2015 QCCQ 10497, 2015 QCCQ 10497

Golovanov c. Kirkland (Town of) 2015 QCCQ 10497 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142214-149 DATE: October 22, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ DIMITRI GOLOVANOV Plaintiff v.

TOWN OF KIRKLAND Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr Dimitri Golovanov, a resident of […] in Kirkland, sues the Town of Kirkland (“Kirkland”) for damages in the amount of $6,400.00. [ 2 ] He alleges that although he pays taxes for road clean up, the Town failed to clear snow from the street in front of his house and he has to do it himself, a situation that has occurred continuously between 1998 and March 23, 2014. [ 3 ] His claim was instituted on March 26, 2014. [ 4 ] The situation that he described through his testimony and with photographs is that, on the part of the crescent where he lives, the snow removal equipment is driven in such a way that a large area in front of his driveway is not cleared.

As a result, it is hard for him to get to the passable part of the road after heavy snowfalls: he has to clear the snow himself from the city street. [ 5 ] He testifies that this is a situation that has occurred continuously since 1998 though he has brought it up on several occasions with city officials. [ 6 ] Kirkland contests the claim in stating that it is prescribed. [ 7 ] Kirkland does not claim any special prescription so the Court takes it that of the Defence pleaded the ordinary three-year prescription. [ 8 ] In that case, only those occurrences prior to March 2011 could be considered prescribed. [ 9 ] Each event where the City did not properly clear snow would be considered to be a separate incident so that all those incidents that occurred before March 2011 would indeed be prescribed. [ 10 ] Mr Golovanov states that there were approximately 10 incidents per year where he was required to spend approximately one hour clearing snow from the city street.

His claim is therefore based on an average of $400.00 per year or, for the 3 years that were not prescribed, $1,200.00. [ 11 ] When a city engages in a snow removal program for its streets, it must do so with the usual diligence of a reasonable person. [ 12 ] In the present case, it appears that, on a certain number of occasions per year, the snow plough passes by Mr Golovanov’s home clearing the snow in such a way that it does not block his driveway, because the path of the snow plough does not follow a line that would result in a snow being piled up to form a bank at the edge of his property. [ 13 ] If it were, he would have to spend time clearing the way the snow banks in order to remove his vehicle.

In this case, for reasons that may have to do with the geometry of the street or the technique used by the snowplough driver, there are times where there is no snow banks generated but rather a certain amount of snow is left in the street between Mr Golovanov’s driveway and the part of the street that is passable for vehicles. [ 14 ] While it is possible to criticize this technique, in the end, it does not result in any harm for Mr Golovanov.

The time that would be required to clear a path for his car between the driveway and the passible part of the road would not be more onerous to him than clearing away of the snow banks generated because of the snow being piled up in the opening of his driveway.

[ 15 ] He told the Court that he would not complain if the snow was piled on his property because it would be considered his responsibility to clear the snow out of his driveway while it should not be his responsibility to clear snow on the street. [ 16 ] Mr Golovanov’s distinction may be accurate but the Court does not see a prejudice resulting from his being obliged to clear snow in one way rather than the other. [ 17 ] Therefore the Court does not see a basis for the Court to impose an award of damages against the City. Fault, prejudice and a causal link between the two have not been adequately proved.

FOR THESE REASONS, THE COURT: DISMISSES the claim; CONDEMNS the Plaintiff to pay the City of Kirkland the judicial disbursement of $ 206.00. __________________________________ DAVID L. CAMERON J.C.Q Date of hearing: September 28, 2015