2019 QCCQ 3677, 2019 QCCQ 3677

D'Angelo c. Vaccaro 2019 QCCQ 3677 COURT OF QUÉBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-155410-170 DATE: June 4, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ FRANK D’ANGELO Plaintiff v. ROSALIA VACCARO -and- FRANCO ZAMBITO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Frank D'Angelo is suing his backyard neighbors, Mrs. Rosa Vaccaro and Mr. Frank Zambito ( Neighbors ), claiming $15,000.00 for the damages he allegedly suffered from the recurrent dripping of surface water from their property, which has resulted in the flooding of his flowers and other plantations. [ 2 ] The Neighbors deny liability. They argue that they have installed a French drain, as well as an underground membrane, to prevent any surface water from flowing onto Mr. D'Angelo's property. Moreover, they allege that during winter time, Mr.

D'Angelo stores snow on a parcel of his backyard, which upon thawing, increases the amount of water, thus damaging his flower and plantations. QUESTION IN DISPUTE [ 3 ] Has Mr. D’Angelo demonstrated, by a preponderance of evidence, that the damages he claims to have suffered are the result of dripping of surface water from the Neighbors’ property? CONTEXT [ 4 ] At all times relevant hereto, the parties were both owners of neighboring houses with adjoining backyards. [ 5 ] In the summer of 2015, Mr.

D’Angelo undertook major renovations of his backyard. [ 6 ] In the fall of the same year, he filed a complaint with the City of Montreal ( City ) regarding water drainage issues. Before that, the Neighbors had never been noticed by Mr. D’Angelo of any water problems. [ 7 ] Mrs. Samira Gana, the City’s inspector, then analyzed Mrs. Vaccaro’s backyard and concluded that her land was higher than Mr. D'Angelo's [1] . She later performed a test and noticed that some water was dripping on Mr. D'Angelo's property. Mrs.

Vaccaro, who attended the tests, agreed to make the necessary corrections before receiving the City’s Notice at the end of October 2015 [2] . [ 8 ] On November 11, 2015, Mrs. Vaccaro contacted Mrs. Gana to advise her that the installation of a French drain was in progress [3] . [ 9 ] A few days later, Mrs. Gana carried out an additional test and confirmed that the water no longer drained to Mr. D'Angelo's property, as a result of the corrective work. The situation was considered regularized by the City and the file was closed. [ 10 ] During the summer of 2016, following a second complaint filed by Mr.

D’Angelo, Mr. Nick Jean-Pierre, another of the City’s inspectors, went to his house to inspect the premises. He noted that the land was relatively dry, with the exception of one particular corner. He suggested a second inspection to be conducted after heavy rains [4] . [ 11 ] About a month later, Mr. Jean-Pierre returned to Mr. D'Angelo's house. He noticed that some areas of the garden were flooded after heavy rains, and that there was a significant amount of water accumulated on the edge of the property boundary [5] . [ 12 ] Later on, Mr. Jean-Pierre returned to the site to conduct a flow test.

After a 10-minute test, he noticed surface water dripping out onto Mr. D'Angelo's property [6] . Mrs. Vaccaro attended to the test but never recognized its validity. Nevertheless, she subsequently removed her automatic garden hose from the boundary between the two properties. [ 13 ] On October 3, 2016, Mr. Jean-Pierre conducted a random inspection and performed a water test. Although he noted that the watertightness of the edge appeared to have been improved, he still noticed some dripping.

[ 14 ] On October 6, 2016, a second Notice was sent by the City to the Neighbors asking them to take corrective measures to ensure compliance with paragraph c) of

section 5.6.5 of Zoning By-law 1886 [7] that states “ la réalisation d’un ouvrage de remblai et de déblai sur un terrain ne doit pas nuire à l’égouttement des eaux de surface des terrains qui lui sont adjacents ”. [ 15 ] On November 22, 2016, Mr. Jean-Pierre went to Mrs. Vaccaro's home after being advised that she had installed a membrane about 6 inches deep into the ground to comply with the regulations [8] . He could not carry out any water test given the excessive amount of snow accumulated on the ground. [ 16 ] On January 11, 2017, Mr.

D’Angelo instituted his Demand before the Small Claims Division of the Court of Québec. [ 17 ] On April 3, 2017, the Borough Council of Saint-Léonard decreed that

Section 5.6.5 of Zoning By-law 1886 was to be amended by deleting paragraphs a),

b) and c) [9] . Consequently, the water test that was supposed to be conducted on November 22, 2016, was never done by the City. [ 18 ] On July 9, 2018, Mr. Dumoulin, the expert retained by the Neighbors, inspected the premises and conducted tests that confirm the efficiency of the corrective work performed in November 2016 [10] . [ 19 ] On October 19, 2018, Mr. Jean Lamarche, at the request of Mr. D’Angelo, prepared a topographic survey of the adjoining backyards [11] , that Mr. Dumoulin later analyzed [12] .

ANALYSIS [ 20 ] In civil matters, any person wishing to assert a right must prove the facts on which their claim is based [13] . The evidence will be weighed on a balance of probabilities [14] . However, where the evidence is contradictory or not sufficiently convincing and the Court is unable to determine where the truth lies, the party with whom the burden of proof lies will lose its case. [ 21 ] The burden of proof rests on Mr. D’Angelo who must present compelling evidence to prove the cause of the damages he is claiming.

To convince the Court, he must demonstrate facts that are more probable than their non-existence [15] . • Has Mr. D’Angelo demonstrated, by a preponderance of evidence, that the damages he claims to have suffered are the result of dripping of surface water from the Neighbors’ property? [ 22 ] Firstly, the Court must stress that the factual evidence presented by Mr. D’Angelo and Mrs. Vaccaro is completely contradictory. [ 23 ] Indeed, each of them testified as to the different issues and justified their respective positions on the basis of facts that the other contests. Thereby, Mr.

D’Angelo testified to establish the facts surrounding his claim and his credible testimony is countered by the one of Mrs. Vaccaro, equally credible, who categorically denies all of his contentions. Consequently, the Court is unable to determine where the truth lies. [ 24 ] Without summarizing all of the facts, the Court considers it appropriate to highlight the following: • Mr. D’Angelo filed several photographs to establish that his flowers and plantations were flooded as a result of the dripping of the surface water. Mrs. Vaccaro pointed out that the photographs are not contemporary as they were taken by Mr.

D'Angelo during the major renovations of his backyard performed in the summer of 2015. Moreover, Mrs. Vaccaro filed photographs to show that the flowers and plantations of Mr. D'Angelo are in excellent condition. • While the Neighbors explained, through documentary and testimonial evidence, that they have implemented several measures to prevent any dripping of surface water, Mr. D'Angelo testified that these measures are ineffective, even doubting that the French drain was properly installed. • The Neighbors demonstrated, by their testimony and photographs, that during winter time, Mr.

D’Angelo stores the snow at the back of his yard, at the same place where he complains of a surplus of water. Mr. D’Angelo responded that the snow is rather piled where the Neighbors installed their French drain. • Mr. D’Angelo explained that he lost six or seven rose trees between 2014 and 2016 and testified as to where the trees were initially located. Mrs. Vaccaro denied that there ever were trees at the locations indicated by Mr. D'Angelo. She also filed photographs taken in 2016, 2017 and 2018 establishing that all of Mr.

D’Angelo’s trees are still standing. [ 25 ] Moreover, the evidence presented by both sides is supported by expert reports with completely contradictory conclusions. [ 26 ] That being said, the Court heard both experts and prefers the testimony of Mr. Dumoulin that was more precise and convincing. As such, Mr.

Dumoulin explained, in details, the test he conducted and the results of same, as well as the state of the flowers and plantations he observed: […] Après avoir pris les élévations de la terrasse, j’ai effectué un test d’eau pour m’assurer du sens de l’égouttement . [… J’ai laissé la sortie d’eau ouverte à grand débit pendant 45 minutes. […] De plus, j’ai aussi noté que même après 45 minutes d’arrosage à grande eau, aucune trace d’eau n’était apparente en surface du côté du voisin arrière .

Le résultat m’indique clairement que le drainage situé derrière la bordure de béton ainsi que la pente d’égouttement de la terrasse fonctionnent très bien et qu’aucune eau ne peut être envoyée vers le terrain arrière . J’ai aussi noté en tant que technicien en paysage et horticulture que tous les végétaux, de part et d’autre de la clôture arrière était en parfait état et qu’aucun dommage sur les 2 terrains n’était apparent .

Il peut être normal qu’une petite accumulation d’eau se fasse sur les terrains lors de pluie diluvienne ou encore lors de la fonte des neiges dans des sols argileux qui sont par nature peu drainants .

(emphasis added) [ 27 ] He also explained the conclusions of his analysis of Mr. Lamarche’s topographic survey: On voit bien la faible pente, voire insuffisante, de votre terrasse vers l’arrière et une autre pente du centre arrière de la terrasse vers chacun des côtés pour éloigner l’eau du voisin arrière .

De plus, le relevé démontre bien la hauteur supérieure de la bordure de béton dans laquelle l’eau vient se frapper et reste emprisonnée pour être redirigée vers les côtés. […] C’est donc de démontrer encore une fois que le drain agricole et la zone de pierre de rivière sont très efficaces pour égoutter l’eau par percolation. […] Le niveau centre arrière de votre terrasse Est a été prélevé à 36,64 et celui de votre terrasse côté droit à 36,62, tandis que celui de la zone où les plantes de votre voisin seraient mortes a été prélevé à 36,61.

Il y aurait donc une différence de seulement 3 centimètres au point le plus haut et de seulement 1 centimètre au point le plus bas. C’est donc de dire que la plate-bande de votre voisin est à la même hauteur que votre terrasse, il n’y a donc pas lieu que votre eau se déverse chez votre voisin arrière . […] Cela ajoute aussi au fait que votre eau n’est pas dirigée vers votre voisin arrière . (emphasis added) [ 28 ] Thus, based on Mr. Dumoulin's testimony, the Court concludes that: • The slope of the Neighbor’s property is insufficient for the water to flow down onto Mr.

D'Angelo's yard. • The work carried out by the Neighbors is not only appropriate under the circumstances, but is also effective as it prevents surface water from dripping towards the property of Mr. D'Angelo. • Several other reasons may explain the difficulties described by Mr. D’Angelo with his plantations and flowers such as important variations in temperature, rigid winters or excess water caused by the snow accumulation in the area. [ 29 ] For all these reasons, Mr.

D’Angelo failed to present compelling evidence establishing that the damages he claims to have suffered are the result of recurrent dripping of surface water from the property belonging to the Neighbors. [ 30 ] The analysis of this case could stop here. However, the Court also reviewed the evidence provided in support of the damages claimed by Mr. D’Angelo. This additional analysis also leads to the conclusion that Mr. D’Angelo has not discharged his burden in this regard. [ 31 ] Indeed, Mr. D’Angelo had the burden of proving all the damages he claims.

In this context, it is not enough to file a quotation of $1,000.00 for the replacement of the flowers and a quotation of $8,000.00 for the installation of a concrete wall, to discharge his burden. It is also necessary to establish that the damages claimed are the immediate and direct consequence of the alleged fault, which was not done by a preponderance of evidence. [ 32 ] Furthermore, Mr. D’Angelo claims $914.19 in reimbursement of the lawyer’s fees he paid. The Court finds that the evidence presented by Mr. D’Angelo does not allow for the award of damages he claims in this regard.

Indeed, Courts have repeatedly pointed out that the reimbursement of legal fees incurred for presenting a claim or defending oneself is granted in rare exceptions, only when several specific conditions are met, including abuse of process and reprehensible judicial conduct [16] . The evidence on file does not support any such conclusion. [ 33 ] Consequently, Mr. D’angelo’s Demand is dismissed, but without costs. FOR THESE REASONS, THE COURT: DISMISSES the Demand of Mr. Frank D’Angelo against Mrs. Rosa Vaccaro and Mr. Frank Zambito; WITHOUT legal costs. __________________________________ MARIE-JULIE CROTEAU, J.C.Q.

Dates of trial: August 14 and November 26, 2018, February 4, 2019