2024 QCCQ 57, 2024 QCCQ 57

Clarke c. Kadhim 2024 QCCQ 57 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY “Civil Division” No.: 555-32-700091-230 DATE: January 9 th , 2024 ______________________________________________________________________ PRESIDED BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ LLOYD CLARKE Plaintiff v.

LAITH KADHIM and MARC VIGNEAULT Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Lloyd Clarke claims an amount, in capital, of 15 000$, from his neighbour (Mr. Laith Kadhim) and from said neighbor’s handyman (Mr. Marc Vigneault) for unauthorized work and tree cutting on his property. [ 2 ] The Defendants contest that they proceeded to any type of tree cutting on Mr. Clarke’s property. [ 3 ] A

summary of the chronology of events is hereby necessary. RELEVANT CHRONOLOGY OF EVENTS [ 4 ] Mr. Clarke is the owner, since December 2016, of a property located at [...] in Waltham (Lot [...]). He is present on the premises for a couple of weeks each year, his main residence being in Guelph, Ontario. [ 5 ] The lot in question, which includes a cottage, benefits from direct access to the Ottawa River (115 meters of frontage ) and is situated at roughly 400 meters from Highway 148. [ 6 ] Mr. Clarke explains that he was interested in such a property notably because of its large

section of wilderness area. The wooden area of the lot represented, in 2016, approximately 2/3 of the total area of the property. [ 7 ] Mr. Clarke proceeds, in the following months [1] , to retrieve the wood of various dead trees located on the property [2] . [ 8 ] Mr. Clarke meets the Defendant, Mr. Laith Kadhim, for the first time in the Spring of 2017. [ 9 ] Mr. Kadhim is the owner of adjacent properties, notably Lot [...]. He is also the owner of a cottage which is located in the vicinity of Mr. Clarke’s own cottage. [ 10 ] Mr.

Clarke realizes, in December 2017, upon his return to the cottage, that some work had been done on his property. He sees the presence of a bulldozer and of some filling materials. The area of the work is quite important and Mr. Clarke states that he was quite surprised by the situation. [ 11 ] Mr. Clarke quickly informs Mr. Kadhim, who in return, notably provides the following answer, by email, on January 2 nd , 2018 [3] : I have no choice but to do it until we identify the boundary, and any thing I did on your land that I spend on it from my pocket, consider it as a gift.

I been planning to fix this land from the beginning, and I made sure to clean up the entrance for your cottage and raise the street in the back (…) [ 12 ] Mr. Clarke decides to brush aside any willingness to formulate some kind of complaint against Mr. Kadhim regarding such work. It is to be noted that his Claim does not relate to damages that would have been suffered in 2017.

[ 13 ] Mr. Clarke’s email on January 2 nd , 2018, does state the following: Can I ask that any further work there is temporarily put on hold until we can confirm the boundaries? (…) [ 14 ] In the summer of 2020, Mr. Clarke is informed by Mr. Kadhim that he wishes to build a pathway on his laneway down to the nearby lagoon. [ 15 ] Mr. Clarke does confirm to Mr. Kadhim that he does not have any difficulty regarding the proposed work, considering that such was to be realized solely on Mr. Kadhim’s lot and on “his side” of the property line. [ 16 ] Mr.

Clarke states, in his testimony, that things began to unravel on February 15 th , 2021. He states that he hears a tractor located on his property as well as a pick-up vehicle. [ 17 ] Intrigued by such, he realizes that co-defendant Mr. Marc Vigneault is present. [ 18 ] Mr. Clarke knows Mr. Vigneault, who lives about 100 meters from his lot, on the other side of the river. He knows him to be Mr. Kadhim’s handyman [4] , who does various work including maintaining the property, cutting the grass and so on and so forth. Mr.

Vigneault confirms, at trial, that he did cut trees when he was younger, adding that he still owns a “little” chainsaw. [ 19 ] Mr. Vigneault is a carpenter by trade. He testifies at trial that Mr. Kadhim is a good friend of his. He also states, during his testimony, that he has the mandate to inform Mr. Kadhim – who is only on the premises a couple of times during the year - in the eventuality of any difficulty on his property. [ 20 ] Indeed, all the parties concede that Mr. Vigneault’s property is located nearby. “You could hear somebody shout from one land to the other” states Mr. Kadhim. [ 21 ] Mr.

Clarke establishes, on a plan provided by forestry engineer Pascal Audet, the location of Mr. Vigneault on February 15 th , 2021. It appears indeed that Mr. Vigneault is located at such time in a

section that is clearly situated inside Mr. Clarke’s property line. Three photos [5] confirming the presence of Mr. Vigneault on the premises are produced. [ 22 ] It is established that Mr. Vigneault is present with a man named Richard Pilon. [ 23 ] Mr. Clarke testifies that Mr. Vigneault mentions to him that he is there in order to “cut the wood” to clear the pathway to the river. [ 24 ] Mr. Clarke confirms to Mr. Vigneault that he is the owner of the property, that he has a land survey showing such, and that he does not authorize any tree cutting on his property. [ 25 ] It appears that Mr.

Vigneault becomes angry and decides to leave the premises and mentions that he will talk to Mr. Kadhim. [ 26 ] Mr. Vigneault, at trial, does confirm his presence at such time on Mr. Clarke’s property, stating that he was only there in order, as per Mr. Kadhim’s demands, to “verify the pin locations on the property”. [ 27 ] Mr. Vigneault informs Mr. Kadhim of the situation, who in turn sends an email to Mr.

Clarke on February 15 th , 2021 [6] , which reads as follows: I hope everything is good for you and the family, I just got a call from the guy I hired to clean the third land up to the lagoon , that you kicked him out, and you told him that you own the property, please if you have any issues call me first, and if you think he is working on your property show him the boarders of your property , and let him work in the rest of the land, again call me if you have any issues regard[ing] the land, I have all the plans and the papers that showing what every one owe , and in the end I am paying for all the cleaning of the land, so you should be glad even if it is yours. [The Court’s emphasis] [ 28 ] Mr.

Vigneault states that he did not know, at such time, that he was actually on Mr. Clarke’s property, adding that he thought that he was still on Mr. Kadhim’s property. [ 29 ] It is to be noted that Mr. Vigneault was very clearly – and was located very deeply – on Mr. Clarke’s side of the property line during such discussion in mid-February 2021. [ 30 ] Mr. Clarke informs Mr. Kadhim that he does not want any work to be done on his property without first establishing – very precisely – the property line through the work of a land surveyor. He sends an email in late February 2021 to inform Mr.

Kadhim about the steps taken to mandate a land surveyor. The latter confirms that he would like to attend. [ 31 ] Mr. Clarke informs Mr. Kadhim, on May 24 th , 2021, that the land surveyor will be present on August 3 rd , 2021. [ 32 ] However, Mr. Clarke, upon his return on the property, quickly notices, on or around May 29 th , 2021, that extensive tree cutting has happened since his last presence on the premises. [ 33 ] “It was substantial”, states Mr. Clarke.

As we will see in further detail hereinafter, the forestry engineer specifies that “ Ten trees and around 200 shrubs have been cut in the woodcut area. ” [ 34 ] Said cut appeared to have been “freshly” and recently made.

[ 35 ] Furthermore, Mr. Clarke testifies that he notices, once again, Mr. Vigneault’s presence on his property on May 29 th , 2021. He produces a photo [7] showing Mr. Vigneault’s truck located on his property. [ 36 ] Mr. Clarke consequently decides to call the police officers [8] and writes down a complaint. The police officers decide to consider the file as being a “civil” file. [ 37 ] Two days later, both Mr. Kadhim and Mr. Vigneault came back on the premises to discuss about the situation with Mr. Clarke. Everybody acknowledges that the cutting of the trees was made on Mr.

Clarke’s property. [ 38 ] However, Mr. Clarke does indicate, during his testimony, that Mr. Kadhim did not specifically concede, during that meeting, that he mandated Mr. Vigneault to proceed to such tree cutting. [ 39 ] However, Mr. Clarke states that “everything pointed out to the fact that they did”, Mr. Kadhim stating to him that he wanted “to see the river” when he was walking around in that portion of the lots. [ 40 ] Mr. Clarke also testifies to the effect that Mr. Kadhim then mentions to him that “he should be happy and that it improved [his] part of the land”. [ 41 ] Mr. Clarke adds that Mr.

Vigneault then stated to him that “you would not have been able to take it out yourself”. [ 42 ] Mr. Clarke concedes that he was furious about the situation. “The natural wilderness was devastated”, he adds. [ 43 ] Considering that the land surveyor was only to be present approximately 2 months afterward, the parties agree – for the time being – to roughly evaluate the precise location of the property line, adding a safe zone of approximately 15 feet to avoid any potential trespassing on Mr. Clarke’s property. [ 44 ] Mr. Clarke easily concedes that Mr.

Kadhim did honor that undertaking starting in late May 2021. [ 45 ] Such “buffer zone” was rendered necessary, as explained by Mr. Clarke, because of Mr. Kadhim’s renewed willingness to proceed to some clearing work on his side of the property line. [ 46 ] Indeed, Mr. Clarke confirms that Mr.

Kadhim did proceed to such work on his side of the property line. “He continued to clear out his side up to the edge of his property”, he adds, such information is confirmed in the forestry engineer’s report which notably states, on page 4: It is obvious that he did the same thinning on his own property [9] . [ 47 ] The land survey is eventually done in August 2021. The evidence clearly demonstrates that the tree cutting done between February and May 2021 was extensively located on Mr. Clarke’s property. [ 48 ] Letters of demand are sent, in December 2022, both to Mr. Kadhim and Mr. Vigneault.

Those letters, sent by Mr. Clarke’s attorney, request the payment of various damages. [ 49 ] It is established that no answer was sent, at that time, by any of the Defendants. [ 50 ] Mr. Clarke, during his testimony, does confirm the precise details of his claim against the Defendants:

a) For the value of the wood that was taken from the property: 635,05$;

b) For the costs rendered necessary for the reforestation of the property: 5 250$;

c) For all the trouble and stress: 2 000$;

d) For the loss of use and for the loss of intimacy and privacy on the property: 3 000$;

e) For punitive damages: 2 102,89$. [ 51 ] Mr. Clarke confirms that he also claims – but only from Mr. Kadhim – the cost associated with the land survey (2 012,06$) [10] , arguing that this expense was a direct reaction to Mr. Kadhim’s decisions and actions in the circumstances. [ 52 ] Mr. Clarke also claims various court/legal costs [11] from the Defendants, more precisely:

a) For the costs of the forestry engineer’s report: 2 768,50$ [12] ;

b) For the bailiff’s costs associated with serving the letter of demand [13] to Mr. Kadhim: 151,71$ [14] ;

c) For the bailiff’s costs associated with serving the letter of demand [15] to Mr. Vigneault: 358,26$ [16] ;

d) For the costs associated with photocopies rendered necessary for the Court procedures: 26,08$ [17] . ANALYSIS [ 53 ] The evidence provided by Mr. Clarke, to successfully support the Claim, must qualify as being preponderant [18] . [ 54 ] Evidence, to qualify as being preponderant, must be clear and convincing [19] .

[ 55 ] In the current instance, there is no debate as to the specific location of the tree cutting. Nobody contests that the cut was indeed done on Mr. Clarke’s property. [ 56 ] Furthermore, there is no debate about the number of trees and/or the severity of such cuts. [ 57 ] Indeed, the debate is elsewhere, both Defendants denying to be in any way responsible for said tree cut on Mr. Clarke’s property. THE POTENTIAL LIABILITY OF THE DEFENDANTS [ 58 ]

Section 1457 of the Civil Code of Québec ( C.c.Q. ) establishes the potential extracontractual liability of individuals. It states: 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. (…) [ 59 ] The Court finds it relevant to also quote

section 976 C.c.Q. , regarding the potential liability of neighbors: 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. [ 60 ] The evidence, in the current instance, surely qualifies as being contradictory. That being said, contradictory evidence can still qualify as being preponderant. [ 61 ] The Court will analyze if that is the case here. [ 62 ] Mr. Kadhim states that he never cut down a tree in his life and that he never asked Mr.

Vigneault to proceed with any tree- cutting. [ 63 ] Mr. Vigneault, in a consequent testimony, states that he was never asked to cut any trees in the vicinity of Mr. Clarke’s property. He adds that he was present on Mr. Clarke’s lot in February 2021, as we have seen, only “to check out and find the property pins”, the whole at Mr. Kadhim’s request. [ 64 ] It is obvious that the parties’ testimonies cannot be reconciled. Indeed, those two versions are totally distinct and contradictory. The versions offered rarely intersect with one and the other. [ 65 ]

Section 2845 of the Civil Code of Québec states that the probative force of testimony is left to the appraisal of the court. [ 66 ] Mr. Clarke’s testimony was credible. It was presented in a precise, calm, solid, nuanced and poised way. His testimony appeared to be reliable. It was convincing. [ 67 ] The chronology presented by Mr. Clarke appeared to be very open and transparent. [ 68 ] On the opposite side of the spectrum: Mr. Vigneault’s testimony. [ 69 ] To say that Mr. Vigneault appeared uncomfortable about this situation during his testimony would be a serious understatement.

He states, in the first few seconds of his testimony that he believes that he is “caught in the middle of a chicane between the other two parties”. [ 70 ] He also states that “Il se fait toujours avoir ». [ 71 ] Everything in Mr. Vigneault’s non-verbal actions and reactions during his testimony invites the Court to be cautious about the potential truthfulness of his testimony. [ 72 ] The content of Mr. Vigneault’s testimony cannot qualify as being credible nor reliable. And such, for many reasons. [ 73 ] First, it is important to remind that one of Mr.

Vigneault’s roles living about 100 meters from the other parties’ properties is to inform – as we have seen – Mr. Kadhim of any suspicious activities in the neighborhood. [ 74 ] After all, all parties agree that a person situated on Mr. Vigneault’s property could easily hear another person’s shout on the other side of the river, notably on Mr. Clarke or on Mr. Kadhim’s property. [ 75 ] However, even in the presence of such circumstances, it is established that Mr. Vigneault never contacts Mr.

Kadhim to inform him that extensive tree cutting is being done on the other side of the river. [ 76 ] It appears clearly from the evidence that Mr. Vigneault would have been aware of such important tree-cutting. However, he never informs Mr. Kadhim of anything in relation to such. [ 77 ] But why? That situation would seem to justify – at least – a phone call to Mr. Kadhim to verify the execution of such important work done using a very audible chainsaw for, at the very least, many hours. [ 78 ] This situation appears to be a good indication – amongst many others - that the tree cutting was made by Mr.

Vigneault himself, in conformity with the instructions received by Mr. Kadhim. Otherwise, Mr. Vigneault would have at least verified the identity of the

person doing such important work, close by, just on the other side of the river [20] . [ 79 ] The Court is of the opinion, in the light of all the circumstances, that the work done on Mr. Clarke’s property was done by Mr. Vigneault in conformity with Mr. Kadhim’s instructions. [ 80 ] The clear and convincing evidence puts Mr. Vigneault – directly on Mr. Clarke’s property – at least on two separate occasions, in February and in May 2021. [ 81 ] To explain his presence on Mr. Clarke’s lot in February, Mr. Vigneault specifically states that he had been asked by Mr.

Kadhim to verify the precise location of the pins. [ 82 ] That assertion cannot sustain any kind of analysis. [ 83 ] First and foremost, it would be surprising that the search for ground-level pins be realized in the middle of February. It is obvious that those pins would be difficult, if not impossible, to find because of the snow. [ 84 ] That is indeed confirmed – indirectly – through Mr. Kadhim’s testimony which clearly mentions that he asked Mr.

Vigneault – in May 2021 – to go have a look in order to find those property pins. [ 85 ] If that was indeed the case – and it appears very logical that the search for property pins be performed in the Spring – how can Mr. Vigneault’s presence on Mr. Clarke’s property be explained in February? [ 86 ] Simply said: it cannot be explained. Or at least not the way Mr. Vigneault is proposing. [ 87 ] It thus appears that Mr. Kadhim and Mr. Vigneault’s testimony contradict one and the other on an important element. [ 88 ] This situation clearly demonstrates that Mr.

Vigneault’s testimony is simply not truthful when it comes to his explanation as to why he was on Mr. Clarke’s property on or around February 15 th , 2021. [ 89 ] Indeed, Mr. Clarke explains, during his testimony, that the Defendants only mentionned to him that they “were looking for the pins” during that meeting, on the premises, in late May 2021 . [ 90 ] Mr. Clarke states, in a credible way, that Mr. Vigneault mentionned to him, in mid-February 2021, that he was there to cut wood. Nothing more, nothing less. [ 91 ] The Court believes Mr. Clarke’s testimony. [ 92 ] Furthermore, the email sent by Mr.

Kadhim, on February 15 th , as we have seen, does not refer to any searching of the pins. Mr. Kadhim does mention in such an email that he has all the “ plans and the papers that show what every one owes ”. [ 93 ] That email from Mr. Kadhim refers to “ the guy I hired to clean the third land up to the lagoon ”, thus arguing, furthermore, that he is the one paying for all the cleaning of the land”, adding that Mr. Clarke should be glad even if it is yours. [ 94 ] It is to be noted that this kind of response seems to be a recurrent theme in Mr. Kadhim’s answers to his neighbor.

Basically, he states – on various occasions – that Mr. Clarke should not complain of potential intrusions on his property since he is not “charging him” for such. [ 95 ] The content of this email does not support Mr. Vigneault’s testimony that he never was asked to do any tree cutting and that he was only on the premises to “check for the pins”. [ 96 ] Surely enough, Mr. Kadhim, at Trial, argues that there would have been no interest for him to do any of that tree cutting on Mr. Clarke’s property. “It’s far from my cottage”, adds Mr. Kadhim. [ 97 ] However, another email [21] from Mr.

Kadhim, dated September 10 th , 2021, notably states the following: I don’t know what mistake I have done, maybe you forget I own the third property which have 67 meters on the Ottawa river, which I paid money to buy it and I have planned to use it, all what I did I send someone to clear the bushes between the lands, and you called the police on him, and the police asked me to stop any cleaning till you do your survey, that when I realised what kind of neighbour I am dealing with (…) [The Court’s emphasis] [ 98 ] The wording used in that email is quite revealing. It shows that Mr.

Kadhim had an interest in “clearing” up the land in order to use that portion of his property having 67 meters of “frontage” on the Ottawa River. “I have planned to use it”, he writes. [ 99 ] That email shows that Mr. Kadhim had an interest in having the work done. It does confirm – again - that Mr. Vigneault was not only mandated to proceed to “property pin searching”, even though this is essentially the latter’s testimony in front of the Court. [ 100 ] The evidence does demonstrate, preponderantly and clearly, that Mr. Kadhim did ask Mr.

Vigneault to proceed with the necessary cleaning of the properties in order to be able to use those 67 meters of that valuable frontage on the Ottawa River. [ 101 ] Mr. Vigneault’s testimony is also surprising on another topic. [ 102 ] Indeed, Mr. Vigneault, at first, states to the Court that he does not know who could have proceeded to that tree cutting on Mr.

Clarke’s property. [ 103 ] However, only a couple of short minutes after, and even though Mr. Vigneault’s written Defence never even remotely refers to such a situation, he states, at the end of his testimony, that the tree cutting might have been done by a specific third party. [ 104 ] When asked by the Court to elaborate on such allegation, Mr. Vigneault states that another contractor was present on the premises, a man named “John Romane”. [ 105 ] Mr. Vigneault even considered it relevant to state to the Court that this Mr. Romane would be a “crooked” individual. “Il est croche”, he states in French.

He adds that Mr. Romane is in the business of “selling firewood” and that he owns a “ pépine ”. [ 106 ] “Everything is possible”, states Mr. Vigneault when asked, by the Court, if he is of the opinion that Mr. Romane proceeded to that tree cutting. [ 107 ] This element truly appeared from nowhere during the Trial. That assertion is not supported by any credible or probative evidence. [ 108 ] Mr. Clarke simply indicates that Mr. Romane has a snow plowing business. [ 109 ] “I asked him if he could take snow off the roof and he refused, stating that he does not want to get out of his snow truck”, adds Mr.

Clarke. [ 110 ] Mr. Clarke confirms that he pays half of Mr. Romane’s snow plowing invoices with Mr. Kadhim. [ 111 ] Mr. Kadhim does confirm such agreement, indicating that he only knows Mr. Romane as “the snowman” [22] . [ 112 ] Mr. Vigneault’s sudden allegation that Mr. Romane could be the one responsible for the tree cut is not retained by the Court. Such a mention is not likely to strengthen Mr. Vigneault’s credibility. [ 113 ] Indeed, the sudden “appearance” of Mr. Romane as a “suspect de convenance” is not convincing to say the least. [ 114 ] The Court also believes Mr. Clarke when he mentions that Mr.

Kadhim, upon his knowledge of the potential lawsuit against him, does specify to him that if he goes through with such claim that he will, himself, make complaints regarding the usage, by Mr. Clarke, of his property as an AIRBNB location. [ 115 ] However, it appears from Mr. Clarke’s testimony that he only rents his property a couple of weeks (2) per year. [ 116 ] Consequently, and in the light of all those circumstances, the Court concludes that both Defendant’s liability is to be retained. [ 117 ] Indeed, Mr. Kadhim’s liability is established both under sections 976 and 1457 C.c.Q. His decision to mandate Mr.

Vigneault to proceed to such work, knowing precisely Mr. Clarke’s opposition to such surely qualifies as a fault (1457 C.c.Q. ). It also qualifies as being a severe annoyance that definitely extends beyond the limit of tolerance that neighbors must reasonably grant to each other. (976 C.c.Q ) [ 118 ] Mr. Vigneault’s liability is also retained under

section 1457 C.c.Q. Indeed, he cannot plead any kind of ignorance of the relevant factual elements considering that Mr. Clarke had informed him, in mid-February 2021 – before the first tree was cut – that he was on his property and that he did not want any trees to be cut on such. [ 119 ] Mr. Vigneault’s acceptance to proceed to that tree cutting, nevertheless, ought to be qualified as a fault as per

section 1457 C.c.Q . [ 120 ] No probative evidence demonstrates – even remotely – that another neighbor could have had any interest in proceeding to such work on Mr. Clarke’s property. [ 121 ] Indeed, the Court is of the opinion that the presumptions in the case at bar are very serious, precise and concordant as per

section 2849 C.c.Q [23] . [ 122 ] That being said, the Court will consequently now turn its attention towards the various damages claimed by Mr. Clarke. - THE PREJUDICE SUFFERED BY MR. CLARKE [ 123 ] Sections 1607 and 1611 C.c.Q. do provide the general rules applicable to the evaluation of prejudice. Those sections read as follows: 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611.

The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and assessable is taken into account in awarding damages. [ 124 ] First and foremost, the Court will specify that the importance and scope – per se - of the tree cutting is not contradicted by the Defendants.

[ 125 ] Indeed, Mr. Kadhim does confirm that he did not know about the state of Mr. Clarke’s property when it was bought back in December 2016. [ 126 ] Furthermore, the forestry engineer’s report [24] is detailed and precise. [ 127 ] Mr. Clarke also produces a series of photos [25] that illustrate the specific identity of all the trees (stumps) that were cut in the process used by the Defendants. [ 128 ] The Court will evaluate the various portions of Mr. Clarke’s claim.

a) For the value of the wood that was taken from the property: 635,05$ [ 129 ] Mr. Pascal Audet’s report, as a forestry engineer [26] , states the following on that topic: 3.2 Woodcut area There are two kinds of damages present in the woodcut area. First, some trees have been cut and the wood has been taken away. Second, some of the dead trees on the ground have been cut in logs and the wood has been taken away. To evaluate the trees’ value, we consider that all this wood is firewood. The owner is doing his own firewood by himself in his free time.

Considering the small volume, we can take the owner as the operator. Therefore, his only cost will be gas and tools. His free time costs him no money. Consequently, the value of the firewood will be 65$/cord [27] . 3.2.1. Standing trees Ten trees and around 200 shrubs have been cut in the woodcut area. Based on their size, the wood value of the standing trees is 189,15$. 3.2.2. Dead trees The wood of seven dead trees has been taken away in the woodcut area. This wood could only be sold as firewood as it was dead.

Based on their size, the wood value of the dead trees is 445,90$. [ 130 ] The evidence provided preponderantly supports this portion of the claim. [ 131 ] No counter-expertise is produced by the Defendants. [ 132 ] Both Defendants are responsible for that amount. Their liability is solidary as per

section 1526 C.c.Q.

b) For the costs rendered necessary for the reforestation of the property: 5 250$ [ 133 ] Mr. Audet’s report describes the costs associated with such reforestation. He states: 3.4 Reforestation In order to regenerate the forest as it was before the cut, it will be necessary to plant some shrubs and trees. We should plant the same kind (species) and same number (225) of trees that have been cut. It costs around 25$ per seedling, putting the cost of reforestation at around 5 500$. We should plant red maple and silver maple to match the species that were there.

Seedlings should be around 1 meter high and in a 1 gallon pot. [ 134 ] Mr. Clarke reduces a portion of that claim in order to respect the maximum jurisdiction of the Small Claims Division of the Court of Québec [28] . [ 135 ] Again, the expert evidence is not contested nor contradicted per se by the Defendants. [ 136 ] The necessary reforestation of the area – and the costs that Mr.

Clarke will have to disburse - are the direct consequence of the Defendant’s actions. [ 137 ] That portion of the Claim is well-founded and will be granted. [ 138 ] Both Defendants are solidarily liable for that second portion of damages. [ 139 ] The Court will evaluate, at the same time, the next two counts of damages claimed by Mr. Clarke.

c) For all the trouble and stress: 2 000$;

d) For the loss of use and for the loss of intimacy and privacy on the property: 3 000$ [ 140 ] Mr. Clarke testifies as to the important stress and frustration that this entire situation has generated. He also mentions that he had to meet with the engineer, as well as with lawyers. He had to take some time off from work. He had to call the police officers because of the Defendant’s repetitive actions. [ 141 ] As for the loss of use, intimacy and privacy on the property, Mr.

Clarke testifies that one of the main reasons that he bought the property in December 2016 was to benefit from a calm environment, surrounded by wildlife. He refers to turkeys, ducks and foxes in particular which lived on the premises. [ 142 ] Those animals did not come back following the important tree-cutting on his property. “They are all gone”, adds Mr. Clarke.

[ 143 ] Mr. Clarke states that he had done everything in his power to maintain the wooden area of the lot in its natural state. The Defendant’s actions completely modified the situation. [ 144 ] Mr. Clarke adds that he can now see the bridge located nearby. He could not see it before the tree cutting but the important quantity of trees that were cut did create an unwanted visual path to the bridge. “I don’t have that visual obstruction as before”, he pleads. [ 145 ] Furthermore, Mr. Clarke states that he can now hear a lot more noise coming from the highway located nearby. [ 146 ] Forestry engineer Audet confirms such a situation in

section 3.5 of his report. [ 147 ] Mr. Kadhim, on the other hand, replies that it is not “any different” from the situation that existed prior to the trees being removed from Mr. Clarke’s lot. [ 148 ] All these elements are directly related to the Defendants’ faulty conduct. They could easily have been avoided if the Defendants had simply accepted to wait for the Surveyor’s report which was to be obtained in August 2021. [ 149 ] Those two counts of damages do intersect, at least partially, between themselves. [ 150 ] The Court must also keep in mind that said property is a secondary residence for Mr.

Clarke and that he was only sporadically present on the premises. [ 151 ] In the light of all the circumstances, the Court considers it reasonable to partially grant both counts. The Court grants a total of 2 500$ to Mr. Clarke for those counts of damages [29] . [ 152 ] Both defendants are responsible and liable solidarily for that portion of the damages.

e) For the costs relating to the land surveyor’s plan and certificate: 2 012,06$ [ 153 ] Land Surveyors Courchesne-Fortin A.G. inc refers, in their invoice, to the work executed on the premises. They indicate the following: Preliminary field survey and data computation, installation of five (5) survey markers on August 3 rd , 2021 and preparation of a staking certificate [30] on lot 6 072 168 of the cadastre of Québec. [ 154 ] Mr. Clarke confirms, during his testimony, that he is only seeking the reimbursement of that invoice from Mr. Kadhim, and not from Mr. Vigneault. [ 155 ] It appears that Mr.

Clarke had offered to Mr. Kadhim, at first, to share 50/50 the costs associated with the land surveyor. Mr. Kadhim refused considering that it did not relate – directly – to his own land known as the “third lot”. [ 156 ] Mr. Clarke submits to the Court that the mandate given to the Land Surveyor was in direct relation to the Defendant’s actions. [ 157 ] During the Trial, Mr.

Kadhim concedes that the surveyor’s certificate was also useful to him. [ 158 ] It is the Court’s opinion that the obtention of a surveyor’s certificate was certainly prompted by the Defendant’s actions, even though it also had an intrinsic value for Mr. Clarke – a value that would have existed even without the Defendant’s actions. [ 159 ] In those circumstances, the Court, being called upon to arbitrate the situation, establishes that Mr. Kadhim is liable for the reimbursement of 50% of that invoice from Courchesne Fortin’s firm. [ 160 ] Consequently, Mr.

Kadhim will be condemned to pay an amount of 1 006,03$. [ 161 ] Mr. Vigneault, as per Mr. Clarke’s testimony, will not be held liable of that portion of the damages granted by the Court.

f) For punitive damages: 2 102,89$ [ 162 ] The original claim indicated in the letter of demand referred to a higher amount for punitive damages. Indeed, Mr. Clarke’s attorney referred to a potential claim of 5 750$ which detailed as an amount of 75$ per tree (10 trees) and 25$ per shrub (times 200). [ 163 ]

Section 1621 C.c.Q. stipulates that punitive damages can only be granted by the Court when the law specifically provides for such. [ 164 ]

Section 1 of the Tree Protection Act [31] states – accordingly – as such: 1.

Notwithstanding any general or special law authorizing same, any person or any legal person constituted in Québec or elsewhere by any authority whatsoever, destroying or damaging, wholly or partly, a tree, sapling or shrub, or any underwood, anywhere other than in a forest under the management of the Minister of Natural Resources and Wildlife, without having obtained, upon petition therefor notified to the interested parties, the authorization of the Minister of Sustainable Development, Environment and Parks, unless a consent has been previously given by the owner of such tree, sapling, shrub or underwood, shall be bound to pay to the owner of such tree, sapling, shrub or underwood, in addition to actual damages, punitive damages in an amount not exceeding $200 for each such tree, sapling, shrub or underwood so wholly or partly destroyed or damaged. [ 165 ] The relevant jurisprudence has evaluated, on numerous occasions, the amounts that can be granted by the Courts in accordance with said Tree Protection Act .

[ 166 ] The Court of Appeal, in the case of Sylviculture et Exploitation J.M.J. inc v. Hill [32] , describes such reality in the following terms: [60] Une large discrétion est donc conférée au juge chargé de fixer l'indemnité punitive appropriée, ce que reflète d'ailleurs la jurisprudence de la Cour, qui révèle des montants de 1 $, 3,76 $, 20 $, 60 $ et 200 $ par arbre abattu ou détérioré. [61] D'autres exemples tirés de la jurisprudence de la Cour supérieure, recensés par la juge Rousseau-Houle dans l'arrêt Ouellette c.

Forgeot, font état de dommages-intérêts punitifs de 10 $, 20 $, 30 $ et 50 $. [ 167 ] The Courts have also determined that the discretion granted to the Court concerns the amount to be allocated, and not the actual granting of an amount. Indeed, the Tree Protection Act is clear. An amount of punitive damages must be granted whenever a tree or shrub is cut without the owner’s consent. [ 168 ] This is clearly the case here. [ 169 ] Justice Richard Landry, J.C.Q., in the Boucher v.

Merla [33] case, describes as follows the process used in establishing the appropriate quantification of the punitive damages: [37] Au sujet des dommages-intérêts punitifs, dans Séminaire de Québec c. Laplante, monsieur le juge Pronovost écrit ce qui suit: «[79] Lorsqu’il est accordé le maximum, on tient compte de l’insouciance, de la témérité et de la conduite répréhensive du contrevenant. Par contre, lorsqu’il n’y avait pas d’intention malicieuse et que le tout relevait tout simplement d’une conduite négligente, comme un débordement dans une ligne de division, la pénalité est moindre.

On nous indique également de tenir compte de la qualité et de la quantité d’arbres dans le calcul des dommages exemplaires. Finalement, on doit tenir compte de la capacité de payer du défendeur.» [38] De même, dans Laforge c. Boivin, monsieur le juge Barbe s’exprime ainsi: «Le caractère pénal de cette disposition est manifeste. La loi, d’une part, ne se préoccupe pas de savoir si la destruction de l’arbre est volontaire ou non. D’autre part, elle n’accorde de pouvoir discrétionnaire au juge que dans la fixation du montant à accorder mais non dans l’octroi lui-même.

Une destruction négligente oblige le responsable à payer des dommages compensatoires et dommages punitifs et impose à la Cour de prononcer la condamnation. Dans l’évaluation du montant, les tribunaux tiennent cependant compte du caractère malicieux ou intentionnel de l’acte, de l’insouciance manifeste à l’égard d’autrui, de l’existence ou non d’antécédents et de l’effet préventif que peut avoir la condamnation sur l’auteur du dommage (Lemay c. Poulin, [1992] R.R.A. 263 (C.S.) ; Grondin c. Debien, [1992] R.R.A. 47 (C.S.) ; Ouellette c. Forget, [1992] R.R.A. 940 (C.S.) ).

Les dommages punitifs s’ajoutent aux dommages compensatoires déjà accordés. Rappelons que les dommages punitifs sont destinés à marquer la réprobation devant une conduite de grande négligence ou qui démontre chez son auteur une intention de nuire ou de la mauvaise foi. Sur cette question, le Code civil du Québec de 1994 a pris soin d’encadrer cette institution en énumérant à l’

article 1621 les critères dont le juge doit tenir compte lorsqu’il les accorde.» [ 170 ] In the current instance, it appears from the evidence that the Defendants knew, before the cutting of the first tree, that Mr. Clarke specifically objected to any actions taken on his side of the property line. [ 171 ] Indeed, such specific refusal was mentioned to Mr. Vigneault in mid-February 2021. [ 172 ] Mr. Vigneault confirmed that he talked to Mr. Kadim in February. Mr. Kadhim’s email to Mr.

Clarke, dated February 15 th , 2021, confirms that chronology. [ 173 ] Consequently, it appears that both Defendants specifically knew what they were doing when the tree cutting occurs somewhere in the timeframe elapsing from February to May 2021. They knew – or ought to have known – that the trees were not located on Mr. Kadhim’s property. [ 174 ] In those circumstances, Mr.

Clarke’s claim for punitive damages appears to be particularly reasonable. [ 175 ] The facts in the case at bar certainly justify punitive damages of 75$ for each of those 10 trees. [ 176 ] The balance of the claim (1 352,89$) represents – in reality - an amount of 6,76$ for each of the 200 shrubs that were cut by Mr. Vigneault acting under the demands and guidance of Mr. Kadhim. [ 177 ] The facts easily justify such an amount of punitive damages of 6,76$ per shrub. [ 178 ] Consequently, that portion of the claim will be granted to Mr.

Clarke. [ 179 ] However, considering that a judgment granting punitive damages cannot be pronounced solidarily [34] against two Defendants, the Court specifies that the amount of 2 102,89$ will have to be paid as follows: - 1 051,45$ by Mr. Kadhim; - 1 051,44$ by Mr. Vigneault. - Legal costs [ 180 ] Mr. Clarke’s Claim requests from the Defendants the reimbursement of the legal costs that he had to incur.

[ 181 ] Indeed, Mr. Clarke claims for the expertise costs of Mr. Audet (2 768,50$), for the bailiff’s costs for serving the two letters of demand as well as for the disbursements related to photocopies. [ 182 ] Section 340 (1) of the Code of Civil Procedure [35] ( C.c.p. ) provides the general rule regarding legal costs: 340. Legal costs are owed to the party that was successful, unless the court decides otherwise. [ 183 ]

Section 339 C.c.p. does define that notion of legal costs as follows: 339. The legal costs of a case comprise court costs and fees, including disbursements incurred for the physical preparation of appeal briefs and memorandums, professional fees and expenses for the service or notification of pleadings and documents , witness indemnities and allowances as well as any expert fees , interpreter fees and fees for registration in the land register or the register of personal and movable real rights.

They may also include the costs related to taking and transcribing testimony filed in the court record, if that was necessary. Expert fees include the costs related to the drafting of the report and, if applicable, preparing testimony, and remuneration for the time spent testifying and, to the extent useful, attending the trial. [The Court’s emphasis] [ 184 ] The expert report of Mr. Audet was useful to the Court. It was clear and precise. [ 185 ] The amount relating to Mr. Audet (2 768,50$) appears reasonable in the circumstances, including in regard to the value of the Claim presented by Mr.

Clarke. [ 186 ] The costs rendered necessary to serve both letters of demand to the Defendants also qualify, as per

section 339 C.c.p. as legal costs. Those costs are also supported by the relevant documentary evidence and will consequently be granted to Mr. Clarke. [ 187 ] However, the costs for photocopies do not qualify, as per

section 339 C.c.p., as legal costs [36] . That portion (26,08$) will not be granted to Mr. Clarke. FOR THOSE REASONS, THE COURT: PARTIALLY GRANTS the Plaintiff’s Claim; CONDEMNS SOLIDARILY the Defendants to pay to the Plaintiff an amount of 8 385,05$, with the interest at the legal rate and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from January 20th, 2023 [37] ; CONDEMNS Defendant Laith Kadhim to pay to the Plaintiff an amount of 1 006,03$ for the costs of the Land surveyor, with the interest at the legal rate and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from January 20 th , 2023; CONDEMNS Defendant Laith Kadhim to pay to the Plaintiff an amount of 1 051,45$ in punitive damages based on the Tree Protection Act , with the interest at the legal rate and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from the date of the Judgment [38] ; CONDEMNS Defendant Marc Vigneault to pay to the Plaintiff an amount of 1 051,44$ in punitive damages based on the Tree Protection Act , with the interest at the legal rate and the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from the date of the Judgment; THE WHOLE, both Defendants being solidarily responsible for the legal costs of the Plaintiff, including an amount of 2 768,50$ for the forestry engineer’s report, and 509,97$ for the bailiff’s costs. __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: December 1 st , 2023