judge’s decision not to consider certain experts’ reports filed by Mr.

Woods, because of the absence of their authors in court, amounted to a jurisdictional error, especially in light of the fact that the trial judge failed to apply

article 980 C.C.P. He alleged as well that the trial judge made a jurisdictional error in his application of

article 985 C.C.Q. bearing on the responsibility of the owner of a tree for branches that extend across neighbouring land, in particular in refusing to consider an injunctive remedy. Further, he alleged that the conclusions on the cross demand were insufficiently explained, notwithstanding the rule in Small Claims encouraging the brevity of reasons for judgment in

article 983 C.C.P., thereby constituting a breach of the rules of procedural fairness and natural justice. *** [ 5 ] After setting forth the applicable norms for judicial review based in part on her reading of Dunsmuir v. New Brunswick [1] , and Mondesir v. Asprakis [2] , the judge of the Superior Court dismissed Mr. Wood’s action. She held that the refusal to consider experts’ reports by the trial judge was not unreasonable in the circumstances, nor was it a breach of the rules of natural justice. Savard J. regretted the lack of discussion of

article 980 C.C.P. but did not see the omission as an error inviting judicial review (see, inter alia , paras. [37] and [51] of the judgment of the Superior Court).

[ 6 ] The judge further held that the principal finding by the trial judge that Mr. Wood’s had failed to show that the damage to his hedge was caused by Ms. Mahon’s trees or her trimming of those trees, stated at para. [26] of his reasons, was both intelligible and that it fell within the range of "acceptable outcomes" of the dispute within the meaning of Dunsmuir, supra .

In addition, the trial judge’s comments in respect of articles 976 and 985 C.C.Q. were not part of the ratio decidendi of the case and, whatever their value, they did not impugn the reasonable character of his decision (see para. [64] et seq . of her reasons). [ 7 ] Finally, the judge of the Superior Court decided that the reasons given by the trial judge on the cross demand, while succinct and in some respects lacking in detail, were adequate in the circumstances and did not amount to a violation of the rules of procedural fairness (see para. [76]). *** [ 8 ] In his motion for leave, Mr.

Wood does not contest the reasons of the judge of the Superior Court bearing on the applicable norms for judicial review or in respect of

article 985 C.C.Q. He argues, however, that the judge of the Superior Court erred in her conclusions on the admissibility in evidence of the expert reports pursuant to

article 980 C.C.P. and in her conclusions as to the sufficiency of reasons given the trial judge in disposing of the cross demand. He says that on the basis of those errors the motion for judicial review should have been granted *** [ 9 ] Was the trial judge’s refusal to allow the experts’ reports to be admitted in evidence unreasonable or a breach of natural justice? [ 10 ] The judge of the Superior Court observed that the trial judge neglected to cite

article 980 C.C.P. in his reasons and that this omission was "surprising" (para. [36]). Savard, J. explained in detail, however, why this "weakness" in the trial judge’s reasons did not render his conclusion on the admissibility of the reports unreasonable or unjust. I find the following observations of Savard, J. particularly compelling: [47] La

partie qui désire qu’une de ses pièces soit admissible en preuve sans qu'il soit nécessaire d'en faire témoigner l'auteur à l'audience, doit aviser le greffe que telle est son intention. La

partie adverse en est alors informée et est en mesure d'évaluer la nécessité d'exiger la présence du témoin. [48] En l'instance, M. Wood n'avise pas le greffe, ni Mme Mahon de son intention d'utiliser les rapports d'experts à

titre de « déclaration écrite pour valoir témoignage ». À l’audience, Mme Mahon ne consent pas à ce que ce soit le cas. [49] Un des rapports que M. Wood désire déposer en preuve est concomitant à sa demande. Il vise à établir les dommages subis à la haie, de même que leur origine. Ces questions sont au cœur du litige entre les parties. [50] Dans ce contexte, et à la lumière des règles de preuve et de l'article 980 C.p.c., il était raisonnable pour le juge de la Cour du Québec d'appliquer le principe général voulant que les témoins témoignent à l'audience et de ne pas accepter les rapports d'experts à

titre de déclaration écrite pour valoir témoignage, les formalités préalables à cette fin n'ayant pas été remplies. [Footnotes omitted.] [ 11 ] I agree with the judge of the Superior Court that, given the circumstances in which they were invoked, it was not unreasonable or unjust for the trial judge to refuse to allow the experts’ reports to be admitted, and that the fact that the trial judge makes no reference to

article 980 C.C.P. is of little moment. [ 12 ] To my mind, this argument does not disclose grounds that justify granting leave to appeal pursuant to

article 26 C.C.P. *** [ 13 ] Are the reasons provided by the trial judge to explain the basis for finding Mr. Wood to be at fault in the cross demand insufficient? [ 14 ] Mr. Wood contends that the unspecified reference to his alleged wrongdoing by the trial judge in his analysis of the cross demand amounts to a violation of natural justice.

He is left not knowing what of his conduct has generated liability, and is unsure whether the judge mistakenly included acts committed outside the prescription period. [ 15 ] The judge of the Superior Court read paragraphs [31] to [34], along with paragraph [14] of the trial judgment, to conclude that the reasons were sufficient so as not to amount to a breach of natural justice. She recognized that it would have been preferable for the trial judge to have provided more detail [3] .

But Savard, J. was nevertheless of the view that the reasons were sufficient, noting in particular the following: [77] Or, la nuance énoncée par le juge dans ses motifs permet de comprendre son raisonnement et sa conclusion : il considère fautifs les gestes posés par M. Wood dans l'exercice de ses droits d'accès à la propriété de Mme Mahon aux termes de l'injonction, tout en l'exonérant pour l'exercice du recours dont il est saisi. [78] À la lumière de cette distinction entre ce que le juge considère fautif et non fautif, les parties sont à même de comprendre son raisonnement et sa décision.

Si elles estiment que cette conclusion n'est pas raisonnable à la lumière de la preuve, elles peuvent, si elles le jugent opportun, faire valoir leur recours. [79] Le Tribunal est d'avis que le juge de la Cour du Québec n'a pas manqué à son obligation de motiver. [ 16 ] I agree. I see no basis for granting leave according to the criteria identified in

article 26 C.C.P.

*** [ 17 ] As a final note, it cannot be left unsaid that there is a relatively small amount of money in dispute as against the costs of appeal. In so saying, I mean no disrespect to the importance of the jurisdiction exercised by the Small Claims Division nor do I mean to trivialize the significance of the principles involved for the parties. But judgments of the Small Claims Division are not subject to appeal on the merits in order to encourage the parties to achieve closure for their dispute at a relatively low personal and social cost. Those judgments are subject to judicial review, as

article 984, para. 2, C.C.P. makes plain, and the parties have had the benefit of a particularly rigorous analysis of their respective rights and obligations by the judge of the Superior Court. [ 18 ] Had I concluded that the judge erred, I would nevertheless have hesitated before granting leave given the obviously disproportionate costs of further innings in this longstanding dispute. [4] Closure before the courts must come at some point, and I would respectfully suggest that the parties might do well to consider another avenue for resolving their differences before the next trimming season. FOR THESE REASONS , the undersigned: [ 19 ] DISMISSES the motion, with costs. NICHOLAS KASIRER, J.A.