Collard c. Montréal (Ville de)			2016 QCCS 4554
JP1900    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF		MONTREAL
No:	500-17-079896-133
DATE:	SEPTEMBER 21, 2016
______________________________________________________________________
BEFORE THE HONOURABLE MR. JUSTICE MARK G. PEACOCK, J.S.C.
______________________________________________________________________
RACHEL COLLARD
Plaintiff
v.
VILLE DE MONTRÉAL -and- BELL CANADA
Defendants
______________________________________________________________________
JUDGMENT

INTRODUCTION

[1]   Ms. Rachel Collard[1], then a retired 64 year old grandmother, was walking from her parked car to babysit at her son’s residence.  It was 6 p.m. at night on Friday, December 2, 2010 and the sidewalk was clear, bare of all precipitation.  Ms. Collard says she fell when her right foot got caught in the exposed opening under a Bell manhole cover located in the middle of a City sidewalk in front of her son’s home.  She further says that the closest city streetlight was not working and claims $99,413.00 solidarily from the City and Bell.

[2]   For reasons that will be explained, both Defendants deny any liability but plead in the alternative that if there was any fault, it was only that of the other Defendant and Ms. Collard.  There were no witnesses to the fall.

[3]   Beginning on December 10, 2010 Ms. Collard initiated a lengthy exchange of correspondence - firstly with the City’s insurance adjusters and then Bell’s insurance adjusters after the City informed her that the problem was Bell’s. Both Defendants formerly rejected her claims in letters sent to her in the autumn of 2012.

[4]   Thereafter, Ms. Collard instituted these legal proceedings dated November 12, 2013.  It was six years after the fall - when Ms. Collard was 70 years old - that the trial finally took place.

[5]   The Court will begin with a factual overview and then will decide the necessary findings of fact relevant to determine the issues of causality, liability (either fault under CCQ article 1457 or, in relation to Bell, CCQ article 1467, or Ms. Collard’s contributory negligence) and whether there are damages caused by the fall.

FacTual Overview

[6]   Ms. Collard drove to her son’s residence located at […], at the corner of Foch Street in the Verdun borough. The son lived in this multiple-unit building which had been purchased by Ms. Collard and her husband in July 2010 and which her son’s family moved into in October 2010.

[7]   She had not visited the premises prior to purchasing them but since, had been there between four and five times prior to the incident. She had never been there before at night.

[8]   At 6 p.m. or thereabouts, she dropped her husband off in front of the door to the son’s residence since the parking directly in front was already taken.

[9]   She drove around the corner and parked on Foch Street.

[10]        Leaving her car, there is no evidence she had anything in her hands. She was wearing running shoes recently purchased but which showed reasonable wear (meaning that she was an active person) with a good tread.

[11]        She had never approached the son’s residence from this direction previously but she was aware there was a manhole located south of the walkway to her son’s residence.

[12]        In statements she gave contemporaneous to her fall, she indicated that her right foot stuck at the side of the manhole cover and she fell forward breaking her fall with her arms.

[13]        The sidewalk was the responsibility of the City’s borough of Verdun. She later found out from the City’s adjuster that the manhole was the property of and had been installed by Bell.

[14]        Her son took her to the hospital immediately after the fall. She suffered a fractured left wrist and injury to the little finger on her right hand.

[15]        There is a municipal streetlight at the corner of LaSalle Boulevard and Foch Street facing LaSalle Boulevard. Ms. Collard does not know whether that streetlight was illuminated or not at the time of the fall but she testified that it was dark where she fell.

[16]        Ms. Collard underwent a medical examination on or about July 5, 2012[2] by Dr. Catherine Brownman, orthopaedic surgeon, and a follow-up medical expertise was prepared by Dr. Brownman on March 9, 2016.

[17]        Ms. Collard was evaluated by defence orthopaedic surgeon, Dr. Patrick Lavigne, on March 12, 2014 and his expert report was filed[3].

[18]        Shortly after the accident, photographs were taken of the accident site and filed[4] by Ms. Collard.

[19]        The municipal sidewalk in question on LaSalle Boulevard between Foch and Clemenceau Streets is in a roughly north-east to south-west direction. For easier visualization, the black and white version of Exhibit P-1 is attached as Annex A to this judgment.

[20]        The manhole is situated on the western side of the sidewalk. It reaches from the lawn of the son’s residence to approximately the middle of the sidewalk. The sidewalk is on a slight slope of 2% and the lawn above the manhole has a much greater slope. The manhole has a metal cover weighing 250 pounds which is encased in an outer metal ring. The cover must be pried off to gain entry to the manhole. To ensure that the manhole creates a flush surface with the sidewalk, a cement collar has been poured around the manhole cover and ring.

[21]        The south-east corner of the manhole ring shows that the cement has been eroded. Mr. Mathieu Bouvier, Bell’s engineer, advises that the metal ring is approximately 2 inches in depth and this would mean that there is an exposed hole below the ring caused by the erosion of the cement which would be of a similar height. The erosion in the form of a “V” from the ring to the street not only shows erosion of the cement but also of the sidewalk - beyond the cement collar - to the south-east which itself has been badly eroded. From the topography, it appears most probable that the water, including melted snow draining from the lawn flows around both sides of the metal ring such that the two streams of water meet in or about the south-east corner and over time this water has caused the erosion seen on the contemporaneous photograph[5].

[22]        This south-east corner of the ring which shows the greatest erosion and has the hole under the ring is in approximately the middle of the sidewalk. From the photograph, a person walking in the middle of the sidewalk from the corner of Foch Street to the son’s residence appears to have clear passage until coming to the manhole. Closer to the corner, there is some substantial erosion between the manhole and the corner of Foch Street, but it is on the street side and would not affect a person walking in the middle of the sidewalk.

[23]        The City makes the judicial admission in its Defence[6] that it permitted Bell in 1951 to install the manhole in its sidewalk. No binding document was produced whereby the Defendants came to any agreement regarding maintenance and use of this particular manhole (or any others). The uncontradicted evidence from the City is that it had nothing to do with either installation or maintenance of this manhole. Accordingly, the Court determines that the manhole - and the cement collar placed around it which forms an integral part of the manhole installation - is the property of Bell, while the sidewalk itself remains the property and responsibility of the City.

CAUSALITY

[24]        Both Defendants allege that Ms. Collard was solely responsible for her fall. In particular, Bell asserts that in her trial testimony, Ms. Collard said she did not remember precisely where she fell on the sidewalk.

[25]        To determine causality, the Court must look at the role played by the City’s independent insurance adjuster, Mr. J.P. Masse of the firm of Drolet, Besselle & Landreville Inc[7] who corresponded with Ms. Collard after the fall.

[26]        During this lengthy correspondence, Mr. Masse and the City received various written declarations from Ms. Collard which were more contemporaneous to the fall and which explained the circumstances:

a.  notice of claim: December 10, 2010: « J’ai tombé à l’endroit où il y a une bouche d’égout sur le trottoir en face de l’immeuble[…][8]»;

b.  Mr. Masse came to her home on March 14, 2011 and took a declaration in writing from her : « … je marchais normalement et je regardais devant moi lorsque mon pied droit s’est coincé dans une dénivellation, perdu l’équilibre et tombée vers l’avant … je n’avais pas remarqué la présence du couvercle du trou d’homme et de la dénivellation avant de chuter le 2 décembre 2010 …»[9];

c.   at the Examination on Discovery of Ms. Collard on September 11, 2015[10], Ms. Collard identified the manhole where she tripped and stated[11]: “… my foot got stuck … around the manhole. I went forward but my leg did not go forward”.

[27]        At trial, Ms. Collard, now 70 years old and recounting incidents six years earlier, testified that she did not know where she fell or where her foot got caught.

[28]        Bell asserts that the Court should rely on this trial testimony as grounds to dismiss Ms. Collard’s claim because she has proven no causality that the manhole cover belonging to Bell was involved. The Court disagrees.

[29]        The Court determines that the most probable cause of the fall and surrounding events was as described in the statements made more contemporaneous to the fall by Ms. Collard and upon which the Court relies since they were fresher in her memory. The Court determines that most probably the right running shoe of Ms. Collard got caught partially in the hole under the metal ring of the manhole and partially in the eroded slope of the cement and this caused her to lose her balance and fall forward.

[30]        Both Defendants assert that Ms. Collard should have seen and avoided the manhole because she knew of its existence and it was visible.

[31]        For the reasons that follow, the Court finds that Ms. Collard bears no responsibility for the fall:

a.   since this was the first time that she came in this direction, she cannot be expected to remember the position of the manhole and in all events, there is no evidence she knew of the hole or depression under the metal ring;

b.   at 6 p.m. on a dark December 2, 2010 night, she cannot be expected to see the manhole in the circumstances present at that time;

                                                  i.    the closest streetlight was not illuminated (see following section on this issue);

                                                 ii.    there is no evidence that the house lights on the son’s residence illuminated this part of the sidewalk and particularly since the hole and the depression were on the opposite side of the ring from the exterior houselights; and

                                               iii.    any light from the streetlight on the opposite (east) side of LaSalle Boulevard would have been blocked by the car parked in front of the entrance to her son’s residence.

[32]        The son’s upstairs neighbour, Ms. Carla Gosselin testified on behalf of the Plaintiff. The Defendants were critical of her testimony for the following reasons:

a.    Ms. Gosselin said she knew Ms. Collard from 2008 and yet Ms. Collard had only purchased the building in July 2010. Ms. Gosselin is clearly incorrect on this date;

b.    she could not remember that the son was living in the apartment below hers on the date of the incident but she recalled on that date that the manhole streetlight was not working; and

c.    Ms. Collard filed into evidence a letter prepared by Ms. Gosselin after having been requested to prepare the document by Ms. Collard. The letter is dated November 26, 2012 and is essentially an advocacy piece in support of Ms. Collard’s case. The letter begins: « À qui de droit, Je produis cette lettre au soutien de la réclamation présentée par Mme Rachel Sablauskas … ». The document is a mixture of her own observations as well as what she was told by Ms. Collard.

[33]        Ms. Collard commenced her legal proceedings four days before this letter was signed by Ms. Gosselin and given its advocacy nature; the Court prefers the oral evidence given by Ms. Gosselin at trial when she was subject to cross-examination by both Defendants.

[34]        Since Ms. Collard’s evidence is that Ms. Collard had only visited the premises on four to five occasions prior to the fall, it is not probable that Ms. Gosselin and Ms. Collard developed any sort of friendship in this period prior to the accident. However, Ms. Gosselin’s evidence provides an important perspective for the Court since she had lived in the upper floor of the residence since 2008. She was employed full-time in a responsible position and went to work 9 to 5 every day. Her front window had a direct overlook onto the sidewalk and manhole in question. Her uncontradicted testimony, upon which Bell itself relies, is that dozens of persons, who walked in the same direction down LaSalle Boulevard as Ms. Collard, avoided the manhole by going onto the lawn of the residence at […]. She said otherwise to avoid the manhole, a pedestrian would have to walk on this busy street.

[35]        Ms. Gosselin testified that the metal ring had a gap somewhere between two and three centimetres from the lowest surface of the sidewalk but she did not remember when she first noted this disparity.

[36]        She showed on a photograph the four places on the manhole cover in issue where she herself had tripped at various times prior to Ms. Collard. Despite this, she testified that she never complained to the City.

[37]        She noted that she walked every day and that the sidewalk in question was on a slope towards the south. Her walk to Crawford Street to catch the bus to go to work would have taken her across the manhole in question. She said that the manhole was visible in the day but not at night.

[38]        According to Ms. Gosselin, there was gradual degradation of the cement collar around the manhole over the years.

[39]        The Court determines that Ms. Gosselin’s above mentioned evidence was not seriously diminished on cross-examination and that her testimony is consistent with the determination that the manhole in question and particularly the erosion on its south-east corner, created a dangerous situation for pedestrians to the point that people who regularly walked in this area moved off the sidewalk to avoid this problem.

LIABILITY

GUIDING LEGAL PRINCIPLES

Obligations of the Municipality

[40]     In 2000, Mr. Justice Pierre Dalphond[12] (then of the Superior Court) summarized these obligations:

15-L'obligation de la ville en ce qui a trait à l'entretien de ses trottoirs n'en est pas une de résultat, mais de moyens (Garlieri c. Cité de Montréal, [1961] R.C.S. 408; Picard c. Cité de Québec, [1965] R.C.S. 527).

16-Par ailleurs, l'intensité de cette obligation de moyens peut varier en fonction des caractéristiques des lieux, comme l’indique l’art. 1457 C.c.Q.  Par exemple, certaines précautions peuvent s'imposer dans une côte, mais non sur le plat.  De même, les endroits où il y a haute densité de circulation piétonnière requièrent des interventions prioritaires et plus ciblées […]

(this Court’s emphasis)

[41]     Furthermore, Mr. Justice René Hurtubise[13], also of the Superior Court, said :

La règle de droit est connue et a été répétée à de nombreuses occasions par les auteurs […].

À titre d'exemple, citons André et Richard Nadeau, Traité Pratique de la responsabilité civile délictuelle, Wilson & Lafleur Ltée, 1971.

…

<106.- Nature et étendue de cette responsabilité.-

Pour l'entretien de ses trottoirs, une corporation municipale est tenue d'apporter les soins qu'un homme prudent apporterait à sa propriété personnelle, en d'autres termes, les soins « d'un bon père de famille », sans reconnaître qu'elle est l'assureur des piétons utilisant ses trottoirs, ce qui équivaudrait à la rendre responsable de tous les accidents.

Or, la jurisprudence décide que c'est à la victime de prouver que l'accident a été causé par la faute ou la négligence de la corporation ou de ses officiers, qui connaissaient l'état dangereux de ses trottoirs ou étaient présumés en avoir eu connaissance, parce qu'il existait depuis assez longtemps. En ce dernier cas, on peut attribuer l'ignorance de la corporation et de ses officiers à leur négligence à se renseigner promptement et en temps utile. V. supra, no 99.>;

et

<110. - Les défectuosités des trottoirs.-

L'obligation d'une municipalité de tenir ses trottoirs en bon état ne se limite certes pas à les empêcher d'être glissants. Elle devra voir à ce qu'il n'y ait pas de trous susceptibles d'être une source de danger pour les piétons, comme a été jugé l'être un trou de deux pieds de long par un pied et trois pouces de large, avec une profondeur allant jusqu'à deux pouces et trois-quarts. (...)>.

(this Court’s emphasis)

[42]     In the same Morasse judgment[14], there was also a question of what the costs of the necessary repairs were:

…Davantage, la défenderesse ayant admis que cette cavité existait à l'automne 1991, le tribunal peut alors en déduire une négligence persistante [...] attitude qui continuait le 9 mars 1992 et qui, sans insister, perdurait en septembre 1995.

Plaider que vu les contraintes budgétaires ce n'est pas une priorité de la Ville de Montréal ne constitue pas une excuse valable... . D'une part, boucher une cavité de 9 po. par 10 po. et par 4 po. n'exige pas un coût faramineux et, d'autre part, la défenderesse existe assurément pour assurer la protection minimale des individus qui empruntent ses trottoirs et font montre d'une démarche normale.

(this Court’s emphasis)

Obligations of pedestrians

[43]     A pedestrian walking on the sidewalks of Quebec municipalities must exercise “reasonable diligence”. In the judgment of Québec (Ville de) v. Barbeau[15], Mr. Justice Pratte speaking for the Court of Appeal said:

« La cité n’est donc pas l’assureur des piétons; et son obligation n’étant pas absolue, les piétons ne sont en droit d’attendre d’elle qu’une sécurité relative. S’ils désirent davantage, ils devront compter sur leur propre vigilance pour l’obtenir. L’obligation de la cité à leur égard n’a pas pour effet de les décharger du devoir qui incombe à chacun de veiller à sa propre sécurité, surtout alors que les circonstances commandent la prudence. »

(this Court’s emphasis)

[44]     In the 1959 Supreme Court of Canada judgment of Dumouchel v. Cité de Verdun[16], the Court found no contributory negligence on the part of the victim, who was a taxi driver. He fell in an 8 inch deep hole while cleaning his car at a taxi stand. That taxi stand was designated by the municipality. The Court found that the hole was dangerous but did not require the taxi driver to exercise: “une attention indéfectiblement soutenue”, because the degree of diligence “requis d’un homme raisonnablement prudent, placé et agissant dans les mêmes circonstances, d’exiger que toujours, à chaque instant et sans jamais y faillir, Dumouchel ait eu l’esprit, au cours de son travail à ce poste, la présence de ce piège. […] La cité est mal venue à invoquer cette inattention momentanée qui, en somme, est la conséquence normale, sinon inévitable, d’une situation créée par sa faute » (this Court’s emphasis).

[45]     In the 2001 Superior Court judgment of Lazarin v. City of Laval[17], the pedestrian fell because of a height difference of 2 inches in two adjacent parts of a sidewalk. Mr. Justice Louis Crête found the plaintiff to be 25% responsible:

[…]  Même si un trottoir municipal n'est pas de même nature qu'un sentier pédestre, la prudence aurait exigé que Mme Lazarin fît preuve d'une attention particulière à regarder où elle posait le pied à un endroit qu'elle ne connaissait pas. La dénivellation était peut-être difficile à voir de loin, mais elle n'était pas impossible à détecter pour peu qu'on eût pris les précautions d'y regarder plus attentivement. En se laissant distraire par l'aspect des maisons bordant le boulevard McNamara, Mme Lazarin n'a pas fait montre de la plus grande prudence et elle doit en conséquence assumer une part de la responsabilité pour sa chute. 

                                                                                                  (this Court’s emphasis)

[46]        Furthermore, in the 2009 judgment of Romano v. Longueuil[18], Madam Justice Carole Julien, citing the Morasse[19] decision, confirmed :

[…] Une ville doit permettre aux piétons de circuler normalement, dans une sécurité relative, sans avoir à garder constamment les yeux rivés au sol.

[47]     Madam Justice Julien determined also that « la saillie à angle droit formée dans le joint entre deux segments du trottoir (ou dénivellation d’un pouce et demie) a causé la chute de la demanderesse. L’incident est arrivé la nuit et l’éclairage des piétons est assuré par des lampadaires espacés de 40 mètres entre eux sur le côté opposé. Quelques voitures stationnées du côté nord de la rue font écran à cet éclairage ». The Court found that the unevenness of the sections of the sidewalk were not particularly visible, especially in the evening. Madam Justice Julien found the plaintiff was 33% responsible because :

En effet, madame Romano doit assumer une part de responsabilité car cette dénivellation n'était pas invisible. Son attention aurait dû être alertée par le bris apparent causé par les équipements de déneigement le long de la ligne des terrains privés.

[48]     In the Morasse judgment, Mr. Justice Hurtubise underscored the obligations of the pedestrian:

La Ville de Montréal a beau ne pas être l'assureur de chaque individu qui déambule sur le trottoir, encore faut-il permettre aux piétons d'y circuler normalement dans une sécurité relative, sans avoir les yeux rivés sur le sol en quête ou dans l'appréhension d'un trou ou d'une faille.

(this Court’s emphasis)

ANALYSIS

Was the City at fault in not having the sidewalk around the manhole properly illuminated at 6:00 p.m. on December 2, 2010?

[49]        Ms. Collard’s Amended Introductory Motion alleges that the streetlight on LaSalle Boulevard at the corner of Foch Street, the streetlight closest to the manhole[20], was not functioning at the time of her fall.

[50]        On the contrary, the City asserts that not only was this streetlight working at the relevant time but so was a streetlight across the street on the east side of LaSalle Boulevard[21].

[51]        Mr. Guy Larocque, a City management employee of 28 years of service and “Chef de section, Soutien opérationnel”, testified that the purpose of a streetlight is to provide security both for pedestrians and cars.  He indicated that the manhole streetlight was approximately 15 feet from the manhole and that the streetlight had a funnel of light of approximately 50 feet.  Accordingly, if the manhole streetlight had been working, it would have clearly illuminated the manhole.

[52]        The manhole streetlight was equipped with a photocell which turned this particular streetlight on and off automatically while the opposite side streetlight was connected to a series of 30 other streetlights which were activated by a collective photocell. The Court understands that two potential sources of malfunction for the manhole streetlight are the photocell not working and the bulb being burnt out.

[53]        The Court determines that the City has not proven that the manhole streetlight was functioning for these reasons.

[54]        The City filed computerized repair records for streetlights on LaSalle Boulevard and Foch Street showing complaints regarding streetlights from January 27, 2009 through to and including May 22, 2012, for which there was no reference to the manhole streetlight. Although there is no reference to any repair being made to the manhole streetlight which is located in front of […], yet the uncontradicted evidence of Ms. Collard is that this light was out, in the minimum, on December 22, 2010.

[55]        Now, for the streetlights located on the opposite side of LaSalle Boulevard, 30 of those streetlights are connected to one photocell switch.  If that switch is not working, then all 30 lights will be out and there will be a major blackout.

[56]        Mr. Larocque explained that the City’s “311” telephone number could be called by citizens to report problems with City infrastructure.  When such problems related either to streetlights or sidewalks, these were passed on to the specific boroughs to be resolved. 

[57]        Accordingly, the City seeks to prove that since it received no complaints regarding the manhole streetlight and since its records show no repairs, that accordingly that light was illuminated at 6 p.m. on December 2, 2010.

[58]        Mr. Larocque testified that the City has a golf-cart-like vehicle called “mobile 13” which travels ten kilometres each evening to inspect streetlights and sidewalks. Since he also testified that there were 105 kilometres of sidewalks in Verdun, “mobile 13” would be able to inspect all of the sidewalks and adjacent street lamps once every 11 to 12 working days, given that the vehicle must cross the street, which may lengthen the route.

[59]        While these means of inspection appear reasonable in theory, the facts prove that their execution was faulty.

[60]        On the night in question, Ms. Collard does not recall whether the manhole streetlight was illuminated or not.  She remembers only that the surrounding area was dark. This could not have been the case if the manhole streetlight was working. However, further to a query raised to the City’s insurance adjuster, she wrote to him on December 22, 2010, 20 days after her fall, that she had checked the manhole streetlight and it was not working.  This adjuster had asked her to check this during their earlier December 14, 2010 meeting at her house.[22]

[61]        This assertion by Ms. Collard stands since no witness from the City, including Mr. Masse, the adjuster, was called to contradict this evidence.

[62]        This fact puts into question both the 311 computer charts showing all repairs to streetlights as well as the mobile 13 inspection system, neither of which picked up this outage.

[63]        This is also because Ms. Gosselin, the upstairs’ neighbour confirms that the light was only repaired approximately one year after the accident and she knew this because the light shines directly in her second floor front windows and as a result, since the repair, she has always been required to close her curtains at night.  Her evidence in this regard was not diminished on cross-examination.

[64]        Accordingly, the evidence demonstrates on the balance of probabilities that not only was this manhole streetlight not functioning on December 2, 2010 but that it took the City (and the borough of Verdun) over a year to repair the problem.

[65]        The lengthy time taken by the City to repair streetlight outages even when the City is aware of difficulties with streetlights is confirmed by the City’s own Exhibit D-7B where a problem occurred with a streetlight in front of 1187 Foch Street, the closest lamp to the manhole streetlight, on the adjacent Foch Street.  The problem concerning the streetlight was reported in October 17, 2007 but it took until April 25, 2008 for the problem to be finally corrected.[23]

[66]        The Court makes the following determinations:  (a) the City has not proven on the balance of probabilities that the manhole street lamp was illuminating at 6 p.m. on December 2, 2010; (b) that the un-contradicted evidence of Ms. Collard that it was dark in the area of where she fell meant that the manhole streetlight was not illuminated at the time of her fall since its proximity to the manhole would clearly have illuminated at least that manhole and the surrounding area; and (c) that the system of inspection by the City was deficient since, either on December 2 or December 22, 2012 or at any other time contemporaneous with these outages, it neither recorded that the manhole streetlight was not working nor did it record when it was repaired.

[67]        The City has recognized the value of the system implemented with the new streetlights on the east side of LaSalle Boulevard which are 30 lights connected to one photocell switch which if it interrupts then the entire series goes out.  This makes the problem all that more visible and hence more likely to be brought to the City’s attention.  The City provided no evidence from “mobile 13” to prove, in relation to December 2, 2010, when this inspection unit passed by the manhole streetlight prior to this date.  The Court is perplexed as to why such evidence was not produced by the City given that Mr. Larocque indicated that such inspections were methodical and hence there must have been some defined route map and record.

Do Bell and the City have any legal liability for the condition of the manhole and the sidewalk?

Guiding legal principles

[68]        Since the City owns the sidewalk, Ms. Collard must prove that the cause of her fall was the fault of the City. The City has an obligation of means of varying intensity to the users of the sidewalk to ensure the sidewalk is in reasonable repair. The fact that the City has permitted Bell to install this manhole sets up a secondary legal relationship between Bell and the City but does not affect the City’s primary obligation to sidewalk users.

[69]        The City must undertake reasonable inspections to ensure that these third party installations in its sidewalks do not create dangers for its users provided they exercise “reasonable diligence”.

[70]        The evidence is clear that when the City advises Bell of any repairs required to the manhole, those repairs are undertaken by Bell and not the City even though there may be a substantial delay in the City informing Bell and a certain delay for Bell to do those repairs[24]. For example, after Ms. Collard advised the City on December 6, 2010 of her claim, it was not until August 2011 that the City advised Bell. It was then only on September 21, 2011 that Bell advised that the repairs would be completed between the middle and end of October 2011, which was done.

[71]        Whether there is liability for Bell must be considered under CCQ art. 1467:

 

1467. The owner of an immovable, without prejudice to his liability as custodian, is bound to make reparation for injury caused by its ruin, even partial, whether the ruin has resulted from lack of repair or from a defect in construction.

 

1991, c. 64, a. 1467; I.N. 2014-05-01.

 

[72]        This article creates a presumption of liability which may only be rebutted by proof of force majeure, or by the victim[25].

[73]        The term “immovable” has been given a large and liberal interpretation to include, amongst other things, water purification works, aqueducts and Hydro-Québec electric poles[26].

[74]        Accordingly, the Court determines that the manhole cover and ring and cement collar tube as well as the underground chamber are together one installation which constitutes an “immovable” within the meaning of CCQ art. 1467.

[75]        The Court has already indicated that the injury to Ms. Collard’s left wrist has been caused by the combined effect of the spalling and erosion of the cement collar around the ring and the creation of a dip in the surface of the sidewalk as a result.

Analysis

[76]        The Court has determined that the spalling and erosion of the cement collar with the resulting creation of an un-level surface and an open hole at the southeast corner of the manhole constitute “ruin” within the meaning of C.C.Q article 1467. 

[77]        For the reasons that follow, the Court finds there has been a “lack of repair” per C.C.Q. article 1467.

[78]        The evidence indicates that the manhole was likely installed sometime after 1951 when the City gave permission to Bell.  That installation has the following components: a cement cylinder with a ladder inside which leads down into a cement chamber where repairpersons have access to a variety of cables that belong to Bell or others; on top of this cement cylinder fits a metal ring into which sits the removable 250 pound manhole cover.

[79]        In the case of this particular manhole, a cement collar has been poured around the manhole cover presumably because there was a space left between the cover and the sidewalk and this cement was necessary to ensure the surface of the sidewalk is level.  A level sidewalk is important for pedestrian safety and also because of the operations of sidewalk snow removal vehicles in the winter.  Mr. Larocque’s un-contradicted evidence is that Bell was responsible for this complete installation and for any maintenance thereafter.

[80]        Using photographs obtained through Google Street View,[27] Ms. Collard produced five photographs showing the deterioration around the manhole cover on the following dates: (a) September 2007: since the photo is taken from approximately the middle of LaSalle Boulevard, the manhole is visible as is substantial spalling of the sidewalk; (b) April 2009: this photograph is much closer and a hole forming under the southeast corner and important erosion of the cement collar are clearly visible, as is substantial sidewalk erosion below the cement collar; (c) August 2011, this street view is taken at a similar distance to the 2007 photograph: the hole appears larger than in 2009 and nothing has been repaired; (d) April 2012 an asphalt patch has completely repaired the entire section of the sidewalk and a manhole cover appears completely flush with the asphalt;[28] and (e) June 2015: the asphalt has been replaced with a cement section of sidewalk both for the part of the sidewalk including the manhole as well as several sections to the south and west.

[81]        Mr. Larocque confirmed that the City does not install its manholes in the manner shown in the 2009 photo with the Bell cement collar.  He indicated that the City removes the required sections of sidewalk and re-pours the sidewalk over top of the manhole so that it fits flush.  An example of this is seen as photograph number 6 in Exhibit P-27.  As a result, the manhole cover fits flush both horizontally and vertically in this cement sidewalk without there being any requirement for a cement collar.

Bell’s responsibility

[82]        Bell asserts in its Plan of Argument that its program of inspection permitted good maintenance of its manholes and that there was no proof of fault.  The evidence discloses the contrary: as regards this particular manhole, a proper inspection was not carried out by Bell’s sub-contractors and subsequent repairs to the site of the manhole after the Plaintiff’s fall demonstrate that the original construction, using a cement collar, was a defect of construction for which Bell is responsible.

[83]        One of Bell’s witnesses was Mr. Mathieu Bouvier, a mechanical engineer who obtained his engineering degree while working for Bell.  After the fall and beginning only in 2011, his responsibilities included the maintenance of Bell‘s underground network.  He noted that Bell is made aware of problems with its installations by being advised by municipalities and also as a result of reports prepared by Bell’s sub-contractors who must gain access to the cables through the Bell manholes and must provide an inspection report when they do so.

[84]        Due to the inherent danger in working in enclosed spaces underground, there are rigorous CSST regulations and Bell uses a detailed reporting system for its sub-contractors.[29]  However, while detailed information must be completed for underground conditions, little detail is required to be reported for aboveground conditions.

[85]        Specifically, Bell filed a report from one of its sub-contractors who entered the manhole on July 16, 2009.[30]  This is the last entry of the manhole prior to the fall on December 2, 2010.

[86]        Mr. Gilles Dumas is the sub-contractor’s employee who supervised the work of yet a second sub-contractor that was undertaking underground repairs.  Called as a witness, Mr. Dumas did not remember this specific work situation but recalled that he filled out the necessary report.

[87]        On the first page of the report to be filled out by Mr. Dumas, there is a heading: “Collet” which notes it to be cement and has three boxes to check off, if required, one of which says “Collet en mauvais état de réparation”.

[88]        This box was not filled-in by Mr. Dumas in the report for his entry in the manhole on July 16, 2009.

[89]        When Mr. Bouvier was shown the photographs of the manhole taken shortly after the fall in December 2010[31], he said that such a condition should have been noted on the inspection form if it was present at the time of entry.

[90]        The Court has two photographs showing the condition of the manhole at dates before and after this entry: the first in April 2009 (Exhibit P-27) and the second, December 2010 (Exhibit P-1).

[91]        The condition of the cement collar when Mr. Dumas entered the manhole in July 2009 would be somewhere between these photos.

[92]        Since the photo in April 2009 is not taken as close-up as the 2010 photo, one can see the hole and the substantial erosion of the cement collar but one cannot see with clarity the exact size of the hole.

[93]        Mr. Bouvier also said that if the condition in July 2009 had been as per the December, 2010 photo, then Bell would have put a metal plate overtop and considered the repair situation to be semi-urgent.

[94]        Bell took responsibility to install the asphalt to level the sidewalk in October 2011 and therefore, Bell takes responsibility for the area around the manhole.

[95]        The Court determines that the hole under the manhole cover and the substantial spalling and erosion evident in April 2009 - both of which presumably deteriorated even further to the state seen in December 2010 (Exhibit P-1) - constituted “mauvais état de réparation” and in the minimum, Bell should have been put on notice to keep a watching eye on this situation.  Bell did not do this since the sub-contractor did not advise them.  Bell is, however, responsible for this omission by the sub-contractor. Had Bell been alerted to the deteriorating situation, proper repairs could have been undertaken before the fall.

[96]        Furthermore, Mr. Bouvier said that Bell relied on the City as “its eyes” to bring problems to Bell’s attention.

[97]        There seems to have been a breakdown in this communication with the City and Bell should have realized that it needed to do its own inspections and not rely on the City. Two examples illustrate this.

[98]        Firstly, in 2007, the borough did a sophisticated study of all its sidewalks using a specialized machine that took photographs every five meters.[32]  If Bell had received a copy of this report, it would have seen that the block on LaSalle Boulevard between Foch Street and Clemenceau Streets showed that of 54 different blocks on that page of the report, this block was the fifth worst in terms of “medium” spalling and third worst in terms of “maximum” spalling of the sidewalk.

[99]        Also, the evidence of Ms. Gosselin - who herself tripped four times on the manhole cover and who despite being a responsible working person did not take the time to call the City to complain (nor did any of the other users who took pains to walk on the lawn) - exemplifies that reliance on the public is not reliable.

[100]     Finally, the Court turns its attention to the design of this manhole with the cement collar.

[101]     Certainly in July 2009, Bell’s sub-contractors saw or should have seen that because of the steep slope of the lawn beside the manhole, serious erosion was being caused to this cement collar.  Because the cement was a retrofit or in the minimum, a contemporaneous addition to create a level surface, this created a point of weakness and made the cement collar subject to the erosion of the water flowing off the sloped lawn.

[102]     The April 2012 photograph (P-27) showing the pavement put in by Bell wherein the collar for the manhole is flush with the sidewalk shows a design that avoids this problem.  No explanation was given as to why such a design could not have been used at the time of installation of the manhole or at any time prior to the fall.

[103]     Bell knows or should know that the manhole cover must be flush to the sidewalk both for the safety of pedestrians and to ensure that it is not clipped by snow removal vehicles in the wintertime.

Responsibility of the City

[104]     As owner of the sidewalks, the City bears the ultimate responsibility, as the courts have said, to exercise reasonable means to ensure the safety of pedestrians provided those pedestrians exercise reasonable diligence as to where they walk.

[105]     The specialized report that the City received in February 2007 notes clearly the abnormal spalling in the block of sidewalk on LaSalle Boulevard between Foch and Clemenceau Streets.

[106]     Since the City uses the “mobile 13 vehicle” which allows it to inspect 10 kilometres of sidewalk per night (Verdun has approximately 105 kilometres of sidewalk) therefore a full inspection could take less than two weeks.

[107]     This report shows an important problem in 2007 and the Google Street View photos beginning in 2007 show how the problem becomes progressively worse.

[108]     Hence the City should have been on notice of a problem in 2007 and yet there is no evidence that the City kept any form of “watching brief” on this part of the sidewalk.

[109]     There is no question that sidewalks must have manhole covers be it for the use of the City or the use of Bell to respect and repair underground infrastructure.  However, mobility is an essential element to the well-being of urban dwellers of all ages and especially for young children going to school, mobility challenged persons and the ageing population.

[110]     If appropriate maintenance must be undertaken over a period of time, then the City and Bell must alert the users of the sidewalk through some form of visual warning until the repair is completed.

[111]     The visual warning should be appropriate to the circumstances and may be as simple as fluorescent paint.

[112]     The City as owner of the sidewalk cannot off-load all responsibility to Bell: pedestrian safety should be one of the City’s foremost responsibilities.

[113]     In this context, the Court finds that the City is one third responsible for Ms. Collard’s injuries as the owner of the sidewalk and the remaining two thirds liability falls to Bell who owned and had responsibility for the installation of the manhole and the cement collar.

DAMAGES

PECUNIARY DAMAGES

[114]     Firstly, Ms. Collard is entitled to her expenses for physiotherapy in the amount of $515.00[33] for the period January - February, 2011.

[115]     Secondly in Ms. Collard’s Amended Motion to Institute Proceedings dated March 20, 2016, she adds a claim for cleaning services in the amount of $278.00[34].  These services were billed for the period from January 24, 2011 through to and including June 16, 2013.   The Court cannot grant this claim because: (a) all of the invoices are made out to Ms. Collard’s husband and except for the period April 18, 2011 to April 21, 2011, there is no signature for “the client” except that on that date it is the Plaintiff’s signature; and (b) the invoices note they were all paid by cheque and although Ms. Collard and her husband had a joint cheque account[35], she did not file any of the payment cheques showing them to be signed by her.

[116]      The Court cannot grant this claim which was added by amendment at trial through the filing of this exhibit P-24, for the following reasons: (a) Ms. Collard has not met her burden to prove when this work was actually undertaken: she, her son and Mr. Bollan each give different dates for the work which do not reconcile; (b) Ms. Collard testified that because of her husband’s illness, it was difficult for her to leave him for extended periods.  In fact, on the night of the fall, he came with her to babysit.  Accordingly, it is not probable that even if she had not had this fall, she would have had the time to do this work herself; (c) these three invoices are all dated June 25, 2014 and are clearly after-the-fact reconstructions; (d) the hourly rate of $30.00 is exaggerated since the evidence shows that this unskilled labour could have been hired for between $15.00 and $20.00; and (e) the Court does not find it probable that the witnesses could remember precisely the work done and the number of hours required so long after the work was allegedly performed.

[117]     Finally, even if Ms. Collard were entitled to these expenses for work she could not perform due to the injury (which the Court has found not to be the case), she would only be entitled to 50% since she was a joint owner of these premises with her husband.

NON-PECUNIARY DAMAGES

Guiding Legal Principles

[118]  In the 2013 Supreme Court of Canada judgment of Cinar Corporation c. Robinson[36], that Court confirmed the approach to be taken by Quebec courts in determining non-pecuniary damages:

[105]   Les tribunaux québécois établissent généralement le montant des dommages-intérêts non-pécuniaires en combinant les approches conceptuelle, personnelle et fonctionnelle : St-Ferdinand, par. 72-73, 75 et 77; Gauthier c. Beaumont, par. 101.  L’approche conceptuelle mesure la perte [traduction] « en fonction de la gravité objective du préjudice » : Stations de la Vallée de Saint-Sauveur inc. c. M.A., par. 83, le juge Kasirer.  L’approche personnelle « s’attache plutôt à évaluer, d’un point de vue subjectif, la douleur et les inconvénients découlant des blessures subies par la victime » : St-Ferdinand, par. 75, citant A. Wéry, « L’évaluation judiciaire des dommages non pécuniaires résultant de blessures corporelles : du pragmatisme de l’arbitraire? ».  Enfin, l’approche fonctionnelle vise à fixer une indemnité pour fournir à la victime une consolation : Andrews, p. 262.  Ces approches « s’appliquent conjointement, favorisant ainsi l’évaluation personnalisée » des dommages-intérêts non pécuniaires : St-Ferdinand, par. 80.

[106]     En plus d’appliquer ces approches, les tribunaux appelés à fixer le montant des dommages-intérêts non-pécuniaires devraient comparer l’affaire dont ils sont saisis à d’autres affaires analogues où des dommages-intérêts non-pécuniaires ont été octroyés : Stations de la Vallée, par. 83.  Ils doivent tenter de traiter [traduction] « les cas semblables de semblable façon » (ibid.), en accordant des indemnités à peu près équivalentes aux victimes dont les préjudices sont semblables du point de vue des approches combinées dont il a été question précédemment. […]

 

Whether the Plaintiff May Claim for Permanent Injury to the Little Finger on her Right Hand?

[119]     Firstly, a preliminary matter must be dealt with.

[120]     The Court agrees with both Defendants that even though the initial injury to the little finger on the right hand was caused by the fall, there is no claim  for permanent injury to this little finger because of what Ms. Collard has asserted in paragraphs 18, 19 and 20 of her Amended Introductory Motion, which read as follows:

 

18.      That the hospital failed to diagnose or treat the little finger of her right hand at that time, which finger had also fractured in the accident, and which was blue and swollen;

19.      That said finger, due to lack of prompt diagnosis and treatment, is rigid, never having completely healed properly; writing is difficult and tiring for Plaintiff as a result; the fracture was only discovered after continued pain in said finger resulted in an X-ray taken at her request, January 24, 2011;

20.      That the most severe enduring injury she suffered as a result of the accident resulted from the fracture to her left wrist.

[121]     CCP art. 99 requires that a pleading “must specify its nature and purpose and state the facts on which it is based and the conclusions sought”. In their defences, both Defendants acknowledge ("prend acte") that Ms. Collard asserts that the permanent rigidity of this small finger was caused by the hospital’s misdiagnosis and lack of early appropriate treatment for this little finger.

[122]     Accordingly, the defence medical report did not - and was not required - to address the issue of the causality of this permanent rigidity: Ms. Collard had pleaded that the cause was alleged medical negligence, not the fault of these Defendants.

[123]     Since the medical expert for Ms. Collard attributes 1% DAP to this rigidity, this will be removed from the agreed DAP of 13% to leave Ms Collard, with a DAP of 12% for the Court to consider on the basis of the present cause of action.

Analysis

Review of Comparative Cases

[124]     As the law requires, the Court has considered the following comparable cases.

[125]     In the 2007 Court of Appeal judgment of Rivard v. Harnois[37], the plaintiff was a 60 year old woman who fractured her wrist and for whom the IPP was found to be 11.5%.  There were aggravating factors[38]: principally, a rare complication which aggravated the original injury.  The Court awarded non-pecuniary damages of $60,000.00 (indexed to $72,297.00 in 2016).[39]  Her injuries were to the shoulder and clavicle and she had temporary incapacity of nine months totally and six months of 50% partial incapacity.  The IPP was awarded at 14%.  For non-pecuniary damages, she was awarded $62,000.00 indexed to $74,707.00 for 2016. 

[126]     The 2008 Superior Court decision of Beaubien v. Piscines Val-Morin Inc.[40] involved a retired woman plaintiff of 69 years of age. This plaintiff was awarded $62,000.00 as non-pecuniary damages for a 14% DAP: she suffered serious injury to her shoulder.

[127]     However, the Court finds the 2012 Superior Court decision of Mr. Justice Dominique Goulet, Charbonneau v. Desjardins Assurance générale inc.[41] to have certain similarities with the present case. For this reason, the Court cites paragraphs 147 through 154 of that judgment in extenso:

 [147]  Au moment de l'accident, Madame Charbonneau a 45 ans. Elle a subi une luxation sans fracture du coude gauche ainsi qu'une fracture-luxation du poignet gauche. Tel que mentionné son DAP est fixé à 13%.

[148]   Elle a subi une intervention chirurgicale, deux périodes d'hospitalisation. À l'occasion de l'opération, de multiples broches ont été installées dans son bras afin de maintenir en place les fragments osseux.

[149]   Elle a eu 37 traitements de physiothérapie, certains traitements de massothérapie.

[150]   Le Tribunal retient de la preuve qu'entre juin 2008 et janvier 2009, la demanderesse a beaucoup souffert. Il existe encore des douleurs qui sont toutefois plus contrôlées.

[151]   En raison de l'accident, elle a des limitations fonctionnelles lesquelles combinées aux douleurs lui nuisent considérablement dans ses activités. Elle se plaint d'engourdissement occasionnel.

[152]   Elle ne peut pas faire de mouvements complets et répétitifs du poignet gauche, ne peut fermer complètement la main gauche.

[153]   Finalement selon le Dr. Varin, elle ne devrait pas manipuler de charge supérieure à 7 kilos avec la main gauche.[28]

[154]   En définitive, Madame Charbonneau est affectée dans ses activités futures.

 

[128]     In this case the court awarded non-pecuniary damages of $65,000.00, indexed to $71,939.00 as of July 2016. 

Ms. Collard's Particular Circumstances

[129]     At the time of the fall when she suffered a fractured wrist, Ms. Collard had a DAP agreed between the medical experts, and reduced to 12% for the reasons given earlier.

[130]     Ms. Collard was then 64 years old.  She graduated in 1977 from the University of Ottawa with a Bachelor of Dietary Science.

[131]     Following her retirement in 2000, she became handy in doing a variety of unskilled labour in the family’s rental properties.  She and her husband had owned their first multiple-apartment dwelling in 1994 and had acquired thereafter a five-plex which they renovated.

[132]     In 2010, she was looking after her 75 year-old husband who had serious medical problems.

[133]     She did not undergo any surgical treatment but rather was in a temporary cast on December 2, 2010 and a final cast on December 3, 2010.  The latter procedure was extremely painful and was done under anaesthetic when the orthopaedic surgeon put her wrist in place.

[134]     It is admitted that her partial temporary incapacity lasted from January 14, 2011 to September 30, 2011 (8.5 months).

[135]     She underwent physiotherapy for approximately one month from January 25, to February 22, 2011 which she found to be extremely painful.  She testified that she felt she was “a slave to her wrist” because she had to be very careful of it.  While she indicated she wished to continue to work with her two sons who were in the renovation and apartment rental business, the Court does not believe this was probable given the fact that Ms. Collard was almost full-time support for her ailing husband.

[136]     She can grasp with her left hand but has limitations in physical activities including not being able to lift even two or three kilos with her left hand. The Court determines this is a serious limitation, particularly when she must do many things for her husband.

[137]     She continues to do her own physiotherapy each day.

[138]     During the period in which she was in a cast, she had to purchase frozen meals and have help come in to do work around the house since she was not able to do so.  The parties recognize that Ms. Collard has limitations concerning her favourite recreational activities, including yoga and playing guitar.  With these limitations she is still able to keep up with her swimming, her non-impact aerobics, her singing in choirs, as well as light housework for her ranch-style home and as well basic work on the outside of the house.

[139]     The approach required of trial courts is to use jurisprudential precedent to seek to ensure fairness in awards.  This is essential for the credibility of the compensatory regime that the law has established where it has also always been recognized that money cannot be a substitute for a person’s injury but provide a level of solace, including through the provision of replacement.

[140]     Looking at the Charbonneau decision, one finds that the plaintiff was 20 years younger and therefore entitled to a higher award.  Also, surgery was involved and there were a greater number of physiotherapy treatments.  On the other hand, Ms. Collard is only able to lift half as much as Mrs. Charbonneau.  While Ms. Collard suffers less pain, it would appear that her very active prior lifestyle has been much more affected - at least on the facts as disclosed in the Charbonneau judgment.  In the circumstances, the Court is satisfied that a similar award - $72,000.00 - is appropriate considering all the circumstances of Ms. Collard.

[141]     The Court confirms that the expert orthopaedic surgeons for both the Plaintiff and the Defendants agreed to an anatomical physiological deficit (“DAP”) of 13% for which the Court has deducted the 1% for the right finger, which is not in issue in this case.

DATE FROM WHICH LEGAL INTEREST AND INDEMNITY BEGIN

[142]     Further to the Notice of Claim filled out by Ms. Collard on the City’s pre-printed form on December 20, 2010, she received a letter dated December 30, 2010, marked “Sous toutes réserves” by Mr. Jean-Pierre Masse, the City’s insurance adjuster. In that letter to her, he indicated that they were proceeding « à l’expertise du dossier afin d’établir si la responsabilité de la Ville est engage … ». This correspondence continues for some time with a series of back and forth letters in which Ms. Collard in good faith describes her evolving symptoms and condition.

[143]     Without having any satisfaction from the City, Ms. Collard writes her demand letter for $100,000.00 to Mr. Masse, dated December 26, 2012[42] and follows up with a lawyer’s demand letter dated October 22, 2012. It is only then on November 8, 2012, that Mr. Masse writes to Ms. Collard’s attorney, advising, for the first time, “… that our investigation has revealed that the liability might rest with Bell Canada as Mrs. Savlauskas (the maiden name of Ms. Collard) fell on the installation of said Bell Canada” (the Court’s emphasis).

[144]     Thereafter, Ms. Collard sent two demand letters to Bell, the first on April 16, 2011[43] and the second on May 11, 2011.[44]

[145]     Bell responded promptly on May 12, 2011,[45] and said they would do an investigation and get back to Ms. Collard as soon as possible regarding their intentions.

[146]     In fact, Bell’s adjuster, Mr. Denis Dolbec[46] wrote to Ms. Collard on May 12, 2011 also indicating that he would be proceeding with his investigation and would communicate Bell’s intentions in the earliest possible delays.

[147]     On November 25, 2011, Ms. Collard advised Mr. Dolbec[47] that she had not yet returned to her original flexibility and would be providing him with a medical legal report.

[148]     It was only after Ms. Collard wrote almost one year later on September 26, 2012 that she was claiming $100,000.00 that both the Bell adjuster finally confirmed to her on October 12, 2012[48] that their investigation was now complete and that Bell denied any responsibility.

[149]     In carrying out this lengthy non-committal correspondence, Ms. Collard failed to consider the 2009 Court of Appeal judgment of Liberté TM inc. v. Fortin[49], which states:

56.   La mise en demeure a effectivement été rédigée en termes larges, peu de temps après l'accident, alors que l’intimé reposait à l'hôpital, inconscient.  L’avocat de l’intimé tient les appelantes responsables des « séquelles majeures, présentes et futures » subies par l’intimé.

57.   L'article 1618 C.c.Q. énonce la règle en matière de responsabilité extracontractuelle :

Les dommages-intérêts autres que ceux résultant du retard dans l'exécution d'une obligation de payer une somme d'argent portent intérêt au taux convenu entre les parties ou, à défaut, au taux légal, depuis la demeure ou depuis toute autre date postérieure que le tribunal estime appropriée, eu égard à la nature du préjudice et aux circonstances.

[….]

59.   Or, pour que les dommages moratoires courent depuis la date de réception de la mise en demeure, celle-ci doit encore indiquer au présumé responsable la somme réclamée pour qu’il sache quel retard on lui impute.  Ici, les appelantes ne seront informées de la réclamation des intimés qu’au jour du lancement des procédures, le 5 décembre 2001.[50]

[150]     The issue arises that the initial demands sent by Ms. Collard herself, first to the City on December 10, 2010[51] and then to Bell on March 16, 2011[52] alleged responsibility but did not provide any amount for a claim.

[151]     The exchange of correspondence between Ms. Collard and the adjusters for the City and for Bell make it clear that she sought to settle the matter in good faith. While her actions are entirely within the spirit of CCP art. 25 that the parties should seek to facilitate the resolution of disputes… should the dispute only be resolved by a judgment then the legal requirement to obtain “dommages moratoires” under CCQ art. 1618 and 1619 must be respected and the default must indicate a specific amount claimed, if the “clock is to start running”.

[152]     Accordingly, Ms. Collard is only entitled to legal interest and indemnity from September 26, 2012, the date of her two demand letters respectively to the City and Bell claiming $100,000.00 in damages.[53] 

SOLIDARY LIABILITY AND DIVISION OF LIABILITY

[153]     The two Defendants are solidarily liable to Ms. Collard due to the extra contractual nature of their liability (CCQ art. 1526).

[154]     However, as between themselves, the Court determines that each has committed a distinct fault and the contribution of each to Ms. Collard’s damages is not equal, being 1/3 for the City and 2/3 for Bell.

[155]     The Court expresses its appreciation for the thorough and professional assistance it received from all counsel.

For these reasons, the Court:

[156]     GRANTS in part the Plaintiff’s action;

[157]     ORDERS the two Defendants solidarily to pay to the Plaintiff: $72,515.00 for her pecuniary and non-pecuniary damages;

[158]     ORDERS the Defendants to pay the Plaintiff the amount of $1,500.00 for the report prepared by the Plaintiff’s medical expert;

[159]     ORDERS the Defendants to pay legal interest and indemnity from the date of the demand letter, September 26, 2012 up to the date of the full payment of this judgment;

[160]     All with LEGAL costs

[161]     DECLARES and ORDERS that for all amounts awarded in this judgment in capital, interests/indemnity and legal costs, to be divided between the Defendants according to the following division of liability: 1/3 for the City and 2/3 for Bell.

 

		__________________________________ MARK G. PEACOCK, J.S.C.
Me Adonis Lahlou Me Antoine Van Audenrode
DANIEL CAISSE AVOCATS
Attorneys for the Plaintiff
Me Chantal Bruyère DAGENAIS GAGNIER BIRON Attorneys for the City of Montreal (Defendant)
Me Melissa Beaudry Me Jeanne Morency BEAUDIN & ASSOCIÉS Attorneys for Bell Canada (Co-Defendant)
Dates of hearing:	March 3,4,7,18, and 21, 2016