2012 QCCQ 5429, 2012 QCCQ 5429

Ciampini D'Addio c. Montreal (City of) 2012 QCCQ 5429 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-161651-099 DATE: June 29, 2012 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ FRANCA CIAMPINI D'ADDIO Plaintiff v.

CITY OF MONTREAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In her "amended motion for damages", plaintiff states, inter alia : "1) On February 4th 2009, a city waterline busted and flooded the basement at 5289 Prince of Wales in Montreal, Qc belonging to Plaintiff;" and "3) At the time of the waterline failure, the waterline was under the care and ownership of the Defendant, and the water flooding caused severe prejudice and damages to Plaintiff and her home, thereby establishing direct responsibility of Defendant;" [ 2 ] Plaintiff is seeking the following damages : A) $20,000.00 for "goods lost and not indemnified by the insurance policies"; B) $5,000.00 for "the loss of Personal items (photos, Postcards, Gifts, etc), with little economic value"; C) $10,000.00 for "inconvenience"; D) $10,000.00 for "moral damages"; E) $10,000.00 for "the unjustified Impoverishment and extra Outlays, time lost of Plaintiff (interest, extra outlays…, etc) and her immediate family living with her"; and F) $15,000.00 for "the Decrease in the value of her house". [ 3 ] It is defendant's contention that there is no causal link between the alleged faults and damages, and that plaintiff did not meet her burden of proof with regards thereto.

DISCUSSION [ 4 ] It is undeniable that plaintiff's property was damaged by defendant's broken water main. The question is : to what extent? [ 5 ] Plaintiff, who had the burden of proof ( ss. 2803 and 2804 Civil Code of Quebec ), failed to prove the entirety of the alleged damages by a preponderance of evidence.

A) "Goods lost and not indemnified" [ 6 ] In par. 12 of her amended introductory motion, plaintiff states : "12) Plaintiff has received around $108,000 from the Co-Defendant, INTACT Assurance, but this amount excludes compensation for lost automotive parts and cosmetic products belonging to Plaintiff's daughters Daniela and Tina as well as brother Pasquale and stored in

Plaintiff's house at time of the flood; These items were not considered as covered by the Insurance Company as per Plaintiff's policies;" [ 7 ] This allegation, which constitutes an unrevoked legal admission (ss. 2850 and 2852 C.C.Q.), establishes that plaintiff did not have sufficient interest to bring an action with regards to said property, as it did not belong to her (s. 55 Code of Civil Procedure). [1]

B) Personal items [ 8 ] At trial, plaintiff failed to testify in this regard. [ 9 ] Plaintiff's daughter, Daniella D'Addio, who lives with plaintiff, testified about some personal effects which were lost in the flood, such as pictures, "certificates", a "diploma", tax forms and a nativity scene built by her father; but, again, there was no preponderant evidence as to plaintiff's interest in these belongings or the value thereof.

C) Inconvenience and

D) Moral damages [ 10 ] The above categories of damages are one and the same. [2] [ 11 ] Plaintiff credibly described the real fear and panic which she felt when the flooding occurred in her home. [ 12 ] She was "hysterical" no less, and went so far as to fear that her daughter, who was in the basement, might drown. [ 13 ] She also described the stress and inconvenience which she suffered in the days and weeks following the flood. [ 14 ] Although plaintiff did not produce any medical evidence and withdrew her claim relating to any physical harm, there is sufficient evidence to award plaintiff compensation in the amount of $5,000,00, for the stress, trouble and inconvenience which she did indeed suffer as a direct result of the flood.

E) Unjustified impoverishment [ 15 ] This part of plaintiff's claim is unintelligible, both in theory and in fact, and cannot be allowed. [ 16 ] As stated above, plaintiff had no right to bring an action in relation to property which did not belong to her. Plaintiff's lawyer argued that the Court should rule in plaintiff's favor, based on "intermingled assets", "common joint accounts" and "equity". The Court does not agree. These arguments are unfounded in law.

F) Decrease in value of home [ 17 ] Plaintiff offered no concrete evidence of any such decrease. [ 18 ] Real estate agent Bruno Carrier made sweeping statements about property devaluation following a flood, but had nothing to say about plaintiff's home specifically. In fact, he never saw the home and didn't know where it was located.

CONCLUSION [ 19 ] In conclusion, it seems that the impetus for this suit was a desire to recuperate whatever plaintiff's insurance company did not cover. [ 20 ] However, defendant is not plaintiff's insurer, nor should it be treated as such. [ 21 ] Plaintiff is nonetheless entitled to compensation in the amount of $5,000.00 for the stress, trouble and inconvenience which she suffered as a result of the flood. [ 22 ] However, plaintiff is not entitled to any interest or the legal indemnity for the period from November 11, 2011 and May 4, 2012, nor any costs for the third day of hearing, as its reopening was due entirely to plaintiff's lawyer's unpreparedness.

WHEREFORE THE COURT HEREBY: GRANTS plaintiff's introductory motion, in part; CONDEMNS defendant to pay plaintiff the sum of $5,000.00, plus the legal interest and legal indemnity provided for in s. 1619 C.C.Q., from the date of the service of the introductory motion, save and except for the period from November 11, 2011 to May 4, 2012; THE WHOLE WITH COSTS , save and except for the costs relating to the hearing of May 4, 2012. __________________________________ ELIANA MARENGO, J.C.Q.

Me André Ewert Lawyer for Plaintiff Me Hugo Filiatrault Charest Gagnier Biron Dagenais Lawyers for Defendant Dates of hearing : November 10 and 11, 2011 and May 4, 2012