2023 QCCQ 4010, 2023 QCCQ 4010

Tarhabi c. Bonin 2023 QCCQ 4010 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-713023-200 DATE: June 23, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ SIMIN TARHABI Plaintiff / Cross-defendant v.

MICHEL BONIN and LOUISE BONIN Defendants / Cross-plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff and defendants are neighbours. [ 2 ] Plaintiff is suing defendants, in damages, alleging essentially that:

a) she has “not been able to enjoy (her) pool” because … “of leaves and piles of dead broken branches that cause damage to (her) pool”;

b) defendants’ “cedar trees are blocking the sun and taking the enjoyment away”; and

c) the cedar hedges and trees “endanger and put the safety of (plaintiff) at risk”. [ 3 ] In support of her claim, plaintiff filed a demand letter dated July 29, 2019 (exhibit P-3); another demand letter dated September 7, 2020 (exhibit P-4); a work order issued by 9185-3747 Québec Inc. dated “June 2017” (exhibit P-5); as well as several undated pictures. At trial, plaintiff declared not knowing when the pictures were taken.

The pictures show a small number of leaves floating on top of plaintiff’s unopened pool which does not seem to be in the best condition. [ 4 ] As to the 2 pictures filed as exhibit P-7, plaintiff was unable to describe when and under what circumstances they were taken. [ 5 ] Plaintiff presented no expert witness either with respect to her allegations regarding defendants’ cedar hedge and trees, neither with respect to the alleged damages to her pool. [ 6 ] Work order P-5 is not signed, and no witness was heard, nor written declaration filed, in support of the contents thereof. [ 7 ] In the end, the Court was left with plaintiff’s

summary testimony and the unsubstantiated allegations in her statement of claim. [ 8 ] The claim was filed on September 21, 2020; therefore, all alleged damages having occurred before September 22, 2017, are prescribed. [ 9 ] As for the period between 2017 and 2020, the allegations of defendants’ faults and omissions with respect to, inter alia, the

maintenance of the cedar hedge and trees, remained grossly unsubstantiated. [ 10 ] Plaintiff had the burden of proof (articles 2803 and 2804); and the onus of proving fault, damages and a causal link between the two, belonged to her. [ 11 ] Unfortunately, plaintiff did not meet her burden of proof. [ 12 ] What is clear, is that plaintiff does not appreciate the height of defendants’ cedar hedge.

However, defendants’ evidence demonstrated that their hedge is very well maintained, as are defendants’ trees and all of the area bordering plaintiff’s backyard (exhibits D-1 to D-8). [ 13 ] As well, defendant’s credible testimony, corroborated by that of Stéphanie Bonin, proved that defendants have meticulously maintained their trees and property over the years, on a yearly basis, with the advice and assistance of trained professionals ( inter alia , exhibit D-7). [ 14 ] There is absolutely no evidence that defendants are responsible for the alleged damages to plaintiff’s pool.

In fact, defendant testified that plaintiff has not regularly occupied the property since 2017 (at trial, plaintiff confirmed that, between 2017 and 2020, she was away 6 months a year), and that the pool has not been taken care of in recent years. CROSS-APPLICATION [ 15 ] Defendants are suing plaintiff for $14,800.00. [ 16 ] In their cross-application, they allege the following, inter alia : Motifs: 1. Dommages causés à la haie de cèdre (74 arbres) par la taille de branches de cèdre à une hauteur de 12 pieds sans approbation ni consentement du propriétaire (Annexe #1). 2.

Perte d’intimité causée par les éclaircies résultant de la coupe des branches de cèdre (Annexe #2). Pour ces raisons, la

partie défenderesse demande à la cour de: CONDAMNER solidairement la

partie demanderesse à payer à la

partie défenderesse la somme de 14,800.00$ conformément à la

loi sur la protection des arbres, RLRQ c P-37 : “ quiconque détruit ou endommage, totalement ou partiellement un arbre, arbuste ou arbrisseau sans avoir obtenu préalablement le consentement du propriétaire de tel arbre, arbuste ou arbrisseau, est tenue de payer au propriétaire d’un montant n’excédant pas 200.00$ pour chaque arbre, arbuste ou arbrisseau détruit ou endommagé, totalement ou partiellement. ” [ 17 ] Without the opinion of an expert witness, the Court does not have sufficient evidence to conclude that plaintiff damaged defendants’ cedar hedges.

The pictures filed by defendants do not prove, according to a preponderance of evidence, that plaintiff’s actions caused the alleged “ éclaircies ” in the cedar hedge, which is almost 50 years old. WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's application; DISMISSES defendants’ cross-application; EACH PARTY paying its own costs. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: May 25, 2023