2015 QCCQ 1403, 2015 QCCQ 1403

Burke c. Bradley 2015 QCCQ 1403 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-143328-146 DATE: February 10, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ DERRYL BURKE Plaintiff v. GWINN BRADLEY -and- GAIL MCLACHLAN Defendants v. HOMETREE SERVICE INC.

Defendant in Warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Derryl Burke claims $1,316.76 for damages to his car allegedly caused by workers hired by Defendants Gwinn Bradley and Gail McLachlan. Mr. Bradley and Ms. McLachlan have taken a recourse in warranty against Hometree Service Inc. (“ Hometree ”) which carried out the work. [ 2 ] Mr.

Burke testified that on May 7 and May 8, 2014, the workers of Hometree were on his land without permission and scratched the right passenger side of his car by pulling cut branches along the ground which came into contact with the car. Ms. McLachlan admits that there are minor hairline scratches on Mr. Burke’s car but she does not acknowledge that the workers of Hometree caused them. [ 3 ] Mr. Burke has filed into proof video footage (Exhibit P-3) of the workers removing the cut branches. The Court has viewed the footage.

The footage does in fact show that the workers of Hometree dragged many branches by the side of the car of Mr. Burke. The footage shows that the branches often came in contact with his car on the right side and on its hood. The Court considers that Mr. Burke has established that the workers of Hometree scratched his car. [ 4 ] But the Court’s view is that since there were many hairline scratches according to the testimony, some scratches had already occurred and were not related to the incident of the tree trimming by Hometree. [ 5 ] Mr.

Burke filed a quote for the repair of scratches on his car (Exhibit P-2) in the amount of $1,316.76. But this quote also refers to repairs and not just scratches. The Court is of the view that there is no proof to support a claim for repairs to the car as a result of the contact of the branches beyond the scratches themselves. Since there were pre-existing scratches, Hometree should not be responsible for all the scratches and the entire repainting of the side of the car mentioned in the quote. The Court holds that $1,000 of the proposed repainting relates to scratches only as opposed to a repair.

The Court arbitrates that one half of that amount should be paid to compensate for the damage done by the Hometree workers.

[ 6 ] There was also an amendment by Mr. Burke for damages to a temporary fence. There is however no proof before the Court of any damage or cost of repair and there will be no award in that regard. FOR THESE REASONS, THE COURT: GRANTS IN PART Derryl Burke’s Motion; CONDEMNS Gwinn Bradley and Gail McLachlan to pay Mr. Burke $500 with legal interest of 5% per year and the additional indemnity provided by

Article 1619 of the Civil Code of Quebec from the date of the demand letter P-1, June 13, 2014; WITH JUDICIAL COSTS of $106 in favour of Derryl Burke; GRANTS Gwinn Bradley’s and Gail McLachlan’s Motion in Warranty and CONDEMNS Hometree Service Inc. to pay in capital, interest and costs, all amounts that Gwinn Bradley and Gail McLachlan have been condemned to pay Derryl Burke. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: February 10, 2015