2018 QCCQ 4526, 2018 QCCQ 4526

Bell Canada c. Safco Construction inc. 2018 QCCQ 4526 COURT OF QUÉBEC « Small Claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL CITY OF MONTREAL « Civil Division» N° : 500-32-156288-179 DATE : June 29, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ BELL CANADA Plaintiff v. SAFCO CONSTRUCTION INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I.

Parties and Proceedings [ 1 ] The Plaintiff, Bell Canada, who operates a telecommunications network in the Province of Québec, sues the owner of a building situated at 2104, Prud’homme in Montreal, the Defendant Safco Construction Inc. (“Safco”) claiming the cost of the replacement of telephone equipment located in a room in the interior of the building where a fire occurred on December 8, 2013. [ 2 ] Bell Canada asks the Court to hold Safco responsible for this loss, an amount of 2,880.00 $. [ 3 ] Safco denies the claim, asserting that it refused to sign a purchase order for the replacement of this equipment because it did not require its replacement, given its obsolescence and its redundancy. [ 4 ] Safco asserts that the equipment that Bell installed in the building is of no utility, there being no longer any user of Bell services in the building. [ 5 ] Safco also challenges the assertion that Bell Canada was the owner of the equipment. [ 6 ] At the hearing, Safco also brought evidence to refute the presumption of responsibility, alleging that the fire was caused by an electrical fault in Hydro-Québec wiring outside the building, a cause outside Safco’s control.

II. Issues [ 7 ] The Court must resolve the following issues: 1. Has Bell Canada proved its ownership and interest in replacing damaged telephone equipment in Safco’s building? 2. Is Safco responsible for the loss of the equipment that Bell Canada replaced? 3. What is the true quantification of this loss? III. Facts [ 8 ] The Defendant’s building is a commercial building, dating from around 1929, later converted to use as a multi-tenant apartment building. [ 9 ] Prior to a major renovation carried out by the Defendant, each of the 39 apartments and an office were serviced by a telephone wiring system.

Safco replaced that wiring gradually as it carried out renovations, installing wiring appropriate for modern data transmission, such as high-speed internet. For the most part, tenants did not use Bell telephone services, and Safco had installed in its office the routing equipment necessary for Videotron. [ 10 ] There were, however, still a few users of Bell telephone service, perhaps three, as far as Bell knows, at the time of the fire in December 2013. It knows of their existence because it received notice of problems with service from three customers shortly after the fire.

[ 11 ] The Bell circuits, consisting of 50 pairs of wires bundled in a cable, entered the building in a furnace room where they were split in a panel into 50 separate circuits that can be connected to an equivalent number of pairs of wires that led to each apartment. [ 12 ] The equipment that was damaged by the fire consists of a box where the wires of the building’s system are joined in pairs and connected as well as a circuit-breaker apparatus that protects the system against a surcharge, such as that which could occur because of lightning. [ 13 ] The wires are suited for conventional Bell telephone services, but not for contemporary data services such as high-speed internet. [ 14 ] The fire, which began in the furnace room, was quickly put out by the municipal fire department.

There was very little damage to the building, but the equipment described above was destroyed. [ 15 ] Safco’s principal, Mr. Salvatore Lipari testified that the tenants were allowed to return to their apartments very quickly. Only one tenant, the resident of apartment 102, requested the restoration of Bell service. Service was restored in the days following the fire without recourse to the equipment that had been damaged, with a direct patch between one pair of wires from the 50-circuit bundle. [ 16 ] Apartment 102 is adjacent to the furnace room. A wire was led through an opening that Mr.

Lipari’s workers made in a cement- block wall to the apartment. [ 17 ] Later, a group of technicians came to the building. One of them asked Mr. Lipari if the fire damage was insured and asked him to sign a work order. Mr. Lipari refused and asked the technician if he wanted to install his conduit entry in the office area that had been set aside for telecommunication entries. The technician stated that he did not have a mandate to do that. [ 18 ] Mr.

Lipari explains that the previously existing wiring, to which Bell’s equipment would ostensibly be attached, was no longer in service and was replaced by multi-strand wiring leading to the office area. [ 19 ] Mr. Lipari states that his intention was not to authorize Bell to install any equipment that would be of no use to the building and its residents, and certainly not to accept any financial responsibility for the costs of such installation. [ 20 ] In fact, however, the technician that the Court heard from, Mr.

Sylvain Desilets, did succeed in replacing the equipment that had been damaged by the fire, and it remained in place until Mr. Lipari removed it. [ 21 ] In a later period, service was provided for apartment 403 by splicing a wire from the Bell configuration, but it did not pass through the new equipment that Mr. Desilets installed. The service provider was not Bell, it was a third-party provider who used Bell’s entry upstream from the new equipment. [ 22 ] Mr. Lipari allowed the installation, but only if the technician bypassed the new equipment.

The technician called his superiors, and was given the authorization to proceed as Mr. Lipari requested. [ 23 ] The technician apparently worked for an enterprise associated with Bell Canada, known as “BST”. [ 24 ] According to Mr. Desilets, the installation, which did not use the new equipment that is the subject matter of this case, was contrary to applicable standards.

He cannot explain how it would have been possible for Bell’s associated company to approve such an installation. [ 25 ] The situation is therefore such that Bell’s equipment is considered to be useless by the owner of the building, was not used subsequently to its installation by Bell, nor by the third-party provider using Bell’s entry circuit. Paradoxically, the circuitry that the owner has installed is, in a sense, irrelevant to Bell, because it does not have any new customers in the building.

If any new Bell customers requested service, it would be feasible to provide it through the wiring that Safco installed, with space being available in the office for switching, so long as Bell requested access. IV. Analysis

a) Bell’s ownership in the equipment [ 26 ] Part of Safco’s contestation is its assertion that Bell did not prove that it was the owner of the damaged equipment nor that it had a right to install it without authorization. [ 27 ] According to the evidence available from Bell’s witnesses, the damaged equipment dated from a period when Bell had a monopoly to provide telephone services to residences in the region. It would not have been the practice at the time for owners of buildings to oppose Bell’s practices of installing and maintaining its equipment in such buildings.

Clearly there is no servitude, therefore Bell has no real immovable right to use the space, simply a permission in the nature of a personal right. [ 28 ] Bell’s interest in replacing the damaged equipment is the same as its interest in installing it in the first place, and, though the installation of the equipment was not expressly authorized by Safco, it was not effectively opposed: Mr. Desilets installed it without impediment. Bell’s presence in the building was de facto and tenuous.

b) Liability for the fire [ 29 ] In its introductory motion, Bell assigns liability for the damage to Safco as owner (“ propriétaire/gardienne de l’immeuble ”) and alludes to the idea that the fire brought about damages that were “ excessifs, dépassant de beaucoup des inconvénients ordinaires du

voisinage ”. [ 30 ] In an email communication to Safco [1] Bell takes the position that the origin of the fire was “ près du pilot de la fournaise ”. [ 31 ] This is consistent with the fire intervention report [2] , which gives the nature of the fire as “ accidentelle ”. [ 32 ] Safco attributes the fire to faulty Hydro Quebec circuits. Mr. Lipari informed the Court that the building is serviced by Hydro Quebec through three 200 volt lines, one of which was eventually replaced by Hydro Quebec on June 23, 2013. Mr. Lipari states that, on several occasions, fuses had to be replaced when circuits were over charged.

After Hydro Québec carried out the replacement of the circuit that was defective, the problems ceased. [ 33 ] Mr. Lipari believes that the fire occurred when a thermostat became overheated when overcharged because of Hydro Quebec’s defective circuit. The fire would have spread from its point of origin to combustible materials in the furnace room. [ 34 ] The liability of Safco is established by a legal presumption set out in the Civil Code: 1457. Every person has a duty to abide by the rules of conduct incumbent on 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 liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature. He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. 1465.

The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault. [Underlining added for emphasis] [ 35 ] The fire intervention report does not establish the source of the fire except to locate it in the vicinity of the furnace’s pilot. The report does not speak of any particular source, just a place within the room, a vicinity. [ 36 ] The only evidence about the source of the fire is Mr. Lipari’s testimony, to the effect that the fire stared in a thermostat in the furnace room.

That is sufficient to establish a presumption of liability under the above-mentioned articles. The electricity and the thermostat were under the custody of Safco. At that location in the electrical supply, both the current and the circuit were under the control of Safco. [ 37 ] Can Safco avoid liability by showing that it was not at fault? It is plausible that defective Hydro-Quebec wiring caused an electrical problem in the building.

That would exonerate Safco if it could be proved to be the probable cause of the failure of the thermostat and if it could not have been avoided by a safety device, such as a circuit breaker. [ 38 ] Mr. Lipari is a credible witness, in the sense that he is honest. His honest belief that this particular malfunction ought to be attributed to Hydro Quebec and not to the failure of the building’s system to operate property is not proved by evidence having sufficient probative value.

It would be a question of opinion and technical expertise to prove whether electrical problems in the building were attributable to things within the sole control of Hydro Quebec, and therefore outside the control of the operators of the building. [ 39 ] The evidence establishes, anecdotally, that this is a possibility, but it does not establish that it is a probability. [ 40 ] Safco is therefore liable for Bell’s loss, presumptively.

c) The quantification of Bell’s loss [ 41 ] The fire caused the destruction of Bell’s equipment and the fire was caused by the equipment and materials under the control of Safco. Bell incurred an internal expense by replacing the equipment. Bell’s documentation of the expenditure is accurate and reliable. Bell suffered the loss of its equipment, and incurred a cost to replace it, but what was the value of the equipment that it replaced? [ 42 ] In the court’s estimation, the equipment had no value.

It was not useful equipment in a setting where it was neither needed nor feasible to use. [ 43 ] The building is under the control of its owner. The owner does not have to provide wiring to the apartments. The wiring that the owner does make available to Bell or would make available to Bell if it required it cannot be serviced by the entry to the furnace room, which is not an appropriate place for switching equipment to be installed. [ 44 ] The owner declared its willingness to give Bell access to the appropriate place to install useful equipment.

Bell declined the offer and instead installed equipment that has not been used and, probably could never be used. [ 45 ] Rather than mitigating its loss and using the opportunity to restore the potential of providing telecommunication services to prospective customers, Bell opted to allocate a resource to the replacement of redundant equipment. [ 46 ] The emergency connecting of apartment 102 was possible because of the assistance of Safco, who provided a conduit to the apartment, prior to the installation of the replacement equipment. [ 47 ] A subsequent installation of service using one of Bell’s pairs of wires was done by a third-party installer without using the

replacement equipment that Bell installed. [ 48 ] Therefore, while Bell incurred an expense, it was not an expense that took into account its duty to mitigate its damages. [ 49 ] The Court will not comment on the fact that Safco removed Bell’s equipment, because it is not the subject matter of this case, except to say that Bell has now recovered the equipment through the Court’s intervention during the trial. [ 50 ] It is, however, illustrative of the uselessness of the equipment that Bell was not using it, and did not know that the equipment had been dismantled: it could not have known, because it had no customers in the building.

If it had had any new customers, it would most probably have had to use Safco’s new circuits to get to them, something that it could not do from the then current location of its equipment. [ 51 ] The claim therefore fails. There will be no award of costs, given the highly unusual nature of the facts. BY THESE REASONS, THE COURT: DISMISSES the Plaintiff’s claim; WITHOUT costs. __________________________________ David L. Cameron, J.C.Q. Date of hearing: May 1 st , 2018