2014 QCCQ 3710, 2014 QCCQ 3710

Thomas c. Colas 2014 QCCQ 3710 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL LOCALITY OF GATINEAU Civil Division No. 550-32-020949-134 DATE: April 30, 2014 _____________________________________________________________________ PRESENT: THE HONOURABLE JEAN FAULLEM J.C.Q. _____________________________________________________________________ LAURA THOMAS Plaintiff v.

RÉGINE COLAS Defendant _____________________________________________________________________ JUDGMENT _____________________________________________________________________ [ 1 ] Laura Thomas is claiming $1000 from her neighbour Régine Colas for the reimbursement of half the cost of the materials purchased to build a common fence. [ 2 ] Further to a first hearing that took place in the absence of Ms. Colas, Patsy Bouthillette J.C.Q. rendered a judgment on January 23, 2014, condemning Ms. Colas to pay Ms. Thomas $841.56 with interest at the legal rate, plus the additional indemnity provided for in

article 1619 of the Civil Code of Québec , as of March 12, 2013; the whole with court costs set at $105. [ 3 ] On January 20, 2014, Ms. Colas filed an application for revocation of the judgment, application which I received on January 28, 2014. [ 4 ] Ms. Colas contests the principal demand, alleging that she never consented to the construction of the common fence. I- QUESTIONS IN DISPUTE [ 5 ] The questions in dispute are: As regards the application for revocation of the judgment A. Are the grounds invoked by Ms.

Colas to explain her absence from the January 20, 2014 hearing sufficient to justify the revocation of the January 23, 2014 judgment? As regards the principal demand B. Did Ms. Colas consent to the construction of the common wall? II- CONTEXT AND ANALYSIS As regards the application for revocation of the judgment A. Sufficiency of the grounds for revocation [ 6 ] In support of her request for revocation of the judgment, Ms.

Colas alleges that she was at the Gatineau courthouse on January 20, 2014, as of 8:55 a.m. [ 7 ] The letter to appear that she received from the office of the Court of Québec, Small Claims Division, indicated that the hearing

was to take place in Room 12 at 9:15 a.m. Room 12 is located on the third floor of the courthouse, but the hearing of the case took place in another room located on the second floor. [ 8 ] Ms. Colas waited in front of Room 12 until 11:40 a.m. She then questioned a security guard, who informed her of the change of room. [ 9 ] There was no indication of the change of room posted at the entrance of Room 12 or any other place in that area of the building. [ 10 ] Ms. Colas did not hear her name when she was called on the intercom. [ 11 ] At 11:40 a.m., the hearing of the case was over. Ms. Colas immediately proceeded to file her application for revocation. [ 12 ]

Article 989 of the Code of Civil Procedure ( C.C.P. ) provides that a party against whom a judgment by default is rendered may apply for the revocation of the judgment if there is sufficient cause. [ 13 ] The jurisprudence recognizes that the Court, sitting in the Small Claims Division of the Court of Québec, exercises broad discretion in determining the sufficiency of grounds to support an application for the revocation of a judgment. That discretion must further access to justice. [1] [ 14 ] In the circumstances, the Court finds the grounds invoked by Ms.

Colas to explain her absence from the hearing on January 20, 2014 sufficient. In addition, her written contestation demonstrates her serious intention to contest the application. As regards the principal demand B. Consent of Ms. Colas to the construction of the common wall [ 15 ] The January 23, 2014 judgment rendered by Patsy Bouthillette J.C.Q. confirmed the state of the law pertaining to a claim for the construction of a common fence, as provided for under

article 1002 of the Civil Code of Québec . [ 16 ] To compel a neighbour to pay his or her share of the cost of a common fence, the party must first obtain that neighbour's consent or, failing that, obtain authorization from the Court to carry out the work without the neighbour's consent. [ 17 ] In this case, in the fall of 2009, the parties discussed the possibility of building a common fence between the two properties. Although at that time Ms.

Colas agreed on the principle of building a fence, no agreement was reached, as the parties did not discuss the type of fence to be built or the cost. [ 18 ] Construction of the fence began only in the summer of 2011, i.e. almost two years after the above-mentioned discussion. [ 19 ] In addition, Ms. Thomas acknowledged in her April 5, 2012 letter, which was given directly to Ms. Colas, that there was no agreement between them regarding the construction of the fence. [ 20 ] In her letter, Ms.

Thomas said the following: "I had intended to ask you if you would pitch in half the cost of the materials when we started last summer but never got around to it". [ 21 ] Although she noted the construction of the fence, Ms. Colas did not oppose it, as she believed that the fence was built on the exclusive property of her neighbour, and not on the property line separating the two lots. [ 22 ] Ms. Thomas argued that construction of the fence was urgent, as she operates a daycare and Ms.

Colas owns a pit bull terrier. [ 23 ] For the exception of urgency in carrying out the work of building the fence to be raised, a prior formal notice must be sent mentioning the urgency. In that case, if there is urgency, the party can begin the work before obtaining the Court's authorization. [ 24 ] In this case, no written formal notice was sent to Ms.

Colas before the work began. [ 25 ] THEREFORE, THE COURT: [ 26 ] REVOKES the judgment rendered on January 23, 2014 by Patsy Bouthillette J.C.Q.; [ 27 ] DISMISSES the claim; [ 28 ] CONDEMNS Laura Thomas to pay Régine Colas the court costs for the contestation, set at $93.75. _________________________________ JEAN FAULLEM J.C.Q. Date of hearing: March 21, 2014