2011 QCCQ 1302, 2011 QCCQ 1302

Robin c. Silva 2011 QCCQ 1302 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-119958-090 DATE: February 1, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JERRY ROBIN […] Montreal, Quebec […] Plaintiff vs.

ANDREA SILVA […] Montreal, Quebec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jerry Robin, the owner of 5227 Snowdon, Montreal, Quebec, sues Andrea Silva the owner of the adjacent property, 5221- 5223 Snowdon, Montreal, Quebec, for the costs of restoring a hedge and soil retaining system, estimated at $675 plus taxes. [ 2 ] The hedge and the soil and stones which sloped down from Mr Robin's property to that of Ms Silva's property were demolished by a contractor who was hired by Ms Silva to detect and repair a leak to the water entry connecting the City aqueduct to the plumbing system of Ms Silva's residence. [ 3 ] Ms Silva contests the claim asserting that she has no responsibility for the demolition of the Plaintiff's construction which is partially on the portion of land owned by the City of Montreal between the property boundary and the sidewalk. [ 4 ] She also alleges that Mr Robin observed the work and did not object to the contractor's activities.

QUESTION IN ISSUE [ 5 ] The Court must determine whether Ms Silva bears the responsibility of the value of restoring the landscaping elements that were destroyed during the repair to the water entry system. FACTS [ 6 ] On October 13, 2008, Ms Silva noticed water leaking up from the ground. She advised the City of Montreal who investigated and sent her a notice (D-2).

Based on an inspector's observations, the City took the position in the notice that there was a defect in the private plumbing and ordered her to correct the defect immediately through the services of a qualified plumber. [ 7 ] The notice goes on to say that, should the necessary works be found to be outside the owner's property and there is no defect in the owner's plumbing, then the City will reimburse the costs of the repairs. [ 8 ] In other words, Montreal took the position that the problem was not on its side of the line but, should it be found that the leak was due to a problem with the plumbing on its side then the owner would be reimbursed.

[ 9 ] On October 17 th , Ms Silva sent a notice to the Plaintiff advising him of the excavation work to take place on her property adjacent to his. [ 10 ] In the notice, she takes the position that neither she nor the contractor will be responsible for any damages to Mr Robin's property […] including all landscaping such as bushes, stone wall, rocks and dividing wall, etc. which you have on the border of my property line.

Any part of this landscaping material belonging to you that may come undone will be placed on your land for you to either dispose of or place back on your proper land. [ 11 ] Photographs taken before and after the work show that a deciduous hedge running between a trellis marking the beginning of the Defendant's driveway and the beginning of the sidewalk provided a physical and aesthetic boundary between the properties. [ 12 ] Mr Robin testified that he installed the hedge several years ago as part of the landscaping of his property which raises the ground level several feet with a retaining wall beside his sidewalk entry in a crescent-shaped configuration. [ 13 ] The front of the retaining wall continues along the front of his property to join the area where the deciduous hedge meets the sidewalk.

At that point, the retaining wall gives way to a slope, the soil of which is held in place by an abundance of rocks. [ 14 ] Photos taken after the excavation show that at the point where the retaining wall stops, the hedge has been removed along with the mound of soil on which it was planted.

The Defendant has planted a few small shrubs, which appear to be on her side, close to the property dividing line. [ 15 ] The appearance of the boundary of the two properties is unsightly, whereas Mr Robin's landscaping, as it existed previously, was presentable though rustic. [ 16 ] Mr Robin obtained an estimate, which appears to be more than reasonable, in the amount of $675 plus taxes to repair the trellis, retain the slope and plant a new hedge consisting of five shrubs.

ANALYSIS [ 17 ] The essential issue of the case is whether Defendant, having brought about the destruction of the landscaping of her neighbour, is immune from liability because of the nature of the landscaping works in question. [ 18 ] Firstly, the Court can infer from a close examination of the before and after photographs that the hedge was installed on Mr Robin's side of the property line. [ 19 ] It may be that part of the sloped embankment that makes a transition from the higher land to the lower was partly on the Defendant's property but, throughout the time she owned the property, the Defendant never complained in any way about this encroachment. [ 20 ] It is also clear that she did not wish to make the hedge common property by paying for one half of its cost. [ 21 ] Secondly, the retaining wall on the front of the Plaintiff's property is probably slightly on the City's side of the property line but the retaining wall itself was not visibly damaged by the Defendant's works.

The part damaged, consisting of the hedge in its embankment, was almost entirely on the Plaintiff's side of the City boundary, as can be seen from photo D-7 where the plastic pipe indicating the location of the water valve is just slightly behind the retaining wall. [ 22 ] It follows that Ms Silva is entirely responsible for the costs of restoring the Plaintiff's landscaping including the hedge and the embankment. [ 23 ] Although the Plaintiff is entitled to these costs of restoration, he has the onus of performing the restoration work in such away that the Defendant's rights are respected. [ 24 ] Whatever retaining system he chooses will have to be effective in preventing soil from eroding from his higher property to that of the Defendant. [ 25 ] The Court mentioned at the hearing and reiterates now that the parties would be best advised to communicate and collaborate either to provide a common boundary such as a fence or hedge that is to their mutual satisfaction or to make sure that whatever each of them decides to build on his/her exclusive property is compatible with that of the other and in keeping with the style of landscaping appropriate for the neighbourhood. [ 26 ] It would not be a good idea for either owner to act in a completely unilateral fashion without discussing the matter first, as neighbours. [ 27 ] While the conclusion of the claim only mentions an amount of $675, it is clear from the estimate produced as P-2 that the Plaintiff's claim is for this amount plus applicable taxes. [ 28 ] The Court, therefore, corrects the conclusion to incorporate GST and QST at the current rates.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 768.99 (including GST and QST) together with interest at the legal

rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from May 8, 2009; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $69. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 22, 2010