2014 QCCQ 10638, 2014 QCCQ 10638

Zuo c. Denault 2014 QCCQ 10638 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142286-147 DATE: SEPTEMBER 14, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ QING ZUO and BIN CHEN […] Verdun, Québec […] Plaintiffs vs.

YVON DENAULT […] Verdun, Québec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim an amount of $7,000.00 for moral damages from Defendant following the adoption of amendments to the Declaration of co-ownership of Château Corot. [ 2 ] Defendant alleges that the amendments were voted by the co-owners according to the terms of the Declaration of co-ownership and that Plaintiffs have suffered no damages.

THE CONTEXT [ 3 ] Plaintiffs bought a condominium in Château Corot on May 29, 2010. At the time, their son who played drums, lived with them. [ 4 ] When Plaintiffs purchased the condominium, they were given a copy of the "Manuel du résidant" of Château Corot which contained the following provision regarding the private portions: 1.

Généralités (…) 1.2 Les pianos, les batteries et autres instruments de musique générant des vibrations doivent être déposés sur des coussinets d'une épaisseur minimale de 2,5 cm (1 pouce) ayant la consistence du caoutchouc. [ 5 ] The Declaration of co-ownership originally signed contained the following provision: 6.4 No disturbance or damage A co-proprietor cannot use his Exclusive Portion so as to disturb the peaceable enjoyment of his neighbor, and without limitation of the foregoing, the co-proprietors may not do or cause to be done any work, with of without machinery and tools, of whatever sort or nature it may be, which is of a nature to weaken, damage or disturb the structure of the building or cause disturbance to the neighbors. (sic) [ 6 ] In July of 2013, Plaintiffs moved in their condo and their son began to play drums a couple of times a month in September.

No complaint was lodged except from Defendant, who lives downstairs, below their condo. Defendant is also President of the Board of Directors of the Syndicate of co-owners. [ 7 ] In the Fall of 2013, injunction proceedings were taken by "Yvon Denault & al" against "Bin Chen & al". Said proceedings

concerned two issues: - noise resulting from the renovations in Plaintiffs' condo; - noise resulting from the drums in Plaintiffs' condo. [ 8 ] Mr. Justice Emery granted the injunction only with respect to the noise caused by the renovations. [ 9 ] Following Mr. Justice Emery's judgment, a Special General Meeting of the co-owners of Château Corot was held on February 5, 2014.

The notice of convocation referred to amendments to the Declaration of co-ownership with respect to, amongst other things, the addition of a provision to prohibit the use of musical instruments which disturb the comfort and peaceful enjoyment of the premises by other residents. [ 10 ] The minutes of the Special General Meeting of co-owners referred to the discussion regarding the prohibition of the use of musical instruments and to the secret vote taken on the subject.

The minutes indicated that 78.69% of the co-owners voted in favour of the amendment of the Declaration of co-ownership with respect to the musical instrument prohibition. [ 11 ] According to Plaintiffs, the manager of the building, Gestior, did not act properly and with impartiality in counting the votes at the Special General Meeting. [ 12 ] They allege that considering the fact that Gestior was hired by the Board of Directors of the Syndicate of co-owners, Board which is presided by Defendant, the result of the vote was skewed and did not represent the will of the co-owners. [ 13 ] In that respect, Mrs.

Suzie Paquette, from Gestior, testified at the hearing. She explained her recollection of the February 5, 2014 Special General Meeting, emphasizing mainly on the discussions surrounding the musical instrument prohibition and the vote that was taken shortly after. Mrs. Paquette explained the counting process of the presences and proxies together with the counting process of the secret vote. [ 14 ] Questioned on the potential influence of Defendant in the Special General Meeting and on the vote, Mrs.

Paquette mentioned that Defendant was not comfortable discussing the musical instrument prohibition considering that he was living right below Plaintiffs' condo. [ 15 ] For that reason, the vice president of the Board took over the discussions in this regard. [ 16 ] Mrs. Paquette informed the court that she had a modus operandi which was the same in every mandate given to Gestior.

In other words, she explained that the way the Special General Meeting and vote were held and conducted on February 5, 2014 at Château Corot was exactly the same as in every building where Gestior is the manager. [ 17 ] Plaintiffs allege that their "normal life" was totally destroyed "because of Defendant's behaviour" as their son cannot play drums in their home anymore. The amount claimed is for moral damages. ANALYSIS [ 18 ] At the hearing, the Court informed Plaintiffs that they needed to establish, by preponderant proof, a fault on the part of Defendant in order for their claim to succeed.

Plaintiffs did not ask for the annulment of the vote which was held at the Special General Meeting.

Meeting of co-owners which, in any case, could not have been decided by this Court. [1] [ 19 ] The Court also informed Plaintiffs that their suspicion of collusion between Defendant and Gestior is not a proof of said collusion. [ 20 ] Anyhow, Plaintiffs reiterated that Defendant controlled the Board of Directors together with Gestior and used his "power" to formulate and pass Regulations in his favour by "cheating way". [ 21 ] According to the Court, Plaintiffs have failed to establish that there was any type of intervention on the part of Defendant either with the co-owners of Château Corot or with Gestior.

The Court finds no misconduct on the part of Defendant which could lead to his civil liability. [ 22 ] In view of the foregoing, the Court must dismiss Plaintiffs' claim. FOR THESE REASONS, THE COURT: DISMISSES Qing Zuo and Bin Chen claim against Yvon Denault, THE WHOLE with costs ($157). __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: September 3, 2014