2014 QCCQ 5393, 2014 QCCQ 5393

Woloshen c. Montréal (Ville de) 2014 QCCQ 5393 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-126889-114 DATE: May 21, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ROBERT WOLOSHEN […], St-Bruno, Quebec, […] Plaintiff v.

VILLE DE MONTRÉAL 275 East Notre-Dame, Montreal, Quebec, H2Y 1C6 Defendant et DEMIX CONSTRUCTION a/s Stéphane Lavoie, 26 Saulnier, Laval, Quebec H7M 1S8 Impleaded Party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Robert Woloshen, the owner of 2009 Volkwagen Jetta, sues Ville de Montréal (the "City") for damages caused to his vehicle in the late afternoon on July 22, 2010 when it passed over a manhole on a part of Dr. Penfield Avenue that was under construction.

Road works were being done at that time by Demix Construction, under contract with the City. The Jetta passed over a manhole cover that was elevated in relation to the rest of the surfaces where the pavement had been removed. The manhole cover caused damages to the oil pan and the transmission of the Jetta which had to be repaired. [ 2 ] Mr. Woloshen sues the City for $1,000 in damages, including his insurance deductable and increase to his insurance premiums as well as lost time and inconvenience. [ 3 ] The City denies liability for the claim, invoking

section 604.3 of the Cities and Towns Act which provides that The municipality is not liable for damage caused through the fault of a builder or contractor to whom building, rebuilding, or maintenance work has been entrusted for the entire duration of such work. [ 4 ] This

section is found in the part of the C ities and Towns Act under rubrique 3 “ Exoneration of responsibility with respect to roads ” . [ 5 ] Because Demix Construction is called into the case as an impleaded party at the request of the City, Demix becomes, with respect to Mr. Woloshen, a co-defendant, and, with respect to the City, a defendant-in-warranty. Issues [ 6 ] To resolve this case, the Court must answer the following questions: 1. Is either the City or Demix, or both, at fault with respect to the condition of the road, and did this condition cause damages to the Plaintiff’s vehicle; 2.

If so, what is the quantification of the prejudice? 3. Is the City exonerated from liability or can it be indemnified by Demix with respect to its liability? Facts [ 7 ] At approximately 4:30 pm, as he drove through the intersection of Côte-des-Neiges proceeding east on Dr. Penfield Ave., Mr. Woloshen passed first over a manhole without any problem, and, as he came to a second manhole, his automobile, a 2009 Volkswagen Jetta, struck the manhole cover, causing serious damages to the oil pan and to the transmission. The repairs that were required on the

vehicle were paid for by insurance, but Mr. Woloshen had to pay a $200 deductible. [ 8 ] He also lost several hours of productivity and had the inconvenience of bringing his car to be repaired and picking it up. [ 9 ] At the time this event occurred, the City had given a contract to Demix Construction to proceed to the removal and replacement of the asphalt finish on Dr. Penfield Avenue. Demix' contract consisted essentially in tearing away the asphalt and preparing the surface and, finally, refinishing it with new asphalt. [ 10 ] The photos Mr.

Woloshen provided clearly show how, in the case of the second manhole, the surface of the scarified road goes upward toward the manhole like a sort of pitcher’s mound. The manhole cover and the collar into which it fits are flush with the concrete immediately surrounding it, but it slopes down very radically from the edge of the manhole, providing a smooth but abrupt change of elevation. [ 11 ] If the wheel of a vehicle were to go over the manhole, it would simply be a bumpy ride. When the two front wheels of the vehicle straddle the manhole however, it could scrape the underside of the vehicle.

In the case of Mr. Woloshen’s Jetta, the impact destroyed the oil pan and caused damage to the transmission. [ 12 ] Mr. Woloshen testifies - and the Court accepts his testimony as being credible - that it was not apparent to him before the impact occurred that the second manhole created an obstacle that was not passable and should be avoided. [ 13 ] Apart from the general indications by signage at the beginning of the construction project encouraging caution, a motorist was not advised in any way that this manhole constituted a hazard.

The absence of any indication, whether by signage or placement of a cone or some barrier, it was impossible for a motorist exercising normal caution and driving at a reasonable speed to realise that he was driving into a trap. [ 14 ] Mr. Matthieu Girard, the project manager for Demix, explained that the manhole cover has an adjustable collar or sleeve as it may be called, so it will adjust to the variable level of the road immediately surrounding it.

He showed various pictures of roadwork in Montreal where it can be seen that manhole covers are at the same level as the surrounding road under construction and no particular hazard has been created. As the level of the road varies over the course of the construction, the level of the manhole changes with it. [ 15 ] Mr.

Girard also pointed to the contract documents, pointing out that there was no requirement for Demix to place any particular signage in a case such at this one. [ 16 ] The representative of the City, Lucie Beaudoin, referred the Court to the provisions of the Cities and Towns Act mentioned above, and also pointed out that the City is insured under Demix’ liability insurance with the benefit of there being no deductible. Analysis [ 17 ] The City is correct in raising the provisions of the Cities and Towns Act to avoid any liability.

The City is exonerated when a contractor to whom road works have been entrusted commits a fault, causing damages. [ 18 ] In the present case, the particular profile of the street is unusual. Normally, a manhole would sit approximately at the same level as the road around it. The adjustable collar makes it possible to resurface the road taking away or adding pavement without affecting the performance of the manhole cover.

Its level should adapt to the new level of the road. [ 19 ] That is the case here, except that the road immediately surrounding the manhole cover is several inches higher than the normal level of the road. The comparison that the Plaintiff gave of this condition to a pitcher’s mound is extremely apt. It would not have been possible, however, from a distance, horizontally, for a driver to notice the somewhat abrupt change of elevation of the road around the manhole.

This was truly what the jurisprudence refers to as a trap, a dangerous situation that is not apparent. [ 20 ] The fact that the City’s contract documents did not provide any particular obligation on the contractor to provide signage or cones does not exonerate Demix from its liability. As a reasonable contractor performing works on a road that will be open during construction, it owed a general duty to motorists to take reasonable steps to prevent any situation that could constitute a trap from developing. Demix and the City argue that the condition was clearly visible and a driver should simply drive around it.

They point to the fact that no other accident occurred during the construction project. [ 21 ] The fact that the City and Demix argue that the condition was noticeable could also give rise to the inference that the persons in charge of the work should have thought to place a cone or other indication sufficient to making motorists aware of the situation before it was too late. What was perhaps obvious to them, close up, would not have been to the motorist, travelling toward the scene, as yet unaware of the condition. [ 22 ] The circumstances of this case are quite different from those in Isabelle Dumont c.

Ville de Laval [2007 QCCQ 7158]. In that case, a part of the pavement of a road under repair had been cut away and two orange cones with phosphorescent bands had been placed to indicate to motorists the presence of a dangerous situation. Judge Richard Landry writes: [28] Cette façon de faire avertissait les automobilistes de la présence d’un obstacle à cet endroit tout en leur permettant de le contourner par la gauche. Mis à

part l’accident de madame Dumont, aucun autre accident n’a été rapporté à cet endroit. [29] Prévenue de la présence d’un obstacle quelconque par ces cônes, madame Dumont aurait dû ralentir suffisamment pour constater l’état de la chaussée avant d’effectuer sa manœuvre. Si elle l’avait fait, nul doute qu’elle aurait aperçu l’obstacle et évité les dommages encourus. Vu la configuration de la coupe, il était possible de la franchir à vitesse réduite sans subir de dommages ou de l’éviter complètement en la contournant par la gauche.

[ 23 ] Judge Landry concluded in that case that the City had conducted itself as a reasonably prudent and diligent person, that it took the precautions necessary to prevent an accident by warning a driver of the presence of this temporary cut. [ 24 ] In the present case, the simple placement of a few cones would have been sufficient to prevent this accident from occurring.

Montreal drivers are used to seeing cones from early spring until late autumn and know, (if they are looking), that they should slow down, check their mirrors and blind spots, and veer to one side to avoid the dangerous situation that the cones indicate.

Cones are florescent orange in colour and can be seen from a distance, which gives the motorist time to do all of the above. [ 25 ] The simple answer in the present case on the question of liability and causality is that the contractor should have done something, such as placing cones, to give drivers adequate notice of a potentially dangerous situation caused by a manhole cover that was on the top of a slope that could cause damages to a vehicle whose wheels straddled the manhole cover. It was a situation to avoid by driving either to the right or to the left of the manhole cover.

To realise this and react, a driver required fair warning well in advance. Mr. Woloshen suffered prejudice because of the omission on the part of the contractor to give him this fair warning. [ 26 ] The City is exonerated from liability under the Cities and Towns Act because the accident was caused by the fault of a contractor to whom road works had been entrusted. Quantum [ 27 ] The Court agrees, however, with the City and with Demix that a claim for an increase to insurance premiums is an indirect and unforeseeable damage.

In any event, the Plaintiff does not make sufficient proof of a causal relationship between the incident and any change in his insurance premiums. [ 28 ] As well as compensation for the $ 200 deductible, the Plaintiff should be given reasonable compensation for his inconvenience. At the time of the event, he had to pull over and be towed, and there was the time and annoyance of attendance at the garage to deal with the repairs. [ 29 ] Mr. Woloshen indicates that, on the afternoon of the incident, he had to reschedule a business meeting. [ 30 ] An amount of $300 should be sufficient to compensate for Mr.

Woloshen for all of his trouble, inconvenience and lost time. FOR THESE REASONS, THE COURT: CONDEMNS Demix Construction to pay the Plaintiff the sum of $ 500, plus interest at the legal rate of 5% per annum, and the additional indemnity provided for by

article 1619 of the Civil Code of Québec , as of the demand of January 21, 2011. DISMISSES the action against the Ville de Montréal without costs; CONDEMNS the Defendant Demix Construction to pay the Plaintiff’s judicial fees of $ 100 and those of the Ville de Montréal of $ 136. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 1 st , 2014