2011 QCCA 1162, 2011 QCCA 1162

Konarski c. Gornitsky 2011 QCCA 1162 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020741-104 (500-17-037099-077) DATE: June 14, 2011 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. MAREK KONARSKI APPELLANT - Defendant v.

BRUCE GORNITSKY, JOY ETCOVITCH RESPONDENTS - Plaintiffs JUDGMENT [ 1 ] The judgment of the Superior Court, against which an appeal has been taken, ordered the appellant to cut down 18 spruce trees he planted several years ago on the boundary line separating the appellant's property from that of the respondents, and condemned him to pay them $5,000 as damages for various types of inconvenience these trees cause them. [ 2 ] The trial judge determined as a fact that needles from these trees are found in abundance in the swimming pool installed on the respondents' property, as well as elsewhere on the property.

She also concluded that the height and width of these trees cast a significant shadow on the respondents' land, in addition to producing undesirable aesthetic effects for them.

According to the judge, these effects go beyond the limit of tolerance that each neighbour owe to each other. [ 3 ] The trial judge properly found as a matter of law that the appellant's acquittal for having allegedly violated a municipal by- law relating to the height of his trees [1] did not bind the Superior Court when called upon to adjudicate a civil dispute between the parties [2] . [ 4 ] That being said, the appellant elected to reproduce in appeal only on a selective portion of the evidence adduced at trial.

As a result, the Court cannot assess his submissions relating to the trial judge's supposed errors in her appreciation of the evidence [3] . [ 5 ] The appellant invites this Court to reassess the trial judge's findings of fact, to base himself on the selective presentation of the evidence in his factum and to take as therefore proven the view he takes of that evidence. In the absence of an overriding and palpable error, it is not open to this Court to interfere with the trial judge's findings of fact.

This principle, often repeated, was stated by the Court in Regroupement des CHSLD Christ-Roy [4] as follows: [55] […] Une erreur dans la détermination d’un fait litigieux n’est manifeste que si son caractère évident ou flagrant se dégage avec netteté du ré-examen de la

partie pertinente de la preuve et qu’une conclusion différente sur ce fait litigieux s’impose dès lors à l’esprit. Une erreur n’est déterminante que si elle prive le jugement entrepris d’une assise nécessaire en fait, faussant ainsi le dispositif de la décision rendue en première instance et commandant réformation de ce dispositif pour cette raison […]. [ 6 ] The appellant has not shown that the judgment of the Superior Court is affected by the type of error that would justify this Court's intervention.

Moreover, he has failed to demonstrate any error of principle that would undermine the trial judge's assessment of the damages caused to the respondents. The appeal therefore fails. FOR THESE REASONS, THE COURT : [ 7 ] DISMISSES the appeal, with costs. FRANÇOIS PELLETIER, J.A.

ALLAN R. HILTON, J.A. GUY GAGNON, J.A. Mr. Marek Konarski In person Mtres Gary Rosen and Lawrence Witt HEENAN BLAIKIE For the respondents Date of hearing: May 31, 2011