2018 QCCQ 4228, 2018 QCCQ 4228

Graves c. Milley 2018 QCCQ 4228 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-017298-151 DATE: April 23, 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Barbara GRAVES Plaintiff v.

Violet MILLEY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs. Graves claims from her neighbour Mrs. Milley the amount of $ 690.69, representing the value of damages caused to her car due to the sap falling from Mrs. Milley’s oak tree, as well as a few disbursements. THE FACTS: [ 2 ] Mrs. Graves and Mrs. Milley have lived next to each other on […] in Terrasse-Vaudreuil for 15 years. [ 3 ] In August 2015, Mrs.

Graves noticed a problem on the roof of her car, which was a blemish in the paint due to a bug caught into some sap that went into the paint. She said in her testimony that the oak tree started to drip in 2014. [ 4 ] Some discussions happened between the neighbours, and Mrs. Milley had her tree trimmed. The various pictures filed show that the branches of this large tree do not totally overlap Mrs. Graves’ driveway, but is located close to it. [ 5 ] Mrs. Milley had her tree inspected in July 2016 by Arborfolia inc. (exhibit D-2).

This report describes the tree as measuring about 70 feet with a canopy having a span of 50 feet. The arborist concludes that the foliage is normal, branches healthy, no cavity on the trunk, and concludes that the tree appears to be healthy without decay or infestation. She also indicates that this is a maintained tree and the last pruning was done in 2015. [ 6 ] After noticing the damage to her car, Mrs. Graves went to Ile-Perrot Toyota, where she had to spend $ 106.87 to have her car washed inside and outside, with a professional waxing.

The bill says that there is sap on the paint and that this washing was done to decontaminate the paint. [ 7 ] This bill also shows that one spot on the roof has been burned by bugs and that the roof has to be repainted. [ 8 ] The painting job was done on September 18, 2015, for a cost of $ 422.56, as shown by exhibit P-4. Despite the fact that Mrs. Graves is claiming an amount of $ 172.56 for those repairs, this part of the bill has been assumed by her insurer. It cost her $ 250 to have those repairs done, which represents the deductible on her insurance policy. [ 9 ] Mrs.

Graves’ claim establishes then as follows: - Washing of the car done by Ile-Perrot Toyota $ 106.87 - Deductible from insurance $ 250.00 - Cost of pictures $ 54.76

- Certified mail for the Letter of Demand $ 11.50 - Bailiff’s fees for the Letter of Demand $ 95.00 TOTAL $ 518.13 [ 10 ] In her contestation, Mrs. Milley says that she has no proof that the damage to the car roof was due to the tree, and that she herself parks her three vehicles under the tree since 2002 and that they have never been damaged. She filed two Declarations in lieu of testimony of two neighbours who certified that they never incurred any damage on their car. [ 11 ] Mrs. Graves also had a neighbour testify that he saw the sap all over her car, and considers the situation to be a nuisance. ANALYSIS AND DECISION: [ 12 ] This situation is covered by

Section 976 of the Quebec Civil Code , which reads as follows: 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. [ 13 ] This means that Mrs. Milley may be responsible for Mrs. Graves’ inconveniences even if she committed no fault. The criteria to be applied is to know if the annoyance suffered by Mrs. Graves goes beyond the limit of tolerance. [ 14 ] This question largely depends on the facts that have been proven.

The presence of trees in the neighbourhood presents many advantages, as well as trouble to some extent, with leaves, branches, sap, and roots. [ 15 ] The Court agrees with what was said by Mr.

Justice Massol in the case of Fostier [1] , as cited in Talbot [2] , which reads as follows: « [17] Par ailleurs, le demandeur doit faire la démonstration, par prépondérance de preuve, qu'il s'agit d'inconvénients anormaux et qu'il y a un lien de causalité avec ce qu'il réclame. [18] Vivre dans une petite communauté où la présence d'arbres constitue un attrait, voire une plus-value, commande qu'on accepte en contre-partie certains inconvénients. » [ 16 ] The application of

Section 976 Q.C.C. requires that the annoyance be excessive or abnormal to trigger the neighbours’ liability. [ 17 ] Despite the fact that the drip from the oak tree may cause some trouble, it does not present an excessive of abnormal aspect. FOR ALL THESE REASONS, THE COURT: DISMISSES the action; THE WHOLE each party paying its own costs. __________________________________ CÉLINE GERVAIS, J.Q.C.