2010 QCCQ 13027, 2010 QCCQ 13027

Domagala c. Béton Unique inc. 2010 QCCQ 13027 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-119381-095 DATE: December 17, 2010 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ PAUL DOMAGALA -and- ALICE PASZUK […] Kirkland Québec […] Plaintiffs v.

BÉTON UNIQUE INC. -and- MARK POGUE […] Beaconsfield Québec […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Paul Domagala and Alice Paszuk are suing Defendants Béton Unique inc. and Mark Pogue for $749.19, alleging that the driver of Defendants’ snow removal truck damaged their property. Defendants accept responsibility only for the damage to the basketball pole. The evidence: [ 2 ] Plaintiffs concluded a contract with Defendants for snow removal.

During the winter of 2009, Defendants' driver damaged Plaintiffs' new basketball pole, situated beside their driveway. Plaintiffs allege that the driver subsequently damaged the pole again as well as the side of their driveway and their water hose. [ 3 ] Defendants agreed to pay the cost of replacing the basketball pole but later decided not to compensate Plaintiffs when they claimed that Defendants broke a hose, lying beside the driveway, and displaced two modules of the concrete curb, separating the driveway from the lawn.

Defendants submit that the uni-stone is twenty years old and the curb, together with the garden stones, are in poor shape. Analysis: [ 4 ]

Article 1457 of the Civil code of Quebec stipulates that every person is responsible for any injury he causes to another by his fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. [ 5 ] Therefore to determine whether compensation is payable, Plaintiff must establish a fault on the part of Defendants, damages and a causal link between the two.

[ 6 ] Plaintiffs have established that the driver of Defendants' truck hit Plaintiff's new basketball pole twice and damaged it. The damages that ensured are therefore an immediate and direct consequence of their actions. The cost to replace the pole comes to $258 plus tax ($291.54), for which Defendants are responsible. [ 7 ] Plaintiffs are also claiming $45 plus tax for their water hose that was broken by Defendants and $360 plus tax for the cost to repair the side curb of the driveway. [ 8 ] Defendants do not deny having caused the alleged damage but claim that Plaintiffs' property is old. [ 9 ] The water hose that was damaged is clearly old, as evidenced by the

section of the hose presented in evidence. Plaintiffs are not entitled to the actual value of their hose and not the price of a new one. In the absence of evidence as to the current value of this item, the Court in its discretion grants the amount of $25. [ 10 ] As for the cost to repair the last two modules of the driveway curb, the photographic evidence shows that the entire side of the curb is leaning over and is in a state of disrepair. In addition, the driveway curb is clearly not new and is in need of restoration.

Considering these facts, the claim for the driveway repair is not granted. [ 11 ] The total amount of damages awarded is therefore $316.54. [ 12 ] Given that Plaintiff could have obtained this compensation from Defendants without filing an action, the Court is not awarding Plaintiff their judicial fees.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiffs' action; CONDEMNS Defendants Béton Unique inc. and Mark Pogue solidarily to pay Plaintiffs Paul Domagala and Alice Paszuk the sum of $316.54 plus interest at the legal rate, since September 10, 2009. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: November 22, 2010