2015 QCCQ 7392, 2015 QCCQ 7392

Strulovitch c. Montréal (Ville de) 2015 QCCQ 7392 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Civil Division» No: 500-32-137837-136 DATE: July 31, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Gloria Strulovitch Plaintiff v.

Ville de montréal Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Gloria Strulovitch claims damages of $7,000, which she seeks to increase to $15,000, from Ville de Montréal (the « City ») following the blockage of the main sewer pipe of her property.

She claims that a tree belonging to the City perforated the sewer pipe and eventually blocked it, requiring its replacement. [ 2 ] The City denies any liability, claiming that the roots of the tree penetrated the pipe because it was not maintained adequately by Ms. Strulovitch. [ 3 ] At the hearing, Ms. Strulovitch sought to increase her claim to $15,000 and her request was taken under advisement, to be decided in the judgment on the merits. QUESTIONS IN ISSUE [ 4 ] The case raises the following questions:

a) Did the roots of the City’s tree cause the blockage of the sewer pipe?

b) If so, should Ms. Strulovitch be authorized to increase her claim to $15,000? FACTUAL CONTEXT [ 5 ] In September 2012, a sewer backup occurred in Ms. Strulovitch’s home. A plumber was urgently called on site and he determined that the private sewer pipe of her property was blocked by the roots of a tree located on her land. The plumber was able to temporarily remedy the problem, but advised Ms. Strulovitch that her sewer pipe needed to be replaced urgently. [ 6 ] Ms.

Strulovitch provided notice of the damage to the City on October 5, 2012. [1] On October 11, 2012, she proceeded to replace the main sewer pipe at a cost of $18,505.92. [2] [ 7 ] On March 14, 2013, Ms. Strulovitch sent the City a letter of demand [3] seeking payment of $23,000 for the costs of the urgent repairs, [4] the replacement of the sewer pipe and damages for trouble and inconvenience. She filed her application in March 2013 and voluntarily reduced her claim to $7,000 in order to respect the jurisdiction of the Small Claims Division of this Court. ANALYSIS

a) Did the roots of the City’s tree cause the blockage of Ms. Strulovitch’s sewer pipe? [ 8 ] To succeed, Ms. Strulovitch must prove on a balance of probabilities [5] that the tree at issue was the cause of the damage to her sewer pipe, thereby giving rise to the City’s liability as custodian of the tree. [6] [ 9 ] To meet this burden, the evidence offered must be clear and convincing [7] and the alleged facts must not only be possible, but probable. [8] The Court must determine liability on the basis of the most probable facts. [9] [ 10 ] Ms. Strulovitch relies on the testimony of Mr.

John Watson, a Forest Consultant. Mr. Watson did not examine the broken pipes, but he is of the opinion that the roots of a Silver Maple such as the tree at issue can result in pressure sufficient to cause cracks in a

plumbing pipe and that once such cracks appear, the roots will penetrate the pipe to reach the water inside and eventually clog it. [ 11 ] The City argues that the roots of the tree cannot have caused Ms. Strulovitch’s sewer pipe to crack and that if roots penetrated the pipe, it was because it had not been maintained in good condition as required by city by-laws. [10] [ 12 ] The City relies on the testimony of Ms. Meagan Hanna, Inspector in horticulture and arboriculture at the Arrondissement of Côte-des-Neiges-Notre-Dame-de-Grâce.

In her opinion, and contrary to general belief, the roots of a tree cannot, in and of themselves, crack clay or concrete pipes. They will, however, find and penetrate any cracks that form in a damaged or old pipe to reach the water and other nutrients therein. She believes, given that the sewer pipe dates back to 1953, that the pipe was cracked and allowed the roots to seep in. [ 13 ] The Court prefers the testimony of Ms. Hanna and finds on a balance of probabilities that the roots of the tree did not cause the sewer pipe to crack.

The Court finds it more probable, given the age of the sewer pipe, that the roots penetrated existing cracks and eventually blocked the pipe. [ 14 ] The City’s liability as custodian of the tree is therefore not engaged. [ 15 ] Ms. Strulovitch also argues that the City was negligent in planting a Silver Maple on her property and in maintaining it. In this regard, Mr. Watson testified that such a Silver Maple was too large and physically demanding for the area in front of Ms. Strulovitch’s house and could potentially cause serious damage. Ms.

Strulovitch also argued that planting a Silver Maple in such a space violated the City’s own norms. [ 16 ] Again, the Court finds that Ms. Strulovitch has not met her burden of proof of a fault of the City in this regard, more particularly given that 20% of the tree population in Montréal is made up of similar trees. [ 17 ] Finally, lack of maintenance of the tree is clearly not at issue here.

b) If so, should Ms. Strulovitch be authorized to increase her claim to $15,000? [ 18 ] Given the Court’s answer to the questions above, it is not necessary to decide if Ms. Strulovitch’s claim should be amended or not. FOR THESE REASONS, THE COURT: DISMISSES the action; WITHOUT COSTS . __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: April 13, 2015