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9209-1537 Québec inc. (Habitations du Sud-Ouest) v. Lombardo |
2015 QCCS 4266 |
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JM2232 |
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CANADA |
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PROVINCE OF QUEBEC |
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DISTRICT OF |
MONTREAL |
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N°: |
500-17-069578-113 |
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DATE: |
September 15, 2015 |
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______________________________________________________________________ |
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IN THE PRESENCE OF THE HONOURABLE PAUL MAYER, J.S.C. |
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______________________________________________________________________ |
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9209-1537 QUÉBEC INC. (HABITATIONS DU SUD-OUEST) |
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PLAINTIFF-CROSS DEFENDANT |
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v. |
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ROCCO LOMBARDO |
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DEFENDANT-CROSS PLAINTIFF |
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and |
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LE SYNDICAT DE COPROPRIÉTÉ DU 3969 ET 3979 RUE JOSEPH MTRE. FRANÇOIS LOISELLE |
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MIS EN CAUSE |
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JUDGEMENT |
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1. INTRODUCTION
[1] An American journalist of the late 19th century, mischievously defined a neighbour as: “One whom we are commanded to love as ourselves, and who does all he knows how to make us disobedient.”[1]
[2] This case offers good proof that this is aptly true.
[3] 9209-1537 Québec Inc. (Habitations du Sud-Ouest) (”Habitations”) seeks to regularize an encroachment built on the property of Mr. Rocco Lombardo. In exchange, it offers to provide him with a right of passage across its land so he can access his backyard. It also seeks $25,000 in damages due to the stress and inconvenience that has been caused by his refusal to do so. Subsidiarily, it asks for damages for the improvements it made to Mr. Lombardo’s property in exchange of his tolerance of the encroachment.
[4] For his part, Mr. Lombardo calls for the dismissal of the motion.
[5] Instead, he wants the encroachment to be removed and to be paid some $95,000 in damages[2] because his garden was not returned to him in its original state following Habitations’ construction work.
2. LEGAL ISSUES
[6] There are essentially two questions to be resolved in this case: (i) the regularization of the encroachment; and (ii) the state of Mr. Lombardo’s garden.
[7] These raise a series of issues that the Court proposes to examine as follows:
a) Is Mr. Lombardo to be ordered to sign a deed that regularizes the encroachment and provides him with a right of passage to access his backyard?
b) If so, what are the terms and conditions of such a deed?
c) What, if any, damages can be claimed by Habitations for Mr. Lombardo’s refusal to sign such a deed?
d) Did Habitations respect its obligation to restore Mr. Lombardo’s garden?
e) If not, what are the damages that Mr. Lombardo has suffered?
3. IS MR. LOMBARDO TO BE ORDERED TO SIGN A DEED THAT REGULARIZES THE ENCROACHMENT AND PROVIDES HIM WITH A RIGHT OF PASSAGE TO ACCESS HIS BACKYARD?
3.1 The context
3.1.1 The parties
[8] Habitations is a company that is controlled by Messrs. Amjad Khan and Sylvain Veillette, who are residential real estate developers in South-West Montreal.
[9] In 2010, it purchased land from Mr. Lombardo on which it built a six unit condominium building on Joseph Street, in Verdun.
[10] Mr. Lombardo’s family residence is situated next door.
[11] He is a 64 year-old retired technical support staff member of Concordia University who is now an artist pursuing sculpture. He purchased the property in 1999. For more than a decade, he and his spouse, Mrs. Simone Geday, spent time and effort transforming the dilapidated parcel of land into a comfortable garden much admired in the neighbourhood. It was their summer living and dining rooms. Here, they entertained family and friends and they obtained pleasure and enjoyment.
3.1.2 The sale
[12] Following friendly negotiations with Mr. Khan, Mr. Lombardo sold one of the two parcels of land he owned adjacent to his residential property to Habitations pursuant to an agreement dated May 11, 2010 (the “Offer to Purchase”).[3]
[13] On July 8th, a deed of sale was executed before Notary François Loiselle.[4] The parties also signed a side agreement setting out their future obligations (the “Side Letter”).[5]
[14] Between then and November 2010, Mr. Lombardo prepared the property in anticipation of the construction. He removed plants, trees, bushes, bricks, cement blocks and the stones of rock gardens bordering his property line to get them safely out of the construction zone.
[15] A three foot wide century old, silver maple tree was cut down. Then, in November 2010, a trench seven to 10 feet deep and three or four feet wide was dug along the property line to pour the foundations. The earth and clay that was dug up accumulated on Mr. Lombardo’s property, thereby covering much of his grass and filling in a dry creek.
3.1.3 The encroachment
[16] On November 15th, during the construction of the foundation, an error occurred that lead to this litigation. The footing of the building’s foundation was poured in a “T” shape configuration, thus encroaching on Mr. Lombardo’s property by several inches.
[17] There are diametrically different versions of what occurred after the discovery of this event. The following is a summary of the testimony heard in respect to that day.
3.1.3.1 Mr. Veillette
[18] Mr. Veillette recalls that when he arrived on the construction site, Mr. Lombardo pointed out that there was an encroachment on his property.
[19] He says he put a stop to the work and called his foundation sub-contractor, Mr. Serge Simard, to come and witness the error and Mr. Khan to advise him of the problem.
[20] Once he arrived on site, Mr. Simard proposed to cut or remove the portion of the footing situated on Mr. Lombardo’s property. After some discussions, Mr. Lombardo said that they should go ahead with the foundation work without removing the encroachment.
[21] A few moments later, Mr. Lombardo came up to him and he asked whether he would agree (in exchange of the encroachment) to grant him an occasional right of passage to access his backyard so he could store his truck (he was not using during the winter) and transport materials in a wheel-barrel. They agreed and shook hands. The workmen continued with their work.
3.1.3.2 Mr. Khan
[22] Mr. Khan testified that he received a phone call from Mr. Veillette to explain the problem on the morning of November 15th.
[23] When he arrived on the site, Mr. Veillette was there with Mr. Simard and Mr. Lombardo. He went into the excavated hole to measure the encroachment that he estimated to be four to four and half inches. He says there was a marker on the footing that showed it. Mr. Lombardo understood the situation and he gave the go ahead for the work to continue.
[24] When he left, there was no consideration for Mr. Lombardo’s agreement to let the work go forward. Later on that morning, Mr. Veillette called him to say that Mr. Lombardo had asked for an occasional right of passage to his backyard. He agreed.
3.1.3.4 Mr. Serge Simard
[25] Mr. Serge Simard has been a foundation contractor for some 25 years.
[26] He says that, when he arrived on site that morning, Mr. Veillette, Mr. Khan, Mr. Lombardo and his employee were there. Mr. Veillette was talking with Mr. Lombardo. There were two markers on the footing and one could see that there was an encroachment.
[27] He recalls that Mr. Khan measured the length of the encroachment as being approximately four inches.
[28] He was willing to correct his company’s error, at his own cost, by either cutting the encroaching cement with a saw or by removing the footing and starting over. Then, at one point, Mr. Lombardo said to go ahead with the foundation work. There was no need to remove it.
3.1.3.5 Mr. Michel Verville
[29] Mr. Michel Verville is the Land Surveyor who drafted the certificate of location and survey plan for the property sold to Habitations. He recalls being called to the site on an emergency basis that morning. Mr. Lombardo, Mr. Veillette, Mr. Khan and Mr. Simard were present when he arrived.
[30] He saw the cement encroachment of the footing and he placed markers to limit the property line. He was not asked to measure it. Before he left, he had the impression that the footing would be cut but he noted that the parties were talking and they seemed to be getting along well.
[31] He returned to the property some two weeks later on November 30th to measure the encroachment without success as the foundation had been buried by then.
3.1.3.6 Mr. Lombardo
[32] Mr. Lombardo’s recollection of events is radically different. He says it was Mr. Khan who told him a mistake had been made as the foundation footing was built a few inches on his property.
[33] He remembers not being pleased. In fact, he was “livid”. He had previously warned Mr. Khan on at least four occasions that he would not tolerate any encroachment. He was unable to ascertain its exact size and he was mislead to think it was only a few inches. No one else was present during their conversation.
[34] He told Mr. Khan that if he wanted to leave the encroachment there, he wished to obtain something in exchange. What he wanted, was a right of passage to access the back portion of his property, that is, something similar to what Mr. Khan had attempted to negotiate with him previously. In this case, it would be for three cars in the event that a condominium was built on his property. They shook hands. Mr. Khan appeared delighted. He urged him to have a notary draft up the papers to reflect this agreement as soon as possible.
3.1.3.7 Mrs. Geday
[35] Mr. Lombardo’s spouse, Mrs. Simone Geday, was not present that day. she corroborates Mr. Lombardo’s version of events as he recounted them to her that evening.
3.1.4 The negotiations of the deed of servitude
[36] Both Mr. Lombardo and Mrs. Geday insist that they persistently urged Mr. Khan to have a notary prepare a deed to reflect their agreement at least once a month from November 2010 to February 2011.
[37] Finally, in March 2011, at Mr. Khan’s request, Mr. Lombardo wrote a rough draft of his ideas about the content of the servitude.[6] We note from this draft that it was to cover an encroachment of one foot by 50 feet. In exchange, Mr. Lombardo wanted unrestricted access through a passageway built in the center of the condominium building.
[38] Mtre. Loiselle is a notary from Verdun with some 40 years of experience. He relates the numerous discussions with Mr. Lombardo over the right of passage.
[39] He recalls that when Mr. Khan (a client of many years) first called him about the topic during the winter of 2011, he was told the document should provide Mr. Lombardo with an occasional right of access to the back of his property for his personal use.
[40] In April 2012, he went to discuss the content of the proposed document with him on site. They met some 10 times as Mr. Lombardo was hard to nail down. The right of passage went from an occasional and personal use to a real servitude that could be used by a subsequent developer of Mr. Lombardo’s property.
[41] Mr. Lombardo explains the ongoing negotiations quite differently. He says that Notary Loiselle wanted to place limits on the unrestricted right of passage he wanted.
3.1.5 The meeting of May 19, 2011
[42] In May, it became pressing that Habitations regularize the situation as the encroachment was a title issue for the purchasers of condominium units. The condominium declaration highlights the problem and refers to the right of passage to be given to Mr. Lombardo.[7]
[43] Mr. Khan says that he was exhausted by Mr. Lombardo, as he was making no headway with him. He asked Mr. Veillette to take over the discussions in order to finalise an agreement.
[44] There are two versions of what occurred on May 19, 2011.
3.1.5.1 Mr. Veillette
[45] Mr. Veillette says that on that day, he went on site where he had a discussion with Mr. Lombardo that lasted about an hour and half. His back against the wall, he made a concession to reach an agreement on the content of the servitude. Mr. Lombardo would get an unrestricted right of passage to be limited to only one car and one owner. He called Notary Loiselle to fix a meeting that afternoon to have it finalized in writing.
[46] Some two hours later he convened with Mr. Lombardo at the notary’s office where the negotiations restarted. Notary Loiselle noted down the points of agreement on a photocopy of the certificate of location that had been prepared by Mr. Verville. The document was then signed and dated by both parties.[8] They shook hands and instructed the notary to draft the deed that would reflect the numerous issues that had been settled.
3.1.5.2 Mtre. Loiselle
[47] Notary Loiselle testified that he received the parties in his office late that afternoon. He says they expressed their willingness to put an end to the negotiations and to reach an agreement. He presided the meeting and he was tasked by the parties to write down the points that they agreed upon.
[48] At the request of Mr. Lombardo, Notary Loiselle wrote on the document entitled “Proposal” that it was conditional upon review of Mr. Lombardo’s notary. He added this wording to allow Mr. Lombardo’s notary to evaluate the legal aspects of the deed. It was not meant to provide Mr. Lombardo with the opportunity to reopen the terms and conditions that had been agreed.
3.1.5.3 Mr. Lombardo
[49] Mr. Lombardo’s recollection of the events of May 19th is divergent in two principle ways.
[50] Firstly, he states that there was no meeting with Mr. Veillette on site that day. Rather, he recalls that Mr. Veillette called him and asked if he could go to Notary Loiselle’s office that afternoon.
[51] Secondly, his memory of the meeting at the Notary’s office is no less dissimilar. He says that he was perplexed to see Mr. Veillette there instead of Mr. Khan as he had no previous discussions with him about the topic of the right of passage.
[52] He remembers being “flabbergasted” when Mr. Veillette began the meeting in an aggressive manner. He told him they were going to sue him if he did not sign something that day.
[53] In any event, they started to discuss. He felt pressured to sign and as if he was being “shafted”. He is of the view that the document was part of an ongoing dialogue: “We were only brainstorming.” It was not binding as it was subject to his notary’s approval. He did not agree with all of the terms written on the document. For him, there were still many unanswered questions, including, why the encroachment was indentified to be 0.40 meters (16 inches) on the survey plan prepared by Mr. Verville, when he had originally given Mr. Khan the permission to go ahead with the foundation work on the basis of only a few inches of encroachment.
[54] He acknowledges that at the end of the meeting, he was smiling and that he shook hands with Mtre. Loiselle and Mr. Veillette, as it is his friendly nature to do so. He found it strange, however, that Notary Loiselle failed to give him a copy of the document he had just signed, despite the fact that he asked for it twice.
3.1.5.4 Mrs. Geday
[55] Mrs. Geday corroborates Mr. Lombardo’s recollection of the events of that day, even though she was not present.
[56] She says that Mr. Lombardo was not pleased when he returned home that evening. He told her that he did not understand what had gone on and that the meeting had been very hostile and that he had felt threatened. The content of the details and issues noted down by the Notary did not matter to them as Mr. Lombardo was going to obtain legal advice to protect his rights.
3.1.6 The draft servitude agreement
[57] The following day, Notary Loiselle submitted a draft deed of servitude to the parties for their review and comments.[9] We can see from Section 9.2 thereof that it reflects the issues noted in the previous evening’s document. The right of passage would be limited to one owner and one car:
“9.2.1 This right of way shall be used by only one car belonging to the owner of the immoveable A [Mr. Lombardo’s property] and by foot of himself only […].”
[our emphasis]
[58] Some two weeks later, on June 7th, Mr. Lombardo met with Notary Suzanne Villeneuve to review with her his concerns with the draft deed. During the meeting, Mtre. Loiselle faxed to Mtre. Villeneuve the document that had been signed on May 19th.
[59] On June 20th, Notary Villeneuve provided Mr. Lombardo with her proposed changes to the draft deed for his review.[10] Among the dozen or so changes put forward, she suggested that Section 9.2.1 be redrafted. She kept the concept of one car - one owner fairly intact, enlarging it to include a small truck and extended it to family members and tenants:
“9.2.1 This right of way shall be used by only one car or a small truck belonging to the owner of the immoveable A or any members of his family or to a lessee or any members of his family, for unrestricted use.”
[60] The following day, Mr. Lombardo reviewed the changes proposed by Mtre. Villeneuve. He proceeded to make a couple of modifications of his own. One of them contradicts the spirit of the agreement of May 19th that it be limited to one car.[11] He wanted no restrictions placed on the number of cars using the right of passage:
“9.2.1 This right of way shall be used by the owner of the immoveable A or any members of his family or to a lessee or any members of his family, for unrestricted use.”
[61] This draft was sent by Notary Villeneuve to Notary Loiselle. Before doing so, she told Mr. Lombardo that she would not have the time to finalize these negotiations. She recommended he obtain the services of an attorney to do so. Mr. Lombardo decided to pursue the negotiations and to finalize the deed on his own.
[62] On June 29th, he received a response from Le Syndicat de copropriété du 3969 au 3979 rue Joseph from Notary Loiselle.[12] It proposed numerous changes, including the following wording to Section 9.2.1 :
“9.2.1 This right of way shall be used by only one vehicle in good working order and belonging to the owner of the immoveable A or any members of his family residing with the owner and by foot of himself only, for unrestricted use of way.”
[63] This new draft raised many issues and questions for Mr. Lombardo as one can see from his question marks, under-linings and annotations on the new draft.[13]
[64] The following day, M. Lombardo responded to Notary Loiselle.[14] He wanted several more changes. There should be no limitation on the number of cars that could use the passage:
“9.2.1 This right of way shall be used by the owner of the immoveable A or any members of his family or to a lessee or any members of his family, for unrestricted use. This right of way shall include vehicular as well as pedestrian access, and not limited so as to exclude other means of transportation.”
[65] Further, he proposed to add a Section 9.2.6 that stipulated that the right of passage could be transferred to future owners and tenants of the property, including any members of their household. He also suggested limiting the maintenance fee to $200.00 per year.
[66] Negotiations of the draft deed had come to an end. He received no further response from Notary Loiselle or the Syndicate of the co-owners.
3.1.7 A final effort
[67] In August 2011, he received a visit from Mr. Khan and Mr. Veillette on a last ditch mission to find a solution that would be acceptable to Mr. Lombardo. They held in their hands engineering drawings and reports from two engineers that showed that the encroachment of the footing would cause him no inconvenience in the future should he or another owner of the property wish to build up to the wall of the condominium building.[15]
[68] Mr. Lombardo did not look at the documentation. In any event, he was not reassured. Surely, the condominium syndicate would object to a construction that would tamper with the “T” shape footing. This was a potential future problem. He had made enough concessions and he was not willing to entertain any more changes to the draft deed.
[69] On August 24th, Mr. Khan wrote to Mr. Lombardo the following email that attempted to address his latest concern:[16]
“Dear Mr. Rocco
As per our conversation, after consultation with syndicate of co-owners of 3969-3979 Joseph st., I am pleased to inform you that the owners are in mutual agreement that you or any future owner of your land should have the right to build on the property line and the servitude for encroachment that we asked for would only be temporary as per our engineering plans. Please give me your thoughts on this matter of how you would like to proceed. I am willing to provide with full detail engineering drawings to build up against existing wall. Also I will provide you with monetary compensation for any work that is outside the scope of normal construction to build this wall upon agreement for servitude.
Regards,
Amjad Khan”
[70] Mr. Lombardo says that he could not accept this proposal as it did not provide him with sufficient comfort and reassurance.
3.2 The legal proceedings
[71] “Love thy neighbour” is a difficult commandment to follow in such circumstances.
[72] In September 2011, Mr. Khan and Mr. Veillette instructed their attorney to send Mr. Lombardo a demand letter that urged him to sign all appropriate documents to regularize the encroachment within 10 days.[17]
[73] They notified him that his failure to sign was causing them serious damages as they could not provide a clear title to the purchasers of condominiums units. They warned him that if he did not do so, they would seek to recover $20,000 in damages for the labour and material used to perform work on his property to accommodate his requests.
[74] On October 27th, Mr. Lombardo responded. His attorney stated that it was Mr. Lombardo’s belief that the encroachment had been built by design and not by mistake. The letter:
· declined their request to sign any documentation;
· expressed Mr. Lombardo’s view that he never gave a free and enlightened consent to the encroachment as its exact size and extent had been concealed;
· explained at great length that the work done by Habitations to restore Mr. Lombardo’s garden was substandard and incomplete; and
· concluded by asking Habitations to properly restore his garden within 10 days, otherwise, he would claim some $50,000 in damages, in addition to trouble and inconvenience to be quantified at a future date.
[75] On December 19th, Habitations filed an Introductory Motion wherein it asked the Court to order Mr. Lombardo to sign a deed to regularize the encroachment and to award it some damages.
[76] In April 2012, Mr. Lombardo brought in a Bobcat to dig a hole on the properly line to measure the exact size of the encroachment. Mr. Pierre Cardinal, Quebec Land Surveyor, concludes in his certificate of location, that the extension of the footing is 0.28 meters (11 inches)[18]. As the condominium brick wall is set back some 0.14 meters (5.5 inches) from the property line, the encroachment of the footing is, therefore, some 0.14 meters (5.5 inches) on Mr. Lombardo’s property.
[77] On May 23rd, Mr. Lombardo filed his defence and cross-demand. He seeks to have Habitations’ motion dismissed and he asks some $70,000 in damages to restore his garden to its original state and $25,000 for stress and inconvenience. He also urges the Court to either: (i) order Habitations to remove the encroachment, or (ii) have Habitations pay for the land occupied.
[78] In his cross-demand, Mr. Lombardo states that he was “outraged” to learn the exact measurement of the encroachment as he had been asked to grant a much larger servitude of some 0.40 meters (16 inches) in the draft servitude submitted by Mtre. Loiselle. He insists that the exact size of the encroachment had been concealed and withheld from him.[19]
[79] He considers Messrs. Khan and Veillette to have been in bad faith[20] and he maintains that the written proposal of May 19th was coerced and based on a misrepresentation of the facts.[21]
3.3 The Law
[80] The matter of the encroachment raises two legal issues:
a)
are the recourses foreseen in Article
b) did Mr. Lombardo renounce to his right of accession in respect to the foundation footing constructed on his property, such that Habitations benefits from a right of superficies?
3.3.1 The
recourses of Article
[81]
Article
“992. Where an owner has, in good faith, built beyond the limits of his land on a parcel of land belonging to another, he shall, as the owner of the land he has encroached upon elects, acquire the parcel by paying him its value, or pay him an indemnity for the temporary loss of use of the parcel.
If the encroachment is a considerable one, causes serious injury or is made in bad faith, the owner of the land encroached upon may compel the builder to acquire his immovable and to pay him its value, or to remove the constructions and to restore the place to its former condition.”
[82] This Article foresees different solutions to regularize an encroachment depending on whether: (i) it is minor, has been built in good faith and it does not cause a serious prejudice[22]; or (ii) it is considerable, built in bad faith or it causes a serious prejudice.[23]
[83] Pursuant to the first situation, the owner who builds a construction that encroaches can either acquire the parcel of land or compensate the owner of the land for the temporary loss of use of his parcel.[24]
[84] In the other situation, the victim of the encroachment can either compel the demolition of the construction or require the one who encroaches to purchase the property.[25]
[85] It is the victim of the encroachment who has the choice of the recourses offered by the two said options.[26] In this case, Mr. Lombardo is seeking the recourses set out in the first paragraph of Article 992. C.C.Q.
[86] To determine the extent of the encroachment, the jurisprudence frequently compares its size with the land being encroached. Thus, an encroachment that is less than 10 % of the total superficial area of the land, as it is in the present case, normally constitutes a minor one that does not cause a serious prejudice.[27]
[87] The evaluation of the prejudice caused by the encroachment is a question of fact that is left for the appreciation of the Court.[28]
[88] The jurisprudence and the doctrine are constant that the demolition of an encroachment is not justifiable when it is minor and it was built because of a good faith error. Good faith is presumed unless there is evidence to the contrary.[29]
[89]
That being said, the recourses foreseen at
Article
[90] What is therefore required to be determined in this case is the following: did Mr. Lombardo consent to the encroachment caused by Habitations’ construction? If he has, Habitations benefits from a right of superficies.
3.3.2 The right of superficies
[91] The right of superficies is one of the special modes of ownership.[32] It is rather awkwardly defined as follows in the Civil Code of Quebec:
“1011. Superficies results from division of the object of the right of ownership of an immovable, transfer of the right of accession or renunciation of the benefit of accession.”
[92] Professor Lamontagne describes this legal regime in the following manner:
“[427] L’idée « cardinale » de cette institution est de permettre au superficiaire d’être propriétaire d’une partie délimitée (supérieure) du fonds appartenant au tréfoncier ou de la totalité ou d’une partie des constructions, ouvrages ou plantations faits ou à être faits « sur l’immeuble » du tréfoncier, c’est-à-dire sur ou à l’intérieur de son fonds. Il s’agit en quelque sorte d’un régime de promiscuité organisée : une dissociation ou superposition de droits de propriété. Faute d’assiette commune (sauf possiblement en ce qui a trait au droit de démembrement), ces droits ne constituent en aucune façon une copropriété indivise. […]
[428] Démembrement du droit de propriété. — Si la propriété superficiaire apparaît avant tout comme une modalité, une application particulière du droit de propriété, c’est aussi, mais de façon accessoire, un démembrement du droit de propriété. Car la propriété du tréfoncier est grevée des servitudes nécessaires à l’exercice des droits superficiaires.
[…]
[446] Le superficiaire est pleinement propriétaire de l’immeuble superficiaire, tout en ayant droit à la jouissance du tréfonds. Ses droits correspondent généralement aux obligations du tréfoncier et vice-versa.
[447] Droit de propriété. — En tant que propriétaire, le superficiaire bénéficie de tous les attributs du droit de propriété sur son immeuble : l’usus (le droit d’user du bien), le fructus (le droit de jouir du bien, d’en tirer des fruits et revenus) et l’abusus (le droit de disposer matériellement ou juridiquement du bien). Il peut invoquer l’accession (948 C.c.Q.), l’échelage (987 C.c.Q.), intenter le recours possessoire (lié à la possession) ou pétitoire (lié à la propriété), etc. […]
[448] Droit de démembrement. — En tant que titulaire de servitudes conventionnelles ou légales (quelle que soit la source de la propriété superficiaire — 1110 C.c.Q.), le superficiaire peut appuyer et conserver l’objet superficiaire sur ou dans le fonds du tréfoncier, accéder à son immeuble, bénéficier de droits de vue ou de puisage, etc.
À l’instar du propriétaire d’un fonds dominant, le superficiaire est tenu aux travaux d’entretien du tréfonds, visant à la conservation des droits de servitude et correspondant à l’usage qu’il fait de ce tréfonds. Il ne peut user de ses droits que suivant son titre ou la loi : le strict nécessaire dans ce dernier cas (1111 C.c.Q.). La situation du tréfoncier — privé de l’usus et du fructus du bien, du moins à l’endroit où l’immeuble superficiaire a son assise — s’apparente à celle du nu-propriétaire. Par ailleurs, le tréfoncier doit subir le démembrement de son droit de propriété sur le résidu du bien (usus, fructus, abusus, surtout au point de vue matériel dans ce dernier cas), conséquence de l’octroi de droits superficiaires.”[33]
[93] The right of superficies can be acquired by prescription or by agreement.[34] An agreement can be expressed in a written document or orally.[35]
[94] It will come into existence when all the elements necessary for its validity are present. It is sufficiently concluded when the encroached victim gives a valid consent to the actuality of the encroachment on his property.[36]
[95]
Article
3.4 Analysis
[96] One must, therefore, determine whether Mr. Lombardo renounced to the benefit of accession in favour of Habitations.
[97] To go directly to the crux of this mater, the Court must attempt to determine who is telling the truth about the events of November 15th and May 19th. Whose version is the most credible and probable?
[98] Determining the truth can be a perilous exercise. The objective is to establish events based on the balance of probabilities. Evaluating the credibility of a witness is not an exact science. One must use common sense and scrutinize the consistency of a witness (that is, his ability not to be contradicted) and whether the testimony is straightforward (without confusion).
[99] In the present case, the Court retains the version put forward by the witnesses of the Plaintiff, Habitations for several reasons.
[100] Mr. Veillette and Mr. Khan favourably impressed the Court with their mild-mannered, reasonable and straightforward demeanour and their ability to express themselves politely, clearly and consistently. They presented a fuller picture of the events of those days. There have been no apparent contradictions. Their versions of November 15th have been confirmed by Mr. Simard and Mr. Verville while those of May 19th have been corroborated by Notary Loiselle.
[101] The recollections of Mr. Lombardo are more fragmentary. He has not always been reasonable, coherent or logical. There are several portions of his story that simply do not hold water.
[102] For example, despite all evidence to the contrary, he stubbornly hangs onto the theory, to the point of obstinacy, that the encroachment was built by design and not by mistake.
[103] Mr. Ilo Persico, a civil engineer[38], was brought forward by Mr. Lombardo as an expert witness to demonstrate that the extended footing was not built by mistake.[39]
[104] He was unable to do so. His one page report of May 18, 2012 is brief. It concludes oddly as follows: “the extension of the footing is consistent with the design of an inverted “T” and less likely to have intended as an “L” shape” and that “the engineering drawing would have clearly specified one or the other”.[40]
[105] Prior to testifying, Mr. Persico took a few moments to review the said engineering drawings to learn that they call for an “L” shape footing. As such, he confirms that a mistake did, in fact, occur. The construction plans were not followed by the subcontractor.
[106] We also have the testimony of Mr. Simard who stated that it was his employee who made a mistake when he poured the “T” shape footing. Mr. Lombardo’s own expert witness, Mr. Persico, concedes the point. Why keep insisting that it was done on purpose to this day?
[107] Mr. Lombardo is also remarkably adamant in saying that he never gave an enlightened consent to the encroachment as he was mislead about its exact size. He insists that the truth was concealed from him. The overwhelming evidence does not favour this version of events as Mr. Khan, Mr. Veillette and Mr. Simard all said that he clearly saw the encroachment. The situation was evident for all those who inspected it. Mr. Lombardo gave them the go ahead for the work to continue after he clearly took cognizance of the encroachment.
[108] Mr. Lombardo states that he met Mr. Khan alone on the morning of November 15th to discuss the encroachment and reach an agreement in respect to a right of passage. Yet, the testimony of Mr. Khan, Mr. Verville, Mr. Simard and Mr. Veillette relates that Mr. Lombardo was not alone with Mr. Khan when the issue of the encroachment was being ironed out.
[109] Mr. Lombardo says that his objective during the May 19th meeting at Notary Loiselle’s office was to have an ongoing dialogue. They were only brainstorming. The Court considers that this does not ring true or reasonable. It is difficult to reconcile that view with his statement that he also felt threatened and shafted. This seems incoherent with the theory that they were only brainstorming. His friendly behaviour and his instructions to the Notary at the end of the meeting to prepare a deed are also inconsistent with this version of events.
[110] In closing, the Court considers that Mr. Lombardo is very much a man on a crusade. He is on a quest to piece together the puzzle about the exact size of the encroachment. He says he was shocked to learn from Mr. Khan that it was some 12 inches in March 2011 as he originally thought it was only a few inches. He was then perplexed and troubled when Mr. Verville indicated on his survey plan that the encroachment was 0.40 meters (16 inches). Finally, he was outraged when he learned from his own expert, Mr. Cardinal, that it was in fact 0.12 meters (5.5 inches) when he had been asked to sign a servitude tolerating 0.40 meters.
[111] A great deal of evidence was produced and much time was spent during the trial on this issue and the apparent confusion it created for Mr. Lombardo. Questions were asked during the cross-examinations of Mr. Veillette, Mr. Khan, Mtre. Loiselle and Mr. Verville to try to elucidate why Mr. Verville had indicated the encroachment was 0.40 meters on his survey plan.
[112] All of this was a false path to follow as this question had been resolved some three years ago. According to Mr. Verville, Mr. Lombardo called to ask him this on March 26, 2012. He answered that he had to estimate the size of the encroachment as he had been unable to measure it. When he returned to the site to do so, the foundations were filled in. He recalls that Mr. Lombardo was disappointed by that answer as he thought Mr. Verville had measured it.
3.5 Decision
[113] The above leads the Court to determine that, on the balance of probabilities, a meeting of the minds occurred between the parties on the terms and conditions of a deed on May 19th.
[114] The version of events presented by Notary Loiselle is the most probable. He is an officer of the law and is presumed to be a disinterested party. He spoke in a straightforward and consistent manner.
[115] He recalls presiding the meeting and being tasked to jot down those points that the parties concurred with. He says that after months of discussions, it was clear to him that the parties wanted to finalize the matter once and for all.
[116] At the end of the meeting, the parties were good humoured and happy. They shook hands and instructed him to prepare a draft deed. Certainly, Mr. Lombardo was encouraged to review the draft documentation from a legal prospective with his notary. That is the correct professional way to proceed.
[117] Mr. Lombardo is not in good faith when he steadfastly denies that an agreement was reached and when he insists that negotiations be reopened on issues that had been settled. He is not being faithful to his word, loyal or reliable.[41]
[118] The Court observes that the core issue of limiting the right of passage to one owner and one car was not substantially changed by Notary Villeneuve after her review of the draft servitude and her comparison of the May 19th proposal. Rather, it is Mr. Lombardo who revisits it by striking this limitation from the text. When he did this he was not being reasonable.
[119] The Court concludes from the evidence submitted that Habitations was in good faith when they built the encroachment by mistake. One can see that immediately following its discovery, the information was relayed to Mr. Lombardo. Work was stopped until a solution was agreed upon.
[120] There is no evidence that supports Mr. Lombardo’s allegations that there was a grand design to build a “T” shape footing. It does not make reasonable sense to argue that the situation was concealed when it was disclosed and Habitations offered to have the encroachment removed. The evidence of Mr. Simard was credible and reasonable. If Habitations had cut or removed the encroachment, it would have been done by his company at no cost to Habitations, save and except for the loss of a few days in the construction schedule.
[121] Finally, for the reasons that follow, the Court considers that Mr. Lombardo renounced to the benefit of accession on November 15, 2010 and on May 19, 2011.
[122] The jurisprudence recognizes that the renunciation to the right of accession can occur expressly or tacitly. In the absence of a written agreement, it can be inferred from the actions of the victim of the encroachment.[42]
[123] The author, François Frenette writes that the renunciation to the right of accession is the most common manner of establishing the right of superficies. According to him, there is a tacit renunciation when:
“’[l]e propriétaire d'un immeuble permet à une personne ou l'oblige à construire, à planter ou à élever un ouvrage à ses frais sur son bien et qu'il entend et reconnaît, par là même, que cette personne en sera alors propriétaire.”[43]
[124] Professor Pierre-Claude Lafond, for his part, writes that:
“La convention de propriété superficiaire peut aussi se traduire par une permission du propriétaire tréfoncier, gratuite ou non, de faire des constructions. Procédé le plus courant, il prend alors l'allure d'une renonciation au bénéfice de l'accession par laquelle le propriétaire du sol renonce par anticipation à exercer le droit d'étendre la portée de sa propriété à ce qui s'unit au fonds.
[…]
La renonciation porte sur les constructions, les ouvrages et les plantations que le propriétaire superficiaire entend effectuer sur le fonds ou la parcelle de fonds faisant l'objet de la convention.”[44]
[125] Hence, the right of superficies can be established when the victim of the encroachment permits same to remain in place. This will constitute a renunciation to the benefit of accession.[45]
[126] In such a case, the victim of the encroachment conserves the right of accession but he contractually agrees not to use it.[46]
[127] In the case of Martin v. Club Francis Brûlé inc.[47], the Court of Appeal underlined the fact that simply tolerating a construction is not in itself sufficient to establish a right of superficies. The one who wishes to prove the existence of such a right must show that the victim of the encroachment has clearly renounced to the benefit of accession pursuant to one or more clues:
”La renonciation au bénéfice de l'accession peut prendre la forme d'une simple permission de construire qui peut être expresse ou même tacite « lorsque la conduite des parties démontre une permission d'occuper les lieux et d'y construire ». Il faut toutefois distinguer cette permission de la simple tolérance, comme l'écrit le juge Mayrand dans l'affaire Morin c. Grégoire :
II y a en effet une différence entre l'acte de tolérance et la permission [...]. L'acte de tolérance est le fait du propriétaire courtois, qui s'abstient de protester, comme il en aurait le droit, contre les agissements qu'il n'approuve pourtant pas. La permission est une approbation de l'acte d'autrui auquel on aurait le droit de s'opposer. Rester passif, face à l'empiétement, c'est tolérer; autoriser ce qui, sans la permission, serait un empiétement, c'est permettre. La permission suppose, de la part de celui qui la donne, une renonciation à un droit; c'est pourquoi la situation juridique de celui à qui l'on a donné une permission est supérieure à la situation juridique de celui que l'on a toléré.
En principe, la simple permission de construire ne suffit pas pour conclure à l'établissement d'un droit de propriété superficiaire. Encore “faut-il faire la preuve d'une véritable renonciation au bénéfice de l'accession, à partir d'un ou plusieurs indices.”[48]
[128] As stated, the Court considers that, in this case, there was a renunciation to the benefit of accession when Mr. Lombardo authorized the foundation work to proceed on November 15, 2010. He witnessed first hand the extent of the encroachment and he accepted that it not be removed. Mr. Khan, Mr. Veillette and Mr. Simard heard him say “go ahead”, that is, restart the work of the foundations that had earlier been stopped by Mr. Veillette. The exact size of the encroachment was of no consequence to him that day. He did not ask that it be measured when he saw Mr. Verville.
[129] He also confirmed his renunciation to the right of accession on May 19, 2011, when he signed the proposal in Notary Loiselle’s office.
[130] The encroachment of 0.14 meter (5.5 inches), some seven to 10 feet underground, is not important or considerable. It causes no prejudice to Mr. Lombardo and to any subsequent owner of the property.
[131] To conclude, the Court considers that Mr. Lombardo’s consent to the encroachment creates a superficial right in favour of Habitations and it prevents him from exercising the recourse he is seeking.
4. WHAT ARE THE TERMS AND CONDITIONS OF THE DEED OF SERVITUDE TO BE SIGNED BY MR. LOMBARDO?
[132] If it had been signed, the draft deed prepared by Mtre. Loiselle would have reflected this state of fact and law. It would have removed the encroachment issue that clouds the title to the property and have provided Mr. Lombardo with a right of passage.
[133] The Court determines that the agreement of May 19th is to be enforced.
[134] It will order Mr. Lombardo and the Mis en cause, Le Syndicat de copropriété du 3969 et 3979 rue Joseph, to sign the draft deed that was submitted by Mtre. Loiselle on May 20, 2011[49] incorporating the changes made to Section 9.2 shown on the draft of June 29, 2011[50], subject to the following two further changes that reflect developments since then:
a) Section 8 of the draft deed of servitude should be modified to refer to the underground footing encroachment of some 0.14 meter set out in the certificate of location and survey plan of Pierre Cardinal, Q.L.S., of April 27, 2012 (file number 48789-1);[51] and
b) the Syndicate of co-ownership should state that Mr. Lombardo or any future owner of his property can build up to the condominium building.
5. IS HABITATIONS ENTITLED TO DAMAGES FOR STRESS AND INCONVENIENCE?
[135] Habitations seeks $25,000 for stress and inconvenience.
[136] Mr. Veillette testified that the stress and inconvenience being claimed by Habitations relate to the fact Mr. Lombardo stubbornly refused to sign the deed regularizing the encroachment despite his undertaking to do so.
[137] He relates that Mr. Lombardo caused him and his partner much stress and loss of valuable time negotiating without end to resolve this title issue. Despite its efforts, Habitations was unable to provide the purchasers of the condominium units with a clear and marketable title. As a result, sums were held in trust until the encroachment could be regularized.
[138] Notary Loiselle confirmed that some four years later, he still holds $15,000 in his trust account because of the title problem caused by the encroachment.
[139] The Court considers that Mr. Lombardo has not been in good faith. His refusal to sign the deed was unwarranted and unreasonable. His failure to respect his undertaking to do so is a fault that caused Mr. Khan and Mr. Veillette some stress and inconvenience. They each merit to be awarded $2,500 in damages.
[140] They are not, however, plaintiffs in this case.
[141] Can Habitations be awarded the sum of $5,000 in damages the Court would have granted to Mr. Khan and Mr. Veillette for their stress and inconvenience?
[142] The Court considers that Habitations cannot claim damages for stress caused by Mr. Lombardo’s failure to sign the deed of servitude. Such damages can only be claimed by physical persons. In the case of Paradis Détente soins corporels inc. v. Monette, Mr. Justice Benoît Emery states that a legal person cannot claim damages for stress.[52] As Mr. Justice Louis-Paul Cullen wrote in the case of Club de tir l’Acadie v. Bromont (Ville de):
”[…] contrairement à une personne physique, une personne morale ne peut éprouver son préjudice d’une manière subjective. Elle ne possède ni fierté, ni sentiments. Elle ne peut être humiliée, ni autrement blessée ou froissée.“[53]
[143] Using its discretion, the Court will award Habitations the sum of $2,500 for the damages it suffered because of Mr. Lombardo’s fault that caused it to lose the benefit of: (i) having received the deposit of $15,000 over a period of four years; and (ii) the services of Mr. Khan and Mr. Veillette while they wasted time negotiating with Mr. Lombardo in good faith, without success.[54]
6. DID HABITATIONS RESPECT ITS OBLIGATION TO RESTORE MR. LOMBARDO’S GARDEN?
[144] The obligation of Habitations to restore Mr. Lombardo’s garden is set out in the Offer to Purchase and the Side Letter.[55]
[145] In the Offer to Purchase, Mr. Lombardo and Habitations agreed on the following matters that are germane to our understanding of the question at hand:
a) the maple tree would be cut and its roots and trunk removed by Habitations. The firewood would belong to Mr. Lombardo;
b) Habitations would attempt to preserve and relocate a metal fence to the side of the building;
c) Habitations would transplant cedar trees that were on the property line;
d) Mr. Lombardo would be permitted by Habitations to use a mechanical shovel to remove four truck loads of earth from his backyard, at no cost;
e) Mr. Lombardo was to deliver the sold property vacant and ready for demolition.
[146] On July 8, 2010, upon transferring title to the property in the deed of sale, the parties signed the Side Letter that provides more explicit terms and conditions. The following is a summary of its provisions:
a) Mr. Lombardo granted Habitations the right to access his property with equipment and machinery “so as to accommodate the needs of the construction project”. He also agreed that Habitations could excavate on his property “to facilitate the framework necessary for construction of the common wall”;
b) Mr. Lombardo agreed that the maple tree on the property line would be cut. The permit and all related costs would be borne by Habitations who was to remove the debris, including branches and leaves, dig out the roots and remove and dispose of the stump. All branches that were more then four inches in diameter were to be removed. The others would be cut 14 inches in length to be used for firewood. They were to be moved to his driveway beyond his fence. Mr. Lombardo acknowledged that the excavation to remove the roots would require him to relocate many shrubs situated in that area;
c) further, Habitations agreed to:
(i) replace the existing fence on the property line with a new one, which would extend from the end of the new building to the back of the property;
(ii) reinstall the iron fence on the property line at the front of the building;
(iii) re-landscape the area where the maple tree was located up to the street fence;
(iv) place a row of large stones (available on the property) as a retaining wall to support the bank and control erosion.
(v) landscape to ensure that the slopes would allow water to drain towards the street and not puddle in the yard;
(vi) repair the landscape and replant and/or reposition shrubbery in areas affected by the work;
(vii) remove approximately one foot of dirt and level a surface approximately 25 feet deep by 50 feet wide in the back of Mr. Lombardo’s property;
(viii) transplant the shrubs situated on Mr. Lombardo’s property along the North-South direction, two feet onto the property line along his back fence; and
(ix) be diligent with the back filling and to leave the grounds orderly and proper.
[147] The evidence offers two main avenues to assess this issue. Firstly, the proof was visual, thanks to a site visit of Mr. Lombardo’s property and a review of more then 250 photographs submitted. Secondly, it was oral with some 15 witnesses and experts heard over eight days of hearing.
6.1 The witnesses
[148] The following is a brief summary of the testimony presented.
6.1.1 Mr. Lombardo
[149] Mr. Lombardo relates that the work on his property was carried out in two phases: (i) from July to November 2010, and (ii) during the month of May 2011.
[150] During the first phase, he cleared the entire length of his property by moving perennials, shrubs and grapevines, a four tiered terrace rock garden, five pallets of bricks, small trees, artwork and many other plants to another location on his property. He proceeded to pot everything that he had dug up.
[151] In November, he asked Habitations to relocate a dozen cedar trees.
[152] Mr. Yvon Paquette, a gardener with some 45 years of experience, and a subcontractor of Habitations, proceeded to do so with another co-worker. Mr. Lombardo was dissatisfied with the rough manner in which it was done. The roots were cut too short. He had been assured that the trees would be replanted in a couple of weeks but this was not done until the following spring.
[153] The century old silver maple tree was cut down and its roots were removed. Mr. Lombardo obtained the firewood. He bonded with the lumberjack and worked along side with him. It took some three days to remove the tree, damaging the yard and the dry creek in the process. A large crater of approximately 25 feet was left.
[154] One morning, as per the Side Letter, Habitations removed about a foot of earth in the backyard of Mr. Lombardo to level the ground. When Mr. Lombardo returned at the end of the day, he was “livid” to find out that it had removed another two feet of earth and cut his lawn around a large tamarack tree. In May 2011, this large area was filled in with a geotextile membrane and gravel with Mr. Lombardo’s permission. It is now known by the parties as the “parking pad”.
[155] That fall, Mr. Lombardo asked Habitations to install a drainage conduct where the path of the dry creek had been situated. He wanted to ensure that water would flow towards the street. He says that the trench work was not properly dug.
[156] The second phase of restoring the garden took place over a period of two weeks, starting in mid-May 2012.
[157] Mr. Lombardo says that he was not at all pleased with the landscaping work done by Mr. Paquette and his co-worker. His first impression was of being uncomfortable with him as he was not sensitive with the flowers and shrubs: “He’s a bull in a china shop.” He worked too fast. Everything was “vite, vite, vite …!”
[158] He recalls that he arrived on the first day of work with a truck load of grass sod. As the ground had not yet been prepared, it was left on the property next door for a week to bake in the sun.
[159] The first few days, a Bobcat was used to remove two truck loads of earth and debris from the property.
[160] The rock gardens were poorly installed. At least, half the stones were broken.
[161] A few trailers of inadequate topsoil was then brought in and spread here and there without fertilizer leaving gravel and clay exposed.
[162] Finally, the sod was improperly laid and many trees and plants were inappropriately planted. Several died quickly after. Many others were left unplanted.
[163] Mr. Lombardo asked that the good earth and soil located on the lawn, near the side and back of his residence, be removed and relocated behind the parking pad to provide fine quality earth for a row of cedar trees to be planted there.
[164] This terrace area was later filled in with a geotextile membrane and gravel at Habitations’ cost. Mr. Lombardo was to finish the landscaping with flat cement pavers but he has yet to do so.
[165] Mr. Lombardo says that when Mr. Paquette and his co-worker left at the end of the second week, after 56 hours of work, he told Mr. Khan that he was not satisfied. There was a lot of work left to do. Not half of it had been done. At least another two weeks, with two men, were needed to finish the work properly. Mr. Khan told him he would not discuss his complaints with him until the deed of servitude was signed. He felt like he was “being held hostage.”
6.1.2 Mrs. Geday
[166] Mrs. Geday has similar recollections about the two phases of work.
[167] In November 2010, she did not expect to see earth spilling everywhere on the property following the excavation. She noted that the dry creek and grass were covered: “There was nothing left of our garden.” She remembers that much more earth was removed than expected from the parking area. Mr. Lombardo told her not to worry as he had confidence in Mr. Khan. He assured her that Habitations would respect their obligation to fix the garden.
[168] Her memories of the spring phase of the work are no more pleasant. She says that it did not go well. The rock gardens were not restored as expected. There were no flower beds. Over 100 potted plants and shrubs were left unplanted. Piles of rocks were left by the side of the house. The topsoil used was not good earth. She was deeply concerned and discouraged with the state of things. There was so much work left to do when Mr. Paquette departed, that they did not know where to start.
[169] She relates that Mr. Lombardo’s health took a turn for the worst at that very moment. In late June 2011, he suffered some vascular problems that left him weak and tired. It took him many months to recover as she took care of him. Subsequently, he was diagnosed with cancer that required intensive treatment.
6.1.3 Mr. Veillette
[170] Mr. Veillette’s recollection of events is poles apart in many ways.
[171] He begins by explaining the two phases of the work. He recalls that in the fall of 2010, Habitations had the maple tree cut down and it removed about 16 inches of earth from Mr. Lombardo’s backyard to build a parking space for him. In May, a geotextile cloth and gravel stones were placed in that area. In exchange, given that this work was not part of its contractual obligations, it was permitted to store its materials and a container on Mr. Lombardo’s property during construction.
[172] As well, despite the fact that Habitations had no requirement to do so, it agreed to build a French drain at its own cost on Mr. Lombardo’s property where there had previously been a dry creek.
[173] In the spring, Mr. Lombardo explained to him verbally how he wanted the restoration to proceed.
[174] He hired Mr. Benoît Tremblay, a landscaper with a dozen years of experience, to carry out the work pursuant to Mr. Lombardo’s instructions. He would tell him how to proceed.
[175] After about two hours, he received a telephone call from Mr. Tremblay who had quit as he could not work with Mr. Lombardo. He told him that he would never be able to satisfy him. One moment, he placed a stone for the rock gardens in one place. The next, he was asked to remove it: “On fait et on défait.”
[176] Mr. Veillette called on Mr. Paquette to complete the work. He told him to follow Mr. Lombardo’s directions and to do as he requested even if he disagreed with him.
[177] He had estimated it would take two to four days to restore Mr. Lombardo’s property. Four days in, he could see no end in sight: “Ça ne finissait plus de finir!”
[178] One day, they planted a row of cedar trees, the next day they were removed and replanted in a different location. There was lots of planting and replanting.
[179] In the evenings, Mr. Lombardo appeared to be satisfied with the work and he would offer them a round of refreshments. The following morning, he was a different person. He complained that he did not like the quality of the work, the slopes were not right, the topsoil was no good, etc.
[180] At last, some two weeks later, at the end of the project, when he was installing the iron fence in front of the property, he recalls that Mr. Lombardo said that he was satisfied with the work that had been done.
6.1.4 Mr. Khan
[181] Mr. Khan testified that Habitations fulfilled all of its obligations. It restored Mr. Lombardo’s property as per the terms set out in the Offer to Purchase and the Side Letter.
[182] He states that Habitations went beyond what had been called upon in order to accommodate Mr. Lombardo when it built a parking pad, a terrace and the French drain at no cost for him. Habitations submits into evidence several invoices of man hours and supplies and materials for this extra work.[56]
[183] He recalls that the relationship between Mr. Lombardo, who directed the work, and his landscaping subcontractors was difficult. Mr. Lombardo was complaining all the time. Every day, there was something new.
[184] At the end of two weeks, while they were finalizing their landscaping work, they finished by installing the iron fence in front of Mr. Lombardo’s property. He recalls that Mr. Lombardo complained to him about a few unplanted shrubs. Otherwise, everything was fine.
[185] He heard no further complaints from Mr. Lombardo until, some five months later in late October 2011, when he responded to Habitations’ demand letter asking that he sign the deed of servitude.
6.1.5 Mr. Tremblay
[186] Mr. Benoît Tremblay is the owner of a landscaping company, Les Aménagements Paysagers Horizon Inc.
[187] He explained that, in the spring of 2011, he was hired by Habitations to carry out the second phase of the landscaping work on Mr. Lombardo’s property. The instructions he received from Habitations was that he had his hands free (“carte blanche”) to satisfy Mr. Lombardo’s wishes, who was to tell him what he wanted done.
[188] Things did not go well. He relates that he had no landscaping plan to follow. Rather, he and his two co-workers followed Mr. Lombardo’s instructions.
[189] To begin, Mr. Lombardo asked him to move some stones for the rock gardens. Ten minutes later, Mr. Lombardo requested that they be moved from left to right. It was difficult to understand what he wanted as his directions were not clear. He seemed to be improvising. He considered that they were running around in circles.
[190] After a few hours of this, he called Mr. Veillette to tell him that he could not work in such conditions. He says he did not bill Habitations for the hours spent that day on Mr. Lombardo’s property. His invoice dated May 16, 2011 confirms this.[57]
6.1.6 Mr. Patrick Turgeon
[191] Mr. Patrick Turgeon has been an excavation contractor for the past 20 years. His company was hired by Habitations in the fall of 2010 and in the spring of 2011 to remove earth from Mr. Lombardo’s property and to build his French drain, parking pad and terrace.
[192] He recalls that working with Mr. Lombardo was like climbing a jagged mountain, up and down (“en dents de scie”). The first day, it went well but that night he was called and told that Mr. Lombardo was not satisfied with his work. The following day, they redid the work they had done the previous day.
[193] He was instructed by Mr. Lombardo to excavate and install a French drain exactly in the manner directed by him, with stones, a membrane, more stone, a drain, more stones and earth. He found that the work requested was unreasonably excessive and that it took too long.
[194] He recalls that one day he planted several six feet high cedar trees along the brick wall of the new condominium building. The next day, he was asked to remove them and to replant them in a deeper trench. He remembers using first rate topsoil to do this work.
[195] An invoice from Les Aménagements Paysagers Horizon Inc. shows that 34 tonnes of 0.3/4 stones and one tonne of 1 inch pebble stones were delivered to Mr. Lombardo’s property at Habitations’ cost in May 2011.[58] These materials were undoubtedly used for the parking pad, terrace and French drain.
[196] After some three days of work, he says that Mr. Lombardo appeared to be pleased with the work as he gave him a gift of a fruit tree when he left.
6.1.7 Mr. Jean Bélisle
[197] Mr. Jean Bélisle has been a tree pruner for the past 25 years.
[198] He recalls that he obtained instructions from Habitations to cut down the silver maple tree situated on the property line. He says that Mr. Lombardo was present during his three days of work as a spectator and as the manager of the work being done.
6.1.8 Mr. Yvon Paquette
[199] Mr. Yvon Paquette is 67 years old. He has some 45 years of experience as a landscaping contractor.[59]
[200] He relates that he was hired by Habitations to carry out some work on Mr. Lombardo’s property. He was told to follow his directions. He says there was no landscaping plan to follow and that Mr. Lombardo kept changing his mind. He often planted and replanted the same trees and bushes.
[201] He and his employee spent some 56 hours over two weeks following Mr. Lombardo’s direction who was on site each day. One had to do exactly what he wanted. It was not easy to convince him otherwise. He gives two examples.
[202] Once, Mr. Lombardo asked him to install grass sod on top of the French drain. He tried to reason with him that it did not make sense to install grass above such a surface as it is covered by river stones and the grass would dry out. Mr. Lombardo told him to do it anyway.
[203] Secondly, Mr. Lombardo requested that he plant three cedar trees in the front corner of his property. He told Mr. Lombardo that it was not a good idea to plant trees in this area given the French drain situated there. Mr. Lombardo insisted he do so. These trees subsequently died even though they were healthy when they were planted.
[204] Mr. Paquette states that he installed good quality gardening topsoil, six to eight inches thick throughout the lawn area. In face of the criticism of Mr. Lombardo, Mrs. Geday and their experts, that his topsoil was inadequate, he submits the invoice he paid for two loads of good quality gardening soil.[60]
[205] He also remembers working on the rock gardens with Mr. Lombardo. On one occasion, he redid the same circle of stones some three or four times.
[206] He remarks that the grass sod he installed was of good quality and freshly cut that very morning. He also planted between 40 to 60 trees and bushes in the places selected by Mr. Lombardo.
[207] Submitted into evidence is his invoice to Habitations of June 5, 2011, that shows that he billed it $4,763.33 for the hours of two workers and for two trips to transport 30 square yards of topsoil and some 180 square yards of grass.[61]
[208] When asked to comment a series of photographs taken in 2011 and 2012 of Mr. Lombardo’s garden that show some dead trees and some poor quality grass, he responds that they evidence a lack of care and maintenance by Mr. Lombardo He points out that the length of the grass and the weeds show that it had not been cut for a few months. He says that this is evidence that the lawn and freshly planted trees may not have been sufficiently watered.
[209] His last recollection was that when he finished the job, Mr. Lombardo appeared to be pleased as he was honoured with a glass of Cinzano.
6.2 The expert evidence
6.2.1 Mr. François Caron
[210] Mr. François Caron is 33 years old. He has been a landscaper for the past 10 years. He graduated with a diplôme d’études professionnelles from the Centre de formation horticole de Laval in 2007.[62] From 2006 to 2014, he worked for the Centre du Pavé et Jardin R.D.P. He announces that his mandate was to suggest how the property could be returned to its original state.
[211] In April 2012, he prepared an expert report with respect to Mr. Lombardo’s property.[63] It is scathing. The list of deficiencies he noted is long:
· the grass is not healthy having been inadequately laid;
· poor quality topsoil was used that is, recycled earth;
· there is an inadequate sloping causing insufficient drainage;
· the flower beds are deficient as low quality topsoil was used;
· the French drain is not conforming as large amounts of water are retained by the grass;
· the rock garden stones were wrongly installed as it appears that they were placed one on top of the other without respecting what was there originally;
· the trees and bushes were improperly planted in poor topsoil with roots exposed;
· the bordering was inadequately done;
· the general quality of the work was inacceptable.
[212] Under the heading “commentaire additionnel”, Mr. Caron concludes his report as follows:
“Je suis allé sur le site et mon opinion postravaux ont été mal administré. A mon avis, les personnes qui ont executé les travaux n’était pas qualifié pour se gendre de travaux. “
[Integral text]
[213] Annexed to his report is a list some 145 trees and shrubs that should be purchased and installed on the property at a cost (in 2012) of $7,271.31.
[214] He explains each of his conclusions while referring to photographs that show the state of the garden before and after construction and he points out the large contrast between the two. He concludes that the work that was done is inacceptable.
[215] He suggests that the only solution is to start over. Some three to four weeks of work would be required. He would begin by excavating everything, including the parking pad, terrace and rock gardens. He would, then, bring in adequate topsoil to recreate the slopes and the dry creek. Grass sod and rock gardens would be installed to be filled in with the abovementioned trees, bushes and perennials.
[216] Under cross-examination, Mr. Caron admits that he did not visit the property before preparing his report in the spring of 2012. Instead, he worked with a series of photographs provided by Mr. Lombardo on the state of the garden before and after construction. As well, he had pictures taken of the state of the garden in April 2012 by one of his co-employees. He explains that the ”Je suis allé …” wording in his “commentaire additionnel” portion of his report is meant to include his co-worker who visited the site to take some pictures.
[217] Further, he acknowledges that he did not speak to Mr. Lombardo, Mr. Paquette, Mr. Khan or Mr. Veillette to obtain their version of events or the circumstances of this case nor was he aware of the contractual terms and conditions of the Offer to Purchase and the Side Letter.
[218] He only learned during the hearing that Mr. Lombardo directed the work and that he allowed the parking pad, the terrace and the French drain to be installed. Nor was he aware that it was Mr. Lombardo who removed, potted and stored many of the trees, bushes and perennials in the fall of 2010.
6.2.2 Mr. Robert Cinquino
[219] Mr. Robert Cinquino has been the owner of Paysagiste D.C. since 1997.[64] He has been a landscaper since he was 10 years old.
[220] His five page handwritten report and submission is dated April 15, 2012.[65] He relates that he visited the property on April 9, 2012 and that he looked at photos of the property before construction. His report stipulates that:
· all of the shrubs that had been removed had not been properly removed, stored or protected once removed;
· many natural stones in the rock gardens were broken as they were removed by machines and dropped therefrom. They were very poorly installed;
· good earth was removed from the property leaving only clay behind, thus the roots of plants had no chance of surviving;
· the French drain was not functioning properly. It should be removed and repositioned;
· stones and debris were left in the flower beds;
· the quality of the sod, the topsoil and the slope is inacceptable.
[221] In his report and during his testimony, he proposes to do the following to restore the garden to its original condition. This is what he calls the “ground zero” strategy:
· completely remove everything, including all clay, debris, damaged shrubs, flower beds, broken stones (3 to 4 tonnes), earth from the flower beds and cedar trees;
· starting with a clean slate he would then re-establish the elevations and replace the soil taken away with good earth;
· remove the French drain and re-establish the dry creek front to back;
· place stones in position to border flower beds;
· fill flower beds with proper earth;
· plant trees, shrubs, perennials, including 100 linear feet of cedar trees;
· replace plastic edging around contour of flower beds with cedar mulch;
· replace French drain at proper elevation;
· install 1,610 square feet of grass sod.
[222] He calculates that the cost of the proposed work is $69,057.43 and suggests that it be increased by 6% given inflation since 2012. He estimates that it would take a four men crew, some 12 to 15 days, to complete the work.
[223] During his cross-examination, Mr. Cinquino says that he was not aware of Mr. Lombardo’s involvement in the restoration work. He did not know that the French drain, parking pad and terrace were installed with his permission. He thought that the landscaping work had been completed in the fall (instead of the spring) of 2011.
[224] Further, he acknowledges that in his costing of the proposed work, he suggested both: (i) the removal of the French drain and its replacement with a dry creek; and (ii) to remove and re-install the French drain. He, therefore, admits that the cost of replacing the French drain ($3,700) should be deducted from his submission.
[225] He recognizes that the costing of his proposed work includes the price of bringing in topsoil and grass to cover a lawn measuring 60 feet by 120 feet. He then admits that the garden is only approximately 50 feet by 100 feet. As such, he would reduce the amount of the topsoil and grass sod by some $4,650.00
6.3 The photographic evidence
[226] The parties submitted numerous photographs of the property in evidence. These include:
|
Exhibit # |
Description |
|
D-4 |
Photographs of the hole dug in April 2012 showing the encroachment of the “T” shape footing. |
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D-10 |
Some 40 pages of photographs showing the property before and after construction; some 40 photographs of dead shrubs and trees still in the ground in 2011; 11 photographs of some 19 dead trees and shrubs that had been removed; 53 photographs of potted trees; shrubs and perennials that were not planted. |
|
D-12 |
Backup pictures used for the expert report of Centre de pavé et jardin R.D.P. This Exhibit contains some 45 pictures taken in 2011 and 2012, following construction; 8 photographs of the construction of the dry creek in 2003; 8 photographs of the various stones used in the rock gardens taken in 2003; 34 photographs of the state of the yard before construction; and 55 photographs of the yard after construction taken in 2011 and 2012. |
|
P-7 |
18 large photographs showing the state and condition of Mr. Lombardo’s residence and yard taken in April 2015. |
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P-14 |
3 photographs of Mr. Lombardo’s property taken by Mr. Veillette in October 2012. |
6.4 The site visit
[227] At the request of the parties, the undersigned visited Mr. Lombardo’s property on May 7, 2015, at the end of the second day of the hearing, to visualize the current state of the premises. It was a beautiful sunny afternoon.
[228] Joseph Street is situated a few minutes from downtown Montreal that is, a couple of kilometres South-West of Atwater Market. It is an old residential neighbourhood currently undergoing gentrification.
[229] The first feature that catches one’s attention upon entering Mr. Lombardo’s property is the dilapidated condition of his residence. The roof needs to be replaced and the wooden portions of the house and the gates should be repainted. The other aspect that one notices is the vast number of potted plants, rocks, bricks, used doors, windows, cement pavers, lumber, fences, hay and other debris accumulated throughout.
[230] As we entered our long goodbye with winter this year, it was a dormant and thawing lawn that was visited. The grounds had that look of many gardens in the first week of May before they are awakened with a rake and a bit of topsoil in sparse areas.
[231] It is evidently not the garden it once was. The lawn does not seem to cover the majority of the yard given the large parking pad and the gravelled terrace. The unfinished terrace is an eye sore. The front portion of the yard facing Joseph Street is sparsely planted. It does not offer the privacy previously enjoyed. Certain elevations, flowers, bushes and trees were not replaced or replanted. The old dry creek is no longer there having been replaced by the underground French drain. There are at least a hundred pots that have not been planted and a large accumulation of stones that have not been incorporated into the rock gardens. There was some gravel in certain flower beds.
6.5 The law
[232] Mr. Lombardo has the burden of proving a fault, damages and casualty. He must establish:
a) that Habitations did not respect its obligation to restore his garden as stipulated in the Offer to Purchase and the Side Letter;
b) the damages he suffered; and
c) the causal link between the said damages and the fault of Habitations.
6.6 Analysis and decision
[233] The Court considers that Mr. Lombardo’s cross-demand should be dismissed for several reasons.
[234] Firstly, when one examines the Offer to Purchase and the Side Letter carefully, one can conclude that almost all of the obligations therein, have been fulfilled by Habitations, namely:
a) the maple tree was cut and Mr. Lombardo obtained the firewood;
b) the existing fence on the property line has been replaced in the back of the condominium building with a gate to accommodate Mr. Lombardo’s right of passage;
c) the iron fence has been reinstalled on the property line in front of the building;
d) the 25 feet crater, created when the maple tree was cut and its roots were removed, was re-landscaped;
e) a row of large stones as a retaining wall to support the banks and control erosion was installed;
f) earth was removed and the surface levelled in the back of the property; and
g) some 40 to 60 trees and bushes were replanted.
[235] The only real issue at hand is whether or not Habitations adequately landscaped and replanted shrubbery in the areas affected by its work.
[236] Secondly, the expertises of Mr. Caron and Mr. Cinquino are not reliable. The Court cannot give them any credence. The cross-examinations of these gentlemen have sufficiently highlighted the flaws in their reports. Their analyses are not thorough and convincing.
[237] While the competence of these experts is not questioned, they fulfilled their mandates in difficult circumstances. They were hired in April 2012, nearly a year after Habitations’ work. Their expertise was done on the basis of photographs that they did not take. Mr. Caron did not visit the property himself before drafting his report. One wonders, for example, how he could attest that the French drain was not working. He never spoke to Mr. Lombardo who admits that he “had nothing to do with him”. Neither of them ever spoke to the workers who carried out the work to understand the context in which it was carried out. Nor did they know the contractual terms and conditions between Mr. Lombardo and Habitations set out in the Offer to Purchase and the Side Letter.
[238] In such circumstances, how could they convincingly conclude that Habitations is responsible for the poor state of the garden? They were deprived of vital information that discredits their reports.
[239] Thirdly, Mr. Lombardo’s reasonableness in the conduct of these proceedings has been severally tested. Having had the benefit of hearing and seeing all the evidence submitted, the Court considers that Mr. Lombardo made some misleading and amplified allegations. The following are a few examples.
[240] In his proceedings and in his testimony, Mr. Lombardo says that he never wanted the parking pad. He was left with a ”fait accompli”. Yet, there is not a word of this critical issue in his lengthy response to the demand letter of Habitations of September 2011.[66] Having witnessed Mr. Lombardo’s forceful character during the hearing and the manner in which he majestically directed the work of his attorneys, including, during their cross-examination of witnesses, the Court is satisfied that if he had wanted that the alleged missing top soil be replaced, he would not have been shy to ask. Instead, he accepted the installation of a geotextile membrane and two truck loads of gravel without protest. Asking for a right of passage for three cars and not wanting a parking pad is an incongruity.
[241] Mr. Lombardo states that inappropriate soil was used in the flower beds and on which the grass sod was laid. He insists that no fertilizer was used in the planting.[67] The Court prefers the evidence submitted by Mr. Paquette who stated that he used good gardening soil composed of 1/3 sand, 1/3 black earth, 1/3 clay, manure and fertilizer. He says he placed six to eight inches of earth throughout. This testimony is in part corroborated by the invoice from the supplier of this gardening topsoil.[68]
[242] Mr. Lombardo did not explain to his experts his central role directing the restoration of his property or the fact that he made certain decisions about the installation of the parking pad, the terrace and the French drain.
[243] He submitted a claim of some $69,000 in damages to restore his garden that was unreasonably exaggerated. That he did not bother to study Mr. Cinquino’s report carefully to have it amended to take into consideration that it covered a much larger lawn, is not a valid excuse.
[244] Mr. Lombardo is asking that his garden be restored to its original condition by starting over from “ground zero”. This is a costly proposal that requires the removal of the parking pad, terrace and French drain! It lacks proportionality given that his own residence is in disrepair and his back yard has the allure of a scrap yard. This is not reasonable.
[245] The presentation of the photographic evidence (that show the contrast between the before and after construction situations of the garden) has not been honestly portrayed. The contrast between the two is indeed impressive. It is, however, a process of comparing apples with oranges. The before pictures show a magnificent maple tree, mature grape vines, lush green grass, colourful summer flowers, smiling friends and family. The after pictures are often taken in the late fall or early spring.[69] They do not show the luxuriant green lawn that can be seen in the pictures of October 2012 submitted by Mr. Veillette. The disaster zones of the parking pad and the terrace are highlighted despite the fact that they were installed with the consent of Mr. Lombardo. One is left with the general impression that an attempt to camouflage the true reality of the situation has been attempted. It certainly mislead his two experts.
[246] Mrs. Geday stated she was surprised to see earth spilling everywhere on the property following the excavation in November 2010. Yet, the Side Letter specifically stipulated that Habitations had the right to “access” the “property with equipment so as to accommodate the needs of the construction project” and that it could excavate on Mr. Lombardo’s property. Why then, such surprise?
[247] These are examples that lead the Court to conclude that Mr. Lombardo’s credibility is tainted and that his sincerity and good faith are questionable.
[248] Fourthly, the Court finds that Mr. Lombardo must accept some responsibility for the current state of the garden and the fact that the landscaping work may not have been completed to his satisfaction. The evidence of the witnesses of the Plaintiff (Mr. Veillette, Mr. Khan, Mr. Tremblay, Mr. Turgeon and Mr. Paquette) is convincing. Without exception, they testified that they followed Mr. Lombardo’s disorderly and incoherent directives and instructions. All of them stated that it was difficult and laborious to work with him as he often changed his mind.
[249] The Court notes that there was no landscaping plan or photos to follow. The evidence also reveals that Mr. Lombardo insisted on installing grass and that trees be planted in areas that he was told were not wise to do so.
[250] In addition, the evidence discloses that it was Mr. Lombardo who removed, potted and stored most of the trees and shrubs he wanted to replant. His expert, Mr. Cinquino, points out that shrubs and perennials were improperly removed and stored. Mr. Paquette indicated that the chance of survival of plants and trees is reduced each time they are planted and replanted.
[251] Fifthly, the Court is satisfied from the evidence that the property lacked care and maintenance following the end of the landscaping work. This is particularly evident, by the length of the grass and the weeds that are shown in certain photographs taken in the summer of 2011.[70] This evidence makes it appropriate to question whether Mr. Lombardo had the strength and energy to maintain the freshly planted garden following his vascular difficulties of late June 2011.
[252] The casual link is thus difficult to establish between the damages claimed pursuant to the April 2012 expert’s report and the work of Habitations’ subcontractors in May 2011, considering the time elapsed and the direct involvement of Mr. Lombardo in directing the work and the apparent lack of maintenance thereafter.
[253] Finally, the Court concludes that Habitations does not have the obligation to restore Mr. Lombardo’s garden to its original state, as stated by his experts..
[254] That garden no longer exists. It has been transfigured for three evident reasons. Firstly, the three foot wide century old silver maple tree that was eloquently shown in the pre-construction photographs is no longer there. That alone, takes away a great part of the charm of the previous garden. Secondly, there is now a 50 feet wide, three storeys high brick wall on the mitoyen line that replaces that fine old tree. The contrast could be no greater. Finally, the garden has been drastically transformed and amputated by the parking pad and the large gravel terraced area. These differ dramatically from the green lush lawn of four years ago.
7. WHAT DAMAGES DID MR. LOMBARDO SUFFER?
[255] Having determined that Mr. Lombardo’s cross-demand is to be dismissed, it is not necessary to answer this question and to examine his claim for damages.
FOR THESE REASONS, THE COURT:
[256] DISMISSES the Defendant’s Amended Defence and Cross-Demand, WITH COSTS;
[257] GRANTS the Plaintiff’s Amended Introductory Motion in part;
[258] ORDERS, Mr. Rocco Lombardo to sign, within thirty (30) days of this Judgement, the deed that was submitted to him by Notary François Loiselle on May 20, 2011 (Exhibit D-7), which deed is to incorporate the changes made to Section 9.2 thereof, shown on the draft of June 29, 2011 (Exhibit D-22), as well as the following further changes:
a) Section 8 of the draft deed of servitude should be modified to refer to the underground footing encroachment of some 0.14 meter set out in the certificate of location and survey plan of Pierre Cardinal, Q.L.S., of April 27, 2012 (file number 48789-1) (Exhibit D-15); and
b) the Syndicate of co-ownership should state that Mr. Rocco Lombardo or any future owner of his property can build up to the wall of the condominium building.
[259] ORDERS Mr. Rocco Lombardo to pay 9209-1537
Québec Inc. the sum of $2,500, with interest thereon at
the legal rate since December 21, 2011, plus the additional indemnity provided
pursuant to Article
[260] WITH COSTS.
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__________________________________ Paul Mayer, j.s.c. |
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Mtre. Marco Vitale |
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Attorney for the Plaintiff |
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Mtre. Michael R. Concister |
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Mtre. Hubert-Martin Cap-Dorcelly |
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Attorneys for the Defendant |
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Dates of hearing: May 6, 7, 8, 11, 12, 13, 14 and 15, 2015 |
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[1] Ambrose BIERCE, The Devil’s dictionary, The Folio Society, London, 2003, p. 215.
[2] $94,057.43, that is $69,057.43 to restore his garden and $25,000 due to stress and inconvenience. This amount was reduced pursuant to an amendment made at the end of the trial.
[3] Exhibit D-13.
[4] Exhibit P-1.
[5] Exhibit D-14.
[6] Exhibit D-2.
[7] Exhibit D-7.
[8] Exhibit D-6.
[9] Exhibit D-7.
[10] Exhibit D-18.
[11] Exhibit D-19.
[12] Exhibit D-22.
[13] Exhibit D-21.
[14] Exhibit D-24.
[15] Exhibits P-8, P-9 and P-10.
[16] Exhibit D-25.
[17] Exhibit P-5.
[18] Exhibit D-5.
[19] Pars. 44 and 45 of the Defence and Cross-Plea.
[20] Id., par. 51.
[21] Id., par. 54.
[22] Denys-Claude LAMONTAGNE, Biens et propriété, 7th Ed., Cowansville, Éditions Yvon Blais, 2013, par. 279-280
[23]
Art.
[24]
Art.
[25]
Art.
[26] Art. 992 C.Q.Q. al. 1; Gosselin v. Doiron,
[27]
Pierre-Claude LAFOND,
[28]
Lizotte Bergeron v. Lamarre,
[29]
Art.
[30]
Investissements D.D. Inc. v. Mascouche (Ville de),
[31] D.-C. LAMONTAGNE, supra note 22, par. 440, 442; P.C. LAFOND, supra note 27, par. 1014; Charest-Murray v. Jobin, supra note 27; Investissements D.D. Inc. v. Mascouche (Ville de), supra note 30.
[32]
Art.
[33] D.-C. LAMONTAGNE, supra note 22, par. 427- 428, 446-448.
[34]
Martin v. Club Francis Brûlé inc., J.E, 2009-1051 (C.A.), par.
44; 9079-8190 Québec inc. v. Bergeron,
[35]
Rimouski (Ville de) v. Laflamme,
[36]
Grenier-Depreist v. Gauvin,
[37] 1111. The right of the superficiary to use the subsoil is governed by an agreement. Failing agreement, the subsoil is charged with the servitudes necessary for the exercise of the right. These servitudes are extinguished upon termination of the right.
[38] Exhibit D-30 - Mr. Persico graduated from Concordia University in 2003. Since 1997, he has worked with ICanda Corporation, a company that specializes in foundations.
[39] Par. [53] of the Amended Defence & Cross-Demand.
[40] Exhibit D-8.
[41] 6. Every person is bound to exercise his civil rights in good faith.
7. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith.
1375. The parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished.
[42] S. GRONDIN, supra note 30, par. 110-300, p. 6-056, 6-057.
[43] François FRENETTE, La propriété superficiaire, 3rd Ed., Montreal, Chambre des Notaires, Éditions Wilson & Lafleur, 2014, par. 34.
[44] P.C. LAFOND, supra note 27, par.1573.
[45]
P.C. LAFOND, supra note 27, par. 1573, 1586 to 1590; F. FRENETTE, supra
note 43, par. 32 to 35; see also Martin v. Club Francis Brûlé inc.,
supra note 34, par. 47; 9079-8190 Québec inc. v. Bergeron,
supra note 34, par. 58; Grenier-Depreist c. Gauvin,
supra note 36, par. 50-51; Québec (Procureur général) v. Développements
de demain inc.,
[46] Martin c. Club Francis Brûlé inc., supra note 34, par. 46; Anne-Françoise DEBRUCHE, Propriété superficiaire, in JurisClasseur Québec - Biens et publicité des droits, booklet 13, updated up to November 19, 2012, par. 16; F. FRENETTE, supra note 43, par. 29-30.
[47] Martin c. Club Francis Brûlé inc., supra note 34.
[48]
Martin v. Club Francis Brûlé inc., supra note 34, par.
47; see also Lizotte Bergeron v. Lamarre, supra note 28;
Gagné (Succession de) v. Beaudouin,
[49] Exhibit D-7.
[50] Exhibit D-22.
[51] Exhibit D-5.
[52]
2011 QCCS 2177, par. 17; see also Les Érablières Caron inc. v.
Fédération des producteurs acéricoles du Québec,
[53] 2007 QCCS, par. 92.
[54]
FBT Dorval Inc. v. Dorval (Cité de),
[55] Exhibits D-13 and D-14.
[56] Exhibit P-6.
[57] Exhibit P-6.
[58] Exhibit P-6.
[59] Exhibit P-12.
[60] Exhibit P-13.
[61] Exhibit P-6.
[62] Exhibit D-26.
[63] Exhibit D-11.
[64] Exhibit D-32.
[65] Exhibit D-15.
[66] Exhibit D-16 - Demand letter dated October 27, 2011.
[67] Par. [83] of the Amended Defence & Cross-Demand.
[68] Exhibit P-13.
[69] Exhibit D-10.
[70] Exhibit D-12.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans
appel; la consultation
du plumitif s'avère une précaution utile.