2018 QCCQ 2379, 2018 QCCQ 2379

Ndiaye c. Albert 2018 QCCQ 2379 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-017529-167 DATE: February 27, 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Senghane NDIAYE Plaintiff v.

Kelly ALBERT Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims the amount of $ 15,000.00 from defendant Kelly Albert, in compensation for troubles, inconvenience, harassment, insults, racist comments, stress and anxiety caused by her behaviour between January 2014 and July 2015. [ 2 ] Mrs.

Albert filed a Cross-Demand asking the same amount of $15,000.00 for false allegations and harassment. [ 3 ] This file was heard with two others regarding the same situation, one being the claim by Mr. Ndiaye’s wife, Caroline Friese (760-32-017528-169) and the other, the claim by Mrs. Friese for their son (760-32-017527-161). THE FACTS: [ 4 ] On October 2012, Mr. Ndiaye and his spouse Mrs. Friese bought a townhouse on Renaissance Street in Pincourt. They moved in with their three year old son. They chose that neighborhood as Mrs.

Friese needed to move closer to her work place due to health reasons. [ 5 ] It is at the beginning of January 2014 that the problems started. Mrs. Albert started complaining about the noise she was hearing from Mr. Ndiaye and Mrs. Friese’s son. She sent them a Letter of Demand on January 30, 2014. [ 6 ] According to Mr. Ndiaye’s declaration to the police made later, the situation was better during the summer of 2014. During the month of August, though, Mrs. Albert installed a camera aimed at Plaintiff’s house. [ 7 ] A Letter of Demand was sent by Mrs.

Albert’s attorney on October 6, 2014. [ 8 ] The situation went from bad to worse at the end of November 2014, on the kid’s birthday, when Mrs. Albert put her music very loud. She continued to put music during the night, always louder, during the whole month of December. Mr. Ndiaye and Mrs. Friese had to call the police six or seven times. [ 9 ] They filed formal complaints at the police on December 15, 2014 and January 3, 2015. [ 10 ] On January 9, 2015, Mrs. Albert filed a complaint at the police against Mr. Ndiaye, accusing him of harassment. He was arrested and a criminal file was opened.

At that time, a restraining order was issued, prohibiting Mr. Ndiaye from speaking to Mrs. Albert. [ 11 ] The facts that were proven by Mr. Ndiaye, Mrs. Friese and other witnesses’ testimonies, by the Declarations in lieu of testimony

and by the numerous videotapes and recordings that they filed show that Mrs. Albert did everything she could to provoke Mr. Ndiaye so he would breach that restraining order. [ 12 ] In February 2015, Mrs. Friese and Mr. Ndiaye started recording with their I-Phone everything that Mrs. Albert was telling them, as she was regularly insulting them, calling them, among other things, “Nazi, rapist, pedophile, and n***” . [ 13 ] These recordings show that the insults, aimed at Mr. Ndiaye, Mrs.

Friese, and also their son, were said on February 9, March 17 and 29, April 2, 4, 5, 6, 16, 17, 18, 19, 21, 25, 26, 28, 29, and 30, and May 10 and 11. [ 14 ] The hearing of this case lasted for a whole day, during which the Court listened to the tapes and could hear the insults and the threats pronounced with a menacing voice, arising out for no reason, when there was no noise coming from Mr. Ndiaye and Mrs. Friese’s home. [ 15 ] On April 30, 2015, according to a neighbour’s Declaration in lieu of testimony, racist insults were said to Mr.

Ndiaye while he was walking on the sidewalk, loud enough to be heard by the whole neighbourhood. [ 16 ] Another neighbour confirmed the racist insults and the loud music. This neighbour also added that Mrs. Albert was waiting for Mr. Ndiaye’s return to insult him. [ 17 ] Another neighbour confirmed Mrs. Albert’s behavior, adding that she saw her run after Mr. Ndiaye and Mrs. Friese’s son with a knife yelling after him “I’m gonna kill you like a pig or a rat”. [ 18 ] The most impressive testimony, though, was Mr. Michael Demp’s. He was an immediate neighbour of Mrs.

Albert and explained to the Court that he felt somehow guilty about what happened to the Ndiaye – Friese family. He said that at one point Mrs. Albert was always complaining about the noise that his teenagers were doing, listening to music or playing videogames. She was ringing the door relentlessly and the police was called many times. Every time he would call the police, Mrs. Albert would retaliate with loud music and that it would never end. [ 19 ] At one point, he showed Mrs.

Albert that there was no noise coming from his home and suggested that maybe the noise she was hearing was coming from the neighbours next door, as they had a young kid. [ 20 ] Mr. Demp said that from that time, he did not hear any more about Mrs. Albert, who turned against Mr. Ndiaye and Mrs. Friese. [ 21 ] On May 11, 2015, Mrs. Albert’s insults reached a point of no return. We can hear her shout clearly in one the recordings to Mr. Ndiaye and Mrs. Friese’s son: “M… I’m gone rip your f*** head off”. It shall be remembered that at that time, this little boy was 4 ½ years old. [ 22 ] The next day, Mrs.

Friese filed a complaint at the police for those threats. Mr. Ndiaye also filed a complaint for the same reason, but also because on the same day, Mrs. Albert was waiting for him on her balcony and when he went out to get in the car to take his son to the daycare, she poured water all over him with a garden hose. This scene was filmed by Mr. Ndiaye. [ 23 ] A month later, on June 19, 2015, Mrs. Albert, on purpose, poured water, again from the garden hose, in the opened front windows of her neighbours’ house. [ 24 ] Mrs.

Albert was arrested in July 2015 and accused under Sections 145 (03) a) (failure to comply with condition of undertaking or recognizance), 145

(5.1) B) (failure to comply with conditions of undertaking), 264 (01) (criminal harassment), 264.1 (01) a) (uttering threats to harm a person), 264.1 (01) b) (uttering threats to damage a property), and 372 (03) (harassing communications) of the Criminal Code . [ 25 ] Six criminal files were opened against Mrs. Albert in Valleyfield and one in Montreal. Mr. Ndiaye testified that he received a phone call from the police saying that they just had an information stating that Mrs. Albert was driving towards their house with the intention of burning it. [ 26 ] On July 17, 2015, Mrs.

Albert signed a Recognizance, by which she undertook to stay at her mother’s house, to abstain from communicating or attempting to communicate in any manner with Mrs. Friese and Mr. Ndiaye, to abstain from being at her address and her neighbours, except once in the presence of police officers to pick up her personal effects, and to abstain from being within a radius of 500 meters of her house and neighbours. [ 27 ] On August 10, 2015, the charges were dropped against Mr. Ndiaye. [ 28 ] According to the report of Dr Chantal Benoit filed by Mrs.

Albert, she was hospitalized for 31 days for a psychiatrical evaluation in September 2015, and diagnosed with a psychotic disorder. On October 2, 2015, Mrs. Albert was declared non-criminally responsible of the charges against her due to her mental condition. The Judge ordered her not to communicate with Mr. Ndiaye, Mrs. Friese and another neighbour (Christopher). [ 29 ] In her contestation, Mrs. Albert denies all those facts, and adds that she is the one who suffered harassment from Mr.

Ndiaye. [ 30 ] Two of her witnesses were her parents, who testified about the noise they heard when they were at their daughter’s home, and about the fact that she was truly scared of her neighbours’ behavior, and that even her dog had changed attitude due to the neighbours. [ 31 ] The Court could understand Mrs. Albert’s father worries, as he truly believed that his daughter was a victim. Mr. Ndiaye testified under oath directly to Mr. Albert that he would never harm his daughter. [ 32 ] It is unfortunate that Mr. and Mrs.

Albert could not stay during the afternoon of the trial to hear the recordings of their daughter

yelling and insulting Mr. Ndiaye, his wife and his son. They have heard only one side of the story. [ 33 ] The same thing can be said from a very good friend that Mrs. Albert called as a witness, Mr. Tsoukalos. The very large part of his testimony was hearsay, as he was repeating to the Court everything that Mrs. Albert had told him, despite the fact that he had not witnessed any of the incidents that he was talking about. [ 34 ] At one point, he said that he could see Mr. Ndiaye standing on his balcony looking at Mrs. Albert with a mean look. It is true that Mr.

Ndiaye was standing on his balcony, but he was waiting for Mrs. Friese to come back from work, as he was doing every day to protect her and escort her from her car to the door, because they were all afraid of what Mrs. Albert could do. [ 35 ] Mr. Tsoukalos said that he saw a big change in Mrs. Albert’s personality and that she was “losing it”. He added that he was himself “losing his mind hearing the stories”. [ 36 ] As for Mrs. Albert’s testimony, she read to the Court a very long document stating her side of the story, which is basically that Mr.

Ndiaye harassed her after she refused a date with him in December 2013, as he asked her to spend the evening with him while his wife was travelling in Europe with their son. [ 37 ] She believes that Mr. Ndiaye does not take no for an answer and that from that point, he did not stop harassing her, trying to touch her, to the point she had to protect herself by installing a big curtain on her rear balcony and a camera. [ 38 ] Mrs. Albert could not deny that she poured water over Mr. Ndiaye on May 12, 2015, but she said it was self-defence.

She also admitted that she put the music very loud not to hear the noise that was coming from the Ndiaye’s home. [ 39 ] Never in that very long statement did she express the tiniest remorse about everything she did to this family. Exceptionally, the Court asked Mr. Ndiaye and Mrs. Friese not to answer that statement. [ 40 ] In her Cross-Demand, she asks for $ 15,000.00, arguing that she has been forced to move because of Mr. Ndiaye’s behavior and asking for reimbursement of the expenses she incurred. [ 41 ] The Court refused Mrs.

Albert’s request to file other documents on the day of the hearing to prove those expenses. First, the 21- days delay for filing documents was not respected. Secondly, on February 2, 2017, a management conference was held by Mr. Justice Montpetit during which Mrs. Albert confirmed that her file was complete. ANALYSIS AND DECISION: [ 42 ] Mrs. Albert’s behavior goes beyond everything this Court has seen so far in files of neighbours’ relations. She literally made Mr. Ndiaye and Mrs. Friese’s life a living hell for over a year and a half.

She deliberately put music too loud to annoy them, at any time of the day and especially at night, she pronounced gross and racist insults that she should be ashamed of, and she extended her rage towards a child who has never done anything to her. [ 43 ] The Court finds it important to say that none of Mrs. Albert’s allegations regarding Mr. Ndiaye’s behaviour are believable and the Court gives absolutely no credibility to her whole testimony. [ 44 ]

Section 976 of the Quebec Civil Code states that: 976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage. [ 45 ] It is very possible that a four year old child may make noise while playing, running or crying, as any child his age would do. This is part of the normal annoyances of the neighbourhood. [ 46 ] On the other part, Mrs. Albert’s behaviour go far beyond any inconvenience that neighbours have to suffer. Her liability can also be found under

Section 1457 of the Quebec Civil Code that states that: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [ 47 ] She is totally responsible for the damages claimed by Plaintiff. QUANTUM: [ 48 ] As was explained before, Mr. Ndiaye had to suffer rude and racist insults, was worried about his own safety but also of his wife

and children, was unfairly accused and had to defend himself against criminal charges. [ 49 ] It is clear that no amount of money could give back to Mr. Ndiaye the quietness he lost during that period of time, but, exercising her discretion, the Court feels that an amount of $ 10,000.00 would adequately compensate Mr. Ndiaye for what he suffered. [ 50 ] As Mr. Ndiaye was wrongly accused, he had to defend himself. He can also recover the amount of his lawyer’s fees, which are in the amount of $ 1,660.00, according to exhibit P-9. [ 51 ] Mr.

Ndiaye’s Demand is granted for $ 11,660.00. [ 52 ] Needless to say that Mrs. Albert’s Cross-Demand is dismissed, without costs. FOR ALL THOSE REASONS, THE COURT: GRANTS partially Plaintiff's claim; CONDEMNS Defendant, Kelly ALBERT, to pay to Plaintiff, Senghane NDIAYE, the amount of $ 11,660.00 with interest at the legal rate plus the additional indemnity provided for by

Section 1619 Q.c.C., since May 14, 2016, date of the application, with costs of $ 200.00; DISMISSES the Cross-Demand without costs. __________________________________ CÉLINE GERVAIS, J.Q.C.