2020 QCCQ 173, 2020 QCCQ 173

Tannous c. Baev 2020 QCCQ 173 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No.: 500-32-703867-178 DATE: January 27, 2020 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD ______________________________________________________________________ DENISE TANNOUS Plaintiff v.

PETAR BAEV and VARTAN BAEV and SILVA BAEVA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The parties’ back yards are adjoining. [ 2 ] The plaintiff decided to replace the old fence that separated the properties and to install the new one on her land, given the defendants’ refusal to share the costs. [ 3 ] The defendants state that, when the work on the new fence began, the plaintiff’s contractor installed it on their land. [ 4 ] A conflict erupted, the work was stopped, and the police intervened. [ 5 ] After an exchange of correspondence between the parties, the plaintiff hired a new contractor and a land surveyor, who prepared a new location certificate. [ 6 ] The new fence was installed on her land. [ 7 ] The plaintiff claims $2,991 for the deposit she lost with her first contractor, the increase in the cost of the work with her new contractor, the fees for the land surveyor, and stress and inconvenience arising from the dispute with the defendants. [ 8 ] In defence, the defendants argue that the plaintiff is a victim of her own negligence in failing to obtain a new location certificate before the fence installation work began, which would have prevented the legal dispute between the parties. [ 9 ] That being the case, they submit that they are not responsible for any damage incurred by the plaintiff.

ISSUE [ 10 ] Before beginning the work to install the fence separating the parties’ properties, should the plaintiff have obtained a new location certificate? CONTEXT [ 11 ] On August 26, 2015, the plaintiff obtained a permit from the Town of Mount Royal to install a fence in her back yard. [ 12 ] This permit was valid until August 26, 2016.

It should be noted that, to obtain this permit, the plaintiff filed a location certificate from 1982, which did not indicate the presence of a fence. [ 13 ] In June 2016, the plaintiff told the defendants about her plan to remove the old fence separating their yards and to build a new one, and she asked them to share the costs. [ 14 ] When they refused, the plaintiff told them that the new fence would be installed on her land and that she would pay for everything. [ 15 ] On October 7, 2016, the plaintiff signed a contract with a general contractor to install the fence and remove the old one, for a total cost of $3,535 in cash.

At the time of the signing, a $600 deposit was made.

[ 16 ] Work began on October 13, 2016, with the removal of the old fence. [ 17 ] The defendants spoke with the contractor and learned that the new fence would be installed at the same spot as the old one. [ 18 ] The parties acknowledge that the old fence was located almost entirely on the defendants’ land, as appears from the defendants’ location certificate (P-11) and the plaintiff’s new certificate (P-14). [ 19 ] That being the case, the defendants were right to express their disagreement about the plaintiff’s work to install the fence. [ 20 ] As stated, the defendants reacted forcefully to this work, in particular by throwing rocks onto the plaintiff’s land and uttering threats, hence the police intervention. [ 21 ] In her police statement on October 18, 2016, the plaintiff did not contradict the defendants about her contractor’s intention to install the new fence in the same place as the old one, when she explained, “He (her other contractor who was carrying out work on her parking spot, Mr.

John Piccioni) tried to explain to the daughter (Ms.

Silva Baeva) that the old fence was there & we are respecting the property line.” [ 22 ] On October 17, 2016, the plaintiff’s contractor returned to the site to continue the work. [ 23 ] The defendants intervened, the conflict worsened, and the contractor decided to leave the site for good, without reimbursing the plaintiff’s $600 deposit. [ 24 ] The defendants called the Town of Mount Royal, which confirmed that the plaintiff had been granted additional time to complete the fence installation work before winter, since the permit issued had been valid until August 26, 2016. [ 25 ] Moreover, the plaintiff acknowledges that the Town of Mount Royal told her that she had to get a new location certificate if she wanted to continue the work, failing which a statement of offence would be issued. [ 26 ] On October 19, 2016, the plaintiff signed a contract with a new contractor to install the fence on her land, for a total cost of $3,712.20, including taxes of $428.50 (P-7). [ 27 ] In a letter dated October 21, 2016 (P-8), the plaintiff asked the defendants to share the costs of a land surveyor to prepare a new location certificate, as had been previously discussed. [ 28 ] In a letter dated October 23, 2016 (P-9), the defendants refused to share the costs because their location certificate (P-11) was sufficiently clear.

They suggested that the plaintiff use theirs for the installation of her new fence. [ 29 ] In an attachment to a letter dated October 25, 2016 (P-10), the plaintiff sent the defendants her 1982 location certificate, to which they replied by sending their location certificate in an attachment to their letter dated October 26, 2016 (P-11), which contained measurements for installing the fence. [ 30 ] At the trial, the plaintiff acknowledged that “the new contractor was to begin work after the new surveyor certificate of localisation, on November 1 and be completed two days later” (plaintiff’s notes related to Exhibit P-7). [ 31 ] However, the new contractor’s work began on November 1 when the plaintiff had not obtained a new location certificate, and despite a letter from the defendants telling her that they intended to verify her measurements before her contractor installed the fence posts. [ 32 ] Although she had been told verbally on October 19, 2016, that she needed to obtain a new location certificate, the Town of Mount Royal confirmed it all by a certified letter dated November 1, 2016, which the plaintiff received on November 3. [ 33 ] On November 18, 2016, the plaintiff received her new location certificate, which confirmed that her fence posts were installed on her land, thereby making it possible for her work to be completed. [ 34 ] In a letter dated August 1, 2017, from counsel for the plaintiff (P-15), the defendants received a formal demand to pay her the amount of $2,991, broken down as follows: – Deposit loss from Ubora (the first contractor): $600 – Additional disbursement for the new contractor: $712 – Unnecessary disbursement of hiring surveyor: $1,079 – Stress and inconvenience: $600 ANALYSIS [ 35 ] From all of the facts presented, it appears that the dispute between the parties sprang from the plaintiff’s lack of a new location certificate for the installation of her new fence. [ 36 ] Town of Mount Royal representatives had warned the plaintiff verbally and in writing that she needed this new location certificate. [ 37 ] As soon as the plaintiff decided, when the work first began, to install the fence on her land, she had to obtain a new location certificate because she knew or should have known that the old fence was located almost exclusively on the defendants’ land.

[ 38 ] Moreover, in her letter of September 19, 2016 (P-3), she told the defendants that the fence would be installed “solely on my property” and that “I will pay for all expenses for the new installment of the new fence.” [ 39 ] That being the case, given the plaintiff’s obligation to obtain a new location certificate at the request of the Town of Mount Royal, she was also required to bear the costs for it. [ 40 ] Although the Court deplores the defendants’ pointlessly aggressive actions towards the plaintiff and her contractors, it cannot find them wrong on the substance of the dispute, namely, the location of the new fence. [ 41 ] The evidence establishes, on a balance of probabilities, that the plaintiff’s first contractor wanted to install the new fence at the same place as the old one that was almost exclusively on their land. [ 42 ] They were therefore right to contest this location. [ 43 ] The first contractor fled the site, refusing to reimburse the plaintiff’s deposit.

This happened solely because of the plaintiff’s failure to obtain a new location certificate to avoid a disagreement with the defendants. [ 44 ] As for the increase in the costs between the first contractor and the second, the Court finds that it is not true. [ 45 ] The first contract (P-2) is for a total amount of $3,535 in cash, whereas the second is for $3,228.70 plus the applicable taxes of $438.50, for a total of $3,712.20. [ 46 ] Thus, the documentary evidence shows that the second contract is more advantageous to the plaintiff in terms of the costs of the work. [ 47 ] This greatly affects the plaintiff’s credibility in relation to her claim. [ 48 ] As for her land surveyor’s fees, the Court has already found that she is responsible to pay these fees, given the Town of Mount Royal requirements and her undertaking to pay all of the costs related to the installation of the fence on her land. [ 49 ] Finally, the plaintiff claims $600 for “stress and inconvenience”.

In this respect, the evidence shows that the plaintiff is a victim of her own negligence for failing to obtain a new location certificate before the fence installation work began on her land. That being the case, she has only herself to blame for the stress and inconvenience she suffered. [ 50 ] Therefore, the Court dismisses the plaintiff’s application but exercises its judicial discretion and does not order costs.

FOR THESE REASONS, the Court: DISMISSES the application of Denise Tannous against Petar Baev, Vartan Baev and Silva Baeva, with each party paying their own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: December 9, 2019