2018 QCCQ 10384, 2018 QCCQ 10384

Dyett c. City of Montreal 2018 QCCQ 10384 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-702045-172 DATE: November 19, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE DANIEL BOURGEOIS, J.C.Q. ______________________________________________________________________ Joseph DYETT [...] Hampstead, Quebec [...] Plaintiff v. CITY OF MONTREAL 275 Notre-Dame St.

East Montreal, Quebec H2Y 1C6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The plaintiff, Joseph Dyett (”Dyett”) [1] is suing the defendant, the City of Montreal (the “City”), for civil liability and $15,000 in damages.

The claim is based on a fall that occurred on September 12, 2016, when the plaintiff was crossing Westbury Avenue, at the corner of Queen Mary Road. [ 2 ] In its written defence, the City denies any liability and submits that it is not an insurer for the pedestrians who use its streets and sidewalks. [ 3 ] The City alleges that the plaintiff cannot identify the exact place where he fell or the exact time when he fell. [ 4 ] Last, it states that there was no trap in this case that could have caused the plaintiff to fall.

BACKGROUND [ 5 ] The plaintiff testified that he fell around 11 p.m. on the night of September 12, 2016, while crossing Westbury Avenue, and that the incident occurred when he was about “three-quarters of the way across the street”. [ 6 ] Photographs were adduced into evidence (P-4) of the location where the incident was alleged to have occurred.

One photograph shows the sidewalk and another shows what appears to be the pedestrian crosswalk at Westbury Avenue. [ 7 ] Since neither the originating application nor the photographs adduced specify the precise location of the fall, a good portion of Dyett’s testimony was dedicated to this important part of the dispute. [ 8 ] Despite the Court’s questions, the plaintiff was still unable to identify the exact place where he fell, let alone identify the reason for this fall (was it a crevice or a hole?). [ 9 ] After having categorically excluded the manhole cover as the cause of the fall, Dyett suggested that it could have been caused by the fact that the road was uneven, without stating, however, that he was sure of this. [ 10 ] Photographs P-4 establish that the road is certainly worn and has a number of cracks, but as a whole, it does not necessarily represent a “hazardous” or even impracticable road surface. [ 11 ] Dyett alleges in his claim that he suffered $34,350 in damages, which he agreed to reduce to $15,000 so that his action would fall within the jurisdiction of the Small Claims Division.

[ 12 ] The damages were broken down by the plaintiff as follows: Damages for denture’s replacement $2,400.00 Estimation from dentist $1,850.00 Extraction tooth $100.00 $4,350.00 General damages $30,000.00 Total: $34,350.00 [ 13 ] Answering a question from the Court, who was trying to understand the difference between the claim for $2,400 to replace a dental prosthesis and the dentist’s estimate of $1,800, Dyett finally admitted that it was an error and that only one of these amounts should be claimed.

A document from dentist John Schweitzer states that the total estimate for the work is $1,850 (Complete Upper Denture $800.00 and Partial Lower Metal Denture $1,050.00). [ 14 ] However, the plaintiff still has not replaced his current prostheses, more than two years after the accident. [ 15 ] He also stated that he had to have a tooth extracted at a cost of $100. No invoice justifying this expense was adduced into evidence, however, nor was any notice that could have explained that the treatment was a direct consequence of his fall while crossing Westbury Avenue.

ISSUES [ 16 ] The Court must first determine whether the plaintiff has established that the City was negligent and whether it is liable for the plaintiff’s fall. [ 17 ] Should the Court answer this first question in the affirmative, it must then determine whether the plaintiff has proven the damage and the causal connection between the damage and the City’s fault. ANALYSIS AND DECISION [ 18 ] According to the general rules of evidence, it is for the plaintiff to establish, on a balance of probabilities, that the City committed a fault.

Article 2803 of the Civil Code of Québec (” C.C.Q. ”) states the following: 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. [ 19 ] During his testimony, the plaintiff could not tell the Court why he fell, that is, if the fall was caused by the fact that he tripped in a hole or on a crack. [ 20 ] In response to a question from the Court, Dyett claimed that his fall might have been caused by the fact that the road was uneven and that he lost his balance. [ 21 ] In its written defence, the City submits that there was no trap in this case that could have caused the plaintiff to fall. [ 22 ] That statement warrants further discussion.

While it is true that the photographs adduced into evidence establish that a normally prudent person could have crossed Westbury Avenue without incurring any immediate danger, these same photographs also establish that there was a crack or a hole in certain places that could have caused a fall. [ 23 ] The Supreme Court of Canada in Rubis v. Gray Rocks Inn Ltd. [2] stated the following about the notion of a “trap”: The infinite variety of factual situations makes it impossible to define exactly what constitutes a trap. However, we can say that a trap is in general an intrinsically dangerous situation.

The danger should not be apparent but hidden : ... [3] [Emphasis added.] [ 24 ] In light of all the evidence, the Court concludes that the plaintiff has not established that the condition of Westbury Avenue was responsible for his fall. He could not state the exact reason for his fall and was unable to establish that the City is liable for this accident. In this sense, Dyett was unable to prove that his fall was due to a “trap” as that term is defined by the Supreme Court of Canada. [ 25 ] The evidence of the damage is similarly flawed. We know that the plaintiff was hospitalized at St.

Mary’s Hospital on September 13, 2016, at 00:36 a.m., and that the document entitled [ translation ] “Triage sheet” recorded the following: “Laceration/Poncture [ sic ] Superficial Abrasion above Upper Lip and RT.

Middle ”. [ 26 ] Despite the foregoing, and even though the Court does not have to determine the quantum of damages since the evidence is not sufficient to hold the City liable, the evidence adduced regarding the damage is also insufficient to conclude that the plaintiff had to replace his dental prostheses after the fall. [ 27 ] In conclusion, it was certainly a regrettable incident, but the Court cannot conclude that the City is liable for this accident. [ 28 ] FOR THESE REASONS, THE COURT: [ 29 ] DISMISSES the application; [ 30 ] EACH party to pay its own legal costs.

__________________________________ DANIEL BOURGEOIS, J.C.Q. Date of hearing: November 5, 2018