2013 QCCQ 777, 2013 QCCQ 777

Smallian Lake Cottage Association c. Elias 2013 QCCQ 777 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF HULL TOWN OF GATINEAU Civil Division No: 550-32-019858-114 DATE: February 7 th , 2013 ______________________________________________________________________ BY THE HONOURABLE GATIEN FOURNIER, J.C.Q. ______________________________________________________________________ SMALLIAN LAKE COTTAGE ASSOCIATION 14, Pekan Road, Mulgrave & Derry, (Quebec) K0G 1J0 Plaintiff v.

JUDITH ELIAS […] , Kemptville, (Ontario) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Introduction [ 1 ] The Plaintiff, Smallian Lake Cottage Association ( SLCA ), claims from the Defendant, Judith Elias ( Elias ), an amount of $725.94 representing her share for the snow removal costs incurred by the SLCA during the winter of 2010/2011.

Question in dispute [ 2 ] Is SLCA entitled to claim from Elias the amount of $725.94 for her share of the snow removal costs incurred during the winter of 2010/2011? The facts [ 3 ] Elias admits that she is responsible for a share of the snow removal costs incurred by the SLCA with respect to the 2010/2011 winter. Moreover, Elias does not contest the total amount paid by the SLCA for snow removal with respect to the 2010/2011 winter.

Elias contests however the method of allocation of the snow removal costs among the various owners of the SLCA for the winter of 2010/2011. [ 4 ] As of 2005, the SLCA took the responsibility of the maintenance and the snow removal of the roads located on its territory. [ 5 ] As of 2005, a method of allocation of the snow removal costs among the various owners was decided by the SLCA . This method has been applied since then. The method of allocation decided in 2005 took into consideration a clause includes in all owners deed of sale which reads, in the case of Elias , as follow: " […] 6.

The Purchaser binds and obliges to contribute to the maintenance of the road and the gate (if any), all year round, proportionally with the other owners, for those roads shown as lot number TWENTY of the official subdivision of the original lot NINE (LOT 9-20) and the lot FIVE of the official subdivision of the original to TEN "B" (lot 10B-5), both of Range SEVEN (R.7), for the official Cadaster for the Townshuip of Mulgrave.

Failure of not complying with obligation, within a delay of thirty (30) days of receiving the notice or invoice, the Purchaser will be responsible for all fees, including all legal fees and disbursements incurred by the Vendor or his representatives in collection said dues. The Vendor or his assigns shall be entitle to collect said dues once a year. Roads to be completed by July 30 th , 2003 ". [ 6 ] The method of allocation was also decided in collaboration with the snow removal contractor.

Thus, it was decided that 70% of the snow removal costs would be allocated to the lots located on the Pekan and Rivers-Moore roads and the remaining 30% to the lots situated on Julia Road. [ 7 ] The snow removal contractor testified and confirmed that the 70% / 30% split is based on the time spent on each of these roads. The snow removal costs have been split that way between the roads since at least the winter of 2006/2007. He also confirmed that he had been in the business of snow removal for 41 years.

[ 8 ] The costs incurred with respect to the Pekan and Rivers-Moore roads for the snow removal during the winter of 2010/2011 were in the amount of $2631.44. That amount was split among the 17 lots located on these roads. Thus, the share for each lot represents an amount of $153.74. [ 9 ] With respect to Julia road, the total of the snow removal costs for the winter 2010/2011 was in the amount of $1209.88. That amount was split among the five lots located on that road.

Thus, the share for each lot represents an amount of $241.98. [ 10 ] Except for the costs incurred during the winter 2010/2011, Elias has always paid her share of the snow removal costs based on the method of allocation decided by the SLCA in 2005. [ 11 ] Elias owns three lots on Julia road. According to the method of allocation decided by the SLCA in 2005, her total share with respect to the snow removal costs for the winter of 2010/2011 is in the amount of $725.94. [ 12 ] Elias feels that the method of allocation is unfair.

She is of the opinion that the allocation for Julia road should be around 20% instead of 30%. Elias is not an expert in snow removal and no one came to testify to support her position. Analysis [ 13 ]

Article 2803 of the Civil Code of Quebec provides that " a person wishing to assert a right shall prove the facts on which his claim is based ." [ 14 ] In the circumstances on the present matter, Elias did not prove the facts to assert the right that she claimed. [ 15 ] On the other hand, the SLCA has established, on a balance of probabilities, that its demand is well founded in law and that it is entitled to the amount $725.94. FOR THOSE REASONS, THE COURT: GRANTS the application of the Plaintiff; CONDEMNS the Defendant, Judith Elias, to pay to the Plaintiff the amount of $725.94 with interest at the legal rate of 5% plus the additional indemnity prescribed under

section 1619 of the Civil Code of Quebec as of June 1 st , 2011 plus legal costs in the amount of $118.00. __________________________________ GATIEN FOURNIER, J.C.Q Date of hearing: December 17 th , 2012