2013 QCCQ 1476, 2013 QCCQ 1476

Elkabas c. Piotrowski 2013 QCCQ 1476 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-124250-103 DATE: February 18, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JACQUES ISAAC ELKABAS […] , Montréal (Québec) […] Plaintiff v.

ZENON PIOTROWSKI […] , Montréal (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Jacques Issac Elkabas is claiming $6,993.17 from Defendant Zenon Piotrowski. He seeks Defendant’s portion of the cost to install a common fence, the cost to modify the fence, legal fees and damages. [ 2 ] Defendant contests the claim.

By his cross demand, he seeks $6,994.17 in damages, alleging Plaintiff’s encroachment on his property, Plaintiff’s damage to his property, Plaintiff’s appropriation of a common servitude and illegal views. The evidence: [ 3 ] Plaintiff and Defendant are neighbours. Upon Plaintiff’s suggestion, they signed an agreement to install a fence horizontally between their properties and share its cost. [ 4 ] Defendant subsequently informed Plaintiff he did not want the fence.

In July 2010, Defendant refused to allow the installation of the fence, impeding the work by cutting a post and obstructing the site with his vehicle. Plaintiff decided to modify the fence, building it vertically, separating the two properties lengthwise, rather than horizontally, as originally planned and seeks the costs incurred and damages. [ 5 ] Defendant claims he is not bound by the agreement since the fence was not installed within the May 2010 deadline.

He also alleges that Plaintiff installed the fence on his own land to protect his swimming pool [ 6 ] As for his cross demand, Defendant alleges that during the Plaintiff’s house extension, the equipment used damaged Defendant’s land; Plaintiff’s fence encroaches onto the common servitude and Plaintiff blocks the passage of the common area and prevents Defendant from getting in and out of his garage. Analysis: [ 7 ] Defendant presented a copy of the procedures and exhibits filed in Superior Court in an action between Piotrowski vs.

Elkabas [1] and alleges that the case in this Court and in the Superior Court are essentially the same. In essence, Defendant is invoking a

stay of proceedings. [ 8 ] Plaintiff disputes this argument. He contends he had already submitted a motion to have the action before Superior Court dismissed on the grounds of litispendance. His motion was rejected in Superior Court on January 30, 2012. [ 9 ] In the present case, Defendant is not seeking to have the present case dismissed on the basis of litispendance; rather he is seeking a stay of proceedings, on the grounds that essentially the same case will be litigated before the Superior Court. [ 10 ] Put differently, Defendant is requesting that the proceedings in the Small Claims Division be suspended until a judgment is rendered in Superior Court. [ 11 ]

Article 975 of the Code of civil procedure states: If an action having the same judicial basis or raising the same questions of law as an action brought pursuant to this Book is before the Superior or the Court of Quebec, the judge suspends the hearing of the case, of one of the parties so requests, until the judgment on the other action has become definitive, provided no serious prejudice may be caused to the opposite party. Such decision may be revised by a judge at the request of one of the parties, if warranted by new circumstances. [ 12 ] In Superior Court, Mr.

Piotrowski instituted an action in possession, damages and a permanent injunction against Mr. Elkabas. Mr. Piotrowski alleges encroachment on his property and on the common servitude of passage, obstruction, damage to his property, the failure of the modified fence to conform to the parties agreement, etc.. [ 13 ] Mr. Elkabas filed a cross demand, in Superior Court, alleging Mr. Piotrowski’s obstruction of the installation of the fence, the necessity of erecting a modified fence, damage to his property, his stress and inconvenience, his legal fees, etc.. [ 14 ] The present case concerns the same allegations.

While the action and cross demand in Superior Court encompass more issues than those in the present case, both cases stem from the original agreement to install a common fence and they both involve the parties’ ensuing disputes. [ 15 ] The case before the Superior Court has the same judicial basis as the present case and, except for the mandatory injunction, the procedures in that Court raise the same questions of law as those before the present Court, namely the responsibility for the cost of the fence, the alleged encroachments, property damage and stress and inconvenience.

Furthermore, the parties’ boundaries are in issue in both Courts. [ 16 ] After a review of the issues involved in both Courts, the undersigned considers it appropriate to grant to a suspension of proceedings with respect to all the matters before this Court, until the judgment in the case before the Superior Court has become definitive [2] . [ 17 ] In the event that any aspects of the litigation remain, that have not been decided by the Superior Court, the parties will have the opportunity to return to the Court of Quebec, Small Claims Division, to resolve any outstanding matters.

FOR THESE REASONS, THE COURT: ORDERS a stay of the hearing in the present case, until the judgment in the case of Piotrowsk i vs. Elkabas , before the Superior Court, bearing number 500-17-069585-118, has become definitive; And for a proper administration of justice, ORDERS the parties to provide the Court of Quebec, Small Claims Division, with a copy of the judgment of the Superior Court, in the above cited case, once judgment has been rendered. THE WHOLE , costs to follow.

__________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: January 14, 2013