2022 QCCQ 3757, 2022 QCCQ 3757

Morai c. City of Montreal 2022 QCCQ 3757 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-32-709892-196 DATE: May 17, 2022 ______________________________________________________________________ BY THE HONOURABLE STÉPHANE DAVIGNON, J.C.Q. ______________________________________________________________________ REGINA MORAI Plaintiff v. CITY OF MONTREAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] On November 7, 2017, Ms.

Regina Morai was walking on the sidewalk on the south side of St. Antoine Street heading east. As she reached the intersection of Peel Street, she struck a City of Montreal (the "City") police officer who was assigned to traffic control at that location. She was thrown to the ground and experienced severe pain in her leg. [ 2 ] The police officer, Mr. Martin Bouchard, immediately came to check on her. Noting that she appeared to be injured, he called an ambulance to the scene. [ 3 ] Ms. Morai was taken in by the ambulance to Lakeshore Hospital where she was diagnosed with a fractured femur that required surgery.

She was hospitalized for seven days and then remained on disability leave for three months. During this period, she received disability insurance benefits from her employer. [ 4 ] She then returned to work but experienced significant pain, so she voluntarily took an additional 11 months off work. She said that she was in severe pain and could not return to her normal activities. [ 5 ] Ms. Morai contends that the City is responsible for her fall and the resulting damages.

She alleges that it did not clearly identified where a police officer was assigned to traffic control at the intersection of Saint-Antoine and Peel streets, which eventually caused her fall. She is therefore claiming $15,000 from the City. [ 6 ] The City contests Ms. Morai's claim. It contends that Officer Bouchard did not commit any wrongdoing in the performance of his duties, nor did she commit any wrongdoing that may have caused her harm. ISSUES IN DISPUTE [ 7 ] The claim brought by Ms. Morai raises the following questions. 1) Did the City of Montreal commit a fault which engages its responsibility towards Ms.

Morai? 2) If so, is Ms. Morai entitled to the damages claimed? ANALYSIS [ 8 ] Ms. Morai's claim is based on the extra-contractual civil liability set out in

article 1457 of the Civil Code of Québec (" C.C.Q. "), which provides as follows: 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. [ 9 ] Thus, to succeed in her action, she must prove the three elements of civil liability, namely, a fault, a prejudice and causation. [ 10 ] Ms. Morai must prove these elements by a preponderance of the evidence, as the burden of proof is on her.

A preponderance of evidence is evidence that makes the existence of a fact more probable than its non-existence [1] . [ 11 ] It is recognized that in order to determine whether a person is at fault, it is necessary to assess whether he or she has engaged in conduct contrary to that which would be expected of a reasonable person in the same circumstances. Thus, the conduct complained of must have been contrary to the standard imposed on a reasonable person of acceptable conduct. [ 12 ] In this case, in order to succeed in her action, Ms.

Morai must prove that Officer Bouchard, as an employee of the City, was engaged in conduct or behaviour outside the standard that would be expected of another police officer acting reasonably in the same circumstances [2] . [ 13 ] The standard applicable to a police officer's work is not one of excellence, but rather of average behaviour, neither the best nor the worst, which must be assessed in the context of the events at the time. This is how the Court of Appeal expressed itself in M.P. v.

Quebec (Attorney General) [3] : [20] Soit dit avec égards, ce n'est pas le test à appliquer à l'enquête devant être menée par un policier. Les actes de ce dernier doivent plutôt être appréciés selon la conduite du policier raisonnable placé dans les mêmes circonstances dont le rôle est de recueillir la preuve et la soupeser, non pas en fonction de normes juridiques, mais dans le respect des normes et pratiques établies à l'égard de sa profession. C'est là l'enseignement à tirer des motifs de la juge en chef McLachlin dans l'arrêt Hill c.

Commission de services policiers de la municipalité régionale de Hamilton-Wentworth [ 7 ]. [ 14 ] Applying these lessons to the events of November 17, 2017, the question is whether Officer Bouchard engaged in conduct that deviated from what a reasonable police officer in the same circumstances would have done. Alternatively, Ms. Morai must prove a fault on the part of the City itself, in order to hold it responsible for her fall and resulting damages. [ 15 ] During her testimony at the hearing, she recounted that when she was walking on the sidewalk on St. Antoine Street, it was approximately 8:45 a.m.

The area was crowded with pedestrians. She stated that both pedestrian and vehicular traffic was very heavy as there was work going on in that area of the City. Traffic Officer Bouchard was on duty this morning. [ 16 ] When Ms. Morai walks on the sidewalk, she says she cannot see him in the distance because the traffic is so heavy. At one point, as she approached the intersection of Peel Street, she claims that Officer Bouchard turned around quickly, struck her and she was thrown to the ground. However, she testifies: For sure he didn't do anything on purpose.

The environment was full of people . [ 17 ] Thus, she acknowledges that officer Bouchard did not do anything deliberate or intentional when he turned around in the course of his duties, but that she was nonetheless thrown to the ground on impact. In fact, she criticizes the City for failing to provide an enclosed or clearly identified area where officer Bouchard could have performed his duties without endangering the safety of pedestrians. [ 18 ] The evidence shows that on the morning of November 7, 2017, when assigned to traffic duty at the corner of St.

Antoine and Peel between 6:30 a.m. and 10:15 a.m., officer Bouchard was wearing his police uniform and a yellow bib identified with the police department, as well as white mittens. He is stationary at the corner of these streets as he holds a remote control connected by a wire to the traffic light panel. In the performance of his duties, he constantly scans the street and the sidewalk to ensure maximum traffic flow. [ 19 ] In his testimony, he related that he did not turn around abruptly and hit Ms. Morai, but rather that she hit him from behind. When he turned around, he saw that she was on the ground.

At that point he contacted dispatch and requested that an ambulance be called to the scene. [ 20 ] Ms. Morai complained of pain in her hip and leg. To ensure her safety while he is in charge of traffic, Officer Bouchard asks his supervisor to come to the scene as he does not want to move her. Until he arrived at the scene, he stayed with Ms. Morai to watch over her. In fact, during her testimony, she acknowledged that he did indeed make inquiries about her condition. [ 21 ] In light of these facts, the Court cannot in any way hold the City liable. The circumstances and events, as recounted by Ms.

Morai herself, lead to the conclusion that her fall was unfortunately the result of an accident. As she herself acknowledges, on November 7, 2017, at approximately 8:45 a.m., there was heavy pedestrian traffic. As she walked, she came close enough to Officer Bouchard to make contact with him, although he was clearly identified as he performed his work on the sidewalk. [ 22 ] It is not uncommon for traffic officers to be placed at strategic intersections where traffic is heavy, particularly where there are construction obstructions.

At this location, there was a large construction site in progress and it was clearly visible. In addition, the evidence shows that Officer Bouchard was clearly identified with his police uniform and that he was also wearing a yellow bib and white mittens which certainly made him very visible at the location where he was working. [ 23 ] The Court concludes that Officer Bouchard did not commit any fault that would give rise to the City's liability as an employer. Nor is there any fault on the part of the City itself.

The City could not have been required to enclose the officer, which would have further impeded traffic flow and endangered the safety of pedestrians. By ensuring that the officers were clearly identified as they were, the City acted reasonably in the circumstances. [ 24 ] In view of the conclusion reached by the Court on the first issue, it is unnecessary to address the second one. In the absence of fault on the part of the City, it cannot be held liable for the damages suffered by Ms. Morai. FOR THESE REASONS, THE COURT:

[ 25 ] DISMISSES Ms. Regina Morai's claim ; [ 26 ] THE WHOLE , with costs in the amount of $308. __________________________________ STÉPHANE DAVIGNON, J.C.Q. Date of hearing: January 25, 2022