2018 QCCQ 7042, 2018 QCCQ 7042

Iamonico c. Ville de Montréal 2018 QCCQ 7042 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-155198-163 DATE: September 28, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ ROBERTO IAMONICO Plaintiff v. VILLE DE MONTRÉAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Roberto Iamonico claims $ 300.00 from the Ville de Montréal ( City ) alleging that while driving on Pie-IX Boulevard his car brakes sustained damages after hitting several potholes. He contends that the presence of the potholes demonstrates faulty maintenance by the City. [ 2 ] The City denies any liability in this matter and submits that Mr. Iamonico has failed to prove the existence of the potholes he claims to have hit. The City adds that it was unaware of any problem, as it had not received any complaints from other drivers for the area in question. Furthermore, the City argues that Mr.

Iamonico failed to establish that the potholes he describes could have affected the car brakes and caused the damaged claimed. QUESTION IN ISSUE [ 3 ]

a) Has Mr. Iamonico proven the facts supporting his contentions with respect to the existence of potholes on the Pie-IX Boulevard?

b) Did the damages to Mr. Iamonico’s car result from a fault for which the City must be held liable? CONTEXT [ 4 ] On June 15, 2016 [1] , Mr. Iamonico was heading on Pie-IX Boulevard, in his 2015 Hyundai Elantra. [ 5 ] He alleges that there were numerous potholes between Jarry Street East and Sherbrooke Street and that he hit a number of them. After hitting the first pothole, Mr. Iamonico describes hearing rattling sounds of pads, calipers and discs, as well as squeaky sounds coming from the back of the car when driving or braking.

This led him to believe that his brakes had been damaged. [ 6 ] On the same day, Mr. Iamonico filed a Notice of Claim to the City describing the damages to his vehicle [2] : The deep and numereous potholes my car hit and fell into caused severe damage to my parking and braking system, causing premature wear and displacement damge to the affected brake parts and needs repair Needs brake repair to all four disc brakes ..apprx cost $60 per wheel plus tax…so $240 plus tax … may be less … I will inform you as needed (integral reproduction) (emphasis added) [ 7 ] About a week or two after June 15, 2016, Mr.

Iamonico claims to have returned to Pie-IX Boulevard to take some pictures of the potholes [3] . [ 8 ] At trial, the City questioned the accuracy of the photographic evidence submitted by Mr. Iamonico. The City pointed out that there are residues of snow, grit and salt on the streets photographed, suggesting that the pictures were either taken prior to the events or later in the year. [ 9 ] Mr. Iamonico alleges that he made several visits to the mechanics at Canadian Tire following the incident [4] . At the hearing, he produced invoices for repairs that he claimed was a result of his car hitting potholes.

Although his first visit was on October 13, 2016 [5] , he is only claiming the invoice dated November 27, 2016 [6] , as he explains that the invoices dated before and after November 27, 2016, are not directly related to the damages that occurred on June 15, 2016.

ANALYSIS [ 10 ] In civil matters, a person who asserts a right must prove the facts on which their claim is based [7] . [ 11 ] Consequently, the person who claims damages caused by the poor conditions of a road is bound to prove the facts on which their allegations are based, in addition to the fault of the defendant. The evidence will be weighed on a balance of probabilities [8] . To convince the Court, the Plaintiff must demonstrate that the existence of a fact is more probable than its non-existence [9] . [ 12 ] The Court concludes that Mr.

Iamonico failed to present compelling evidence establishing the condition of the road at the time he alleges that the incident occurred, the fault of the City, as well as the damages claimed. [ 13 ] Indeed, although Mr. Iamonico testified that he hit several potholes on the Pie-IX Boulevard in June 2016, the photos he filed in support of his allegations do not appear to have been taken during the same period of time. Furthermore, the pothole seen on one of the photos is located very near the sidewalk and the Court is not convinced, due to its location, that it could have caused the damages claimed by Mr.

Iamonico. [ 14 ] Moreover, Mr. Iamonico failed to demonstrate, with preponderance of evidence, that the damages he claims his car has sustained were caused by hitting potholes. The invoices he filed show that on May 24, 2016, Mr. Iamonico refused any brake and caliper maintenance service. On November 27, 2016, more than five months after the alleged incident, the rear brake shoes and pads were replaced. The invoices fail to indicate the cause of the replacement, or to establish that the said repairs resulted from poor road conditions.

Furthermore, although the calipers were serviced in November 2016, the mechanics indicated, on the August 15, 2017, invoice, that the “ rear caliper needs to be cleaned because were starting to jam – will need to see car in 5 000 km to evaluate rear calipers ”. [ 15 ] Mr. Iamonico had the burden of proving the damages he claims. In this context, it is not enough to deposit a bundle of invoices detailing certain repairs to discharge one's burden and thus claim to be entitled to their reimbursement.

It is also necessary to establish, by the preponderance of evidence, the connection between these repairs and the condition of the road. In the absence of any proof in this regard, Mr. Iamonico’s claim must be dismissed. FOR THESE REASONS, THE COURT: DISMISSES the demand of Mr. Roberto Iamonico against Ville de Montréal; WITHOUT legal costs. __________________________________ MARIE-JULIE CROTEAU, J.C.Q. Date of trial: May 29, 2018