2022 QCCQ 4246, 2022 QCCQ 4246

Bowen c. Sproul 2022 QCCQ 4246 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY « Civil Division » N° : 555-32-700054-204 DATE : June 22, 2022 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN, J.C.Q. ______________________________________________________________________ DAVID BOWEN Plaintiff v. ANTHONY SPROUL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I. INTRODUCTION [ 1 ] Mr.

Bowen is suing Mr. Sproul for cutting trees on his property. He is claiming $ 14 999.00 in damages and in punitive damages. [ 2 ] Mr. Sproul admitted that he cut the trees. [ 3 ] Mr. Sproul is suing Mr. Bowen in a cross application for half of the survey fees ($ 1 17131), for loss of enjoyment because of the harassment of Mr. Bowen and his two sons ($ 2 000.00) and judicial cost ($ 313.00). II.

QUESTIONS IN LITIGATION [ 4 ] The Court has to decide the amounts of the compensatory damages and the punitive damages in the principal application and the link of causality? [ 5 ] Also, the Court has to decide in the cross application, if Mr. Sproul demonstrated according to the balance of probabilities that Mr. Bowen has to reimburse him half of the survey, if Mr. Bowen and his two sons did harassment to him and his family and has to refund his judicial fees in the counter-claim. III. FACTS A. Principal application [ 6 ] Mr.

Bowen owns a real property on Simpson Lake of about one acre on which he has two cottages. [ 7 ] Mr. Sproul owns a real property on the same lake of about 276 acres. [ 8 ] They have a common division line on the West side line of Mr. Bowen property. Along that line it is existing an old road or a path giving access to the lake to Mr. Sproul or other. West to that line, on Mr. Sproul property, it is steeper to access to the lake. [ 9 ] Mr. Sproul decided to cut the trees on that path and to bulldoze it. Mr. Bowen noticed it and he discussed with Mr. Sproul on the site.

He told him that a part of that path is situated on his property and Mr. Sproul believed that all the path was on his property. [ 10 ] According to Mr. Sproul, they had a shake hand agreement (oral agreement) that day with Mr. Bowen that he could use that path and in exchange he will bulldoze two parking spaces up the hill for Mr. Bowen’s sons. However, according to Mr. Sproul, Mr. Bowen rescinded the oral agreement later. Mr. Bowen did ask that day to stop cutting trees.

[ 11 ] According to Mr. Bowen, they had discussions but no agreement. [ 12 ] The parties agreed that 30 trees were cut: - 1 popular (10 cm); - 2 spruces (biggest one 15 cm); - 27 saplings (2,5 cm or less). [ 13 ] The nature regrows naturally most of the saplings and some trees were planted by Mr. Bowen. [ 14 ] All the cut trees are along the division line or close to it and far from Mr. Bowen’s cottages. They did not affect the view of Mr. Bowen. [ 15 ] Mr. Bowen is claiming $ 14 999.00 for replacement cost for trees, loss of foraging opportunities, property value damages, labour for cleanup and punitive damages.

B. Cross application [ 16 ] When Mr. Sproul noticed that Mr. Bowen disagreed with the cutting of the trees along the path situated on his property, he stopped cutting the trees, informed Mr. Bowen that he will hire a surveyor and hired a surveyor. He claims half of the surveyor fees $ 1 171.31 $ [ 17 ] Concerning the harassment, the Court read the two statements in lieu of testimony of Mrs. Lyle and Mrs. Sproul and listen to Mr. Bowen’s sons and an audio recording. He is claiming $ 2 000.00 $ and the judicial fees $ 313.00 $. IV.

Analysis [ 18 ] Concerning the burden of proof, the Legislator stated at sections 2803 and 2804 of Civil Code of Quebec ( C.c.Q. ) that: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 19 ] Both parties have to demonstrate for their principal application and their cross application on the balance of probabilities all the constituent elements of their onus of proof. [ 20 ] Concerning the civil responsibility, the Legislator wrote at

section 1457 C.c.Q. : 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature. He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [ 21 ]

Section 1607 and 1611 of the C.c.Q. are treating about injury or compensatory damages: 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. [ 22 ] Punitive damages claim appears at

section 1621 C.c.Q. : 1621. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose. Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the reparatory damages is wholly or partly assumed by a third person. [ 23 ] The Legislator awards punitive damage in the Tree Protection Act , [1]

section 1 :

Notwithstanding any general or special law authorizing same, any person or any legal person constituted in Québec or elsewhere by any authority whatsoever, destroying or damaging, wholly or partly, a tree, sapling or shrub, or any underwood, anywhere other than in a forest under the management of the Minister of Natural Resources and Wildlife, without having obtained, upon petition therefor notified to the interested parties, the authorization of the Minister of Sustainable Development, Environment and Parks, unless a consent has been previously given by the owner of such tree, sapling, shrub or underwood, shall be bound to pay to the owner of such tree, sapling, shrub or underwood, in addition to actual damages, punitive damages in an amount not exceeding $200 for each such tree, sapling, shrub or underwood so wholly or partly destroyed or damaged.

Nevertheless, this

section shall not apply in cases where such trees or shrubs accidentally come in contact with wires or apparatus of a public utility in a manner to endanger life or property or to interrupt service, nor in the cases falling under

article 985 of the Civil Code . [ 24 ] Judge Richard Landry, in the case Boucher c. Merla , [2] analyzed the jurisprudence on punitive damages were trees cutting were involved and wrote: [36] La

Loi sur la protection des arbres impose au juge l’obligation d’octroyer des dommages punitifs «à toute personne... qui détruit ou endommage, totalement ou partiellement, un arbre, arbuste ou arbrisseau ...». La discrétion du juge porte donc sur le montant des dommages punitifs à accorder . [37] Au sujet des dommages-intérêts punitifs, dans Séminaire de Québec c. Laplante , monsieur le juge Pronovost écrit ce qui suit: «[79] Lorsqu’il est accordé le maximum , on tient compte de l’insouciance , de la témérité et de la conduite répréhensive du contrevenant.

Par contre, lorsqu’il n’y avait pas d’intention malicieuse et que le tout relevait tout simplement d’une conduite négligente , comme un débordement dans une ligne de division, la pénalité est moindre. On nous indique également de tenir compte de la qualité et de la quantité d’arbres dans le calcul des dommages exemplaires. Finalement, on doit tenir compte de la capacité de payer du défendeur.» (Notre soulignement.) [38] De même, dans Laforge c. Boivin , monsieur le juge Barbe s’exprime ainsi: «Le caractère pénal de cette disposition est manifeste.

La loi, d’une part, ne se préoccupe pas de savoir si la destruction de l’arbre est volontaire ou non. D’autre part, elle n’accorde de pouvoir discrétionnaire au juge que dans la fixation du montant à accorder mais non dans l’octroi lui-même. Une destruction négligente oblige le responsable à payer des dommages compensatoires et dommages punitifs et impose à la Cour de prononcer la condamnation.

Dans l’évaluation du montant, les tribunaux tiennent cependant compte du caractère malicieux ou intentionnel de l’acte, de l’insouciance manifeste à l’égard d’autrui, de l’existence ou non d’antécédents et de l’effet préventif que peut avoir la condamnation sur l’auteur du dommage (Lemay c. Poulin, [1992] R.R.A. 263 (C.S.) ; Grondin c. Debien, [1992] R.R.A. 47 (C.S.) ; Ouellette c. Forget, [1992] R.R.A. 940 (C.S.) ). Les dommages punitifs s’ajoutent aux dommages compensatoires déjà accordés.

Rappelons que les dommages punitifs sont destinés à marquer la réprobation devant une conduite de grande négligence ou qui démontre chez son auteur une intention de nuire ou de la mauvaise foi. Sur cette question, le Code civil du Québec de 1994 a pris soin d’encadrer cette institution en énumérant à l’

article 1621 les critères dont le juge doit tenir compte lorsqu’il les accorde.» (Notre soulignement.) [39] Il est arrivé cependant que, dans de rares cas, la «bonne foi» de l’auteur des dommages l’a exempté d’une condamnation à des dommages-intérêts punitifs . [ 25 ] Also, the Court consulted other cases [3] concerning trees cutting. A. Principal application [ 26 ] Regarding the compensatory damages, Mr. Bowen did not have any forest expert to appraise the value of the cut trees. The pictures shown the stumps of the trees. The number and size are uncontested. Also, he spent about 10 hours cleaning up.

He expected that the trees will grow and that the path will disappear to prevent trespasser to use it to go to the lake. Also, he admitted that since the event, the saplings grown up and are about the size of those which were cut. Moreover, because the trees were along the West line of division, he did not see them from his cottages. [ 27 ] The Court arbitrates is compensatory damage at $ 1 000.00. [ 28 ] Concerning the punitive damages, he is entitled to have it according to

section 1 of the Tree Protection Act . [4] The Court does not see any malicious nor bad faith in Mr. Sproul’s behaviour. He was simply in a hurry and wrongly informed by his sale agent of the division line. After Mr. Bowen demonstrated his opposition to cut the trees, he stopped. He hired a surveyor and he discovers that, he cut trees on Mr. Bowen’s property.

He admitted in Court having cut the trees and also the number and the size of the trees. [ 29 ] The Court detailed the cut trees and the punitive damages that he grants: Species Punitive damages 1 popular $ 50 2 spruce $ 200 27 saplings $ 270 Total: $520 [ 30 ] Mr. Bowen demonstrated the link of causality between the fault and the damages.

[ 30 ] Mr. Bowen demonstrated the link of causality between the fault and the damages. [ 31 ] The Court concluded that Mr. Sproul did not demonstrate according to the balance of probabilities an agreement between the parties because both parties are credible and Mr. Sproul has that onus of proof on his shoulder. [ 32 ] But the Court believes that by his behaviour, Mr. Bowen (initially, he did not stop Mr. Sproul to cut the trees and they shacked their hands) let believe Mr. Sproul that he was entitled to cut the trees. According to

section 1478 C.c.Q. : 1478. Where an injury has been caused by several persons, liability is shared between them in proportion to the seriousness of the fault of each. The victim is included in the apportionment when the injury is partly the effect of his own fault. [ 33 ] The Court believes that Mr. Bowen contributed in the same proportion as Mr. Sproul in the fault and he should share half of the damages. [ 34 ] In consideration of that conclusion, the Court reduces the compensatory damages and the punitive damages by half for a total amount of $ 760.00. B. Cross demand [ 35 ] Concerning the surveyor fees, the Court refers the parties to

section 978 C.c.Q. which states: 978. Every owner may compel his neighbour to have the boundaries between their contiguous lands determined in order to fix the boundary markers, set displaced or missing boundary markers back in place, verify ancient boundary markers or rectify the dividing line between their properties.

Failing agreement between them, the owner shall first make a demand to his neighbour requiring to consent to having the boundaries determined and to agree upon the choice of a land surveyor to carry out the necessary operations, in accordance with the rules in the Code of Civil Procedure (chapter C-25.01 ). The minutes of the boundary-marking operations must be registered in the land register; the boundary determination report may be attached to the minutes. [ 36 ] The Court concludes that Mr. Sproul did not fulfill his burden of proof on this claim. He did not compel Mr.

Bowen to have a boundary determined between their contiguous properties. Instead, he unilaterally hired a surveyor. Also, on the surveyor’s certificate it is written: “at the request of Mr. Tony Sproul”. [ 37 ] Regarding the harassment, The Court quotes

section 264 of the Criminal Code : 264. Criminal harassment

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. (…) [ 38 ] The evidence does not situate the behaviour of Mr. Bowen’s sons in one of the conduct here above described. They were sat in a car on the road close to the contiguous line and watching trespassers. Also, it is Mrs. Sproul and Mr. Sproul who spoke to them. Moreover, the evidence did not demonstrate that Mr. Bowen’s sons were minor at the time of the event and that Mr. Bowen is responsible for their fault if it was the case. Moreover, they are not sued in this action. Finally, the evidence did not show Mr.

Bowen to be involved in the harassment described by Mr. Sproul. [ 39 ] Finally, concerning Mr. Sproul’s last claim, the judicial fees are attributed by the Court to the party who win his application. [ 40 ] The Court concludes that Mr. Sproul did not success in his cross demand. FOR THESE REASONS, THE COURT: [ 41 ] GRANTS Mr. Bowen’s principal application; [ 42 ] CONDEMNS the defendant Mr. Sproul to pay to the plaintiff Mr. Bowen the sum of $ 760.00 with the interest at the legal rate since the principal application dated September 14, 2020, and additional indemnity according to

section 1619 of Civil Code of Quebec

WITH THE JUDICIAL COSTS of $ 209.00 ; [ 43 ] DISMISSES the cross claim of Mr. Sproul. __________________________________ SERGE LAURIN, J.C.Q. Date of hearing: June 9, 2022