2017 QCCQ 12435, 2017 QCCQ 12435

Sonego c. City of Côte Saint-Luc 2017 QCCQ 12435 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151154-160 DATE: October 25, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ LAURA SONEGO Plaintiff v.

CITY OF CÔTE SAINT-LUC Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Laura Sonego claims $4,374.38 from the City of Côte Saint-Luc (“City”), which represents the damages she suffered to repair the water service pipe servicing her property as well as other damages incurred, on the grounds that the pipe burst on the City ( i.e., public)

section of the water service pipe. [ 2 ] The City contests the claim and argues that the break occurred on the private

section of the water service pipe. Therefore, it argues that the property owner is responsible for the repair costs. Moreover, the City argues that the moral and punitive damages component of the claim is unfounded or exaggerated. Question in Issue [ 3 ] The issue that arises in this litigation is essentially a question of fact. The Court must decide whether the break in the water service pipe occurred on the public

section ( i.e . the City portion of the water pipe) or on the private

section ( i.e . on Mrs. Sonego’s section). [ 4 ] If the Court finds that break occurred on the private section, Mrs. Sonego’s claim fails because in those circumstances, the private property owner, i.e . Mrs. Sonego, assumes all the costs of repair and the city cannot be held liable for any leak or ensuing damages. [ 5 ] The outcome of this case hinges on the reliability of the parties’ testimony and evidence in light of the Plaintiff’s burden of proof. Ultimately, everything turns on a matter of inches. Context [ 6 ] Mrs. Sonego owns a residential property within the territory of the City.

She purchased the Property in 2010 with her husband. She is the sole owner since October 1, 2015. [1] The Property is inhabited by Mrs.

Sonego, her husband Mtre David Assor, their three children, and a live-in child care worker. [ 7 ] On the morning of October 6, 2015, the water service pipe supplying water to the Property from the City’s main water line burst, causing water to percolate to the surface on the lawn located on the side of the Property between the edge of the sidewalk and the side of the building. [ 8 ] A City security patrol agent discovered the break when he saw water seeping from the lawn of the Property over the sidewalk and onto the street.

The agent alerted the occupants of the Property at approximately 7:00 AM. [ 9 ] The City informed Mrs. Sonego on October 6, 2015 that since the break occurred on the private portion of the water service pipe, it was her responsibility to carry out and pay for the repairs. [ 10 ] Mrs. Sonego hired a contractor to carry out the repairs, and the water service pipe was replaced on October 8, 2015. The Property was without drinking water for approximately 55 hours. [ 11 ] On October 9, 2015, Mrs. Sonego sent a notice of claim to the City. [2]

[ 12 ] In November 2015, Mrs. Sonego filed a lawsuit against the City in which it claims damages of $4,374.38 (sic) , including $2874.38 to repair the water service pipe, $500 to repair the damaged lawn, and $1,500 in moral and/or punitive damages for loss of drinking water to the Property. Analysis and Decision Legislation [ 13 ] The legislation governing the claim is the City of Montreal By-Law Concerning the Piping of Drinking Water, Wastewater and Storm Water , R.B.C.M., C-1.1 (“By-Law”). The relevant provisions of this By-Law are cited below:

Chapter I

INTERPRETATION AND APPLICATION 1. In this by-law, the following words mean: "centreline": a median line between 2 street lines; "exterior shut-off valve": a device installed on the public

section of a service pipe, used to shut off the water supply; "local water pipe": a water pipe that directly supplies a service pipe; "private

section of a service pipe": the

section of a service pipe that extends beyond the street line, on private property; "public

section of a service pipe": the

section of a service pipe between a water pipe and the street line; "street line": a dividing line between the street right of way and private property; "water main": a water pipe that directly supplies a local water pipe; "water pipe": a local water pipe or water main; "water service pipe" or "service pipe": a pipe that conveys water from the aqueduct to the inside of a building; […]

Chapter II WATER SUPPLY 13. As soon as a local water pipe is laid under a public thoroughfare and the director has given notice to owners of buildings on that public thoroughfare, every owner must submit an application to the director to have the required public

section of a service pipe laid in order to supply water to his building, and every owner must lay the private

section of that service pipe . […] EXCAVATION, BACKFILLING AND FINISHING 46. The director may affix a mark on a building supplied by a service pipe in order to determine where the exterior shut-off valve is located. 47. The city may not be held liable for any leak of a service pipe at the street line or on the private property side , or for any ensuing damage. (Underlining added.)

a) Did the break in the water service pipe occur on the public

section (i.e. the City portion of the water pipe) or on the private

section (i.e. on Mrs. Sonego’s section) of the pipe? [ 14 ] In order to succeed in her claim against the City, Mrs. Sonego must prove on a balance of probabilities that the break occurred on the public

section ( i.e . the City portion of the water pipe). To meet this burden, the evidence offered must be clear and convincing and the alleged facts must not only be possible, but probable. [3] [ 15 ] The Property is located on the corner lot of Edison Road and Einstein Avenue. The front of the Property is on Edison and the side is on Einstein. [ 16 ] A sidewalk measuring 5 feet wide runs parallel alongside Einstein Avenue and the side of the Property.

The distance measured from the edge of the sidewalk along Einstein and the Property line, i.e . , the setback, is 12 feet. [4] The distance between the inside edge of the sidewalk facing the lawn and the property line is 7 feet. [ 17 ] A water service pipe supplies drinking water to the Property from a water main located below Einstein Avenue. [5] It runs perpendicularly from the City water main, under the sidewalk, across the lawn and connects to the Property. [6] [ 18 ] According to the By-Law, the water service pipe is comprised of two sections: (

i) the public

section which is located on City property and (ii) the private

section which is located on private property. [7] [ 19 ] On October 6, 2015 at approximately 7:00 AM, a City security patrol agent awakens Mrs. Sonego’s husband, Mtre David

Assor, and informs him that water is percolating from the lawn on the Property along Einstein Avenue and is flowing over the sidewalkand onto the street. [20] Shortly thereafter, Mr. Charles De Jean, Supervisor of the City’s water and sewer systems, along with a representative of theCity’s third party engineering firm which carries out repairs and maintenance to its water and sewer system, arrive at the Property. [21] Mr. De Jean’s first task is to ascertain the source of the water flowing out of the lawn. He determines that the source of thewater is from a service line break and not a water main break.

Secondly, he locates the exterior shut-off valve[8] and shuts it, whichcauses the water to stop flowing. [22] In Mr. De Jean’s view, because the water stopped flowing when he turned off the shut-off valve, this indicated to him that thebreak occurred on the private

section of the water service pipe. Hence, he informs Mtre Assor that the City won’t repair the broken pipeand that it is his responsibility to carry out and pay for repairs. [23] Accordingly, Mrs. Sonego and her husband mandate a third party to excavate and replace the water service pipe. This work iscarried out on October 8, 2015.[9] [24] Mtre Assor is present throughout the excavation work. Mr.

De Jean also witness the work, albeit only for a portion of the work. [25] According to Mtre Assor, once the hole is excavated, he can clearly see a hole in the water service pipe on the lead portion ofthe pipe approximately 10 cm from the junction with a copper portion of the pipe.[10] [26] He climbs down into the excavated hole and peering out from the edge of the hole, he aligns the hole in the water service pipewith a fence which is located on the Property line.[11] Based on this, he concludes that the break occurred on the public

section of thewater service line. Therefore, he concludes that the City is obligated to pay for the repairs which he and Mrs. Sonego incurred onOctober 8, plus other damages they claim to have suffered. [27] Mr. De Jean arrives at the Property on October 8 after the hole has been excavated and the water service pipe has beenunearthed. He takes numerous pictures of the site and the excavated water service pipe.[12] [28] Mr. De Jean uses a tape measure to determine where the break occurred in the water service pipe.

He measures from theoutside edge of the sidewalk up to a spot located directly above the hole in the Pipe. [29] Based on his measurements, the hole in the Pipe is located beyond the public portion of the water service pipe, i.e., more than12 feet from the edge of the sidewalk and hence on the private property side.[13] Specifically, according to his measurements, the hole inthe Pipe is located 8 inches inside the Property line, or 12 feet 8 inches from the outside edge of the sidewalk.[14] [30] The Plaintiff and the City disagree as to the exact place where the break occurred on the water service pipe.

The versionsoffered by the parties differ minimally; only a few inches separate the parties. The location of the break in the water service pipe andthus the outcome of this case hinges on the reliability of the parties’ testimony and evidence in light of the Plaintiff’s burden of proof.Ultimately, everything turns on a matter of inches [31] It was Plaintiff’s burden to prove that the break of the water service pipe occurred on the public portion of the line. Mrs.

Sonegohas not met this burden of proof. [32] While the Court believes that Mtre Assor is a credible witness, his evidence as to the precise place where the break occurred isnot as reliable as the evidence offered by the City through Mr. De Jean. [33] On the notion of the difference between credibility and reliability, the following passage of the Ontario Court of Appeal’sdecision in R. v. H.C.[15], is worth recalling: [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony.

Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). [34] Mtre Assor’s evidence on the place of the break is based on the fact that he stood in the hole and using the fence located on theproperty line as a point of reference, he aligned the hole in the Pipe with the fence and concludes the break occurred on the publicportion. There are no measurements involved. His evidence lacks the accuracy required to render Plaintiff’s evidence more reliable andthus more probable than the City’s. [35] Mr.

De Jean’s measurements are more reliable and accurate than Mtre Assor’s notably because he used a tape measure.Moreover, the photos he took of the measuring process provide a clear explanation as to the method he adopted to conclude that thebreak occurred on the private portion of the water service pipe. Conclusion

[ 36 ] For these reasons, the Court concludes that the Plaintiff has not met her burden of proving that the break in the water service pipe occurred on the public portion of the pipe. The evidence adduced at trial establishes that it is more probable that the break occurred on the private property side. Therefore, the City cannot be held liable for the damages claimed by the Plaintiff. [16] [ 37 ] In light of this conclusion, the Court need not address the issue of the damages claimed by the Plaintiff. FOR THESE REASONS, THE COURT: [ 38 ] DISMISSES Mrs. Sonego’s application; [ 39 ] WITH COSTS of $150. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: June 27, 2017.