2011 QCCQ 15463, 2011 QCCQ 15463

JD 2273 Popradi c. Do Rio 2011 QCCQ 15463 COURT OF QUEBEC Small Claims CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Civil Division No. 500-32-117179-095 DATE: December 16 th , 2011 ______________________________________________________________________ PRESENT: THE HONOURABLE DANIEL DORTÉLUS J.C.Q. ______________________________________________________________________ EDITH POPRADI RUDOLF POPRADI Plaintiffs v. CARLOS DO RIO MIKI NUNAMI Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1.

THE DISPUTE [ 1 ] The plaintiffs are claiming from the defendants $7000 in damages following the construction by defendant Carlos Do Rio of a retaining wall made of stones, dirt and debris on their land without their authorization. [ 2 ] The damages include the spreading by Mr.

Do Rio of rocks and debris under a cedar hedge belonging to the plaintiffs that separates the parties’ properties. [ 3 ] The plaintiffs hold the defendants responsible for cutting down and removing several cedars in their hedge without their authorization. [ 4 ] Damages are also claimed for stress, harassment they and their dog experienced, disturbances, annoyances and loss of enjoyment of their property. [ 5 ] The defendants contest the claim.

They contend that they erected the wall in question in order to prevent the soil on their property from eroding onto the plaintiffs’ property. [ 6 ] They deny having spread debris under the hedge. They deny having harassed the plaintiffs and their dog. Mr. Do Rio acknowledged having removed two dead cedars. 2. THE FACTS 2.1 Plaintiffs’ evidence [ 7 ] The plaintiffs own a house located on Windermere in Beaconsfield, where they have lived since 1997. [ 8 ] The defendants’ property is next to the plaintiffs’ property. [ 9 ] There is a cedar hedge near the limit of the two properties.

The cedars are mature and have been there since before 1997, when the plaintiffs purchased the property. [ 10 ] The plaintiffs filed a location certificate, prepared by land surveyor Pierre Yves Clément and dated October 10, 1997, indicating that the cedar hedge is located on the plaintiffs’ property.

[ 11 ] In order to keep their dog on their property, the plaintiffs had a metal fence installed on their property; the hedge is outside the fence. The hedge is described as being approximately 22 metres long by 3 feet wide. [ 12 ] Around the end of April 2009, plaintiff Edith Popradi noted that some cedars had been destroyed. [ 13 ] When she went to check, she noted that some cedars had been removed and others cut down.

She stated that three cedars had been removed and five more had been cut down. [ 14 ] Accompanied by her husband, co-plaintiff Rudolf Popradi, she went to the defendants’ home to protest, as they had not authorized them to cut down the cedars or install the retaining wall on their property. [ 15 ] On May 8, 2009, the plaintiffs sent the defendants a formal notice, in which they indicated the following: May 8, 2009 … As we have already advised you on several occasions that the debris and the retaining wall, which you have installed, are illegally on our property.

On May 6 th , 2009 we requested that the retaining wall and the debris, which you have placed under our spruce bushes be removed. We advised you that this debris will kill our bushes. You told us that you refuse. We have no other choice but to hire someone who will remove the debris and the retaining wall. The $4,000 will cover the cost to disassemble our iron cast fence and to remove all debris from under the bushes and to remove the retaining wall. Plus the cost to reassemble the fence plus any cost to replace any damaged parts to our fence.

We have shown you the survey of our property on many occasions and you still refuse to respect our wishes. We have enclosed another copy of the survey for your inspection, it cleary shows that you our in violation. This claim also includes the cost to have the property resurveyed since your argument is that property line has changed over time. This letter constitutes a formal notice to pay us the sum of $4,000 within ten days. Otherwise, we may take legal action against you immediately and without further notice. [ sic ] [ 16 ] Further to the defendants’ refusal to cooperate and to Mr.

Do Rio’s threat that he had the financial means to face legal proceedings and that they would see each other in court, the plaintiffs proceeded to obtain estimates to remedy the situation, They filed estimates indicating costs ranging between $5400 and $7000 (exhibits P-8, P-9 and P-11) for the work. [ 17 ] After receiving the formal notice in early May 2009, the defendants continued to damage the

section of the plaintiffs’ property located on the other side of the fence. [ 18 ] In the wake of their differences over the property limit, defendant Do Rio installed a stone that looked like a tombstone, and a cross on his property in May 2009, making sure that the plaintiffs could see them. [ 19 ] Ms. Popradi stated that she was frightened by the presence of the said tombstone and cross to the point that she had to file a complaint with the police. [ 20 ] She argued that the defendants took the trouble to align garbage cans and waste on a

section of their yard near their property for the purpose of creating an eyesore for the plaintiffs and their guests. [ 21 ] On several occasions, Mr. Do Rio imitated the barking of a dog in order to provoke a reaction from the plaintiffs’ dog. At other times, he would hit the fence to provoke the plaintiffs’ dog, which caused the animal to become excited and forced the plaintiffs to intervene. [ 22 ] Harr Khushpal’s property is located behind the parties’ properties. He acknowledged that the

section of the retaining wall installed by the defendants along his fence is located on the plaintiffs’ property. [ 23 ] That witness was present when the plaintiffs met with Mr. Do Rio in April 2009 to protest against the installation of the retaining wall on their property. His testimony corroborated the plaintiffs’ version. [ 24 ] In August 2011, when she came back from a trip abroad, plaintiff Edith Popradi noted that branches had been cut from an apple tree in her front yard. She contended that defendant Do Rio did it, as she saw a cut-off branch on his property. 2.2 Defendants’ evidence [ 25 ] Mr.

Do Rio stated that the cedar hedge is not entirely on the plaintiffs’ property. He contended that the line separating his land and the plaintiffs’ land is located somewhere under the hedge. [ 26 ] He called into question the location certificate filed by the plaintiffs. He argued that he does not have to file his location certificate and that it is up to the plaintiffs to file one that is up to date. [ 27 ] Regarding the retaining wall, he said he installed it in the plaintiffs’ interest, to prevent the soil of his property from eroding onto their property. Mr.

Do Rio admitted that the retaining wall is located in part on his land and on the plaintiffs’ land.

[ 28 ] Mr. Do Rio admitted having removed only two cedars that were dead, and he filed a photograph showing him holding two dried up cedar plants. [ 29 ] He denied having spread rock debris under the cedar hedge. He stated that he used only dirt to cover the cedar roots. He filed photographs of the cedar hedge to show that it is in good shape on his side and that it is in bad shape along the plaintiff’s fence. [ 30 ] As for the tombstone and cross, Mr. Do Rio stated that he has the right to put them on his property.

He said that they were not a threat directed against the plaintiffs. [ 31 ] As for the sign that he put up in his yard, near the limit of the parties’ properties, he explained that he did so in response to the sign installed by the plaintiffs on the

section in dispute to indicate that it was private property. [ 32 ] Mr. Do Rio acknowledged that he imitated the barking of a dog. He explained that the plaintiffs’ dog barked late into the night; he felt that he had the right to bark on his property, which yielded the results expected, as the plaintiffs’ dog stopped barking. [ 33 ] He affirmed that he takes care of the hedge on his side, which he trims and hopes will always there. [ 34 ] As for the waste and garbage cans, Mr. Do Rio acknowledged having placed them on the edge of his property when he was doing work there. [ 35 ] The testimony of a neighbour, Mr.

Esposito, and of the defendant’s son did not provide anything relevant to solving the dispute. There is no reason to refer to the testimony or to the other irrelevant elements raised by defendant Carlos Do Rio. 3. ANALYSIS AND REASONS Questions in dispute [ 36 ] In order to resolve this dispute, the Court must answer the following questions: a. Did the defendants commit a fault incurring their liability toward the plaintiffs? b. In the affirmative, how much are the plaintiffs entitled to as damages?

Applicable legal principles [ 37 ] First, the legislative provisions that the Court must apply in order to resolve this dispute should be identified. [ 38 ] The relevant provisions of the Civil Code of Québec (C.C.Q.) [1] applicable in this case are in articles 6 , 7 , 976 , 979 , 985 and 1457 , which read as follows: 6. Every person is bound to exercise his civil rights in good faith . 7. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith . … 976.

Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom. 977. The limits of land are determined by the titles, the cadastral plan and the boundary lines of the land, and by any other useful indication or document, if need be. … 985. If branches or roots extend over or upon an owner’s land from the neighbouring land and seriously obstruct its use, the owner may request his neighbour to cut them and, if he refuses, compel him to do so .

If a tree on the neighbouring land is in danger of falling on the owner’s land, he may compel his neighbour to fell the tree, or to right it . … 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another . Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature .

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in

his custody . [ 39 ] In St. Lawrence Cement Inc. v. Barrette , [2] the Supreme Court teaches that

article 976 C.C.Q. creates a scheme of no-fault liability in respect of neighbourhood disturbances. [ 40 ] When ruling on alleged actions that fall under the application of

article 976 C.C.Q., whether the defendants committed a fault or not matters little. [ 41 ] The plaintiffs’ claim concerns actions that are also covered under the provisions of

article 1457 C.C.Q., which codifies a standard of conduct other than that described in

article 976 C.C.Q . [ 42 ] In fact,

article 1457 C.C.Q. creates a scheme of liability with fault. For there to be a fault within the meaning of

article 1457 C.C.Q., the alleged violation must be a breach of the standards of conduct of a reasonable person. [3] [ 43 ] Cutting down a tree that belongs to a neighbour without the neighbour’s consent constitutes a fault incurring the liability of the person who cut it down for damages and punitive damages. [4] [ 44 ] In a situation where the plaintiffs’ cedar branches extend onto the defendants’ land, if the defendants do not have the plaintiffs’ authorization to cut off or trim the branches of the plaintiffs’ trees, the defendants must send the plaintiffs a formal notice. [ 45 ] If the plaintiffs fail to comply with the formal notice, the defendants must not cut off the branches, but they can compel the plaintiffs to do so by obtaining a court judgment. [5] [ 46 ] The relevant provisions of the Charter of human rights and freedoms (the Charter) [6] applicable in this case read as follows: 6.

Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law . … 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom . In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages . [ 47 ]

Section 1 of the Tree Protection Act provides for the following: 1.

Notwithstanding any general or special law authorizing same, any person or any legal person constituted in Québec or elsewhere by any authority whatsoever, destroying or damaging, wholly or partly, a tree, sapling or shrub, or any underwood , anywhere other than in a forest under the management of the Minister of Natural Resources and Wildlife, without having obtained, upon petition therefor served upon the interested parties, the authorization of the Minister of Sustainable Development, Environment and Parks, unless a consent has been previously given by the owner of such tree, sapling, shrub or underwood, shall be bound to pay to the owner of such tree, sapling, shrub or underwood, in addition to actual damages, punitive damages in an amount not exceeding $200 for each such tree , sapling, shrub or underwood so wholly or partly destroyed or damaged . [7] [ Emphasis added .] [ 48 ] Regarding the awarding of punitive damages,

article 1621 C.C.Q. stipulates that punitive damages can be awarded only when it is provided for by law. Thus, if it is shown that

section 1 of the Tree Protection Act applies or if there is evidence of unlawful and intentional interference with a right guaranteed by the Charter , punitive damages may be awarded. [ 49 ] On the basis of the majority jurisprudence, when a neighbour cuts down trees illegally, the Court has discretion only with regard to the amount of damages granted, not with regard to the actual awarding of damages. [8] The retaining wall installed on the plaintiffs’ property [ 50 ] The evidence shows that defendant Carlos Do Rio installed a wall of stones and other material many feet in length along the metal fence that encloses the plaintiffs’ land. [ 51 ] It was adduced in evidence that that

section of the retaining wall was installed on the plaintiffs’ property without their authorization. [ 52 ] Another

section of the retaining wall is along part of the fence of the property located in back, which belongs to Harr Khushpal. That

section of the retaining wall is on the plaintiffs’ property, in the area of the cedar hedge on the plaintiffs’ land. That is what the Court finds on the basis of the location certificate and the testimony of the plaintiffs and Harr Khushpal. [ 53 ] Defendant Carlos Do Rio committed a fault when, without the plaintiffs’ authorization, he encroached on their land to build a retaining wall on property that does not belong to him. Fault [ 54 ] In the work entitled La responsabilité civile délictuelle , author Jean-Louis Baudouin [9] describes fault as follows: [ TRANSLATION ]

It [fault] can generally be described as a violation of the legal right not to cause unlawful injury to another through conduct contrary to that of a normally prudent and diligent person placed in circumstances identical to those of the perpetrator of the damage at the time the perpetrator committed the act for which he or she is reproached or which is held against him or her. [ 55 ] Mr.

De Rio’s comments that there are no boundary markers indicating the limit of the plaintiffs’ property does not constitute a ground of defence or even a valid excuse, as it is up to the defendants to know where the limit of their property is located . The cutting down of the plaintiffs’ cedars [ 56 ] Photograph No. 3 (Exhibit P-1) shows that the retaining wall was installed in the

section where the hedge lies along the limit of the two properties. [ 57 ] The bare

section adjacent to the retaining wall supports plaintiff Edith Popradi’s version that it was caused by the cutting down of three cedars and the uprooting of about five more cedars.

Plaintiff Edith Popradi’s clear, precise and convincing testimony was not undermined by defendant De Rio’s testimony. [ 58 ] The Court feels that there is sufficient evidence that eight cedars, which belonged to the plaintiffs and were on their property, were destroyed without their authorization by the defendant when he erected, without right, the wall on the plaintiffs’ property. [ 59 ] On the basis of the plaintiffs’ testimony, the photographs and the exhibits filed, the Court finds that, on a balance of probabilities, the defendant spread dirt, rocks and debris under the plaintiffs’ cedar hedge.

However, there is not enough evidence to conclude that the hedge must be replaced over its entire length of 22 metres. [ 60 ] Consequently, defendant Carlos De Rio’s liability is incurred toward the plaintiffs for the retaining wall, the felled and uprooted cedars, and the rocks and debris spread under the plaintiffs’ cedars.

Damages Reparatory measures for felled cedars and a wall erected on the plaintiffs’ property without their consent [ 61 ] In this case, the plaintiffs seek to have the defendants condemned to pay damages for disturbances and annoyances, the costs of replacing their cedar hedge, including the eight cedars destroyed by the defendant, and the costs of removing the wall and restoring to its original condition the

section of their property where the defendant erected it. The cessation of neighbourhood disturbances affecting the full enjoyment of their property is an integral part of the plaintiffs’ claim. [ 62 ] In Vaillancourt v .

Fafard , [10] Richard Landry J.C.Q. condemned defendant Fafard, who had cut down his neighbour’s tree —a pine of approximately 20 to 25 years of age—without authorization, to pay the plaintiff the sum of $5774.30, representing $ 5124.30 for the value of the tree, plus $500 for disturbances and annoyances and $150 in punitive damages. [ 63 ] Landry J. dealt with the question of determining the value of a tree as follows: [ TRANSLATION ] [19] When determining the value of a tree, the following must be taken into account: its species, condition and location, and the possibility of replacing it with a similar tree, which is seldom possible in the case of large, mature trees like the one in question.

The “ basal area” method is therefore generally favoured in establishing damages, because there are no trees on the commercial market comparable to the one that was destroyed . [20] Thus, in Dionne v . Caisse populaire de Kamouraska de St-Pascal de Kamouraska , the Court granted $5468 in 2006 for a mature red pine, plus incidental damages ($1638), in a case similar to this case. [21] In Campeau v .

Eltes , the Court awarded $19 146 for three mature trees (95, 80 and 20-25 years of age), plus depreciation of the value of the property. [ References omitted .] [ 64 ] Since the plaintiffs’ claim for damages against the defendants is well founded, the defendants must bear the costs of replacing eight cedars and the costs of demolishing the wall installed on the plaintiffs’ property and restoring the premises to their original condition.

The defendants must also assume the costs of removing the debris and rocks spread by defendant Do Rio under the plaintiffs’ cedar hedge. [ 65 ] Since the exact costs for the above work cannot be established on the basis of the estimates filed by the plaintiffs, the Court considers it appropriate to authorize the plaintiffs to hire a qualified company to: • Demolish the wall installed by the defendants on the plaintiffs’ property and restore the premises to their original condition; • Replace eight cedars, of the same type as those on the property, in the

section of the land where they were destroyed; • Remove the debris and rocks spread by the defendants under the cedar hedge on the plaintiffs’ property and restore the premises to their original condition. [ 66 ] The plaintiffs contended that the cedar hedge provided their property with a natural screen and with privacy. The fence was installed beside the hedge to keep their dog in their yard, not to give part of their property to the defendants. There is sufficient evidence to establish the useful value of the hedge.

[ 67 ] The fact that the hedge is less accessible to the plaintiffs as a result of the installation of the fence does not transfer ownership of the hedge or of the

section of the plaintiffs’ land where the hedge is located to the defendants. [ 68 ] Although the Court invited them to do so, the defendants did not submit any tangible evidence to support their contention that the hedge is not located on the plaintiffs’ property, whereas the location certificate filed as evidence by the plaintiffs supports the latter’s position. [ 69 ] Under

article 977 C.C.Q., the location certificate filed constitutes sufficient evidence to establish the limits of the plaintiffs’ property. [ 70 ] The evidence shows that the location certificate was sent to the defendants along with the formal notice in May 2009. [ 71 ] The defendants did not provide any evidence as to the steps they took to check the limits of their property before continuing to encroach on the plaintiffs’ property. [ 72 ] A letter sent in early May 2009 by Mr. Do Rio to the plaintiffs indicated that he did not recognize having encroached on the plaintiffs’ property.

The tone used in that letter is in contrast with defendant Do Rio’s actions, described earlier, toward the plaintiffs and with the approach he took in this case and maintained during the two hours he was given at the hearing to present his case. [ 73 ] Under the circumstances, the presumption of good faith was seriously undermined, as was the credibility of the defendant, whose vague, evasive, ambiguous and contradictory testimony supports plaintiff Edith Popradi’s version that he acted as he did in order to annoy the plaintiffs, take revenge and force them to institute judicial proceedings.

Neighbourhood disturbances [ 74 ] In a recent judgment rendered in Larue v .

TVA Productions inc. , [11] the Superior Court, per the Honourable Claude Dallaire J., summarized the principles established by the jurisprudence for the application of the notion of neighbourhood disturbance: [ TRANSLATION ] [179] In other words, the neighbour who was wronged no longer has to show that his or her neighbour committed a fault for the neighbour “at fault” to be found liable. [180] It is the result of the neighbour’s conduct that must be the object of the Court’s analysis. [181] Such a claim must be analyzed with the following premise in mind: Neighbours are required to suffer normal neighbourhood annoyances, except for the annoyances that the court to which they are submitted finds to be abnormal because they are beyond the limit of tolerance . … [183] St.

Lawrence Cement established that

article 976 C.C.Q. creates strict liability. 66 [184] In other words, annoyances are not evaluated on the basis of what a particular plaintiff thinks about them, but on the basis of what a reasonable person placed in the same circumstances would think about them. 67 [185] This prevents a wholly intransigent plaintiff who claims to be bothered by every action of the neighbour from automatically winning his of her case due to the simple fact of being unable to tolerate anything. [186] This being said, a person’s proceeding should not necessarily be dismissed solely on the ground that nobody else has complained about the same annoyances. [187] Hence, each case is specific and must be decided considering all the particular circumstances revealed by the evidence. [12] [ References omitted .] [ 75 ] Applying those principles to the facts adduced as evidence shows that the annoyances imposed on the plaintiffs by the defendants can be characterized as abnormal, because they are beyond the limit of tolerance. [ 76 ] The plaintiffs demonstrated, to the Court’s satisfaction, that they were the subject of reprisals after they served a formal notice on the defendants indicating that they disapproved of the installation of a retaining wall on their property, the cutting down of their cedars and the spreading of rocks and debris under their cedar hedge. [ 77 ] Indeed, the plaintiffs successfully established that they were the subject of harassment and intimidation.

The adage “a picture is worth a thousand words” could not be better exemplified by the photo of the tombstone and cross installed by the defendants on their land so that they were in full view (Exhibit P-1; Photograph 23). [ 78 ] There is no doubt that the tombstone, the cross and what they symbolize were addressed to the plaintiffs, who were in a conflictual situation with the defendants. [ 79 ] The defendant’s justification that he has the right to install what he wants on his property does not convince the Court that it was a neutral or harmless action, given the context in which it was taken.

It is rare even unusual, for a tombstone and a cross to be installed on private property in a residential neighbourhood in the Montréal region. [ 80 ] The standard of tolerance applicable to the neighbourhood where the properties in question are located does not include the

annoyance of having to look at a tombstone and a cross put up by a neighbour with whom one has a dispute. [ 81 ] This action, which was somewhat serious, produced the result expected, i.e. it frightened plaintiff Edith Popradi, who had to call the police. [ 82 ] The seriousness of the conduct at issue can be evaluated from an objective and a subjective standpoint. In fact, although it is important to take into account the nature and intensity of the action itself, its impact on the victim must also be considered. [ 83 ] But, there is more.

The display of waste and garbage near the plaintiffs’ property, although on the defendants’ property, must be analyzed in light of the conflict between neighbours. [ 84 ] The defendant’s imitating the barking of a dog in order to provoke a reaction from the plaintiffs’ dog must also be analyzed in conjunction with the defendant’s behaviour as a whole, which was aimed clearly at disturbing the plaintiffs . [ 85 ] The explanation provided by the defendant that he has the right to place garbage where he wants on his property when he does work, and that he has the right to bark in his yard does not convince the Court, considering the context of conflict between the parties, that his actions were neutral or harmless. [ 86 ] There is sufficient evidence to establish that, by acting as he did, defendant Do Rio abused his rights. [ 87 ] The Court considers founded the plaintiffs’ contention that defendant Do Rio acted as he did to take revenge and cause problems for the plaintiffs, further to their disapproval of the unlawful cutting down of their cedars and the installation of the wall on their property without their consent. [ 88 ] In Entreprises Auberge du parc ltée v .

Site historique du Banc-de-pêche de Paspébiac , [13] the Court wrote the following in regard to civil liability based on the existence of neighbourhood disturbances : [ TRANSLATION ] [ 5] The Supreme Court recently stated, in St. Lawrence Cement Inc . v. Barrette , that the scheme of civil liability referred to in this provision is based on the annoyances suffered by the victim being excessive rather than on the conduct of the person who allegedly caused them, which is not the deciding criterion.

The Supreme Court recognizes civil liability based on the existence of neighbourhood disturbances that did not require proven or presumed fault. Such liability can be incurred even if the applicable standards have been complied with. [ References omitted .] [ 89 ] In Larue v .

TVA Productions inc ., mentioned above, the Superior Court dealt with the parameters for determining when annoyances in matters of neighbourhood disturbances may be considered abnormal: [ TRANSLATION ] [201] The Court must set the limit of mandatory tolerance on the basis of conduct deemed reasonable by the person who suffers the annoyance, given the relevant circumstances. 73 [202] When determining whether the annoyances raised in such a context are normal or abnormal, the Court has full discretion in ruling on the matter, but must justify its conclusions. 73 [ References omitted .] [ 90 ] The disturbances and annoyances imposed on the plaintiffs were somewhat serious in that defendant Do Rio’s egregious actions toward them were in response to the plaintiffs’ exercising their legitimate right to claim ownership of their cedar hedge, and show their disapproval of the defendants’ encroachment on their property and cutting down of their cedars without their authorization. [ 91 ] A reasonable person placed in the same circumstances as the plaintiffs would think that these were not normal neighbourhood annoyances but, instead, annoyances beyond the limit of tolerance. [ 92 ] The evidence is conclusive that the defendants’ actions were intolerable and likely to annoy and disturb the plaintiffs and interfere with the full enjoyment of their property, thus causing them abnormal annoyances beyond the limit of tolerance. [ 93 ] Since the abnormal annoyances imposed by defendant Do Rio on the plaintiffs are beyond the limit of tolerance, his liability and that of the co-defendant, of whom he is the mandatary, are incurred for the damage caused to the plaintiffs .

Damages for disturbances and annoyances [ 94 ] The evidence shows that, after this proceeding was instituted, the neighbourhood disturbances and reprisals stopped, but the retaining wall is still in place, the eight cedars are still missing and there are rocks and debris under the hedge. [ 95 ] The Court uses its discretion and sets at $500 the amount to be granted to the plaintiffs as damages for disturbances and annoyances. [ 96 ] To prevent this judgment from becoming illusory, the condemnation to pay damages should be accompanied by a judicial order, as permitted under

article 46 C.C.P . , [14] enjoining the defendants to refrain from any action that could hinder or impede access for the plaintiffs and their mandataries to the wall, to the cedar hedge, in order to demolish the wall, replace the eight cedars and remove the

debris and rocks spread under the hedge; refrain from bothering the plaintiffs and their dog; refrain from disturbing the plaintiffs’ fullenjoyment of their property; and refrain from carrying out any form of reprisals against them. Punitive damages [97] The principles for awarding punitive damages are well established in jurisprudence. In Métromédia CMR Montréal inc. v.Johnson,[15] the Court of Appeal teaches the following: [TRANSLATION] [108] The preventive purpose of punitive damages is fundamental.

Punitive damages have a dual objective of punishment anddeterrence but may not exceed what is sufficient to attain these objectives. … “it is … to the future the judge must turn to determine anamount that will prevent recidivism”. It is not a matter of compensating the applicant, but of imposing the punishment merited by thedefendant, of discouraging the defendant and others from such conduct in the future and of expressing the general disapproval of suchevents. [Emphasis added.] [98] The Supreme Court stated the following in de Montigny v.

Brossard (Succession):[16] [47] While compensatory damages are awarded to compensate for the prejudice resulting from fault, exemplary damages serve adifferent purpose. An award of such damages aims at expressing special disapproval of a person’s conduct and is tied to the judicialassessment of that conduct, not to the extent of the compensation required for reparation of actual prejudice, whether monetary or not. AsCory J. stated: Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that itoffends the court’s sense of decency.

Punitive damages bear no relation to what the plaintiff should receive by way ofcompensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judgeexpresses its outrage at the egregious conduct of the defendant. (Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, at para. 196) … [52] As we have seen, denunciation was described by Cory J. as “the means by which the jury or judge expresses its outrage at theegregious conduct of the defendant” (Hill, at para. 196).

That outrage is expressed through an award of a substantial or symbolic amountof money, often accompanied by a declaration, which together are intended to convey the opinion of the justice system concerning theparticularly reprehensible nature of the conduct in question. In this sense, denunciation constitutes an objective serving both theretributive and the utilitarian functions of the system of exemplary damages.

The retributive function is served by the opprobriumattaching to the person of the wrongdoer, which is in itself a form of punishment for the wrongdoer’s conduct. . . . [Emphasis added.] [99] The evidence adduced establishes the violation of the right guaranteed by

section 6 of the Charter, since the plaintiffs’ right tothe peaceful enjoyment and free disposition of their property was violated by defendant Do Rio, who erected a wall on their propertywithout their authorization and cut down their cedars without their consent. In this case, regarding defendant Do Rio, there is sufficientevidence as to unlawful and intentional interference with a Charter-protected right, which is of public order; consequently, defendant DoRio’s liability is incurred for exemplary damages to be awarded under

section 49 of the Charter, which the Court sets at $1000. [100] As for co-defendant Miki Nunami, the two criteria of section 49(2) of the Charter—unlawful and intentional interference—havenot been met; consequently, punitive damages cannot be awarded against her. [101] Regarding the cedars that were cut down and removed without right, given, among other things, the recklessness of defendantDo Rio, who minimizes his actions and wrongfully clings to non-existent rights on the plaintiffs’ property, there is reason to apply theprovision of

section 1 of the Tree Protection Act, which is of public order and which the Court cannot set aside. [102] Given the absence of evidence as to co-defendant Miki Nunami’s participation in the cutting down of cedars, her liability forpunitive damages is not incurred. [103] In Campeau v.

Eltes, cited above, the Superior Court teaches that, on the basis of the majority jurisprudence, when a neighbourillegally cuts down a tree, the Court has discretion only with regard to the amount of damages granted, not with regard to the actualawarding of damages;[17] that principle applies in this case. [104] Using its discretion, the Court sets an amount of $125, for each of the eight cedars, for a total of $1000 in punitive damagesgranted under the Tree Protection Act. [105] ALLOWS the claim in part; [106] AUTHORIZES the plaintiffs to hire, at the defendants’ expense, a qualified company to: • Demolish the wall on the plaintiffs’ property and restore the premises to their original condition;

• Replace eight cedars, of the same type as those on the property, in the

section of the hedge where they were destroyed ; • Remove the debris and rocks spread under the cedar hedge on the plaintiffs’ property and restore the premises to their original condition .

AND CONDEMNS the defendants, Carlos Do Rio and Miki Nunami, solidarily, to pay the costs of the work, up to a maximum of $ 4500; [ 107 ] ORDERS the defendants to refrain from any action that could hinder or impede access for the plaintiffs and their mandataries to to the wall, to the cedar hedge, in order to demolish the wall, replace the eight cedars and remove the debris and rocks spread under the hedge; refrain from disturbing the plaintiffs’ full enjoyment of their property; refrain from carrying out any form of reprisals against them; and refrain from bothering the plaintiffs and their dog; [ 108 ] CONDEMNS the defendants, Carlos Do Rio and Miki Nunami, solidarily, to pay the plaintiffs $500 in damages for disturbances and annoyances; [ 109 ] CONDEMNS defendant Carlos Do Rio to pay the plaintiffs $2000 in punitive damages; [ 110 ] THE WHOLE , with interest at the legal rate and the additional indemnity provided for in

article 1619 C.C.Q. from the time of service of the formal notice with respect to the damages, and from the date of the judgment with respect to the punitive damages, plus court costs of $157. __________________________________ DANIEL DORTÉLUS J.C.Q. Date of hearing: November 7, 2011