2017 QCCQ 15334, 2017 QCCQ 15334

Davis c. City of Montreal 2017 QCCQ 15334 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152017-168 DATE: December 7, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ERIC DUFOUR, J.C.Q. ______________________________________________________________________ DONALD JOHN DAVIS Plaintiff vs. CITY OF MONTREAL - and - PAVAGES D’AMOUR INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $7 000 from the Defendants because of the injuries he suffered while he was crossing a street under repair. [ 2 ] The City of Montréal denies responsibility, relying on

section 604.3 of the Cities and Towns Act [1] (hereinafter " the Act " ) . [ 3 ] Defendant Pavages d’Amour inc. (d’Amour) alleges that it did not commit any fault engaging its responsibility in performing the road work. Moreover, it alleges that Plaintiff recklessly and wrongfully crossed the intersection that was being repaired. [ 4 ] For the reasons set forth below, Plaintiff’s claim is dismissed. FACTS [ 5 ] On October 30, 2015, Plaintiff was walking down Du Collège Street in Montréal, on his way to the local library.

The portion of that street between Cardinal Street and the next one was under major road construction, the work being performed by Defendant d’Amour. [ 6 ] As Plaintiff was crossing the intersection of Du Collège and Cardinal, he stumbled on accumulated gravel. His right wrist stuck in a gap between the sidewalk and the street. Mr. Samuel Deshaies, a construction worker then employed by d’Amour, was there and helped Plaintiff, who spontaneously declared that he had been surprised by the sound of a truck. Mr. Deshaies informed Plaintiff that he had blood on his forehead and asked him if he was ok.

Plaintiff stood up on his feet and resumed his walk to the library. [ 7 ] Later that day, in pain, Plaintiff took the metro and went to St. Mary’s Hospital, where a broken wrist was diagnosed. Plaintiff had to return to the hospital the following day to fix the broken bone. A cast was installed which Plaintiff wore for several weeks. This was most inconvenient, Plaintiff being right handed. Plaintiff also had to wear a plastic cast for some additional weeks. ANALYSIS [ 8 ] Let’s first deal with the liability, if any, of the City of Montréal. [ 9 ] According to

section 604.3 of the Act , Montréal is not liable for damages caused by the work of a contractor during street construction or repairs. This

section reads: 604.3 The municipality is not liable for damage caused through the fault of a builder or contractor to whom building, rebuilding or maintenance work has been entrusted, for the entire duration of such work. Art. 604.3 La municipalité n’est pas responsable, pendant toute la durée des travaux, du préjudice causé par la faute d’un constructeur ou d’un entrepreneur à qui des travaux de construction, de réfection ou d’entretien ont été confiés. [ 10 ] The plain language of the Act makes it clear that the City of Montréal is not liable under the present circumstances.

Indeed, the road rebuilding was entrusted to the Defendant d’Amour [2] and the work lasted from July to November 2015. [ 11 ] This

section is often cited by the Courts and its application is straightforward. As the Court writes in Bougeasson v. Ville de Prévost :

[20] La municipalité n'est pas responsable, pendant toute la durée des travaux, du préjudice causé par la faute d'un constructeur ou d'un entrepreneur à qui des travaux de construction, de réfection ou d'entretien ont été confiés. Voilà ce que nous apprend l'article 604.3 L.C.V.. [21] Selon la Cour supérieure, le but de l'article 604.3 L.C.V. n'est pas de donner une immunité aux municipalités pour tous travaux faits sur son territoire. Cet

article a pour but d'immuniser la municipalité contre la faute d'un constructeur qui procède aux travaux de réfection ou d'entretien qui lui ont été confiés . [22] Par ailleurs, la jurisprudence enseigne que cet

article ne peut trouver application si la preuve démontre que la municipalité a commis une faute lourde, soit une faute qui dénote une insouciance, une imprudence ou une négligence grossière. [23] En l'absence de preuve d'une faute lourde de la ville, le Tribunal doit appliquer cette disposition qui édicte une véritable exonération de responsabilité pour la municipalité lorsque des dommages sont causés par un entrepreneur à qui elle a confié mandat, et ce, pendant la durée des travaux.

Telle est exactement la situation en l'espèce. [3] [ 12 ] That is sufficient to dismiss Plaintiff’s application against the City of Montréal. [ 13 ] The Court now turns to the responsibility of the Defendant d’Amour. [ 14 ] Mr. Deshaies was in charge of the signaling on the construction site and was responsible for the safety of the people approaching the construction site. According to his testimony, street signs were installed, at the beginning of each sidewalk, clearly indicating that it was under construction work and the sidewalks were closed to pedestrians. Mr.

Deshaies testifies that he did put such signs for all the time of the contract and that they were in place on a daily basis. He also made sure that they were properly in place every morning, for it sometimes happens that people move them during the night. [ 15 ] Still according to Mr. Deshaies, Plaintiff took on him to cross Du Collège Street even though it was clearly dangerous to do so. He also testified that Plaintiff spontaneously said, immediately after his fall, that his attention was directed to a noise apparently made by a machine engine or a truck nearby. [ 16 ] Mr. Deshaies’s credibility is very strong.

The way he frankly explained the scene convinces the Tribunal that the facts occurred as he describes them. Mr. Deshaies is no longer on Defendant d’Amour’s payroll and has absolutely nothing to win from the outcome of this case. [ 17 ] Furthermore, his testimony is consistent with another witness, Mr. Dominic Daviault, Insurance adjuster, who met with Plaintiff on March 2016, and to whom Plaintiff also mentioned the engine noise he heard just before stumbling down. [ 18 ] Plaintiff admits that he knew the streets were under repair.

He lives next to the site and was well aware of the situation that lasted for several weeks. He and another witness, Mr. Daniel Cherrier, testified that they didn’t see any sign the day Plaintiff fell. The Court does not give Mr. Cherrier’s testimony the same weight as Mr. Deshaies. Mr. Cherrier doesn’t remember the year the work was performed on those streets. He insisted that the lights were insufficient during the night.

But the Plaintiff’s accident occurred by 4 o’clock in the afternoon. [ 19 ] Even if Plaintiff had established the absence of sign boards indicating the construction, the Court would have dismissed his claim against Defendant d’Amour. [ 20 ] First, Plaintiff did not prove any fault by d’Amour. Nothing in the evidence can lead the Court to conclude that the accident has been caused by any wrongdoing in d’Amour’s work. [ 21 ] Second, if Plaintiff fell that day, it is because he recklessly crossed the streets that were under major construction work. He put himself at risk.

Defendant d’Amour did not invite him to walk where he did. [ 22 ] Indeed, Plaintiff suffered from his injuries. But he has no one but himself to blame and is the only one responsible for his accident. For these reasons, the Court: [ 23 ] DISMISSES Plaintiff’s action, with the legal fees of $250 to Defendant Pavages d’Amour inc. and $250 to the City of Montréal. __________________________________ ÉRIC DUFOUR, J.C.Q. Date of hearing: November 20, 2017