2023 QCCQ 4343, 2023 QCCQ 4343

Widawski c. Greham 2023 QCCQ 4343 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No: 500-32-714920-214 DATE: June 21, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MÉLANIE DUGRÉ, J.C.Q. ______________________________________________________________________ PHILIPPE WIDAWSKI Plaintiff v.

DANIEL GREHAM Defendant __________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Philippe Widawski claims $1,424.82 from Daniel Greham in relation to damages caused to one of his trees by the fall of a branch of another tree, located on Mr. Greham’s property. [ 2 ] Mr. Greham denies any liability and alleges that the damage caused to Mr. Widawski’s tree resulted from his own negligent behaviour. [ 3 ] Mr. Greham also filed a cross-application in which he claims $7,633.87 from Mr.

Widawski for damages caused to his own tree. ISSUES [ 4 ]

a) Was the fall of the branch of Mr. Greham’s tree an autonomous act of the thing that caused damages to Mr. Widawski’s property?

b) Did Mr. Widawski cause damages to Mr. Greham’s Norwegian maple by pruning some branches in July 2017? CONTEXT AND ANALYSIS

a) Was the fall of the branch of Mr. Greham’s tree an autonomous act of the thing that caused damages to Mr. Widawski’s property? [ 5 ] In civil matters, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided under

article 2803 of the Civil Code of Québec ( C.C.Q. ), which states that “A person seeking to assert a right shall prove the facts on which his claim is based.” [ 6 ] The Court decides on the balance of probabilities, [1] which means that the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 7 ] In addition, when the evidence adduced is not sufficiently convincing, or if the evidence is and it is impossible for the judge to identify the truth, the party upon whom the burden of proof lies will lose. [2] [ 8 ] Furthermore,

article 1465 C.C.Q. states that the custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault. [ 9 ] This principle means that the owner of a tree that totally or partly falls on someone else’s property must repair the damages if some conditions are met. [3] [ 10 ] For

article 1465 C.C.Q. to apply, four cumulative conditions must be met: 1) the owner had the power of control and surveillance over the tree; 2) the tree or a branch must have moved; 3) there must have been a damage; and 4) there must have been no direct human intervention. [4] 2017 Events [ 11 ] Mr. Widawski and Mr. Greham have been neighbours since 2015. Two trees are involved in the present case: 1) a 60-year-old Norwegian maple located on Mr. Greham’s property, and 2) a cherry tree located on Mr. Widawski property.

[ 12 ] In July 2017, Mr. Widawski asked Mr. Greham’s permission to cut some branches from the Norwegian maple that were extending over his backyard and hiding the sun. [ 13 ] Mr. Greham gave his consent, but at trial he testified that his understanding at the time was that the pruning would be performed by an arborist. [ 14 ] In fact, Mr. Widawski asked the help of another neighbour, Mr. Yves Demontigny, who had pruned trees in the past. [ 15 ] Mr. Demontigny testified having pruned the Norwegian maple with Mr. Widawski.

They used the chainsaw for one larger branch, of approximately 4 inches in diameter, that was hanging over Mr. Widawski’s property, and they also removed smaller branches whose leaves were creating shade over the yard. [ 16 ] According to Mr. Greham, the pruning was done on July 16, 2017, and shortly thereafter, on the same day, he discovered that Mr. Demontigny was not an arborist. [ 17 ] However, Mr. Greham never expressed any concerns to Mr.

Widawski about this fact nor did he raise this issue with him until the filing of his cross-application on December 13, 2022. [ 18 ] On August 22, 2017, a major storm hit the area where the parties live. The evidence confirmed that microbursts generating 120 km/h winds knocked down trees, causing property damages and power outage. [5] [ 19 ] Mr. Widawski was home at the time of the storm and witnessed Mr. Greham’s Norwegian maple bounce up and down.

After the storm, he noticed a wide cut on the Norwegian maple that ran from the top and measured 1 to 2 inches wide by 4 feet long. [ 20 ] After this storm, whenever the weather was windy, the two pieces of the tree were rubbing against each other and cracking. Mr. Widawski was concerned that additional damages could be caused or that an accident could happen. [ 21 ] During the period of August 2017 to August 2018, Mr. Widawski spoke regularly to Mr. Greham about the damages to the Norwegian maple and asked him repeatedly whether he intended to do something about it. [ 22 ] According to Mr. Widawski, Mr.

Greham kept telling him that he would ask for some estimates, but no work was actually performed. [ 23 ] Mr. Greham himself admitted that no work was done on the Norwegian maple during the period of August 2017 to August 2018. He filed an estimate obtained in April 2018 from Abattage-Élagage St-Laurent, [6] but confirmed that the work proposed was not performed. 2018 Events [ 24 ] On August 6, 2018, another storm, although less violent than the August 22, 2017 storm, hit. [ 25 ] During this storm, one piece of the Norwegian maple, which was weakened by the August 2017 storm, fell on Mr.

Widawski’s cherry tree, and hung over his backyard. [ 26 ] The pictures taken [7] clearly show the significant damages on the Norwegian maple. The browner part of the exposed trunk also reveals the cut that was created by the August 22, 2017 storm. [ 27 ] Mr. Widawski was upset about the situation. In the following days, he reached out to Mr. Greham on three occasions without much success, and on his third visit, Mr. Greham simply told him that this whole situation was stressing his pregnant wife and that, since the damages occurred in his yard, he had to take care of it. [ 28 ] On August 9, 2018, Mr.

Widawski obtained an estimate from Royal Tree Service [8] regarding what could be done to Mr. Greham’s Norwegian maple. They offered two options: 1) cut the broken

section for $650; or 2) remove completely the tree, which required a permit, for $1,100. [ 29 ] On the same day, Mr. Widawski sent a demand letter to Mr. Greham [9] requiring that the fallen part of the Norwegian maple be removed within 24 hours due to safety concerns. Alternatively, Mr. Widawski was asking for $650 based on the Royal Tree Service estimate. [ 30 ] Since Mr. Widawski did not hear from Mr. Greham, he decided to assume the cost associated with the removal of the branch that had fallen on his property.

The work was performed on August 11, 2018 by West Island Tree Service for $524.87. [10] [ 31 ] In his application, Mr. Widawski claims a total of $1,424.82, broken down as follows: $524.82 for the West Island Tree Service’s invoice, $574.88 based on a May 7, 2021 estimate from Service d’arbres Stéphane for the removal of the cherry tree stump, [11] $200 for a new cherry tree and the balance in moral damages. [ 32 ] Based on the evidence, the Court finds that the four conditions under

article 1465 C.C.Q. are met because Mr. Greham is the owner of the Norwegian maple and has control over it. Moreover, a branch fell from the tree and caused damage to Mr. Widawski’s cherry tree. Finally, there was no human intervention because the branch fell during the August 6, 2018 storm. [ 33 ] As a result, a presumption of fault against Mr. Greham has been established, which he can rebut through a defense. [12] Mr. Greham’s Defense [ 34 ] To rebut the presumption of fault and to contest Mr. Widaswki’s claim, Mr. Greham essentially alleges that Mr. Widawski is

responsible for the whole situation because the initial damage was caused by him pruning the Norwegian maple with an unqualified worker, Mr. Demontigny, in July 2017. [ 35 ] Had the pruning been done by a qualified arborist, the August 22, 2017 storm would not have caused the large cut on the tree and no further damage would have occurred during the August 6, 2018 storm. [ 36 ] To support his position, Mr. Greham filed a report dated December 11, 2021, drafted by Angelo Geromin, an arborist, who took pictures of the trees on the parties’ properties on November 26, 2021. [13] [ 37 ] Mr.

Geromin mentioned that the removal of a limb from the Norwegian maple in July 2017 by an individual who was not a qualified arborist could have had an impact on the weakening of the tree’s structure. [ 38 ] The Court finds that the probative value of this report is weak for the following reasons: - The pictures were taken and the report was drafted more than three years after the August 6, 2018 storm; - As Mr. Geromin admitted in an email to Mr. Widawski in April 2023, [14] he only relied on the information provided by Mr.

Greham about the pruning done in July 2017 and the size of the branches that were removed; - His opinion essentially rests on hypothesis and speculations that omit to take into consideration the occurrence of the August 22, 2017 and the August 8, 2018 storms; - He brings no evidence to support the argument that had the pruning been performed by an arborist, the August 22, 2017 storm would not have damaged the Norwegian maple. [ 39 ] Based on the evidence offered, the Court rather finds that Mr. Greham was negligent in failing to take care of the Norwegian maple after the August 22, 2017 storm. [ 40 ] While Mr.

Greham did obtain an estimate in April 2018, no work was performed and the status of the Norwegian maple remained unchanged until the August 6, 2018 storm, despite the wide cut that split the tree’s top. [ 41 ] The argument that the Norwegian maple was weakened by the July 2017 pruning is not supported by the evidence and does not convince the Court. [ 42 ] Moreover, at no point during the relevant period did Mr. Greham express any concerns to Mr. Widawski about the pruning or the fact that it was done by Mr.

Demontigny, who is not an arborist. [ 43 ] The Court rather finds that the pruning became a convenient argument to push back on Mr. Widawski’s claim. Even then, it was only invoked for the first time in Mr. Geromin’s report of December 11, 2021. [ 44 ] On the balance of probabilities, the Court believes that the August 22, 2017 storm, which was extremely violent, caused the damage to the Norwegian maple. At that point, Mr. Greham had a responsibility to take care of the situation since the tree was on his property. [ 45 ] Despite several reminders from Mr.

Widawski, nothing was done, and the weakened tree was further damaged by the August 6, 2018 storm, which resulted in a part of the Norwegian maple falling on Mr. Widawski’s cherry tree. [ 46 ] For these reasons, the Court concludes that Mr. Widawski has met his burden of proof to show that Mr. Greham was negligent between August 2017 and August 2018 by failing to take care of his Norwegian maple, which was damaged by the August 22, 2017 storm. This negligence caused the autonomous act of a thing on August 6, 2018, whereby a portion of the Norwegian maple fell on Mr.

Widawski’s property. [ 47 ] As a result, the Court grants Mr. Widawski’s application in part, for amounts supported by documentary evidence, more specifically the invoice for work performed by West Island Tree Service on August 11, 2018 and the estimate dated May 7, 2021 from Service d’arbres Stéphane. [15]

b) Did Mr. Widawski cause damages to Mr. Greham’s Norwegian maple by pruning some branches in July 2017? [ 48 ] In his cross-application, Mr. Greham claims $7,633.87, which corresponds to removal fees and the loss of value to the Norwegian maple based on Mr. Geromin’s estimate. [ 49 ] Mr.

Greham’s cross-application rests on the argument that all the damages sustained by the Norwegian maple were provoked by the July 2017 pruning, which had weakened its structure. [ 50 ] As explained above, the report filed to support this position is insufficient to reach such conclusion and the Court believes, on the balance of probabilities, that the July 2017 pruning did not have any impact on the subsequent events and the damages caused to both Mr. Greham’s Norwegian maple and Mr. Widawski’s cherry tree. [ 51 ] Consequently, the Court finds that Mr.

Greham did not meet his burden of proof and dismisses his cross-application. FOR THESE REASONS, THE COURT: GRANTS in part Philippe Widawski’s application; DISMISSES Daniel Greham’s cross-application;

CONDEMNS Daniel Greham to pay to Philippe Widawski $1,099.70 with interests at the legal rate and the additional indemnity under

article 1619 C.C.Q. since the demand letter of August 9, 2018; CONDEMNS Daniel Greham to pay to Philippe Widawski $106 in legal costs for the demand. __________________________________ MÉLANIE DUGRÉ, J.C.Q. Hearing date : May 2, 2023