2022 QCCQ 1432, 2022 QCCQ 1432

Gamboa c. Huyn 2022 QCCQ 1432 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-160404-192 DATE : March 23, 2022 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ JORGE-OMAR GAMBOA Plaintiff c. JOO KAND HUYN and 9168-2823 QUÉBEC INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Jorge-Omar Gamboa ( Gamboa ) claims damages of $15,000 representing the cost of removing fence posts installed by the Defendant Huyn Joo Kand ( Kand ) on his property and for the stress and inconvenience he endured due to the harassment from Kand. [ 2 ] Kand denies having ever harassed Gamboa. By her Cross Claim, Kand alleges that it is Gamboa who harassed her, invaded her privacy and damaged her fence, forcing her to call the police.

She claims by her Cross-Claim $15,000 in damages. The sequence of events [ 3 ] The parties are neighbours. In the Fall of 2016, Kand had a fence installed on her property, on the line separating both lots. [ 4 ] Gamboa realized that the posts, inserted in concrete footings, were installed on his property, as confirmed by the surveyor retained by Gamboa who picketed his lot and installed boundary markers. [ 5 ] Shortly thereafter, Gamboa saw on the video camera installed on his property, that two men arrived in a pick-up truck and forcefully removed these boundary markers.

Gamboa is convinced that they were hired by Kand to do this misdeed, as no one else had any reason to remove the markers. [ 6 ] During this period, Gamboa also complained that Kand installed a surveillance camera, pointing directly on his front door. He complains that she also harassed him, and insulted him every time he went out to cut his grass, forcing him to stop cutting it. Gamboa felt obliged to file a criminal complaint against Kand. [ 7 ] In December 2016, Kand undertook, in accordance with

Article 810 of the Criminal Code , to abstain from communicating with Gamboa, always keep a distance of five metres and abstain from crossing on his property. [ 8 ] In May and June 2017, Gamboa sent to Kand three Demand letters [1] by registered mail, at a cost of $30, none of which were picked-up by Kand.

He was forced to retain the services of an attorney to send the demand letter by bailiff, at a cost of $36.05 [2] that he claims, plus his attorney fees of $253.86 [3] requesting that she remove the fence posts and the surveillance camera she had installed, and claiming $2,500 in damages for the stress and inconvenience suffered by this situation. [ 9 ] Gamboa also offered to retain the services of a surveyor and share the cost, to mark the boundaries of their two properties.

Kand never accepted this proposal. [ 10 ] In November 2017, Gamboa had to again retain the services of a surveyor to install new boundary markers, and sent the report to Kand [4] , again requesting that the posts and concrete footing be removed from his property. [ 11 ] Kand replied that she was prepared to remove the fence posts on the condition that he cut down a tree on Gamboa’s property. [ 12 ] Gamboa did undertake steps to do so, however, Sébastien Kuczynsky, an employee of the Dorval District, refused as the tree was not dead and only allowed that branches be cut.

It is only in 2019, that Gamboa received permission to cut down the tree.

[ 13 ] Following this, Kand removed her fence posts but left the concrete footings.

Gamboa estimates that he will have to incur an expense of $500 to remove these footings. [ 14 ] Gamboa also complains that Kand installed a very bright light pointing directly into Gamboa’s bedroom. [ 15 ] Genevieve Houbart, police officer with the SPVM, confirms in her declaration [5] that Gamboa filed a complaint against Kand because of the light which she confirms was very bright and did shine in his bedroom. [ 16 ] Detective Sergeant Julie Bélanger, who testified at Court, also received a complaint by Gamboa in 2017, following the removal of the boundary markers and she confirms that she saw on the video two individuals arriving in a pick-up truck and removed the boundary markers on Gamboa’s property.

The analysis [ 17 ] Gamboa claims $2,500 in damages for the stress and inconvenience suffered for having Kand’s fence posts installed on his property, from 2016 to 2019, the concrete footings that are still on his property, the camera pointing on his front door, the light shining in his bedroom window and the harassment by Kand. [ 18 ] Gamboa provides the Court with a photograph [6] showing the concrete footing and the cameras on Kand’s property. [ 19 ] Gamboa also claims the cost for the surveyor’s certificates and the markers installed on his property totalling $1,149.75 [7] . [ 20 ] He also claims the postage stamp and bailiff cost to send the demand letter and his attorney’s fees. [ 21 ] Kand does not deny that the fence posts were installed on Gamboa’s property, but state that it was not her but the worker she hired who installed them. [ 22 ] There is no justification for Kand to have installed these posts and concrete footings on Gamboa’s property only accepting to remove them if Gamboa removed a tree and leaving the posts for three years and neglecting to remove the concrete potings. [ 23 ] Gamboa has fulfilled his burden of proof and showed that Kand did harass him, causing him stress and inconvenience. [ 24 ] The Court grant’s in part Gamboa’s claim in the amount of $4, 470,11 representing the cost of the surveyor to install boundary markers a second time; $500 to remove the concrete footings, the attorney fees, the cost for the demand letters and $2,500 for the stress and inconvenience suffered. [ 25 ] As for Kand’s Cross-Claim, she claims $150 representing the cost of a plank in her fence that was broken by Gamboa.

He offered $180 to repair the plank but she refused. She adds an amount of $804,82 to repair the fence [8] . Kand did not prove that her fence was damaged by Gamboa, even if he offered to replace a plank. [ 26 ] Kand did not show that her Cross Claim was founded. Although Gamboa instituted his action against 9168-2823 Québec Inc., there is no relationship between this company and Gamboa, or that it was damages involved or caused any to him, only by Kand is responsible for the damages suffered.

FOR THESE REASONS, THE COURT: GRANTS in part Plaintiff’s claim; CONDEMS Huyn Joo Kand to pay to the Plaintiff Jorge-Omar Gamboa the sum of $4,470,11 plus the interests at the legal rate and the additional indemnity provided at

article 1619 of the Civil Code of Québec as of June 13, 2019, the date of the institution of the claim; WITH COSTS in the amount of $205 representing the judicial stamp of the Demand. DISMISSES the Defendant’s Cross-Claim, without cost. ________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing : February 9, 2022