2017 QCCQ 9575, 2017 QCCQ 9575

Krief c. City of Cote Saint-Luc 2017 QCCQ 9575 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151423-169 DATE: July 28 th , 2017 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ ILANA KRIEF Plaintiff v. CITY OF COTE SAINT-LUC Defendant/Plaintiff in warranty And WAWANESA ASSURANCE And LES ENTREPRISES VENTEC INC.

And LA SOUVERAINE COMPAGNIE D’ASSURANCE Defendants in warranty ____________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant, City of Cote Saint-Luc (City), the sum of $12,999.72 representing the damages she alleges to have sustained as a result of the flooding of the basement of her residence that occurred on September 29 th , 2015. [ 2 ] According to Plaintiff, this flooding and the damages that resulted were caused by the fault and negligence of Defendant City. [ 3 ] More particularly, in the demand filed by her into the Court record, Plaintiff alleges the following: “2.

The Defendant is liable for the damage for the following reasons: The defendant had had sidewalks repaired near the plaintiff’s house and after that, the house of the latter was flooded by the sewage water which was not longer flowing. A company of excavation hired by the plaintiff found a hole in the drain at the level of the sidewalk and the same drain filled with sand and small rocks. As for the expert of the plaintiff insurance company, he established that this was due to the repairing works executed by defendant. 3. The fault was committed on or around August 1, 2015, at Cote-Saint-Luc (Quebec). 5.

The total amount claimed by the Plaintiff is broken down as follows: 1276.22$ for the following reasons: Cost of emergency work and reparation.” [ 4 ] Defendant City contests Plaintiff’s demand and requests its dismissal. More particularly, in the contestation filed into the Court record, it alleges : “3.1 CONTESTATION According to the Cities and Towns Act (585), when a claim is filed, a Notice citing its particulars must be given.

The City received a Notice from Plaintiff citing no reason why Defendant was at fault and then received a Notice from Plaintiff’s insurer erroneously sent to the City of Montreal with the wrong cause vs. her new theory. Conclusions: 1) The claim is not receivable; 2) 2) The insurer for Plaintiff is negligent in sending the Notice of Claim to the wrong City and citing the wrong reasons in terms of

what she is now claiming thus prejudicing the investigation; and 3) Even if 1) and 2) were false, 604.3 of the CTA renders the sidewalk contractor liable if – and only if – fault, damages and chain of causality were proven.” [ 5 ] Furthermore, pursuant to article 547(3) C.c.p., Defendant City has forced the intervention of three (3) defendants in warranty, namely:

a) Wawanesa Assurance, direct damage property insurer of Plaintiff;

b) Les Entreprises Ventec Inc., contractor hired by Defendant to perform the reconstruction and repairs of the sidewalks, repairs that allegedly caused the break of the sewer pipes and subsequent flooding (Exhibit D-1 and D-15);

c) La Souveraine Compagnie d’Assurance, liability insurer of Les Entreprises Ventec Inc. [ 6 ] Defendant City and the above-mentioned defendants in warranty admitted the amount of the damages claimed by Plaintiff ($12,999,72) without any admission of responsibility. [ 7 ] From the evidence adduced at trial, the Court retains, amongst other facts, the following. [ 8 ] At the time of the incident, Plaintiff had been the owner, for the past seven years, of a residential property (bungalow) situated at […], City of Cote-Saint-Luc.

This house is fifty to sixty years old. [ 9 ] In the summer of 2015, pursuant to a contract concluded between Defendant City and defendant in warranty, Les Entreprises Ventec Inc. (Ventec), work was performed on the street where Plaintiff’s residence is situated. More particularly, this work related to the reconstruction and repair of part of the sidewalks of Alpine street. [ 10 ] According to the testimony of Plaintiff, some of the work was performed on the sidewalk situated on her side of the street, close to her property.

The repairs were performed over a period of ten to fourteen days. [ 11 ] On September 29 th , 2015, when Plaintiff returned to her residence after a day of work, she noticed that the basement have been flooded probably as a result of a “sewer backup”. [ 12 ] Plaintiff immediately contacted a plumber “S.O.S.

Débouchage” who, that same evening, dispatched an employee to unblock the sewer pipe of her residence that was connected to the pipe property of Defendant City. [ 13 ] As the said plumber was unable to unblock the pipe, the next day, he returned to Plaintiff’s house with a camera in order to try to determine where exactly the problem was situated.

According to Plaintiff, the plumber informed her that a part of the sewer that was blocked was situated under the street, property of Defendant City. [ 14 ] Plaintiff then decided to call her insurer, defendant in warranty, Wawanesa Assurance, who immediately dispatched a “claims adjuster” namely Mrs. Laurin, in order to evacuate the water in the basement and dry whatever goods were worth saving. [ 15 ] After being informed by Plaintiff that Defendant City had just redone the sidewalks in front of her house, Mrs.

Laurin advised her to immediately send a “notice” to the Defendant City advising it of the event that had occurred on September 29 th , 2015. [ 16 ] On October 2 nd , 2015, Plaintiff sent Defendant City a notice (Exhibit P-2) advising it that a flood had occurred in the basement of her residence and that compensation could be claimed as a result of the damages sustained. [ 17 ] Previously, by letter dated September 30 th , 2015 (Exhibit D-3), defendant in warranty, Wawanesa Assurance, advised the City of Montreal that an incident that could involve its liability had occurred on September 29 th , 2015 and that damage had been caused to its insured, the Plaintiff. [ 18 ] The City of Montreal responded to this letter by a letter dated October 6 th , 2015 advising Wawanesa Assurance that the letter should have been addressed to Defendant City. [ 19 ] By a letter dated October 6 th , 2015 (Exhibit D-6) Defendant City acknowledged receipt of Plaintiff’s notice dated October 2 nd , 2015 in the following terms: “We hereby acknowledge receipt of your claim dated October 2, 2015.

Please be advised that, without accepting responsibility for this claim, we have forwarded your claim to our Insurance Company as well as our Engineering Department to conduct an investigation. We will return to you with an answer within the coming weeks.” [ 20 ] Defendant City requests the dismissal of Plaintiff’s demand on the basis that her notice dated October 2, 2015 (Exhibit P-2) did not respect the requirements of article 585(1) of the Cities and Towns Act [1] which states the following: “585.

(1) If any person claim or pretend to have suffered bodily injury by any accident, for which he intends to claim damages from the municipality, he shall, within 15 days from the date of such accident, give or cause to be given notice in writing to the clerk of the municipality of such intention, containing the particulars of his claim, and stating the place of his residence, failing which the

municipality shall be relieved from any liability for any damages caused by such accident, any provision of law to the contrary notwithstanding.

(6) The municipality shall have a recourse in warranty against any person whose fault or negligence occasioned the accident and the damage arising therefrom.” [ 21 ] For the following reasons, Defendant City’s preliminary exception based on the alleged insufficiency of the notice given by Plaintiff is dismissed. [ 22 ] To begin with, Defendant City received Plaintiff’s notice dated October 2 nd , 2015. This notice contained the elements of information that were available, at that time, to Plaintiff, namely :

a) That a flood occurred in her residence on September 29 th , 2015;

b) The address of the residence ;

c) The fact that compensation could be claimed for the damages sustained. [ 23 ] In the opinion of the Court, considering the facts available and to the knowledge of Plaintiff at the time she drafted and sent the notice and considering the purpose behind the obligation of having to give such notice, its contents complies with the requirements of paragraph 585(1) of the Cities and Towns Act inasmuch as Defendant City was advised of the date of the incident, the place of residence of Plaintiff, the nature of the incident and of the fact that a claim for compensation could be forthcoming. [ 24 ] Furthermore, it must be stated that Defendant City responded to Plaintiff’s notice by a letter dated October 6 th , 2 015 (Exhibit D-6) advising her that the Engineering department of the City would conduct an investigation after which, they would contact her again.

If Defendant City needed more information, it could have and should have asked Plaintiff at that time. It did not. [ 25 ] Finally, the evidence shows that Defendant denied liability by letter dated November 9 th , 2015 (Exhibit D-7) without ever raising the issue of the alleged insufficiency of the notice given to it by Plaintiff. [ 26 ] Consequently, as mentioned previously, the preliminary exception of Defendant City requesting dismissal of Plaintiff’s claim on the basis of the alleged insufficiency of the notice is dismissed. [ 27 ] Defendant City also requests the dismissal of Plaintiff’s claim by invoking

article 604.3 of the Cities and Towns Act which states the following: “604.3 The municipality is not liable for damage caused through the fault of a builder or contractor to whom building, rebuilding or maintenance work has been entrusted, for the entire duration of such work.” [ 28 ] The exoneration of responsibility provided for by

article 604.3 of the Cities and Towns Act is applicable only if it is established that the damage was caused by the fault of a builder or contractor. [ 29 ] In the present case, as will be discussed hereinafter, the evidence adduced at trial does not establish, conclusively, that the break of the pipe was caused by the work of Defendant in warranty Ventec. Therefore,

article 604.3 of the Cities and Towns Act does not apply. Consequently, Defendant City’s request for dismissal of Plaintiff’s demand is dismissed. [ 30 ] As concerns the possible liability of Defendant in warranty Ventec, the evidence adduced at trial has revealed that, at the request of Defendant City, it proceeded to perform work on the sidewalks of the street where the residence of Plaintiff is situated.

The work was performed from June 25 th to July 15 th , 2015, in part, at a distance of approximately ten feet from the spot where the pipe causing the flood broke. [ 31 ] The evidence has revealed that the break of the pipe occurred below the sidewalk property of the City in front of the private sidewalk leading to the entry door of Plaintiff’s residence. [ 32 ] The evidence has also revealed, that although the work performed by Defendant Ventec was finished by mid-July 2015, the flood giving rise to Plaintiff’s claim occurred on September 29 th , 2015, almost two months and a half after the end of the work. [ 33 ] After thorough consideration of the documentary evidence and of the testimonies rendered by Plaintiff, Michel Guy, adjuster for defendant in warranty, Wawanesa Assurance, Charles Dejean, supervisor employed by Defendant City and Alex Sciascia, employee of Defendant in warranty Ventec and considering the fact that the break of the pipe (50 to 60 years old) occurred two and a half months after the completion of the work, the Court is of the opinion that, in all probability, the break does not result from the work performed by defendant in warranty Ventec but for another unidentified cause. [ 34 ] Regarding the question of the ownership of the broken pipe, the evidence has revealed that Plaintiff is the owner. [ 35 ] More particularly, the pipe that broke is the one connecting Plaintiff’s residence to the pipe of the City situated in the street.

Such being the case, the Court refers to articles 7-5

a) and 9.2 of by-law 2008 of the City (Exhibit D-9) which states the following: “7-5 Sewers And Drains

a) Independent house sewers. Every building shall be separately and independently connected with the public sewer in front of such building; if the building is located on a corner lot, it may be connected to the adjoining cross-street public sewer. The house sewers may, however, be laid side by side, in the same trench, one on each side of the dividing line between the two lots on which the buildings are to be erected, provided their connection to the public sewer be at least 0,91m (3 ft.) apart. For large buildings, the Director may require more than one sewer connection to the public sewer and may permit that a group of buildings belonging to the same institution or

establishment have a sewer connection in common or a private sewer connection to a public sewer. If there be no public sewer in front of a building etc., the house sewer shall be connected with any other approved public sewer or to an approved cesspool, or sewage disposal tank. All sewer connections from the public sewer to the building line shall be installed, at the owner's expense, by the plumber who has obtained a permit to do the work. All perforations of the public sewer for the introduction therein of the first connection shall be done only with the use of diamond drills. 9-2

Definitions House Sewer, Sewer, or Sewer Connection: That part of the horizontal piping of a plumbing system, beginning at a point 0,91m (3 ft.) from the outer face of the front wall of a building, or the side wall thereof in case of corner lots, and ending at its connection with the public sewer.” [ 36 ] Considering the above, the Court concludes that the pipe that broke was the property of Plaintiff and therefore, its sole responsibility.

Consequently, the liability of Defendant City for the repair of the pipe and other damages resulting from its break cannot be maintained. [ 37 ] As concerns the liability of defendant in warranty, Wawanesa Assurance, the Court is of the opinion that there is no legal link (lien de droit) between the parties. More particularly, Wawanesa is the direct damage insurer of Plaintiff.

Consequently, Defendant City is in no way entitled to invoke, in its favor, the direct damage insurance contract binding Plaintiff to its insurer. [ 38 ] As concerns defendant in warranty, La Souveraine Compagnie d’Assurance, liability insurer of Defendant in warranty Ventec, as the Court concludes that the latter has committed no fault, the action in warranty instituted by Defendant City against the former is dismissed. [ 39 ] In view of the particular circumstances of the present case, Plaintiff’s demand and Defendant City’s demands in warranty against Les Entreprises Ventec and La Souveraine Compagnie d’Assurance are dismissed without judicial costs. [ 40 ] As concerns the demand in warranty filed by Defendant City against Wawanesa Assurance, considering that such demand is clearly unfounded in fact and in law, it is dismissed with judicial costs.

THEREFORE, FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff’s demand, without judicial costs; DISMISSES Defendant City of Cote Saint-Luc’s demands in warranty against Les Entreprises Ventex Inc. and La Souveraine Compagnie d’Assurance, without judicial costs; DISMISSES Defendant City of Cote Saint-Luc’s demand in warranty against Wawanesa Assurance, with judicial cost in the amount of $300.00. __________________________________ ARMANDO AZNAR, J.C.Q. Date of hearing: May 15 th , 2017