2020 QCCQ 1593, 2020 QCCQ 1593

Rinaldi c. City of Montréal 2020 QCCQ 1593 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-157792-187 DATE: February 28, 2020 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ REMO RINALDI Plaintiff v.

CITY OF MONTRÉAL -and- 9150-2732 QUÉBEC INC. (DOING BUSINESS AS GROUPE TMD) Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Overview [ 1 ] Remo Rinaldi alleges that he suffered property damage as a result of the City of Montréal’s ( City ) snow removal operations during the 2017-2018 winter and seeks $4,500 from the City, which represents the cost of repairing the damages caused to the grass and the paving stone of the property where he resides. [ 2 ] The City of Montréal denies all liability.

It argues that if any damages were suffered by Mr. Rinaldi, these were caused by 9150- 2732 Québec inc. (doing business as Groupe TMD), the snow removal contractor to whom it entrusted the snow removal operations in the borough where the Plaintiff resides. It asserts that pursuant to

section 604.3 of the Cities and Towns Act ( R.S.Q. ch. C-19 ), it cannot be held liable for these damages. [ 3 ] The City further contends that Mr. Rinaldi’s claim is unfounded because:

a) He has already filed two previous lawsuits against the City claiming damages caused by snow removal operations, and in each case, his claims have been dismissed;

b) The damages that Mr. Rinaldi alleges to have suffered relate to events which occurred in 2016 and as such, are now prescribed under

section 586 of the Cities and Towns Act ;

c) The damages which Mr. Rinaldi complains of occurred on the City’s right of way, in other words in the public domain and not on private property; and

d) This third lawsuit filed against it by Mr. Rinaldi is abusive within the meaning of

article 51 of the Code of Civil Procedure ( C.C.P. ), and therefore, it claims it is entitled to $2,000 in damages. [ 4 ] The City has impleaded as a co-defendant Groupe TMD and argues that if the Court concludes that Mr. Rinaldi has suffered damages, the snow removal contractor should solely be found liable for the damages claimed. [ 5 ] Groupe TMD has contested the claim and argues that it cannot be held liable because the property damages that Mr. Rinaldi alleges to have suffered occurred in 2016, whereas it was not involved in snow removal operations at that time. [ 6 ] Mr. Rinaldi’s claim raises the following issues:

a) Is Mr. Rinaldi’s Application prescribed?

b) Did the damages occur on the City’s right of way or on private property?

c) Is the City of Montréal exonerated pursuant to

section 604.3 of the Cities and Towns Act ?

d) Did Groupe TMD commit a fault which caused damages to Mr. Rinaldi’?

e) What are the damages caused to Mr. Rinaldi?

f) Is Mr. Rinaldi’s Application abusive within the meaning of

article 51 C.C.P . and if so, is the City of Montréal’s claim for $2,000 in damages justified? Context [ 7 ] Remo Rinaldi occupies a residential property located on [street A], on the corner of [street A] and 63 rd Avenue in the borough of Rivière-des-Prairies, City of Montréal ( Rinaldi Property ). [ 8 ] The Rinaldi Property is owned by Remo Rinaldi’s father, Antonio Rinaldi.

Remo Rinaldi lives in the Rinaldi Property and is responsible for all expenses, including maintenance of the property. [1] [ 9 ] The landscaping of the Rinaldi Property includes a walkway leading to the front steps of the residence as well as a driveway with space for approximately three vehicles, both of which are covered in paving stone. The remaining portion of the façade of the property is covered in grass. The side of the property on 63rd Avenue is also covered in grass. [ 10 ] On February 19, 2018, Mr.

Rinaldi filed against the City of Montréal an Application in damages before the Court of Québec, Small Claims Division, in which he alleges that he suffered property damage because the City’s snow removal operations during the winter 2017-2018 damaged the grass and paving stone of the Rinaldi Property ( 2018 Application ). [ 11 ] This is his third lawsuit directed at the City of Montréal in which he alleges that the Rinaldi Property has suffered property damages because of snow removal operations. The 2016 Application [ 12 ] On September 23, 2016, Mr.

Rinaldi filed an application against the City of Montréal before the Court of Québec, Small Claims Division in file # 500-32-154279-162 in which he sought $7,646 in damages from the City on the grounds that its snow removal operations during the winter 2015-2016 period damaged the front lawn and the paving stone of the Property ( 2016 Application ). [ 13 ] On November 28, 2016, the Court of Québec, Small Claims Division dismissed the 2016 Application on the grounds that it was time barred, as the suit was filed more than six months from the day on which the cause of action accrued. [2] [ 14 ] On December 22, 2016, Mr.

Rinaldi filed an Application for Revocation of the November 28, 2016 decision. [ 15 ] On March 20, 2017, Mr. Rinaldi’s Application for Revocation was dismissed. The 2017 Application [ 16 ] On June 22, 2017, Mr. Rinaldi filed another application in damages against the City of Montréal before the Court of Québec, Small Claims Division in Court file # 500-32-156450-175 ( 2017 Application ). [ 17 ] In this lawsuit, Mr.

Rinaldi claims damages of $4,350 from the City on the grounds that its snow removal operations damaged the front lawn and the paving stone of the Rinaldi Property in March 2017. [ 18 ] To counter this new lawsuit, the City filed an exception to dismiss based on articles 166 and 168 of the Code of Civil Procedure . [ 19 ] On October 16, 2017, the Court of Québec, Small Claims Division, granted the City’s preliminary application and dismissed the 2017 Application on the grounds that Mr. Rinaldi failed to give proper notice of claim as required by

section 585 of the Cities and Town Act , that he is not the owner of the Rinaldi Property, and considering the existence of res judicata in light of the November 28, 2016 and March 20, 2017 judgements dismissing the 2016 Application. [ 20 ] With this context in mind, the Court will now address the questions in issue raised by the 2018 Application filed by Mr. Rinaldi in February 2018. Analysis and Decision

a) Is Mr. Rinaldi’s Application prescribed? [ 21 ] The City argues that Mr. Rinaldi’s Application filed on February 19, 2018 is prescribed because it was not filed within six months from the day on which the cause of action accrued, as required by

section 586 of the Cities and Towns Act . [3] [ 22 ] Indeed, any claim for damages arising from a cause of action that accrued prior to August 19, 2017 would be prescribed under the statute. For example, damages to the grass or paving stone of the Rinaldi property which were caused during the winter 2016-2017 season would be prescribed. [ 23 ] Mr. Rinaldi alleges in his 2018 Application that the Rinaldi Property suffered property damage (to its grass and paving stone) during the 2017 and 2018 snow removal operations. In his notice of claim date January 2, 2018, he indicates that the incident occurred on December 28, 2017.

[ 24 ] His evidence at trial as to the date on which the alleged property damage occurred is tenuous and imprecise. [ 25 ] He initially states that the damages occurred between December 2017 and February 2018. Later in his testimony, when referring to photos of the damages (exhibits P-6G and P-6D), he asserts that the damages occurred between 2015 and 2017. [ 26 ] Mr.

Rinaldi adds that the snow removal operations carried out between December 2017 and February 2018 simply aggravated the damages which had already been caused earlier between 2015 and 2017. [ 27 ] He adds that the photos which he filed in support of his claim evidencing tire marks on the grass were taken sometime between 2015 and 2017. [4] He further adds that other pictures filed in support of his claim and showing the damages to the grass and paving stone were taken sometime between 2016 and 2017. [ 28 ] In rebuttal, Mr.

Rinaldi asserts that the damages to the grass and paving stone for which he is claiming compensation in this Application are new damages. Further on he claims that they are repetitive damages. [ 29 ] Considering the contradictions in his testimony, the Court considers his testimony unreliable. [ 30 ] As in any civil case, Mr.

Rinaldi has the burden of proving on the balance of probabilities that the City committed a fault, that he suffered a prejudice, and that the fault caused the prejudice. [5] [ 31 ] Where prescription is raised as a grounds of defense, although the burden of proving the facts which support the prescription argument rest with the defendant (art. 2804 paragraph 2 C.C.Q.), the claimant’s evidence as to the date on which the cause of action arose must nonetheless be clear. [ 32 ] Evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. [6] [ 33 ] Mr.

Rinaldi’s contradicting testimony on the date on which the property damage was caused is anything but clear, convincing and cogent. [ 34 ] Moreover, the 2016 Application and the 2017 Application both allege that the property’s lawn and paving stone were damaged during snow removal operations. Mr.

Rinaldi’s testimony at trial in the present lawsuit reveals that he is unable to distinguish between the damages he alleges were caused to the Property during the 2015-2016 or the 2016-2017 winter season snow removal operations and the damages which he alleges to have suffered in 2017-2018. [ 35 ] On the balance of probabilities, the Court concludes that the damages to the grass and paving stone of the Rinaldi Property for which he claims compensation in this lawsuit were caused sometime during the 2015-2016 or the 2016-2017 winter seasons, and not in December 2017. [ 36 ] Accordingly, the City’s defense based on prescription and

article 586 of the Cities and Towns Act is well founded. His Application will be dismissed for this reason alone.

b) Did the damages occur on the City’s right of way or on private property? [ 37 ] Subsidiarily, the City argues that the damages which Mr. Rinaldi alleges were caused to the grass and paving stone of the Property were in fact damages which occurred on the City’s right of way. In other words, the damaged grass and paving stone are situated in the public domain and not on private property. [ 38 ] While the Court does not need to address this argument considering that the claim is prescribed, it will nonetheless make the following

summary comments. [ 39 ] The public domain (“ domaine public ”) includes streets, sidewalks, and cities’ right of way adjacent to streets. [7] [ 40 ] The evidence adduced by Mr. Rinaldi show that the damages which he complains of occurred within one meter, or less, from the edge of the asphalted streets. [8] [ 41 ] The City’s public domain (right of way) extends 2.3 metres from the edge of the asphalt on 63 rd avenue and onto the grass covering the Rinaldi Property.

This right of way extends 4.6 metres from the edge of the asphalt on [street A] and onto the grass or paving stone covering the Rinaldi Property. [9] [ 42 ] The damages which Mr. Rinaldi complains of occurred within the City’s public domain and as a result, he has no right to compensation. [10]

c) Is the City of Montréal exonerated pursuant to

article 604.3 of the Cities and Towns Act ? [ 43 ] This question is moot considering that the Court has concluded that Mr. Rinaldi’s Application is prescribed and since the evidence establishes that Groupe TMD was not involved in the snow operations that caused the damages to the Property.

d) Did Groupe TMD commit a fault which caused damages Mr. Rinaldi? [ 44 ] Given the Court’s conclusion on the second issue (i.e. public domain argument), it does not need to address the issue of whether Groupe TMD committed a fault. [ 45 ] In any event, since the Court has concluded that the damages which Mr. Rinaldi complains of occurred prior to the 2017-2018

winter season snow removal operations, and considering that the City only contracted with Groupe TMD to perform snow removal in Mr. Rinaldi’s neighbourhood for the 2017-2018 winter season, it cannot have caused the prejudice he complains of.

e) What are the damages caused to Mr. Rinaldi? [ 46 ] There is no need to address and quantify the damages claimed by Mr. Rinaldi considering the Court’s conclusions above.

f) Is Mr. Rinaldi’s Application abusive within the meaning of

article 51 C.C.P. and if so, is the City of Montréal’s claim for $2,000 in damages justified? [ 47 ] The City asks the Court to declare that Mr. Rinaldi’s 2018 Application is abusive within the meaning of

article 51 C.C.P. and to condemn Mr. Rinaldi to pay it $2,000. [ 48 ] According to the City, the 2018 Application is abusive considering that Mr. Rinaldi has filed in total 3 lawsuits against it which are based on the same event. It adds that his conduct was previously declared abusive in this Court’s October 16, 2017 judgment which declared the 2017 Application abusive. [ 49 ] Under

article 51 C.C.P. , a court may, at any time, declare that an application is abusive. If it is summarily established that an application may constitute an abuse of procedure, the onus is then on the party who initiated the application to show that it is not excessive or unreasonable and is justified in law. [11] [ 50 ] The Court considers that the City has summarily established that the 2018 Application is abusive based on the following: 1) This is the fourth lawsuit brought by Mr.

Rinaldi against the City before the Court of Québec, Small Claims Division, since September 2016; [12] 2) All four lawsuits have been dismissed; 3) Three of the four lawsuits stem from snow removal incidents, more than likely the same incident; 4) By judgement dated October 16, 2017, the Court declared the 2017 Application and the application in file # 500-32-156207-179 unfounded and abusive. No damages were awarded to the City because none were sought by the City at the time; 5) Despite a prior finding of abuse, Mr.

Rinaldi persist and files a fourth lawsuit that was clearly unfounded. [ 51 ] The abuse stems from the clearly unfounded nature of the 2018 Application and the use of the judicial system that is repetitive, excessive and unreasonable. [ 52 ] Mr. Rinaldi has not rebutted the finding that the 2018 Application is excessive or unreasonable; he has not proven that it was justified in law. [ 53 ] His conduct in filing the 2018 Application constitutes a civil fault within the meaning of

article 1457 C.C.Q. and warrants and award of damages. [13] [ 54 ] The City argues that a damages award of $2,000 would be reasonable. Ultimately, it leaves the quantum to the Court’s discretion. [ 55 ] Undoubtedly, the City had to devote resources to investigate and contest the Application.

However, no evidence was adduced as to the number of person hours spent on the file. [ 56 ] The Court considers that the City is a “professional litigant” and as such, it cannot reasonably contend that it suffered prejudice in the form of stress and anxiety because it had to contest the Application. [ 57 ] Using its discretion, the Court will award $300 to the City.

FOR THESE REASONS, THE COURT: [ 58 ] DISMISSES Remo Rinaldi’s Application against the City of Montréal; [ 59 ] DECLARES that Remo Rinaldi’s Application is abusive; [ 60 ] CONDEMNS Remo Rinaldi to pay to the City of Montréal $300 with interest at the legal rate, plus the additional indemnity of

article 1619 C.C.Q. , as of the date of this judgment; [ 61 ] WITH LEGAL COSTS of $151 payable by Remo Rinaldi to the City of Montréal [ 62 ] DISMISSES the City of Montréal’s forced intervention against 9150-2732 Québec inc. (doing business as Groupe TMD); [ 63 ] WITH LEGAL COSTS of $151 payable by the City of Montréal to 9150-2732 Québec inc. (doing business as Groupe TMD).

__________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: October 15, 2019; case taken under advisement on October 25, 2019 upon receipt of documents received from the City, with the Court’s permission.