2016 QCCQ 8870, 2016 QCCQ 8870

Tabet c. Entreprises Michaudville inc. 2016 QCCQ 8870 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146793-155 DATE: July 6, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ AYMANE TABET Plaintiff v.

LES ENTREPRISES MICHAUDVILLE INC. -et- MATHIEU AUDET Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Aymane Tabet, owner of a Nissan Cube that was parked on boulevard St. Laurent, on January 5, 2015 sues Les Entreprises Michaudville Inc. (“Michaudville”), the snow-removal company responsible for carrying snow from the sector of the City of Montreal, where the car was parked, during that period.

Mr Tabet sues for the estimated costs of repairing the Nissan Cube for damages that he alleges were caused when hard packed frozen slush was ploughed up against his car during that the afternoon of January 5 th . [ 2 ] Mathieu Audet is listed as a Defendant, but there is no case made against this individual. [ 3 ] Michaudville brought a Contestation simply denying liability, but at the hearing, its representative based the defence on the allegations that Michaudville’s operations were finished on the 4 th and they did not plough the street again on the 5 th . [ 4 ] The Defendant also alleges that the way that the snow was piled, close to the side of the vehicle, is not characteristic of the type of snow-removal that it carries out.

ISSUES [ 5 ] The quantification of damages is not really in dispute. It is based on an estimate obtained from a Nissan dealership of $ 2,793.60 to repair minor damages to the vehicle, a dent in the rear bumper, and a dent in the passenger door on the left side. [ 6 ] The issue the Court must decide is whether the Plaintiff has successfully demonstrated that the damages caused to his vehicle are the result of a faulty act on the part of Michaudville. FACTS [ 7 ] According to Mr Tabet’s narrative, he parked on St.

Joseph, on the south side, between Hôtel-de-Ville and Henri-Julien, in the mid-afternoon on Sunday, January 4 th . The temperature was above freezing and there was lots of rain, lots of water and lots of slush. [ 8 ] The temperature plunged that night to below freezing causing the snow that had been ploughed in close to the side of the Nissan Cube to freeze.

[ 9 ] On Monday morning, he could not get his car out, because it was parked in slush and water that had frozen. [ 10 ] He worked that day and when he returned in the evening, snow had been pushed against the car, damaging the rear door and the bumper. [ 11 ] When he had left Monday noon, there was a gap between the snow and the side of the car, but now, there was a pile of rock-hard frozen material against the door and around the bumper. [ 12 ] Then, he discovered the damage that had been caused. [ 13 ] He was informed by the City of Montreal that the business responsible for snow-removal in that sector at that time was Les Entreprises Michaudville Inc. [ 14 ] After a certain period of investigation during which Mr Tabet provided information requested, the insurers of Michaudville denied liability.

ANALYSIS [ 15 ] There is no direct evidence that the accumulation of snow around the Cube that occurred on Monday, January 5 th , was in fact the result of the operations of Michaudville. Mr Tabet must attempt to prove this hypothesis through presumptions, that is to say, facts that point in the direction of the conclusion and are not compatible with any other hypothesis. [ 16 ] The representative of Michaudville asserts that, based on the weather reports, the enterprise would not have been involved in ploughing on St. Joseph on January 5 th.

There was snow of sufficient quantity to bring out the equipment on the 3 rd and 4 th , but St.

Joseph is a principal artery, and would have been ploughed first, when the temperature dropped in the evening of January 4 th , there was no more snow falling and the equipment would not have continued to work on that street. [ 17 ] She was unable to provide business records to prove this, but there is a certain logic in what she is saying, because Michaudville works on a fixed fee and is only contracted to remove snow when and if there is snowfall of a significant magnitude. [ 18 ] There was also discussion and debate between the parties as to the way in which the snow surrounded the Cube. [ 19 ] The photos (P-8) show a very high bank of snow built up against the side of the car.

According to Mr Tabet’s testimony, this is not from the first ploughing, but rather from a second ploughing that brought frozen slush up like a broken rocks against the side of the car. [ 20 ] According to Michaudville’s representative, this is not characteristic of the way Michaudville would plough. She showed examples of how, when a plough comes beside a parked car, a wide distance is allowed between the point where the snow is ploughed, and the position of the car.

She also showed photos showing that the blade of the snow-removal equipment is not very high and would not have given rise to such a high banc, as is seen in Exhibit P-8. [ 21 ] Mr Tabet deplores the fact that this defence based on Michaudville not working on the 5 th was never articulated in any of his communications with the insurer, nor in the written Contestation. [ 22 ] In fact, the written Contestation is simply a general denial of liability. [ 23 ] Be that as it may, the burden of proving the fault of Michaudville lies upon the Plaintiff and in this case, his means of proof is a presumption. [ 24 ] The Court can only consider facts that are serious, precise and concordant to establish this means of proof. [ 25 ] In another words, the set of facts that the Court is made aware of through the evidence must be compatible with the hypothesis that the party is attempting to prove and incompatible with alternative explanations. [ 26 ] In this case, given that the snow remaining was on a very major artery of the City, it is quite possible that heavy equipment such as buses or trucks with very large wheels caused the snow that it been ploughed to the side of the street and near the car, to be pushed up against it, when this slushy material was not yet hardened. [ 27 ] The photos do not show a configuration of snow that necessarily suggests being ploughed by the type of equipment that Michaudville uses.

It may have been put there through the pressure of very heavy rolling equipment. Numerous buses pass on St. Joseph Boulevard as is the case on any major artery in the City of Montreal. [ 28 ] The Court can not conclude presumptively on the basis of the evidence that Mr Tabet has established that Michaudville is responsible for the damages that appear to have been caused to his vehicle.

The evidence is also compatible with the hypothesis that Michaudville had finished their work on the 4 th , and other heavy other equipment caused the loss by causing slush to accumulate and then freeze against the parked car. [ 29 ] But because Michaudville did not clarify its defence at the early stage, there will be no awarded costs against Mr Tabet. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s action;

Without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: March 7, 2016