2014 QCCQ 12182, 2014 QCCQ 12182

Flanders c. Hampstead (Town of) 2014 QCCQ 12182 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142516-147 DATE: December 2, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ TIBIE FLANDERS -and- MICHAEL FLANDERS Plaintiffs v.

TOWN OF HAMPSTEAD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Introduction [ 1 ] Plaintiffs Tibie Flanders and Michael Flanders (the “Flanders”), homeowners, sue the Defendant, the Town of Hampstead (“Hampstead”), their local municipality, for damages suffered as a result of the falling of large branches of a tree owned by Hampstead. The walkway, the outdoor light fixture, the wrought iron hand railing, the front stairs and the landing of their house were all damaged at the time of the incident.

Hampstead denies liability on the basis that at the time of the incident, the tree from which the large branch fell was in perfect condition and the speed of the wind should be considered a superior force. The Flanders’ Position [ 2 ] The Flanders were represented by Tibie Flanders. She testified that on August 8, 2013, a large dead branch broke off from the tree in her front yard and landed on the roof of her husband’s car and made a large dent. The tree is a mature Norwegian maple.

On September 14, 2013, the Flanders wrote to Hampstead to report the incident, in particular, the falling of a dead branch from the tree owned by Hampstead, and claimed compensation [1] . Hampstead received the letter on September 16, 2013 [2] . On September 18, 2013, Hampstead, through the town clerk, Maître Nathalie Lauzière, replied that the claim was being denied since more than 15 days had elapsed between the Flanders’ knowledge of the incident and the receipt of the letter in accordance with

Section 585 of the Cities and Town Act [3] . [ 3 ] On November 1, 2013, some 48 days later, several more branches, including a massive branch fell from the same tree and damaged the Flanders’ property. The photographs [4] filed indicate significant and substantial damage to the flagstone of the walkway, the front steps, the landing, the wrought iron hand rail, the electric outlet and the front electric lamp of the house. Ms. Flanders filed exhibits showing that the total cost of repair was $9,531.93 [5] .

The Flanders made a written claim to Hampstead on November 4, 2013 [6] and therefore well within the 15 day time limit. This time, the claim was referred to Hampstead's Chief of Operations for follow-

up. On December 12, 2013, Hampstead denied the claim on the basis that the tree was “healthy and well maintained” and that the incident occurred during an alleged “violent wind storm”. [ 4 ] The Flanders also reported the loss to their insurer and made a claim under their homeowner insurance policy. In July 2014, they were fully paid for the damages, except for an amount of $700 which was their deductible under the policy.

By the present motion, the Flanders claim the deductible amount as compensation from Hampstead. [ 5 ] The Flanders have also been advised by their insurer that their premium under their homeowner insurance policy will be increased as a result of their claim. Therefore, the Flanders also claim compensation equivalent to the increase of their premium over the next three years of $1,962 that has been declared by their insurer, Intact. An analyst from Intact, Manon Jacques, testified on behalf of Plaintiffs.

She explained that the Flanders’ premium will go up approximately 23% on a repeated basis over a period of three years [7] . This is because the Flanders will no longer qualify for the discounted rate which is only available to homeowners who have not had a claim in the last three years. Ms. Jacques admitted though that the setting and final determination of the premium can also be based on other factors such as environmental disasters as well as competition. [ 6 ] The Flanders also filed a report on the condition of the tree dated October 9, 2014 prepared by an arborist, Serge Gagnon. In his report, Mr.

Gagnon describes a tree which is sick and inadequately maintained. He inspected the tree on October 7, 2014. He identified two dead branches and two “chicots” (existing stump branches caused by previous breaks). He states that these should have been pruned, cut back and taken care of already. He states that “ils vont carier et ce n’est qu’une question de temps pour qu’ils craquent et tombent au sol”. He describes a tree which is ailing and the effect of various past injuries having compromised its structural strength.

At page 3 of his report [8] , he states: « Le bois carié perd son élasticité et sa force structurale et la résistance de l’arbre s’en trouve diminuer d’autant. Tenant compte de la position de la vieille blessure, près de la fourche de la branche où les forces de tension et d’extension dans le bois sont relativement grandes, nous croyons que les risques de bris de cette branche sont élevés. » [ 7 ] However , Mr. Gagnon does not call for the tree to be condemned.

Instead, he calls for an urgent intervention of maintenance to restore the health of the tree. [ 8 ] The Flanders reject that the cause of breakage of the branches was due to a superior force. Ms. Flanders states that there are several other trees of the same type and age on her street and that none of them were affected by the strong wind of November 1, 2013. For the Flanders, the real cause of the fall of the branches and the damages sustained on November 1, 2013 was the lack of proper maintenance of the tree by Hampstead.

Hampstead’s position [ 9 ] Yves Mailhot, Director of Operations, represented Hampstead at the hearing. Mr. Mailhot acknowledged that the tree in question is owned by Hampstead. Mr. Mailhot explained that in 2012, Hampstead carried out an inventory of all its trees which number approximately 3,400 in all. Each tree was inspected, evaluated and rated. Mr. Mailhot filed into Court the report on the tree in issue [9] . [ 10 ] The tree inventory inspection took place on March 7, 2012. The report at that time was overall favourable to the tree, but somewhat contradictory.

For the “Condition of the wood”, the report indicates “very good 90%”, for “Percent deadwood”, it states “less than 10%”, for “Condition”, it indicates “Excellent 90-100%”. While the report states “No maintenance necessary”, it also states “Further inspection suggested”. [ 11 ] Donald Reid, a claims analyst with the Firm GFD hired by Hampstead, also testified. Apart from photographs detailing the damages, he filed into Court reports from Environment Canada regarding the speed of wind at various times on the day of the incident, November 1, 2013.

Those readings were taken at Pierre Elliot Trudeau Airport in Dorval some 13 kilometres away. This data indicates that high winds took place at the Airport on that date, sometimes the daily minimum 2 minute average rate was recorded at 72 km per hour [10] . There was no evidence adduced that the rate of 72 km per hour was so high or unusual that it should be considered unforeseeable, irresistible or unavoidable as required to meet the test of a superior force under

Article 1470 C.C.Q.

Analysis and Decision Law [ 12 ] According to the law, Hampstead as owner of the tree has the legal responsibility to properly maintain it. Relevant articles of the Civil Code of Quebec include: “

Article 1465 . The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.” “

Article 1467 . The owner of an immovable, without prejudice to his liability as custodian, is bound to make reparation for injury caused by its ruin, even partial, whether the ruin has resulted from lack of repair or from a defect in construction.” [ 13 ] As custodian of the tree, Hampstead is presumed responsible for injury from falling branches unless it proves that it was not at fault. Furthermore, as owner of the tree, Hampstead is responsible for damages caused by falling branches where they result from lack of maintenance of the tree.

Hampstead has also invoked the defence of superior force (“force majeure”, “fortuitous event” or “Act of God”) [11] . Liability [ 14 ] There was no proof made to establish that the speed of the wind on the street concerned on November 1, 2013 should be considered to be so unforeseeable and unavoidable that it constitutes a superior force or force majeure in law. It has been established that there was no widespread damages in Hampstead caused by wind at excessive speed on that day. There was only very isolated damage.

Accordingly, the Court rejects the defence of superior force [12] . [ 15 ] The other defence of the Town of Hampstead is that the tree in question was in “perfect condition” and the damages were therefore not caused by lack of maintenance. [ 16 ] Considering all the proof heard, the Court is of the view that Hampstead has not discharged its burden to show that the damages suffered did not result from its fault. In the Court’s view, the probable cause of the falling branches and the resulting damages was the lack of timely repair or maintenance of the tree. [ 17 ] It is clear from the report of Mr.

Gagnon that the fragile or compromised state of the tree is not recent and has existed since at least the summer of 2013. In the Court’s view, this conclusion is supported by the fact that the Flanders sent a first letter to Hampstead on September 14, 2013 (received on September 16, 2013) complaining of damages sustained from the fall of a dead branch on August 8, 2013. However, according to the proof, the Hampstead authorities did not act on that complaint in any way. Since the notice of claim was outside the prescribed fifteen (15) day delay, there was no follow-up or inspection of the tree.

In the Court’s view, that incident was a warning that the tree was in immediate need of care, attention and maintenance. Hampstead had a period of approximately 45 days before the next and more dramatic incident occurred on November 1, 2013.

During this period, no one from Hampstead even went to inspect the condition of the problematic tree after the Flanders first complained that a dead branch had fallen and caused damages. [ 18 ] Hampstead was not responsible for the damages resulting from the incident of August 8, 2013 since it had the previous report on hand from the 2012 inventory which did not indicate that immediate maintenance was required for this tree.

But after the authorities of Hampstead had received a warning by way of the Flanders' letter of September 16, 2013, they should have followed up to inspect the condition of the tree and determine whether the 2012 report was accurate and still current. Had they done so, the Court’s view is that they would have ascertained the need for an immediate intervention of maintenance. Hampstead’s failure to act promptly after that

warning constitutes a fault rendering it liable for the damages suffered by the Flanders as a result of the incident of November 1, 2013.

Damages [ 19 ] As the physical damages of $9,531.93 to the Flanders' home have been paid by their insurer, less the $700 deductible, the amount of admissible damages for the incident of November 1, 2013 is that much less. [ 20 ] First, the Flanders are entitled to payment of their deductible of $700. [ 21 ] Second, regarding the claim for the additional future amount of increase in insurance premiums, the Court needs to be prudent in its assessment since the actual amount of future increases is a matter of projection. But under Quebec law, future injury is admissible when it is certain and can be assessed [13] .

Here the damage, in light of the proof heard, is certain in that the Flanders’ current insurer insists on an increase of the insurance premiums at least over the next three years.

Furthermore, it is unquestionable that given the claim made and damages received by the Flanders under their policy, the Flanders will have to disclose these facts to any other insurer and this will have a similar certain impact of increase on the determination of the future insurance premiums for their home over the short term, in particular over the next three years. [ 22 ] The Flanders have established that their current annual home insurance premium is $2,898, plus tax [14] . They seek 23% of that, namely $666.54 over three (3) years, which equates to $1,999.62.

Given the possibility of negotiation of future premiums, and that the amounts of increase are not yet due, the Court discounts and arbitrates the projected annual amount of increase to 12% ($347.76) plus taxes of $93.90 for each year, for a total amount over three years of $1,136.90. [ 23 ] The Flanders also claim for the invoice of the expert report of the arborist in the amount of $238. The amount is reasonable and the report was relevant and useful for the determination of the issues. Therefore, that amount will also be granted.

FOR THESE REASONS, THE COURT: GRANTS the motion in part; CONDEMNS the Town of Hampstead to pay to Tibie Flanders and Michael Flanders the amount of $2,074.90, plus legal interest at 5% per annum as well as the special indemnity provided at

Article 1619 of the Civil Code of Quebec from the time of institution of the legal proceedings, namely April 24, 2014; WITH JUDICIAL COSTS of $106 in favour of Tibie Flanders and Michael Flanders. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: October 27, 2014