2022 QCCQ 488, 2022 QCCQ 488

Tsoklis c. Bekraoui 2022 QCCQ 488 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL TOWN OF LAVAL Civil Division No: 540-32-031287-194 DATE: February 2, 2022 ______________________________________________________________________ BY THE HONOURABLE CHANTALE BEAUDIN, J.C.Q. ______________________________________________________________________ ANTHONY TSOKLIS Plaintiff v.

ABDELKARIM BEKRAOUI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Outline [ 1 ] Anthony Tsoklis sues his neighbour Abdelkarim Bekraoui for damages associated with the replacement of the backyard fence and arising from neighbourhood annoyances. For Mr. Tsoklis, his neighbor's actions exceed the limit of tolerance that he must accept. He therefore claims $ 3,000 in moral damages and $ 5,000 in punitive damages. [ 2 ] Mr. Bekraoui denies the claims.

He argues that the fence is not common and that he had the right to replace it. For Mr. Bekraoui, the relationship with Mr. Tsoklis is difficult since he always seems to be angry. He then avoids contact in order to avoid conflicts. Issues in dispute A. Is Mr. Tsoklis entitled to claim damages in connection with the partial replacement of the backyard fence? B. Does the situation experienced by Mr. Tsoklis exceed the tolerance that neighbors owe each other under the law? C. If so, is Mr. Tsoklis entitled to the damages claimed?

Analysis [ 3 ] In civil matters, the burden of proof rests on the party seeking to assert a right on the principles of a simple balance of probabilities [1] . [ 4 ] The burden of proof means the obligation to convince, which is also called the burden of persuasion.

It is the obligation to adduce, in the evidence, the quantity and quality of evidence necessary to convince the Tribunal of the allegations made at trial. [ 5 ] On the other hand, when the evidence is essentially contradictory and composed exclusively of divergent versions of the two parties, the Tribunal must note the absence of satisfactory and sufficient evidence on either side [2] . [ 6 ] Indeed, the evidence must always be clear and convincing in order to meet the balance of probabilities test.

Where the evidence offered is not sufficiently convincing or where the evidence is contradictory, the fate of the trial will be determined by the burden of proof. The person on whom the obligation to convince rests will lose. A. Is Mr. Tsoklis entitled to claim damages in connection with the partial replacement of the backyard fence? [ 7 ] Mr. Tsoklis submits that the backyard fence is installed on the dividing line between their lands and that it was without asking for his consent that Mr. Bekraoui undertook work to replace the fence on June 22, 2019. [ 8 ] Mr.

Tsoklis states that the old fence posts were replaced with taller posts cast in cement. In doing so, he damaged the pavers behind the shed. [ 9 ] Mr. Bekraoui refutes Mr. Tsoklis' claims. He argues that the fence is on his property and he has the right to replace it without obtaining Mr. Tsoklis' consent. In support of his claim, he produces a certificate of location prepared in 2001 when he bought his property [3] .

[ 10 ] Mr. Bekraoui testified that he never removed the old posts or poured cement as explained by Mr. Tsoklis. He simply slipped a white sheath over the old posts and replaced the old mesh fence with a new one. As a result of this work, the fence is now taller and white with privacy slats rather than green without slats.

The location of the fence has not moved a bit. [ 11 ] Where a fence is directly on the dividing line between two properties, it is presumed to be common, an owner may not, without the consent of the other owner or the prior authorization of the Tribunal, undertake work to replace the fence [4] . [ 12 ] However, if the fence is not installed on the dividing line, the owner may replace it without obtaining the consent of the other owner [5] . [ 13 ] In this case, it is up to Mr. Tsoklis to prove that the fence is common. In the absence of a boundary line, Mr. Tsoklis relies on

article 1003 C.C.Q. which establishes a presumption of joint ownership of any fence or hedge that is located on the dividing line. [ 14 ] The presumption of common ownership is simple. Therefore, it can be rebutted by proof to the contrary [6] . [ 15 ] In order for the presumption of common ownership to apply, Mr. Tsoklis evidence consists of his testimony, an excerpt from the 2001 certificate of location for Mr.

Bekraoui land and photographs. [ 16 ] The testimonial evidence is contradictory, what one asserts the other denies. [ 17 ] The certificate of location was prepared 19 years ago by a land surveyor for sale and or mortgage purposes. A certificate of location is not intended to delimit the property. It is only an opinion of the land surveyor obtained at the request of one party and is not binding on third parties [7] . [ 18 ] Neither party can rely on the certificate of localisation to assert whether or not the fence is on the dividing line.

Only a boundary marking establishes irrevocably and permanently the true boundaries of a property [8] . [ 19 ] It is not in disputed that the building of each of the parties shares a common wall on the northeast side. On the photographs, one can easily see what seems to be the dividing line between the two buildings by the color of the brick and mortar and that the first post of the fence is clearly on the side of the brick belonging to the building of Mr. Bekraoui [9] . [ 20 ] According to Mr. Tsoklis, his neighbor knowingly and mischievously moved the first post, which Mr. Bekraoui categorically denies.

In this regard, the Tribunal finds the testimony of Mr. Tsoklis to be pure speculation and not credible [10] . [ 21 ] The Tribunal finds that the presumption of common ownership has been rebutted and in the absence of better evidence as to the true boundaries of the property and the location of the fence, Mr. Tsolkis claim in this regard is dismissed. A. Does the situation experienced by Mr.

Tsoklis exceed the tolerance that neighbors owe each other under the law? [ 22 ] In matters of the neighbourhood, the law provides that a neighbor does not have to tolerate extraordinary annoyances or annoyances that exceed the limits that a reasonable person would be able to bear. An owner who uses his right in such a way as to cause harm to his neighbor may be held liable [11] . [ 23 ] Three conditions are required in this case to establish a neighborhood annoyance. There must be a neighbourly relationship between the parties, an annoyance resulting from the exercise of Mr.

Bekraoui right of ownership and abnormal annoyances suffered by Mr. Tsoklis. [ 24 ] The Tribunal considers that the proof of these three conditions was not made according to the balance of probabilities. [ 25 ] Certainly the first condition is met, but not the other conditions. [ 26 ] According to the application and Mr. Tsoklis testimony, Mr. Bekraoui allows cars to be parked in front of Mr. Tsoklis driveway. [ 27 ] During the trial, Mr.

Tsoklis testified also that his neighbor is deliberately putting snow in his driveway and the installation of his carport is faulty. [ 28 ] The climate of tension remains palpable on the part of Mr. Tsoklis. The Tribunal was able to discern both in tone and in the words and insinuations the he does not approve or tolerate any of the actions of his neighbor. In such a context, it is difficult to attribute to his testimony the necessary and required reliability to retain its substance. [ 29 ] The context of each event and the photographs supporting Mr. Tsoklis testimony has been explained by Mr.

Bekraoui and the Tribunal has no reason not to accept these explanations. [ 30 ] In all photographs, one sees the driver and therefore demonstrates that the vehicle is not parked, but was about to either enter in Mr. Bekraoui private parking space or only stopped to allow a person to exit or enter the vehicle. Also, some of the vehicles shown in the photographs are third party vehicles, Mr. Bekraoui cannot be held responsible for their actions. [ 31 ] As for the snow from the carport, photographs D-8 is eloquent and shows that it is Mr. Tsoklis that blows the snow from his driveway on to Mr. Bekraoui carport.

He cannot blame others for what he himself did. [ 32 ] Given the circumstances, the Tribunal is of the opinion that Mr. Tsoklis did not demonstrate that is neighbor uses his right of ownership in such a way as to exceed the limits of the normal annoyances that neighbors owe each other. [ 33 ] The Court considers that in the circumstances of this case, it is fair and reasonable not award legal costs.

FOR THESE REASONS, THE COURT: [ 34 ] DISMISSES plaintiff the Application without legal costs . __________________________________ CHANTALE BEAUDIN, J.C.Q. Date of hearing: October 22, 2021