2022 QCCQ 2375, 2022 QCCQ 2375

Mackera c. Tourigny 2022 QCCQ 2375 COURT OF QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-709713-194 DATE: May 6, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE NATHALIE CHALIFOUR, J.C.Q. ______________________________________________________________________ SANDRA MACKERA Plaintiff v. CHRISTINE TOURIGNY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ms.

Mackera alleges that her next-door neighbour, Ms. Tourigny, caused a carpenter ant infestation in her home by leaving her land in a state bordering on unsanitary. She claims $1,063.52 as reimbursement of an invoice paid for the ant extermination [1] and her legal costs. [ 2 ] According to Ms. Mackera, an abandoned cord of wood, an old wooden dividing fence, and a pool of unchlorinated, stagnant water caused the problem. [ 3 ] Ms. Tourigny denies causing the ant problem at Ms. Mackera’s home. Furthermore, she complains that she is a victim of abuse of right and harassment.

To be compensated for the moral damages she claims to have suffered, Ms. Tourigny brings a cross-application seeking $3,500 from Ms. Mackera. [ 4 ] For the reasons that follow, both claims before the Court are unfounded and should be dismissed. [ 5 ] First, it is appropriate to outline the applicable law of evidence and liability between neighbours.

General rules of evidence [ 6 ] It is worth noting at the outset that the success of an action depends not only on the applicable law, but also on a party’s ability to prove his or her claims on a balance of probabilities. [ 7 ] Under articles 2803 and 2804 of the Civil Code of Québec ( C.C.Q. ), the party making the claim bears the burden of proving that he or she is right.

This burden requires a preponderance of the evidence, or in other words, evidence that is sufficiently probative in both quantity and quality. [2] [ 8 ] Accordingly, if the claimant’s evidence is insufficient or of equal weight to that of the party being sued, the action must be dismissed.

On this subject, the author Léo Ducharme writes: [3] (…) lorsque la preuve offerte n’est pas suffisamment convaincante, ou encore si la preuve est contradictoire et que le juge est dans l’impossibilité de déterminer où se situe la vérité, le sort du procès doit se décider en fonction de la charge de la preuve : celui sur qui reposait l’obligation de convaincre perdra. [ 9 ] Moreover, an expert opinion is necessary when the issue requires knowledge outside the judge’s area of expertise, as is the case here, with respect to the cause of the infestation. [4] [ 10 ] On this topic, Professor Royer explains: Le témoin expert est celui qui possède une compétence spécialisée dans un secteur donné d’activité et qui a pour rôle d’éclairer le Tribunal et de l’aider dans l’appréciation d’une preuve portant sur des questions scientifiques ou techniques [5] . (Emphasis added.) Neighbourhood disturbances and civil liability [ 11 ] In cases involving neighbours, two legal regimes can be applied to resolve damaging situations: delictual civil liability, and liability for neighbourhood disturbances. [ 12 ] A neighbour may therefore resort to the general principles of civil liability and

article 1457 of the Civil Code of Québec ( C.C.Q. ),

which provides that a person must not harm another. [ 13 ] To determine whether or not a fault has been committed, the conduct of the alleged wrongdoer must be analyzed in comparison with that of a reasonable person placed in the same circumstances. [ 14 ]

Article 1457 C.C.Q. reads as follows: 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. (Emphasis added.) [ 15 ] It should be noted, however, that the law of civil liability does not require perfection or the absence of error. In its recent judgment in Speiser c. P.G. du Canada , the Court of Appeal confirmed as much, writing: [6] [459] La loi impose à chacun le devoir de prendre des précautions raisonnables de manière à éviter de causer préjudice à autrui.

Cette règle n’oblige personne à prévenir la survenance de tous les accidents possibles. Des incidents malheureux peuvent se produire sans que quiconque puisse être tenu responsable (…). (Emphasis added.) [ 16 ] Aside from the general civil liability regime, a neighbour’s liability can also be incurred under

article 976 C.C.Q. in cases of neighbourhood disturbances. To obtain a remedy, an abnormal annoyance must be proved. [ 17 ]

Article 976 C.C.Q. reads as follows: 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 usage. [ 18 ] Several criteria have been developed in the case law to guide judges when determining whether a neighbourhood disturbance has occurred. In Boulet c.

Delano Immobilier inc ., Éric Dufour J. summarized them as follows: [16] Voici les grandes lignes de ce régime de notre droit civil : − les dommages que le demandeur réclame doivent résulter de l’exercice du droit de propriété de son voisin; − le propriétaire devient responsable de plein droit, sans qu’il y ait faute, dès que l’utilisation de son droit a pour effet de causer à autrui un préjudice qui dépasse les inconvénients normaux que chacun est tenu de subir; − cette forme de responsabilité établit un juste équilibre entre les droits des propriétaires ou occupants de fonds voisins; − la mesure applicable est le caractère anormal et excessif des inconvénients; − les inconvénients normaux du voisinage ne doivent pas être déterminés dans l’abstrait, mais plutôt en tenant compte de l’environnement dans lequel un abus du droit de propriété se serait matérialisé.

Les limites de la tolérance que se doivent les voisins seront tracées « suivant la nature ou la situation de leurs fonds , ou suivant les usages locaux »; − le niveau de gravité requis pour satisfaire le test est élevé : le trouble doit être insupportable ; il ne peut s’agir d’un simple inconvénient ; − les circonstances doivent faire voir une certaine gravité , pas seul ement la privation d’un avantage ; − si des dommages en découlent, c’est-à-dire s’il existe un lien de causalité entre eux et le fait reproché, la seule défense possible sera de démontrer la normalité du trouble et son caractère raisonnable. (Emphasis added.) [ 19 ] Now that these basic principles are established, how do they apply here? [ 20 ] In June 2018, Ms.

Mackera purchased the property neighbouring Ms. Tourigny’s, a semi-detached duplex. [ 21 ] At the time, the dividing fence belonging to Ms. Tourigny was in poor condition and her land was strewn with construction wood, various objects, and firewood. In addition, Ms. Tourigny’s pool contained dirty and stagnant water because it was not in use. [7] [ 22 ] For Ms. Mackera, the state of the premises was unacceptable and constituted a nuisance. [ 23 ] The relationship between the neighbours quickly became tense. [ 24 ] In July 2019, Ms.

Mackera was contending with carpenter ants and hired a specialized company to exterminate them.

[ 25 ] The exterminator noted on its invoice that there was a cord of firewood on Ms. Tourigny’s lot, near the fence dividing the properties. Based on this fact, Ms. Mackera concluded that Ms. Tourigny was responsible for the problem. [8] She sent Ms. Tourigny a demand letter seeking reimbursement of the amount of the ant extermination invoice. [9] [ 26 ] Ms. Tourigny was convinced that she was not responsible for the problem. She refused to pay Ms. Mackera’s invoice and hired a firm of experts to inspect her lot and house. [ 27 ] The expert Ms.

Tourigny hired found no signs of an infestation and concluded that she was not the cause of Ms. Mackera’s problem. As a precaution, however, he recommended that she get rid of the damp wood on her lot. [10] Ms. Tourigny also paid for a preventive chemical treatment of the wood on her lot. [11] [ 28 ] Ms. Tourigny admits that her lot was somewhat neglected, but she testified that Ms. Mackera is exaggerating the facts. [ 29 ] She explained her situation by describing a series of painful events, resulting in a domino effect that disrupted her life and plans.

The deaths of her mother and father as well as the COVID-19 pandemic so consumed her that she could not maintain her house or her lot any better. [ 30 ] It should be noted that since then, Ms. Tourigny’s fence has been replaced, the cord of wood removed, and the pool restored. [ 31 ] Has Ms. Mackera met her burden of establishing that the cause of the infestation can be attributed to Ms. Tourigny? [ 32 ] The answer must be no. Taking into account the contradictory evidence and the detailed report from the expert hired by Ms. Tourigny, Ms. Mackera’s evidence is insufficient. [ 33 ] Moreover, even if Ms.

Mackera had proved that the cause of her ant problem originated from Ms. Tourigny’s lot, it cannot be characterized as a neighbourhood disturbance. Although the state of Ms. Tourigny’s lot may have been bothersome to Ms. Mackera for a certain period of time, the situation does not involve a degree of seriousness sufficient to make it intolerable. [ 34 ] Ms. Tourigny should not be held liable for the reimbursement the amount of the ant extermination invoice claimed by Ms. Mackera. Abuse of right [ 35 ] Ms. Tourigny submits that she is the victim of an abusive neighbour who makes her life miserable.

She cites the action Ms. Mackera brought against her as an example of this. [ 36 ] However, even though Ms. Mackera’s action is unfounded, it is still understandable that she complained about the lack of maintenance of Ms. Tourigny’s pool for two consecutive summers and of the generally poor state of her lot in 2018 and 2019. [ 37 ] It should be noted that a Ville de Montréal inspector issued some statements of offence to Ms.

Tourigny in July 2019, warning her not to let the water in her pool become stagnant and to pick up the dead or rotten wood on her lot. [12] [ 38 ] Consequently, the Court cannot find either that Ms. Mackera was abused or that she committed a fault. [ 39 ] Ms. Mackera had the right to express her dissatisfaction, and there is nothing to indicate that she transgressed the bounds of normal conduct in society. The fact that she is not entitled to the reimbursement of her ant extermination invoice changes nothing. [ 40 ] It appears that Ms. Mackera and Ms.

Tourigny have incompatible personalities and that they often lost their tempers with each other. Nevertheless, the Court does not find any abuse by Ms. Mackera. [ 41 ] Therefore, Ms. Tourigny’s claim must also be dismissed. FOR THESE REASONS, THE COURT: DISMISSES Sandra Mackera’s claim; THE WHOLE with legal costs of $103, representing the cost of the law stamp paid by Ms. Tourigny for her contestation. DISMISSES Christine Tourigny’s cross-application ; THE WHOLE, without legal costs.

__________________________________ NATHALIE CHALIFOUR, J.C.Q. Date of hearing: April 11, 2022