2014 QCCQ 7438, 2014 QCCQ 7438

Abbandonato c. Cherow-Kaputa 2014 QCCQ 7438 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-22-200722-133 DATE : July 24, 2014 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ JOE ABBANDONATO Plaintiff – Cross defendant c.

MIRIAM CHEROW-KAPUTA Defendant – Cross plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Joe Abbandonato (the Plaintiff ) is suing Miriam Cherow-Kapusta (the Defendant ) claiming damages in the amount of $7,500.00 she caused him when she reneged on her consent to allow him to install a fence on her property. [ 2 ] The Defendant is counter suing claiming damages for the stress, inconvenience and trouble Plaintiff caused her by his insistent requests that she allow him to install a fence on her land and for having to defend herself in court against what she considers to be a frivolous claim.

QUESTIONS AT ISSUE

a) Did the Defendant consent to Plaintiff installing a fence on her property and was a contract concluded between the parties?

b) In the affirmative, has the Defendant caused any damages to Plaintiff by later taking back her consent?

c) In the negative, is Defendant’s cross-claim for damages founded? CONTEXT [ 3 ] In order to be able to have his mother of failing health live with him and his wife, in December 2006 Plaintiff purchased the property located at 5720 – 5722 Kincourt in Côte-St-Luc. [ 4 ] The Defendant has been the owner of the property located at 5725 - 5727 Lockwood in Côte-St-Luc for 42 years, the next street north-east parallel to Kincourt. [ 5 ] Plaintiff’s and Defendant’s backyards are adjacent.

Their lands are however not levelled; Defendant’s being higher than Plaintiff’s by a few feet. [ 6 ] A wall built of stones retains the earth between the two backyards: it starts at the bottom of Plaintiff’s yard and goes all the way up to Defendant’s yard. It is capped with cement and ends about half a foot above ground level in Defendant’s yard. [ 7 ] Defendant’s land is larger than Plaintiff’s and, lengthwise, the stone wall ends before the end of Plaintiff’s property.

There is a big maple tree in Defendant’s backyard, located very close to the property line with Plaintiff’s land, and close to the south-west corner of his property.

[ 8 ] At the bottom of the stone wall in Plaintiff’s yard are bushes that grow all the way up to and above Defendant’s yard. [ 9 ] No posts limit the lands of the parties so they do not know exactly where Plaintiff’s backyard finishes and where Defendant’s starts. The parties thus do not know on which of their respective lands the stone wall and the top cement part are located: on Plaintiff’s, on Defendant’s, or on the separation line. [ 10 ] Sometime in 2009 Plaintiff got a dog, which grew to be big and not so obedient.

For the safety of the neighbours and the peace of mind it would provide him and his wife, Plaintiff decided to install a fence in his backyard, but did not want to remove the bushes growing in the back of his yard because “ they add privacy and a pleasant country style aesthetic to both (…) properties” [1] . [ 11 ] In order to keep the bushes, the fence had to be installed on the higher part of the land, next to the cement wall in Defendant’s yard, which both parties believe to be on her land. [ 12 ] One afternoon of the summer of 2010, Plaintiff knocks on Defendant’s back door wishing to speak to her about his plan. [ 13 ] During the course of their brief discussion, Plaintiff introduced himself, spoke about his nationality, why he bought the duplex on Kincourt [2] , explained his situation with his dog becoming quite big and sometimes unruly, and informed the Defendant that he was going to install a fence. [ 14 ] According to Plaintiff’s version of the discussion he clearly explained to the Defendant that he wanted to build the back part of the fence on her land, asked her for her consent, which she gave him without any hesitation. [ 15 ] The Defendant denies that Plaintiff told her he wanted to install a fence on her property, much less that he asked for her permission.

The Defendant is adamant when she testifies: had Plaintiff been clear about his plan she would not have consented to it. [ 16 ] The Defendant relates that Plaintiff informed her of his plan to install a fence on his land, which she thought was quite neighbourly of him. [ 17 ] The week following the discussion, the Defendant sees workers installing the sides of Plaintiff’s fence in his yard.

When she notices a worker preparing to install the back part of the fence on her yard she immediately informs him that she does not agree with the installation. [ 18 ] Plaintiff then tries to “reason” with the Defendant and make her understand that his plan is the only logical one to solve his problem. [ 19 ] He writes to the Defendant on May 31 and July 5, 2011 explaining his project and reiterating the reasons for it, expecting to convince her to agree to it. [ 20 ] Seeing that she still does not allow him to build a three feet high fence on her yard, on July 12, 2011, Plaintiff has a notice letter sent to the Defendant, that reads in part as follows: (…) our Client installed the fence approximately Three (3) feet within his property line.

To duly finalize the erection of the fence on the property line requires the repair of the Wall. (…) (…) our Client requests that you proceed to immediately repair the common Wall adjoining the properties within Ninety

(90) Days of your receipt hereof, failing which our Client will proceed to repair the common Wall and straighten his fence along the property line, the whole at your entire cost. [3] [ 21 ] In response to that letter, on July 18, 2011 Defendant writes the following: There is shallow cement wall between our two properties. There are three possibilities: [1] The wall is on his side of the property line in which case he is free to do as he wishes with it. He states that the temporary wooden fence is three feet within his property line.

Since it abuts the narrow wall, it places it within his property line. [2] The wall is on our side of the property line. My wife and I are under no obligation to repair this wall, in order to provide a base for a fence for your client’s dog. [3] The wall is a joint one, in which case, repairs are a joint responsibility. Since Mr.

Abbandonato wishes to make this a legal matter, it would now require the results of a formal survey, in order to draft a legal document binding upon both parties. [ 22 ] As an answer to that letter, on August 1, 2011, Plaintiff demands that Defendant repair the retaining wall by October 2011 or pay half of the costs related to obtaining a certificate of location, failing which he would pay for the certificate of location and claim the expenses as damage [4] . [ 23 ] The Defendant does not comply with Plaintiff’s request, but he does not obtain a certificate of location. [ 24 ] On December 21, 2011, Plaintiff takes a new position.

He demands that the rocks and debris on his property be removed at Defendant’s expense before the end of the month, failing which he would do so at her expense. He also requests payment of $7,500 in damages for the loss of peaceful enjoyment of his property [5] . [ 25 ] Plaintiff had obtained a quotation in the amount of $1,500 to remove the debris and move the fence closer to what the parties believe to be the division line, which he communicated to the Defendant. [6]

[ 26 ] Further to that letter, the Defendant offers to pay $500 to Plaintiff to clean-up the debris situated between the parties’ respective properties.

Plaintiff refuses the amount demanding $ 1,000, and later files his claim against the Defendant. [ 27 ] In his original claim, Plaintiff was seeking injunctive relief asking the Superior Court to order the Defendant to remove the stones which he claims were pushed from the stone wall by Defendant’s maple tree. [ 28 ] A year later, in March of 2013, Plaintiff amended his claim to remove the injunctive relief but did not change the claim for damages in the amount of $7,500 detailed as follows: - $6,500 for stress, inconvenience, loss of time and loss of peaceable enjoyment of his property; - $250 paid cash to obtain an expert report; - $500 paid cash to have the carpenter come a second time to finish installing the fence; [ 29 ] The Defendant challenges Plaintiff’s claim stating that she was under no obligation to agree to Plaintiff’s requests; she could never have consented to Plaintiff installing a fence on her property because he did not tell her that this was his plan. [ 30 ] She also claims financial compensation for the damages his insistence and lawsuit have caused her. [ 31 ] Aside from the fact that she considers that Plaintiff’s claim is ill-founded, the Defendant considers that Plaintiff’s claim for $7,500 of damages is exaggerated and should have been reduced to an amount lower than $7,000 when he amended his original claim to remove the injunctive relief because:

a) it is obvious that he has not suffered damages in that amount and,

b) reducing his claim would have given jurisdiction to the Small Claims Division of the Québec Court, and saved her the extrajudicial expense she incurred to be represented in court.

ANALYSIS [ 32 ] Anyone who wants to assert a right shall prove the facts that sustain his claim and safe exception the evidence that makes the existence of a fact more probable than its nonexistence is sufficient [7] , but must be clear and convincing to satisfy the test of balance of probabilities [8] . [ 33 ] In the case of action for damages, the plaintiff must demonstrate, under the same rules of evidence, the fault of the party being sued, the damage suffered and the casual link between the fault and the damage.

The contract [ 34 ] Plaintiff bases his recourse on the allegation that a contract was concluded between him and the Defendant where she allowed him to build part of his fence on her land. Because she failed to execute the contract Plaintiff alleges that she caused him damages. [ 35 ] The Court must first determine if a contract intervened between the parties. [ 36 ] The Civil Code of Québec defines what a contract is. The relevant applicable provisions are the following: 1378.

A contract is an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation. Contracts may be divided into contracts of adhesion and contracts by mutual agreement, synallagmatic and unilateral contracts, onerous and gratuitous contracts, commutative and aleatory contracts, and contracts of instantaneous performance or of successive performance; they may also be consumer contracts. 1380.

A contract is synallagmatic, or bilateral, when the parties obligate themselves reciprocally, each to the other, so that the obligation of one party is correlative to the obligation of the other. When one party obligates himself to the other without any obligation on the part of the latter, the contract is unilateral. 1386. The exchange of consents is accomplished by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person. 1387.

A contract is formed when and where acceptance is received by the offeror, regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to secondary elements. 1388. An offer to contract is a proposal which contains all the essential elements of the proposed contract and in which the offeror signifies his willingness to be bound if it is accepted . 1389.

An offer to contract derives from the person who initiates the contract or the person who determines its content or even, in certain cases, the person who presents the last essential element of the proposed contract. 1433 A contract creates obligations and, in certain cases, modifies or extinguishes them.

In some cases, it also has the effect of creating, transferring, modifying or extinguishing real rights. (Emphasis added) [ 37 ] Authors Jobin and Vézina define a contract as follows: “Le contrat est un acte juridique, plus précisément un acte juridique bilatéral. Deux personnes ou plus, mais non une seule , manifestent leur volonté de créer, transférer, modifier ou éteindre un droit réel ou personnel.

On remarquera que le contrat unilatéral (telle la promesse unilatérale) – dans lequel une seule personne assume une obligation – constitue néanmoins un contrat, car il y a accord des deux parties sur l’objet de l’engagement. [9] (…) Le contrat synallagmatique, ou bilatéral, est celui qui crée des obligations réciproques et institue donc une corrélation entre celles-ci, à la charge de chaque personne qui y est partie. (…) Le contrat unilatéral, ne crée, au contraire, d’obligations qu’à la charge d’une seule des parties, sans qu’il y ait réciprocité. (…) Le caractère unilatéral ou bilatéral d’un contrat ne dépend pas de sa formation, mais de ses effets : le contrat unilatéral, tout comme le contrat synallagmatique, exige en effet la rencontre de deux volontés.

La différence réside dans le fait que le contrat unilatéral, une fois conclu, ne laisse qu’une seule des parties créancières de l’autre. [10] (…) Le consentement est la condition la plus importante de la formation du contrat, car s’engager c’est consentir par acte de volonté non équivoque à assumer certaines obligations . [11] (…) Pour qu’il y ait contrat, il est nécessaire que les contractants soient mutuellement d’accord sur la nature de l’engagement, les obligations qui en découlent et ses autres termes . [12] L’échange des consentements se fait, en général, au moyen d’une double opération. (…) l’une des parties fait une offre de contracter (…) l’autre

partie décide d’accepter l’offre (…). La rencontre des deux volontés sur les éléments essentiels donne donc naissance au contrat . [13] (…) L’Offre, tout d’abord, doit être sérieuse, ferme et précise. (…) L’offre , ensuite, doit contenir tous les éléments essentiels du contrat projeté pour permettre l’adhésion de l’acceptant .

Si la proposition oblige la personne à qui elle est faite à une négociation, à une demande de renseignements ou de précision sur ces éléments, elle ne constitue pas une offre véritable, mais une simple invitation" [14] (Emphasis added – references omitted) [ 38 ] Paraphrasing Jobin and Vézina, for this Court to reach the conclusion that a contract was concluded between the parties, the proof must establish under the balance of probabilities that Plaintiff has made a serious offer to contract to the Defendant, one that contained all the essential elements of the projected contract, and that the Defendant expressed clearly that she agreed to the nature of the commitment asked of her, the obligations stemming from said consent and all the other terms. [ 39 ] The Court did ask Plaintiff to identify the contract he alleges the parties concluded on that nice day of May 2011, contract that the Defendant would have failed to execute, causing him damages. [ 40 ] Plaintiff claims that within the brief discussion he had with the Defendant where he explained all of his circumstances, he asked her clearly the permission to build a fence on her land and she simply and without any questions agreed. [ 41 ] The letter that Plaintiff wrote to the Defendant after she stopped his worker from putting the back of the fence on her land indicates that he was aware from the outset that putting a fence on Defendant’s property entailed more than just putting wooden boards on her property.

Indeed, in July he offers to undertake to remove the fence once he moves out of the property. [ 42 ] Yet Plaintiff acknowledges that none of the legal consequences on him installing part of his fence in Defendant’s yard were discussed.

The issues of maintenance of the fence and potential acquisitive prescription of Defendant’s land were not relevant to him at the time he made his request to the Defendant. [ 43 ] In his view, if those elements of the contract were essential, although they were not discussed with the Defendant, she should have known what the consequences were of her consenting to the building of a fence on her land, cannot blame him for not having brought up those subjects and cannot bring them up into the equation to change her mind a few days after she consented to his request. [ 44 ] The Court does not agree with Plaintiff’s position.

The issues of maintenance of the fence and of the potential acquisitive prescription of Defendant’s land were just as essential as the permission he asked her, if not more particularly for the Defendant. [ 45 ] Because those elements of the contract were never discussed, the Court concludes that there was no real offer made to the Defendant and no contract was concluded. [ 46 ] After Defendant informed Plaintiff’s worker that she would not allow him to build a fence on her property, Plaintiff wrote to her in an attempt to convince her of agreeing to his request.

In his letter, Plaintiff does address the issue of potential prescriptive acquisition

of her land and Defendant clearly responds that she does not want a fence on her land. [ 47 ] The Court points out that the terms in which Plaintiff writes to the Defendant are indicative of the fact that he himself did not consider that a contract was concluded. On May 31, 2011, he writes “ that a friendly request has been denied”. [15] . [ 48 ] Aside from the issue of whether Plaintiff’s request presented all the necessary elements to constitute a valid offer, the Defendant denies ever having agreed to Plaintiff building a fence on her land because she did not understand that this was his plan.

She testifies that had she understood what Plaintiff wanted she would not have agreed to it. [ 49 ] The Court has no reason to doubt Defendant’s contention. The description that the parties have made of the only discussion they had about Plaintiff’s plan leads the Court to conclude that:

a) Plaintiff either did not clearly ask the Defendant to build a fence on her land or did not understand or hear her response [16] ; or

b) The Defendant did not understand that Plaintiff was asking for a permission to install a fence on her property and therefore could not have given him her consent. [ 50 ] Plaintiff has not proven according to the balance of probabilities that the Defendant allowed him to build a fence on her land to further renege her consent. [ 51 ] In support of his position, Plaintiff submitted cases where the courts upheld verbal contracts.

The cases must be distinguished from the present situation as in each case either a pre-contractual agreement had been signed or lengthy discussions and negotiations had taken place between the parties, the analysis of which allowed the courts to conclude to the existence of an exchange of consent. [ 52 ] The proof presented in the present case does not permit the Court to conclude that in a few minutes discussion Plaintiff explained all the essential elements of his request and that Defendant was given enough details and time to consent to the contract Plaintiff had in mind. [ 53 ] In light of the above, Plaintiff’s recourse against the Defendant must be dismissed.

Damages [ 54 ] Plaintiff has failed to establish by balance of probabilities that the fence could have been built on Defendant’s property. In fact, according to the evidence the maple tree situated in the back of Defendant’s yard close to the property line would have made it impossible to install the fence on her property. [ 55 ] Plaintiff also alleges that Defendant’s refusal to remove construction debris on his property made it impossible for him to install the fence on a straight line. [ 56 ] The Defendant did attempt to minimize the inconvenience of the whole situation.

She offered Plaintiff to pay half of the cost of having the construction debris removed from his land and the temporary fence Plaintiff had installed three feet onto his property moved back in a straight line on the property line. [ 57 ] Plaintiff refused that offer because he took the position that the construction debris came from the stone wall damaged by her maple tree. The evidence on this matter is however far from conclusive. [ 58 ] The stone wall is not made of construction debris.

Plaintiff and Defendant have never seen that the stone wall continued to the extremity of her land where construction debris is found.

For the 42 years the Defendant has owned the property the construction debris the Plaintiff complained about has been lying around; thus, they where lying on Plaintiff’s property when he purchased it. [ 59 ] The evidence does not permit the Court to conclude that the stone wall continued to the end of Plaintiff’s yard and that it was partly destroyed by the roots of Defendant’s maple tree. [ 60 ] Plaintiff has not mitigated his damages and has in fact been the architect of the damage for which he is now claiming compensation .

He persisted on trying to get his neighbour to do something that presented no advantage to her and she was under no obligation to agree to.

He further refused to take the money she offered him to find a solution to his problem, i.e. have the construction debris removed and the fence moved back on the property line in a straight line. [ 61 ] Furthermore, Plaintiff offered very minimal testimony on the stress he alleged having suffered due to the Defendant. [ 62 ] If indeed Plaintiff suffered any stress it is because he refused to envisage a solution different than the one he had unilaterally decided was the most convenient and that, when he realised that he would not obtain Defendant’s consent to his request, rather than taking the course of action he had announced in his demand letters, he had the fence installed bypassing the debris, i.e. not straight. [ 63 ] Since he instituted the present case against the Defendant, Plaintiff sold the property.

He is not claiming loss of profit from the Defendant, thus the Court concludes that he made a profit out of the sale. [ 64 ] For these reasons, had the Court conclude that the Defendant wrongly reneged on her consent to have part of the fence installed on her property, Plaintiff’s request for damages in the amount of $6,750 would still have been dismissed. [ 65 ] The claim for the expert’s fees would also have been denied because Plaintiff’s because the Court did not find that the testimony of Sylvie Paquette was helpful to decide the matter. [ 66 ] Mrs.

Paquette filed black and white photocopies of the photographs she took to file with her report and did not bring the original pictures with her for the Court to be able to see and understand what she was trying to describe.

[ 67 ] Mrs. Paquette tried to testify using the colour pictures filed by the parties, but her testimony was not conclusive. [ 68 ] She did confirm however that the roots of the maple tree on Defendant’s land would have made it difficult for Plaintiff to install the fence on her land. [ 69 ] As for Plaintiff’s claim for $500 representing the amount he spent to have the fence moved further back on his land, it is rejected in light of the Court’s conclusion on the non-existence of a contract between the parties and Defendant’s right to decline Plaintiff’s request.

Cross-demand [ 70 ] The Defendant claims the sum of $5,000 for legal fees expended in her defence against Plaintiff’s action, which she qualifies as being frivolous. [ 71 ] The evidence has established that Defendant’s extra-judicial fees have been paid by her husband’s company, which is not a party to the present case. [ 72 ] Since she did not herself incur the expenses, her claim is dismissed. [ 73 ] Notwithstanding that, the Court would not have granted Defendant’s request, because the criteria for such a condemnation are not met.

Plaintiff’s claim was not clearly unfounded, frivolous or dilatory; his conduct was not vexatious or quarrelsome; he did not act in bad faith, nor use procedures that were excessive or unreasonable [17] . [ 74 ] The Defendant is also claiming damages in the amount of $5,000 for the stress, anxiety, loss of peaceful enjoyment of her property that she alleged having suffered due to Plaintiff’s repeated bombardment with demand letters and the present proceedings. [ 75 ] The Court does not consider that sending five letters, three of which being demand letters sent by an attorney, constitute a bombardment. [ 76 ] Although the Court understands that the situation with Plaintiff may have caused stress to the Defendant, it is of the view that her stress and anxiety were due to the situation itself, i.e. not knowing what her rights and obligations, rather than by Plaintiff. [ 77 ] As for the loss of peaceful enjoyment of her property, no evidence was presented that she actually did lose any. [ 78 ] Defendant’s claim is dismissed, but without costs, because Plaintiff could have reduced the amount of his claim to $7,000 so as to spear the Defendant the extra-judicial costs associated with representation in the Civil Chamber.

WHEREFORE, THE COURT [ 79 ] REJECTS Plaintiff’s Motion to introduce proceedings; [ 80 ] WITH costs. [ 81 ] DISMISSED Defendant’s cross-demand; [ 82 ] WITHOUT costs. __________________________________ MAGALI LEWIS, J.C.Q. Me Consolato Gattuso Mitchell Gattuso Plaintiff’s attorneys Me Alfredo J. Mancini Kaufman Laramée Defendant’s attorneys Hearing date : June 19, 2014