2012 QCCQ 11051, 2012 QCCQ 11051

Mehr c. Antoine 2012 QCCQ 11051 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRAL Civil Division No: 500-32-126568-106 DATE: October 18, 2012 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ ALI REZA PAZOUKI MEHR Plaintiff v.

ELISSA ANTOINE and LILLIANA DE STEFANO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ali Reza Pazouki Mehr is claiming damages in the amount of $1,151.20 for the removal of branches from his property; repairs to a fence and other disbursements from Antoine Elissa and Lilliana De Stefano (the Elissas). [ 2 ] The Elissas deny all responsibility. In their contestation, they allege that Mr. Pazouki cut their trees without their permission.

However, at trial, they testified that they have since received a surveyor's report that shows that the trees are in fact on Mr. Pazouki's property. Also, they allege that neither they, nor persons they are responsible for damaged the fence. THE FACTS [ 3 ] At the time of the events, the parties own adjacent properties. Pazouki owns a commercial building rented to a dentist. The Elissas own an eight apartment residential building. They do not reside in the building. [ 4 ] Near the property line is a steep incline on which grow a number of mature trees.

This incline made it inconvenient for the previous owners of Pazouki's property to build a common fence. Therefore, the fence is built entirely on Pazouki's property. [ 5 ] The evidence shows that in fact the fence begins and ends on the property line, but is curved towards Pazouki's property between its two extremities. This allows for a space between the fence and the property line of up to eight feet in depth. Consequently, the trees, except for the one nearest one extremity, are on Pazouki's property. Both parties have filed surveyor's reports of their properties.

The property line is not in debate. [ 6 ] A number of these trees were cut to a height of approximately five feet all along the fence; apparently by Pazouki's tenant. This person did not testify. No one saw the trees being cut. However, both parties deny having personally had the trees cut. A witness presented by the Elissas (Michel Coutu) has stated that he did in fact speak to this tenant, who would have admitted that he hired workers to cut the trees.

For the reasons set out in this judgment, the identity of who cut the trees is of no consequence to the Court's conclusions. [ 7 ] The branches of these trees were left on the Elissas's property. Mr. Coutu, one of Elissas's tenants who also takes care of the grounds, disposed of part of these branches himself. Another part, was put on Pazouki's side of the fence. He states he then spoke to Mr. Pazouki's tenant to inform him how to dispose of the branches through city services, as well as the costs involved. [ 8 ] Mr. Coutu testified that neither the tenant, nor Mr. Pazouki objected.

They did not ask him for further information about the removal of the branches. [ 9 ] Mr. Coutu is the only witness who has testified as to having personally inspected the grounds in the vicinity of the trees. He states that the branches were cut from trees planted within three to four feet of the fence. In his estimation, these trees are clearly on Mr. Pazouki's property. [ 10 ] Mr. Coutu also explained that certain sections of Mr. Pazouki's fence have been broken for a number of years.

He states that he has seen the tenants of the neighbouring apartment buildings remove planks from the fence in order to make short cuts across Mr.

Pazouki's property. Some have even made gates in the fence itself. He is adamant that none of the Elissas' tenants act in this fashion. [ 11 ] Mr. Pazouki received notice from the city of Montreal to clean the debris (branches) from his property and repair his fence (Exhibit P-1). [ 12 ] He demanded in writing that the Elissas correct the situation (Exhibit P-2). [ 13 ] The Elissas did not. Therefore, Mr. Pazouki retained a contractor who charged the amount of $1,128.75 (Exhibit P-3) to remove the branches and repair the fence. DECISION [ 14 ] The Civil Code of Québec states as fallows: 2803.

A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation 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. [ 15 ] Mr. Pazouki had the burden of showing that the Elissas were responsible for cleaning up the branches of the cut trees.

As well, he had the burden of proving that the damage to the fence was caused by the Elissas or a person they are responsible for. [ 16 ] The evidence shows that the trees are on Mr. Pazouki's property. Mr. Coutu's testimony to this effect is not contested. Therefore, Mr. Pazouki clearly had the obligation to maintain them. These trees were not cut by the Elissas. Their testimony, as well as that of Mr. Coutu, has not been rebutted. No evidence allows the Court to conclude that any person the Elissas might be responsible for cut these trees.

Therefore, the Elissas are not responsible for the clean up. [ 17 ] As for the damage to the fence, the evidence shows that it has required repairs for a number of years (17 according to Mr. Coutu). No evidence has been presented to link this damage to anyone the Elissas could be responsible for. [ 18 ] The Court concludes that Mr. Pazouki has not proven his allegations according to the applicable burden of proof. The Elissas have no responsibility in this matter.

FOR THESE REASONS, THE COURT: DISMISSES Ali Reza Pazouki Mehr's application, with judicial costs in the amount of $89.00. __________________________________ Scott Hughes,J.C.Q. Date of hearing: July 27, 2012