2022 QCCQ 195, 2022 QCCQ 195

Saini c. Wazir 2022 QCCQ 195 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-708826-195 DATE: January 19, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ MEERA SAINI and KAMLESH SAINI Plaintiffs v.

RAMI WAZIR and LITONG WANG Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] The plaintiffs claim $2,000 from their neighbour Rami Wazir for the trouble and inconvenience caused by his trees to the enjoyment of their property. [ 2 ] The defendant Wazir contests the claim and the amount of damages, which he considers exaggerated.

He is willing, however, to trim the branches of his trees to allow more sunlight into the plaintiffs’ backyard. [ 3 ] On June 1, 2021, the day of the hearing, the defendant Wazir was living outside Canada and was represented by his brother Omar Wazir. [ 4 ] During the trial, Omar Wazir informed the Court that his brother had sold his residence in December 2019. [ 5 ] Since this is a dispute concerning the right of ownership, the Court postponed the hearing to allow the plaintiffs to summon the new owner and supplement their proof of damages. [ 6 ] On June 29, 2021, the application was modified for the sole purpose of adding a defendant, Ms.

Litong Wang, the new owner, who lives in the building next to the plaintiffs. Also, in July 2021, the plaintiffs filed three new exhibits into the record, including the opinion of an arboriculturist on the condition of the trees. [ 7 ] On September 13, 2021, the undersigned presided a case management conference by telephone in the presence of the plaintiff Meera Saini and of the defendant Litong Wang.

Among other things, the defendant Wang was reminded that she had to file a contestation to the application, and the parties confirmed their availability to the Court for the date reserved to resume the hearing, November 30, 2021. [ 8 ] On November 30, 2021, the plaintiff Meera Saini was present and acted as the representative of her father, Kamlesh Saini. [ 9 ] Omar Wazir was also present as the representative of his brother, Rami Wazir. [ 10 ] Ms.

Litong Wang was absent, although duly summoned and called several times. [ 11 ] The Court will proceed with the hearing on the merits of this matter in the absence of the defendant Litong Wang. Issues [ 12 ] The Court must answer the following questions: 1. Do the trees of the defendant Wang cause abnormal and excessive annoyance?

2. If the answer to the first question is yes, what are the plaintiffs’ damages and to what amount are they entitled? BACKGROUND [ 13 ] The plaintiffs’ complaint concerns the trees in Ms. Wang’s backyard. Ms. Saini submitted photographs (Exhibit P-1) to establish that these trees were planted along and close to her fence, which separates her property from that of the defendant Wang’s. [ 14 ] She explained that over time, the trees have grown so much that their foliage prevents the sun from reaching her house and her yard.

There is so much shade that she has been forced to use synthetic grass in her back yard. [ 15 ] Also, the trees are so close to her fence that the roots of one of the trees extends onto her property. Ms. Saini illustrated her remarks with two photographs (Exhibits P-7g and P-7h).

The root measuring six inches in diameter from a silver maple can be seen extending onto her property and in its wake, the damage to the metal fence and the concrete slab. [ 16 ] Last, she filed the opinion dated June 22, 2021, of arboriculturist Andrew Desrochers, who details the problems related to the two maple trees and an ash tree (Exhibit P-5). [ 17 ] That report, which includes photographs, concludes that the maples are poorly located and that at maturity the root ball will increase the pressure against the building’s foundations and increase the potential for the concrete to crack. [ 18 ] Mr.

Desrochers advises cutting down the ash tree as soon as possible because it is dead. [ 19 ] On June 18, 2018, the plaintiffs requested that their neighbour, Mr. Wazir, correct the situation within 30 days. This legal claim is explained by the lack of a reaction to their request. ANALYSIS [ 20 ]

Article 976 of the Civil Code of Québec [1] ( “ C.C.Q. ”) sets out the relationship between neighbours as follows: 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. [ 21 ] In a recent judgment, [2] the Court of Appeal explained the particular characteristics of the rules of liability governing neighbourhood relations: [ translation ] [10]

Article 976 C.C.Q. sets out a positive obligation, that is, the obligation to suffer “normal” neighbourhood annoyances. It therefore introduces a [ translation ] “right to disturb” between neighbours as long as the disturbance does not exceed the limit of tolerance required in a given context. [11] The particularity of

article 976 C.C.Q. resides in the examination of the alleged annoyances and their normality rather than on the behaviour of their perpetrator. [12] The Supreme Court defined the regime of liability established by

article 976 C.C.Q. as follows: [86] Even though it appears to be absolute, the right of ownership has limits.

Article 976 C.C.Q. establishes one such limit in prohibiting owners of land from forcing their neighbours to suffer abnormal or excessive annoyances. This limit relates to the result of the owner’s act rather than to the owner’s conduct . It can therefore be said that in Quebec civil law, there is, in respect of neighbourhood disturbances, a no - fault liability regime based on art. 976 C.C.Q. which does not require recourse to the concept of abuse of rights or to the general rules of civil liability.

With this form of liability, a fair balance is struck between the rights of owners or occupants of neighbouring lands. [13] The appellant and the respondent Titus are “neighbours”; the parties do not dispute this. [14] It is essential to the application of the doctrine of neighbourhood disturbances that there be

an act or omission that led to the annoyances and that it is related to the exercise of the right of ownership. [Citations omitted.] [ 22 ] Based on the foregoing, the Court accepts that to trigger a neighbour’s liability under

article 976 C.C.Q., the complainant must establish that: – the parties to the action are neighbours; – the trouble arises out of or is related to the exercise of the right of ownership; and – the neighbour is inflicting abnormal or excessive annoyances on the plaintiff. [ 23 ]

Article 985 C.C.Q. provides the following with respect to neighbourhood disturbances caused by trees: 985. If branches or roots extend over or upon an owner’s land from the neighbouring land and seriously obstruct its use, the owner may

request his neighbour to cut them and, if he refuses, compel him to do so; If a tree on the neighbouring land is in danger of falling on the owner’s land, he may compel his neighbour to fell the tree, or to right it. [ 24 ] It is clear from this provision that a person who allows trees to grow on his or her property at such a distance that they represent a danger for the neighbouring immovable is liable for the damages caused by their roots. [ 25 ] It should be added that the liability of the owner of a tree with roots extending onto the neighbouring property is presumed [3] . [ 26 ] Let us now apply these principles to this case. 1.

Do the trees of the defendant Wang cause abnormal and excessive annoyances? [ 27 ] At the outset, it should be noted that the first two conditions of liability have been met. Indeed, the plaintiffs and Ms. Wang are neighbours, and the disturbances are related to the exercise of the right of ownership. [ 28 ] Only the third and final condition remains, that is, determining whether Ms.

Wang’s trees cause the plaintiffs to suffer abnormal or excessive annoyances. [ 29 ] The plaintiffs’ evidence, which consists of photographs and the opinion of aboriculturist Andrew Desrochers, is clear, such that the Court finds that the plaintiffs suffer excessive annoyances due to the proximity of the defendant Wang’s trees. [ 30 ] In the Court’s view, when an owner must use synthetic grass in his or her backyard because of the shade from his or her neighbour’s trees, it is not a normal annoyance, but an excessive annoyance.

It is equally abnormal to have to endure the surface extension of roots from a neighbour’s trees onto one’s property. Even more so when, as in this case, a root causes structural and physical damage to the fence separating the two properties. [ 31 ] But there is still more. [ 32 ] According to aboriculturist Desrochers, the trees’ root system represents an increased danger for the foundations of the plaintiffs’ home.

He wrote that the “silver maple specifically has a very aggressive [sic] and destructive root system and is considered an undesirable species for neighborhood planting due to its long reaching (up to 300’) root structure which can infiltrate drainage systems” (Exhibit P-5). [ 33 ] Ms. Saini is right to be concerned about this situation, which according to her should absolutely be settled by cutting down the four trees.

That said, the Court informed the plaintiffs of the limits of its jurisdiction and of the fact that it cannot render the order sought. [ 34 ] In the absence of the defendant Wang, Omar Wazir described his conversation with her in August 2021. He stated that since the hearing on June 1, 2021, the defendant Wang has had the ash tree cut down and has had the two maple trees pruned. [ 35 ] Ms. Saini corroborated these statements and conceded that the pruning has improved the sunlight by about 30%.

That said, the roots that disturb the plaintiffs’ property remain an issue because the silver maple is still alive. [ 36 ] After analysis, the Court is of the view that the plaintiffs have adduced probative and convincing [4] evidence of the excessive and abnormal annoyances that they suffer because of the defendant’s trees. [ 37 ] As a result, it is appropriate to move on to the second question and assess the damages claimed by the plaintiffs. 2. If the answer to the first question is yes, what are the plaintiffs’ damages and to what amount are they entitled? [ 38 ] Ms.

Saini estimates that she will have to pay $1,000 for a new 50-linear-foot fence. That amount is the result of her research on the internet for the purchase of a better quality fence than the one she has currently. [ 39 ] At the hearing, the Court told the plaintiff that the award of damages must not enrich her. The compensation awarded must aim to restore her to the situation in which she would have been if the defendant had not caused her annoyances. [ 40 ] This principle of “full compensation” explains the need for the Court to consider the age and condition of the fence.

In this case, the plaintiffs’ fence was purchased over 15 years ago. [ 41 ] The Court must also verify whether it is absolutely necessary to replace the entire fence when the evidence establishes just one break where the roots of the maple have worked their way through. Last, the Court must consider the feasibility of a partial repair. [ 42 ] Since the plaintiffs failed to answer these questions, the assessment of damages in this case must be approximate.

However, because it is clear that the defendant Wang is liable and that damage resulted, the Court, with the information available to it, sets compensation at $600. This amount takes into account the depreciation resulting from the ordinary wear and tear of the fence. [ 43 ] With respect to damages associated with the loss of sunlight, it is appropriate to note that since the pruning there has been an improvement of approximately 30%. However, this improvement is only temporary and only applies to the future. Thus, the Court awards compensation of $500 for this damage. [ 44 ] Last, Ms.

Saini’s evidence does not allow the Court to assess the extent of damage to the concrete slab in her backyard. Beyond her statement that the slab is cracked, it should be noted that the photographs filed in support of this head of damage do not provide much

information. Also, the plaintiff did not adduce any evidence that she had to change her concrete slab or would have do so shortly due to the expansion of the root system. [ 45 ] In the circumstances, the Court finds that the damage is more esthetic than structural. Thus, since this type of damage cannot be compensated, the Court uses its discretion to award an indemnity of $250 for it. [ 46 ] In conclusion, the Court allows the plaintiffs’ action against the defendant Litong Wang in part. The claim against Rami Wazir, however, is dismissed since it is moot due to the sale of the property in 2019 to Ms. Wang.

FOR THESE REASONS, THE COURT: [ 47 ] ALLOWS the plaintiffs’ action in part; [ 48 ] CONDEMNS Litong Wang to pay $1,350 to the plaintiffs with interest at the legal rate of 5% per year, plus the additional indemnity under

article 1619 of the Civil Code of Québec , as of the date of the service of the amended application, June 29, 2021; [ 49 ] CONDEMNS Litong Wang to pay the legal costs of $103, representing the judicial stamp; [ 50 ] DISMISSES WITHOUT COSTS the plaintiffs’ application against the defendant Rami Wazir. _________________ Jo Ann Zaor, J.C.Q. Hearing dates: June 6, 2021, and November 30, 2021