2020 QCCQ 5809, 2020 QCCQ 5809

Ellerbeck c. Gagné 2020 QCCQ 5809 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS TOWN OF SALABERRY-DE-VALLEYFIELD "Civil Division" No: 760-32-701251-193 DATE: October 16, 2020 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ GEORGE ELLERBECK and JANET AINSLEY (PATTEN) ELLERBECK Plaintiffs v.

CATHERINE-ANNE GAGNÉ Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In 2018, a new construction to lodge a daycare was undertaken by the Defendant, to be built on a lot joining the Plaintiffs’ lot.

As a consequence of this construction, the Plaintiffs claim having suffered damages in the amount of $14,125, for the removal of a fence, for cutting and trimming trees on the Plaintiffs’ property and for the damages caused to the roots of other trees. [ 2 ] The Defendant denies the claim and by her cross-claim, seeks damages in the amount of $15,000. THE FACTS [ 3 ] The Defendant obtained from the City of Vaudreuil-Dorion a permit allowing her a greater setback for the excavation, closer to the Plaintiffs’ property line. [ 4 ] One of the complaints of Mr.

Ellerbeck is that during the construction, the Defendant did not abide by the By-Laws of the City of Hudson. He admits having filed a complaint with the City without result. [ 5 ] As indicated to Mr.

Ellerbeck during the hearing, enforcing city By-Laws is the responsibility of a city or municipality and not of its residents. [ 6 ] Although the Defendant may have violated certain By-Laws, no damages resulted to the Plaintiffs. [ 7 ] The Plaintiffs’ second complaint is with respect to the root system that would have been damaged during the construction, which will require that three trees be removed at a cost of $3,219, fearing these trees may fall on the Defendant’s property and harm someone. [ 8 ] Christian Duffy, arborist, prepared a report in August 2019 [1] following his visit during which he inspected the trees in question, namely an hash, a linden and a sugar maple. [ 9 ] Mr.

Ellerbeck insists that the roots were damaged. Mr. Duffy disagrees, explaining that these trees grow in the forest and have a limited root system, contrary to trees growing in cities or isolated on a lawn. From his inspection, he was unable to find any damage to the root system. Mr. Duffy adds that the surface of the roots, the canope and the trunk did not show any visible damage or cause for concern. [ 10 ] Although Mr.

Duffy can never predict when a tree may fall, in his opinion, the trees are in perfect health. [ 11 ] The Plaintiffs’ third complaint for which they claim $2,000 is to replace their fence illegally removed by the Defendant. [ 12 ] Mr. Ellerbeck provided a Google Street View, taken in May 2016, showing steel fence posts . From this photograph, it is impossible to clearly see that a fence was actually erected in this area. He adds that the fence consisted of posts and wires and was already built in 1946. [ 13 ] Even if the Court was prepared to accept the testimony of Mr.

Ellerbeck, it would have to conclude that the fence had no more value, due to the passage of time. [ 14 ] Moreover, as appears from a photograph [2] , a new fence was built by the Defendant on her property and the Plaintiffs did not have to share in the cost. This portion of the claim is also dismissed.

[ 15 ] Mr. Ellerbeck provided two pictures to the Court [3] in which we see another portion of a fence with old wooden posts and chicken wire. However, this fence is built on a neighbouring lot, namely on the property of Mr. Rudy Tippen who states that the fence was on his property and it would have been illegally taken down by the Defendant. Even if the Court was prepared to accept this testimony, as Mr. Tippen is not a party to this claim, Mr.

Ellerbeck cannot claim damages on behalf of another. [ 16 ] The Plaintiffs also claim $500 representing the value of the trees that would have been removed during the excavation and damaged when the trees were covered by dirt as can be seen on the photos [4] . The contractor, Jean Sébastien Théoret, stated to the Court that during the excavation of the foundation, a portion of the dirt was put on the Defendant’s property but slided on Plaintiffs’ side. [ 17 ] As Mr. Ellerbeck immediately complained to the Defendant, Mr.

Théoret was called back within hours to remove the dirt, which he did. [ 18 ] He also testified that during the excavation, his employees were extremely careful to not damage the trees and in fact, once the excavation was completed, they cleared all of the debris and branches that were on the ground. This portion of the claim will also be dismissed. [ 19 ] Finally, the Plaintiffs claim the sum of $1,006 representing the surveyor’s fee. A surveyor was retained by them to determine if the fence was installed on the Defendant’s property or not.

As there is no evidence of encroachment by the Defendant, the Court will not grant reimbursement of this expense. [ 20 ] Although the Plaintiffs referred to the Charter of Rights and Freedom , it does not apply to the present circumstances. [ 21 ] The Civil Code of Québec , at articles 2803 and 2804 , states that a person seeking to assert a right shall prove the facts on which his claim is based.

Evidence is sufficient if it renders the existence of a fact more probably than its non existence, unless the law requires more convincing proof. [ 22 ] Plaintiffs did not provide any evidence of wrongdoing by the Defendant or that they suffered damages following the construction of the Defendant’s daycare. [ 23 ] As for Defendant’s cross-claim, during the hearing, the Defendant stated she was withdrawing her claim.

FOR THESE REASONS, THE COURT : DISMISSES Plaintiffs’ action, without costs; ACKNOWLEDGES Defendant’s withdrawal of her cross-claim, without costs. __________________________________ DIANE QUENNEVILLE, J.C.Q . Date of hearing: October 7, 2020