2023 QCCQ 6965, 2023 QCCQ 6965

Banskumar c. Ali 2023 QCCQ 6965 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-162609-210 DATE: September 5, 2023 ______________________________________________________________________ PRESIDED BY THE HONORABLE CAtherine Pilon J.C.Q. ______________________________________________________________________ DIVIKA BANSKUMAR Plaintiff v.

INSHANALLY ALI -et- RAFINA BIBI ALI Defendants ______________________________________________________________________ RECTIFIED JUDGEMENT RENDERED ON THE BENCH ______________________________________________________________________ [ 1 ] The Plaintiff claims $2,000.00 from the Defendants alleging that a tree situated on their property caused damages to her property. CONTEXT [ 2 ] The Plaintiff, together with her mother, and the Defendants, own adjacent lots where they reside. They have been neighbours for almost 20 years.

The two properties are separated by a fence. [ 3 ] A pine tree is situated on the Defendants’ property near the Plaintiff’s. [ 4 ] The Plaintiff’s brother, Vishnunarine Kumar, moved in with her mother and her in 2020. [ 5 ] He sent a letter to the Defendants on November 12, 2020, complaining that the pine tree was causing damage to “his” property by shedding its needles on the roof, gutters, yard, and driveway. He also complained that the needles blocked municipal sewers which flooded the garage.

He requested that the tree be trimmed or fell. [ 6 ] Wanting to be good neighbours, the Defendants requested permission from the City to fell the tree. This permission was denied since the tree was healthy and in good shape. The Defendants advised Mr. Kumar that they were not allowed to fell the tree. [ 7 ] With the claim undertaken before this Court, the Plaintiff seeks to recover the time expended by Mr. Kumar to clean the pine needles and the sap allegedly coming from the Defendants’ pine tree on her property. ANALYSIS [ 8 ]

Article 985 of the Civil Code of Quebec provides: 985. If branches or roots extend over or upon an owner’s land from the neighbouring land and seriously obstruct its use, the owner may request his neighbour to cut them and, if he refuses, compel him to do so.

If a tree on the neighbouring land is in danger of falling on the owner’s land, he may compel his neighbour to fell the tree, or to right it. [ 9 ] According to case law, in order to claim damages pursuant to this provision, the inconvenience must be real and serious. [ 10 ] The Court is of the view that this is not the case for the following reasons: - The Defendants cannot be blamed if municipal authorities have not allowed to fell the tree in dispute; - Various photographs of the tree and the properties show that its branches only start at a certain height, above the electricity lines, and do not extend over the property of the Plaintiff; - The tree is in good health and does not threaten to fall; - The Defendants cannot be blamed for the wind carrying some needles over to the Plaintiff’s property; - The suggestion by Mr.

Kumar that all branches be groomed off is both unrealistic and unaesthetic.

[ 11 ] Although she does not claim on this basis, the Plaintiff testified that the needles falling on her roof caused holes and forced her to repair it. She also testified that the needles blocked municipal sewers which led to a flood in her garage. However, no expert evidence was adduced in this respect. [ 12 ] It appears peculiar to the Court that if there was indeed such a prejudice, it was not claimed in the Court proceedings. The Court was rather of the impression that this constitutes no more that an unfounded assumption by the Plaintiff.

The statement that pine needles could pierce a roof, without any expert opinion to support this argument, seems at the very least exaggerated to the Court and weakens the Plaintiff’s credibility. [ 13 ] For reasons also obscure to the Court, it is only when Mr. Kumar moved in with his sister and mother that the trouble began with the Defendants and that the issue of the pine tree was raised. The presence of the tree therefore appears to bother Mr. Kumar more than it bothers the Plaintiff. [ 14 ] Pursuant to

article 976 of the Civil Code of Quebec : 976 . Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage. [ 15 ] There may indeed be pine needles and cones coming from the Defendants’ tree on the Plaintiff’s property. This does not constitute an annoyance beyond the limit of tolerance and is unavoidable in the context of a residential neighbourhood, such, for example, as leaves falling from a neighbor’s tree unto one’s property.

FOR THESE REASONS, THE COURT: [ 16 ] DISMISSES the Plaintiff’s claim; [ 17 ] CONDEMNS the Plaintiff to pay the Defendants the Court costs of $106.00. ______________________________ Catherine Pilon, J.C.Q. Hearing date: September 8 5 , 2023