2019 QCCQ 6237, 2019 QCCQ 6237

Scullion c. Victoria Avenue Ventures Inc. 2019 QCCQ 6237 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702968-175 DATE: September 24, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ TAMARA SCULLION Plaintiff v. VICTORIA AVENUE VENTURES INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Tamara Scullion claims $15,000 in damages from Victoria Avenue Ventures Inc. (Victoria), the owner of the adjacent property, on the grounds that it illegally trespassed on her property and cut down trees. [ 2 ] Victoria denies all liability. While it admits that it cut down a tree, it claims that this tree was on its own property and not on Ms. Scullion’s. Moreover, it adds that the tree was in poor health and not worth as much as Mrs.

Scullion claims. Finally, it contends that it tried to reach Mrs. Scullion prior to cutting down the tree, but was unable to do so. [ 3 ] For the reasons that follow, the Court finds that the tree cut down by Victoria was indeed on Ms. Scullion’s property, that by doing so Victoria committed a fault, and that she is entitled to damages of $10,000. Issues

a) Were the trees cut down by Victoria on its own property or on Ms. Scullion’s?

b) Did Victoria commit a fault by cutting down the trees?

c) If so, what damages are owed to Ms. Scullion? Context [ 4 ] Ms. Scullion is the owner of a condominium property bearing civic address [...], Westmount and located on the ground floor of a 3 unit/3 storey condo building. [ 5 ] In addition, Ms. Scullion also owns lot no. 4 911 407 [1] of the Cadastre of Québec, Registration division of Montréal, which consists of a piece of land located at the back of the condominium building (the “ Grosvenor Property ”). [ 6 ] Mrs.

Scullion became the owner of the Grosvenor Property following a judgment of this Court rendered on November 18, 2009 in court file no 500-22-150500-083. [2] [ 7 ] The Grosvenor Property measures approximately 8.03 meters wide and 4.39 meters deep. It has been arranged as a backyard with patio furniture, Jacuzzi and unistone and serves as Mrs.

Scullion’s backyard for her condominium unit. [ 8 ] Victoria owns a property bearing civic numbers [...] also known as lot no [...] of the Cadastre of Québec, Montréal subdivision (“ Victoria Property ”). [ 9 ] The Victoria Property comprises a six-story building with a parking lot in the back of the building which is immediately adjacent to the Grosvenor Property. [ 10 ] Until it was removed by Victoria, a metal Frost type fence was on the property line between the Victoria Property and the Grosvenor Property. [3] Ms.

Scullion had also installed a wooden fence on her side of the dividing line that ran parallel to metal fence. [4] [ 11 ] Two trees grew next to the wooden and metal fences alongside the property line. One of the trees was a maple tree and grew into the fence. Another tree grew a few feet from the maple but on the interior side of Ms. Scullion’s wooden fence. [5]

[ 12 ] The maple tree included 3 branches. The tree was not in particularly good health, but it still provided substantial privacy and tree cover. [6] [ 13 ] In 2014, Victoria carried out renovations on the Victoria Property, including in the paved rear parking lot. These renovations included removing the Frost type fence and repaving the lot. [ 14 ] On November 24, 2014, while carrying out these renovations, Victoria cut down the trees. [7] [ 15 ] By letter dated February 9, 2015, Mrs.

Scullion wrote to the building manager of the Victoria Property to complain of the illegal trespass on her property, the cutting of trees on her property and of her intention to claim damages. [8] [ 16 ] By letter dated January 22, 2016 addressed to Victoria, Mrs. Scullion enjoined Victoria to pay her $25,000 for damages she suffered as a result of what she claimed was the illegal cutting of the trees and the damage to her fence. [9] Analysis and Decision

a) Were the trees cut down by Victoria on its own property or on Ms. Scullion’s? [ 17 ] The parties disagree as to whether the trees that were cut down were on the Grosvenor Property or the Victoria Property. Both claim they grew from their own property. [ 18 ] For Mrs.

Scullion’s claim to succeed, she has the burden of proving that the trees were located on the Grosvenor Property. [ 19 ] While the certificate of location and the plans filed by the parties are useful in determining the general whereabouts of the trees, they are not determinative as to their precise location because the trees are not depicted on the plans. [10] [ 20 ] That said, the photographic evidence as well as the testimony of Mrs. Scullion and her neighbor Francesca Carrieri convince the Court that the trees were indeed located on the Victoria Property. [ 21 ] Mrs.

Carrieri owns a condominium unit in the same building as Ms. Scullion. She was in her condo on November 24, 2014 when the trees were cut down and witnessed the whole incident. More importantly, she took numerous photographs. She insists that the trees cut down that day were on the Grosvenor Property and grew out of a planter box in the corner of the yard. [ 22 ] The pictures she took on November 24 corroborate her testimony.

They show a tree growing from the planter box located in the rear corner of the Grosvenor Property next to the wooden cedar fence separating the Grosvenor Property and the Victoria Property and the larger maple tree next to it. [11] [ 23 ] Pictures taken later in the day show an arborist in the trees cutting the main branches with a chainsaw. [ 24 ] The pictures taken by Mrs. Carrieri on November 24 establish that the trees grew from within the Grosvenor Property. [ 25 ] Mrs. Carrieri is a third party to this litigation and a neutral witness.

There is no reason to doubt the credibility and reliability of her statements to the location of the trees. Her testimony is persuasive and corroborated by the photographic evidence. [ 26 ] Ms. Scullion has proven that the trees that were cut down on November 24, 2014 were on the Grosvenor Property.

b) Did Victoria commit a fault by cutting down the trees? [ 27 ]

Article 6 of the Québec Charter of Human Rights and Freedoms (R.S.Q., ch. C-12 ) guarantees every person the right to the peaceful enjoyment and free disposition of his property. [ 28 ] It is trite law that a person cannot cut a tree on neighbouring land unless he has the consent of the owner of the tree, or alternatively, the authorization of the Court where he proves that the tree is in danger of falling on the owner’s land. [12] [ 29 ] In the present case, there is no evidence that the trees cut down by Victoria were in danger of falling.

The tree inspection report obtain by Victoria in April 2014 indicates that the maple tree is in poor condition, but it does not state that there is a risk of it falling. [ 30 ] In any event, even if the tree was in danger of falling on the Victoria Property, Victoria never attempted to obtain Mrs. Scullion’s consent to cut it down or the Court’s authorization. [ 31 ] Accordingly, Victoria or its subordinates committed a fault when it cut down the trees on Ms. Scullion’s property and is liable towards her for the injury caused by this conduct. [13]

c) If so, what damages if any are owed to Ms. Scullion? [ 32 ] Mrs. Scullion alleges that she suffered damages worth well beyond $15,000 as a result of the tree cutting, but she has reduced her claim to $15,000 so as to come within the jurisdiction Court of Québec, Small Claims Division. [ 33 ] Mrs. Scullion bases her claim on an expert report prepared by Andy Dodge, real estate consultant and appraiser in which he concludes that the loss of market value of the Grosvenor Property because of the removal of the trees is $65,000. [14] [ 34 ] Mr.

Dodge writes that the trees that were cut down were of considerable size. Given the heavy foliage, they provided good shade and a pleasant environment for outdoor living. In his view, the trees add 12 % to the value of the property which translates into a $65,000 loss. [15]

[ 35 ] The Court attaches little probative value to the Dodge report. [ 36 ] The author of the report was never heard at trial, nor was a curriculum vitae attached to his report. The Court ignores the scope of his qualifications, other than that he is a real estate consultant and appraiser. [ 37 ] Assuming he is a properly qualified real estate appraiser, Mr. Dodge nonetheless opines about subject matters that are beyond the scope of his expertise.

For example, at page 7 of his report, he comments on the societal benefits of trees, including how trees benefit hospital patients and employees who can view them from outside their windows. Mr.

Dodge is not qualified to give his opinion on such subject matters and by doing so, his credibility is negatively affected. [ 38 ] Finally, the expert’s conclusions are not binding on the Court. [16] [ 39 ] The Court does note that the Dodge report includes a quote from a tree supplier for the purchase and installation of a replacement tree at a cost of $7,854.30. [17] Of course, this new tree would not be as mature and would not provide the shade cover and privacy afforded by the trees that were cut. [ 40 ] In assessing damages, the Court also considers the context in which the tree cutting was carried out by Victoria.

Construction workers hired by Victoria illegally trespassed on Mrs. Scullion’s Property, cut down a portion of her wooden fence, and cut trees. [ 41 ] The cavalier manner in which this was done must be condemned. [ 42 ] While the representative of Victoria claims that he attempted to communicate with Mrs. Scullion prior to cutting the trees, his attempts were minimal and limited to leaving a business card and the tree inspection report in the mailbox of unit 346. [ 43 ] However, Ms.

Scullion does not live in this condo as she rents it out and her tenants never informed her that Victoria was attempting to reach her. That said, it would have been relatively easy for Victoria to ascertain that she was the owner of the Grosvenor Property and to communicate with her. [ 44 ] Given the circumstances of this case, the Court believes it is fair and reasonable to award damages of $10,000.

FOR THESE REASONS, THE COURT: [ 45 ] GRANTS in part Tamara Scullion’s claim; [ 46 ] CONDEMNS Victoria Avenue Ventures Inc. to pay to Tamara Scullion $10,000, plus interest at the legal rate and the additional indemnity provided for by

article 1619 of the Civil Code of Québec , calculated as of January 29, 2016; [ 47 ] WITH COSTS of $200 payable by Victoria Avenue Ventures Inc. to Tamara Scullion. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: June 26, 2019. The Court took the matter under advisement after the reception of documents from the parties on July 26, 2019.