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Gabarit EDJ

Thibault c. Walker

2012 QCCS 1916

JS 1335

 
 SUPERIOR COURT

 

CANADA

PROVINCE OF QUÉBEC

DISTRICT OF

MONTRÉAL

 

N° :

500-17-051583-097

 

 

DATE :

 May 7, 2012

______________________________________________________________________

 

PRESIDING :

THE HONOURABLE

STÉPHANE SANSFAÇON, J.S.C.

______________________________________________________________________

 

ROGER THIBAULT

And

THEODORUS WOUTERS

Plaintiffs

v.

ROBERT WALKER

And

NORAH LITCHFIELD

And

BRANDON WALKER

Defendants

 

 

______________________________________________________________________

JUDGMENT

______________________________________________________________________

 

[1]           For 17 years the parties lived a peaceful life as neighbours in a quiet neighbourhood in Pointe-Claire.

[2]           Then, suddenly in May 2000, everything changed, and there ensued a climate of confrontation, accusations and complaints to all level of authorities, from the municipal inspector to the police, to the Human Rights Tribunal, to the Municipal Court, to the Court of Quebec (Criminal and Penal Division) and finally to the Superior Court of Quebec.

[3]           The present action is the latest chapter of the saga. Mr. Thibault and Mr. Wouters ask the Court to order their former neighbours Mr. Walker, Mrs. Litchfield and their son Brandon to pay them $350,000 in damages, to forego a payment of $50,000 originating from a June 1988 transaction between the parties, and to issue a permanent injunction ordering the Defendants to stop their harassment and to stay beyond a specified distance from the Plaintiffs' house.

[4]           The foundation of the Plaintiffs' demand is the alleged behavior of the Walkers, whom they call their “homophobic neighbours”.

The facts

[5]           The Plaintiffs, Roger Thibault and Theodorus Wouters, have been residing at [...] Parkdale, Pointe-Claire, located in a quiet residential area, since 1978. They have been living together as a gay couple for the past 38 years.

[6]           Mr. Thibault and Mr. Wouters are well known personalities, since they were the first gay couple in Canada to marry in a civil union shortly after the year 2000. They were the center of an extensive national media coverage.They do not like to be called gay activists, and prefer to say that they stand up for their rights and inspire people by their actions.

[7]           The Defendants, Robert Walker, Norah Litchfield and their son Brandon Walker are members of the same family. They acquired their property in 1984 and became neighbours to Mr. Thibault and Mr. Wouters.

[8]           The parties visited each other on rare occasions and seldom met outside their usual neighbour relationship. The fact that the Plaintiffs lived as a gay couple was well known to the Defendants.

[9]           For 16 years the parties were good neighbours. Everything changed on May 24, 2000 following an argument concerning their respective dogs. A heated conversation took place between the parties and insults were uttered. Mr. Thibault understood during the argument with Mr. Walker that negative comments had been made concerning him and Mr. Wouters by other neighbours, namely the Louette family. Without further inquiry, the Plaintiffs decided at that moment to terminate all relations with these neighbours.

[10]        Mr. Thibault and Mr. Wouters’ relationship with the Walkers did not improve with time. On the contrary, they testified that their neighbours’ homophobic behavior directed against them reached such a level as to make the national news.

[11]        Numerous complaints were filed by Mr. Thibault and Mr. Wouters with the municipal inspector and the police for alleged infractions by the Defendants of municipal by-laws (flower cutting, dog barking, name calling and so forth). More serious criminal charges were filed by the Plaintiffs against Mr. Walker, including four charges of criminal harassment, a charge of criminal assault with a weapon and a further charge of failing to comply with a condition of an undertaking (that is, to have mowed the grass too close to the property line.

[12]        All the charges (these six charges as well as several others) that went to trial resulted in acquittals.

[13]        No charges were laid for several of the other complaints filed by the Plaintiffs.In other instances, charges were laid but were later withdrawn.

[14]        Meanwhile, further accusations were made by the Plaintiffs against Mr. Walker on the Plaintiffs' website. They accused the Walkers of homophobic behavior, being aggressive, and suffering criminal and mental illness.[1] Justice Kevin Downs of the Superior Court issued a safeguard order against the Plaintiffs ordering them to shut down their website.[2]

[15]        A parade was organized  and people marched past the parties’ residences.[3]

[16]        All these events received extensive media coverage.[4]

[17]        In 2001, the Plaintiffs made a formal complaint to the Human Rights Commission. The following year, the Commission brought proceedings against Mr. Walker before the Human Rights Tribunal.

[18]        During this period the Walkers defended themselves and denied all of theaccusations made against them. They were the target of threatening phone calls. Some people drove by the Walkers' house and yelled at them. The Walkers became known as the “homophobic neighbours”. Mrs. Litchfield testified that she felt threatened, and felt that her child was threateaned as well, and that she spent the most time possible at her summer house in the Laurentians.

[19]        In 2003, Mr. Walker and Mrs. Litchfield called on the services of Mtre. Julius Grey and took action against the Plaintiffs before the Superior Court.[5] They alleged that Mr. Thibault and Mr. Wouters had falsely accused them and that the Plaintiffs had violated their privacy by constantly filming them, filing false police reports and making them and their child the target of humiliation and slander by third parties.

[20]        On June 9th, 2008, just as the trial against Mr. Thibault and Mr. Wouters was to begin, Mr. Walker, Mrs. Litchfield, M. Thibault and Mr. Wouters  concluded an “Agreement and Contract of Transaction”[6] following a settlement conference that lasted 12 hours. Both parties were assisted by their lawyers, the petitioners being represented on that occasion by not one but two lawyers.

[21]        The transaction provides that (the Walkers were the Plaintiffs and Mr. Thibault and Mr. Wouters the Defendants):

«Whereas the parties are engaged in litigation before the Superior Court;

Whereas proceedings before the Human Rights Tribunal have been suspended pending adjudication by the Superior Court;

Whereas the parties with the benefit of the advice of their respective counsel have agreed to immediately settle all of their outstanding disputes through the following mutually accepted concessions:

The parties therefore have agreed as follows:

1. The preamble shall form part of the present agreement;

2. The plaintiffs hereby irrevocably renounce all rights of actions against the defendants with respect to the latter’s conduct to date in consideration for the following terms:

i) Defendants agree jointly and severally to pay plaintiffs the total sum of $150,000.00 payable in 3 equal instalments of $50,000.00 each; the first instalment payable within 30 days, the second instalment within 9 months or on the date of moving of the plaintiffs whichever is earlier provided however that it is not earlier than February 1st, 2009, the third instalment to be paid on the moving date subject to the last condition provided the property is sold, otherwise on the date of sale of the said property.

ii) The defendants have remitted to the plaintiffs a letter of acknowledgement and apology which is to remain private and confidential unless the defendants make another complaint against the plaintiffs in the future which is not upheld. In such case, the plaintiffs may have the media publish the said letter without any recourse whatsoever against the plaintiffs. Should the plaintiffs publish the letter without justification, the plaintiffs shall pay the defendants a total penalty of $150,000.00 upon demand.

iii) Defendants undertake to immediately desist from and terminate any proceedings pending against plaintiffs before the Human Rights Tribunal and authorities …

3. The plaintiffs hereby undertake to definitively move from their current residence within 12 months from the signing date of the present agreement. It is specifically provided that they may rent but not to a member of their families. The plaintiffs must relocate beyond a square formed by the following streets: St-Louis to the North, Donegani to the South, Broadview to the East and Winward to the West.

A confirmation of the move shall be provided to Me Rosalia Giarratano in the form of either a copy of the deed of sale or lease agreement of the plaintiffs' new place of residence to Me Richard Ouellette who undertakes to keep the new address of the plaintiffs confidential.»

[22]        The letter of acknowledgement and apology referred to in section ii) of the transaction provided that:

«LETTER OF APOLOGY AND ACKNOWLEDGMENT

The undersigned, Mr. Roger Thibault and Mr. Theodorus Wouters hereby acknowledge that all of the complaints we have made to date against Robert Walker or Norah Litchfield were baseless.

We apologise for any and all damages this may have caused them.

In witness hereof signed at Montreal on June 9th, 2008

(S) Roger Thibault          (S) Theodorus Wouters»

[23]        The transaction was homologated by Madam Justice Diane Marcelin on October 2009. Its validity was never attacked and is therefore res judicata between the parties.[7]

[24]        The first payment of $50,000 was paid by Mr. Thibault and Mr. Wouters within the delay indicated in the transaction.

[25]        On January 2009, an “Avis de cessation d’agir” was presented to the Human Rights Tribunal by the lawyer of the Human Rights Commission, therefore ending the Commission’s procedures before that tribunal against Mr. Walker.[8]

[26]        According to the terms of the transaction, the Walkers had to “move from their current residence within 12 months from the signing date of the present agreement”, that is, before June 9th, 2009, and to “relocate beyond a square formed by” the specified streets. They could rent the house, but not to a member of their families, and were therefore under no obligation to sell the house.

[27]        The Walkers signed a lease for a condo located in the City of Dorval on April 11, 2009, effective from May 15, 2009, and moved out of their house on Parkdale Avenue between May 15th  and May 21th, 2009. The second installment of 50 000$ was then duly paid by by Mr. Thibault and Mr. Wouters.

[28]        The Walkers eventually sold their house, but not immediately, mainly because of problems of encroachment on both sides of their property.[9]

[29]        In July 2009, Mr. Thibault and Mr. Wouters instituted a new proceeding against the Walkers. Filed in the Superior Court, the action claimed 250 000$ in damages and requested  a permanent injunction ordering the Defendants to stop harassing the Plaintiffs, and requiring them to take up residence far from the Plaintiffs and not to communicate with them.

[30]        The procedure also requested an interim injunction ordering the Walkers to “definitely” move out from […]., to take all their furniture and belongings, to stop coming to [...] Parkdale without serious justification and to stay away from the Plaintiffs' house.

[31]        On October 29, 2009, Madam Justice Diane Marcelin ordered the Walkers to limit their access to their house to specified periods of the week, to mandate a land surveyor to work on a solution for the encroachment problems, and to mandate a real estate agent to sell the house (as it was then their intention to sell it) in the event the house was not sold to one of two potential buyers already identified by Defendants.

[32]        Justice Marcelin also suspended the procedure and ordered the Plaintiffs to pay the Defendants the last installment of 50 000$ mentioned in the transaction “une fois la maison vendue”. As of today, that last installment has not been paid.

[33]         The Walkers finally sold their house in December 2009. The buyer did not move into the house until the spring, giving time to the Walkers to remove their items remaining in the house, as will be discussed later.

[34]        Plaintiff’s procedure was amended twice: a first time in order to remove all references to the transaction, and a second time, shortly before trial, to reintroduce allegations relating to the transaction, as well as to add new facts, increase the damage claim to 350 000$ and ask that the Plaintiffs be authorized to forego the last payment of $50 000.

The questions in dispute

[35]        The questions in dispute can be stated as follows:

Did the Walkers engage in hurtful and discriminatory behaviour towards Mr. Thibault and Mr. Wouters, thereby infringing their rights to the safeguard of their dignity and the peaceful enjoyment of their property, without distinction based on sexual orientation, contrary to sections 4 , 6 and 10 of the Québec Charter of Human Rights and Freedoms?

If so, what amount of damages are the Plaintiffs entitled to?

Are the Plaintiffs entitled to punitive damages pursuant to article 49 of the Quebec Charter of Human Rights and Freedoms?

Finally, are the Defendants liable under the no-fault liability regime based on art. 976 C.C.Q. ?

[36]        Before we turn to the main issue, two peripheral issues must be addressed, which are:

1) The admissibility into evidence of the pictures and videos taken by Plaintiffs of the Defendants while they were on their private property;

2) The effect of the transaction of June 9, 2008.

The admissibility into evidence of the pictures and videos taken by Plaintiffs from their house, showing the Defendants on their private property

[37]        Mr. Thibault and Mr. Wouters presented several pictures and videos as material proof.

[38]        In order to be introduced as evidence, the authenticity of the pictures and videos must be established.[10]

[39]        A great number of these pictures and videos were made by the Plaintiffs using hidden cameras located inside their home, behind a window covered by a film that precludes one from seeing into the house.

[40]        The basis of the objection is that the pictures and videos show the Walkers mainly on their private property, which is hidden from public view by a large cedar hedge. Therefore, plead the Walkers, the pictures and videos are “inadmissible by law under article 2858 due to breach of right to privacy under articles 35 and 36 of the C.C.Q. as well as articles 4 and 5 of the Quebec Charter of Rights and Freedoms”.[11]

[41]        Furthermore, plead the Defendants, “the evidence provided by the Plaintiffs to prove the Defendants’ fault is inadmissible as the material evidence (i.e. pictures and videos) was never individually authenticated as required by articles 2855 and 2874 of the Civil Code of Quebec (C.C.Q)”.[12]

[42]        The Court will not sustain these objections.

[43]        It is true that almost all the pictures and videos were taken without the Walkers knowing that they were being filmed. To be more precise, the proof rather shows that the Walkers knew that they were filmed almost continuously, and it would be more precise to say that they could not know when they were not being filmed.

[44]        But the Court cannot conclude that the pictures and videos are inadmissible simply because they show the Walkers on their private property. They are presented as proof of the Walkers' gestures and actions directed against the Plaintiffs, or so the Plaintiffs claim, as will be discussed later.

[45]        It is obvious that a video or pictures taken from a window, showing an act by a neighbour on his property, directed at the Plaintiff must be accepted as proof. In such circumstances, the use of such elements of proof would not tend to bring the administration of justice into disrepute.[13]

[46]        The objection based on the claim that the pictures and videos were never individually authenticated as required by articles 2855 and 2874 of the Civil Code is no more admissible than the one based on the Charter, and will also be rejected. All pictures and videos were in fact authenticated. The only fact that remains in dispute is that some of the videos shown in Court are extracts of longer videos, and that some of the pictures were also extracted from videos, therefore not showing the complete content.

[47]        This does not preclude the introduction of these elements as proof, because it does not affect their authenticity.[14] It will be for the Court to assess the probative force of the proof.

[48]        The same goes for some of the videos showing events in slow motion that could not be presented to the Court at the right speed. This does not preclude the use of the videos but, once again, it will be for the Court to assess the probative force of this evidence.

The effect of the transaction of June 9, 2008

[49]        As already mentioned, the unfortunate events in this story commenced in the year 2000, then the parties had a dispute concerning their dogs, which triggered a number of other disputes between them: such as a problem with the cedar hedge separating their properties, then a fight over the fence, followed by an incident when the Plaintiffs' flowers were allegedly cut by Mr. Walker with his lawn mower, then a further incident when Mr. Walker allegedly charged Mr. Wouters with his car, followed by a dispute concerning a wall, noise caused by Mr. Walker using a compost bin cover, Mr. Walker and Mrs. Litchfield constantly staring at the Plaintiffs from dawn until dusk, spitting, throwing of golf balls at the Plaintiffs, and the list goes on endlessly.[15]

[50]        These disputes resulted in much litigation, none of which succeeded in identifying any wrongdoing by the Walker family.

[51]        In June 2008, on the eve of the trial of the action instituted by the Walkers, the parties decided to end their dispute and signed an Agreement and Contract of Transaction.[16].

[52]        Section 1 of the transaction specifies that its preamble “shall form part of the present agreement”.

[53]        The preamble specifies that the object of the transaction is to “immediately settle all of their outstanding disputes through the following mutually accepted concessions”.

[54]        The preamble also indicates that the parties are engaged in litigation before the Superior Court, and that proceedings before the Human Rights Tribunal had been suspended pending the Superior Court proceedings.

[55]        The question that arises here is the extent of the transaction: did it only settle the litigation mentioned in the preamble of the transaction or did it cover all outstanding disputes between the parties as of June 9th, 2008?

[56]        It should be noted that while the transaction includes a renunciation by the Walkers for “all rights of actions against the Defendants with respect to the latter’s conduct to date”, it does not include an equivalent renunciation with respect to the conduct of the Walker family.

[57]        The answer to that question posed above lies in the nature of a transaction.

[58]        Article 2631 C.C.Q. provides that a transaction not only is a contract by which the parties put an end to a lawsuit, but is also a contract by which they “prevent a future contestation (…) by way of mutual concessions or reservations”.

[59]        Obviously, the extent of a transaction will depend on its content, its wording.

[60]        The intent of the parties is very clear from the wording they used in the contract: they wanted to end and “settle all of their outstanding disputes”, which necessarily included all events that occurred before June 9th, 2008.

[61]        Plaintiffs argue that they never waived their right to sue the Walkers for their actions other than those specified in the case pending before the Human Rights Tribunal.

[62]        This argument is not valid.

[63]        Firstly, this argument ignores the fact that the Plaintiffs did not control that case, which was instituted by the Human Rights Commission, not by them. Exhibit D-9 shows clearly that the Commission is the “Demanderesse”, not the Plaintiffs.

[64]        Secondly, the only reference in the transaction to the litigation between the parties is that before the Superior Court.

[65]        Thirdly, the announcement of the parties’ intent in the preamble, which forms part of the transaction, is to immediately “settle all of their outstanding disputes”. The parties chose to use the word “disputes” so as not to limit the scope of the transaction to the sole “litigation” that was then pending before the Superior Court.

[66]        That understanding of the transaction is also shared by both Plaintiffs. During their testimony, they both indicated that they believed, when they signed the transaction, that it settled, once and for all, all of their difficulties with their neighbours. The fact that only the Walkers specifically renounced all of their rights of action is easily explained: on that date, the Walkers were the only ones asking for an indemnity, which they got at least partially (150 000$).

[67]        A further reason supports the conclusion that the parties wanted to settle all of their outstanding disputes, and not only those refered to in the then existing legal procedures: the letter of apology dated June 9, 2008, annexed to the transaction covers “all of the complaints we have made to date against Robert Walker or Norah Litchfield”.

[68]        The transaction was never attacked and is valid between the parties; it therefore has the authority of a final judgment.[17]

[69]        Consequently, Plaintiffs cannot ask for compensation for events prior to June 9th, 2008, from Mr. Walker or Mrs. Litchfield.

[70]        But what of Defendants’ son Brandon, who was not a party to that transaction?

[71]        Even though the parties may have meant to include all the complaints to that date against him as well as against them, they did not specify it and therefore the allegations against him will be treated accordingly.

The Law

[72]        The relevant sections of the Québec Charter read as follows:

4. Every person has a right to the safeguard of his dignity, honour and reputation.

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

10.1. No one may harass a person on the basis of any ground mentioned in section 10.

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

Punitive damages.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.

[73]        The Civil Code of Québec provides that:

Art. 1457 Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

[74]        These are the basic rules of behavior that must be followed by everyone.

[75]        A person wishing to assert that his right has been infringed has the burden to prove the facts on which his claim is based.[18] Evidence is sufficient if it renders the existence of a fact more probable than its non-existence.[19]

[76]        In litigation such as this one, where one party says black and the other says white, credibility is of the utmost importance.

[77]        A witness’ credibility is often difficult to assess. The judge presiding a trial has to listen carefully and examine the behavior of those who present the facts. Sometimes, the testimony of an independent third party will help determine who is right, but not always, for the credibility of that witness may also be challenged.

[78]        In some circumstances, a party will sometimes exaggerate the facts in order to make his point and prove that an event occurred or did not occur. It is the duty of the judge to assess if the exaggeration is simply an embellishment of the facts, which does not go so far as to affect credibility.

[79]        In other circumstances, however, an exaggeration may approximate fabrication or, even more seriously, constitute a patent lie, an account of an event modified in such a way as to transform the proof entirely in order to sustain or to counter a claim.

[80]        An example of this is found in the judgment of Justice Jean B. Falardeau[20] where Mr. Walker was acquitted of the Plaintiffs' charges of criminal harassment. The judge listened to the allegation that Mr. Walker tried to hit Mr. Wouters with his car passing by him in front of his house at 100 km/hour :

«Let us say first that, considering the circumstances, especially the fact that the 1989 Topaz of Mr. Walker was coming from his driveway as a starting point, a hundred feet (100’) away, a speed of 100 km/hour is physically impossible and I wonder if a speed of 25 km/hour could be considered as reasonably possible. (…) I do not believe those testimonies, I am convinced that the so-called driving incidents had never happened.»

[81]        A party may also produce as proof material things[21] such as pictures or videos, which may provide vivid evidence of a place, a gesture or may even help demonstrate intent to cause harm or to counter such claim, as may be alleged in the petition or the defense. Such material things are a means of proof which allows the judge to make his own findings.[22]. The judge may then draw any inference he considers reasonable from the production of the material thing.[23]

[82]        In this instance, Plaintiffs did not produce other witnesses. However, they produced into evidence several pictures and videos that, according to them, corroborated their testimony regarding the improper bevavior of the Walkers.

[83]        The Defendants testified and produced as witnesses Mr. and Mrs. Louette, their friends and neighbours who live across the street from their former house.

The Incidents

[84]        Mr. Thibault and Mr. Wouters testified for three days regarding the alleged harassment by Defendants.

[85]        A large part of their testimony covered events that occurred in the years after 2000 and did not involve the Defendants, since this proof was authorized by the Court pending its decision on the validity and the scope of the transaction of June 2008.

[86]        As for the allegations against the Defendants occurring after June 9th, 2008, the Court will only narrate the events singled out by Plaintiffs, for many of the allegations were undefined or not specific enough to be discussed (examples of such broad affirmations by the Plaintiffs include: “He always spied on us”, and “he went out of his house every time we went to work in our garden”).

The money sign

[87]        A gesture that was seen by Plaintiffs and, from their point of view, considered harassing, was the money sign made by Mr. Walker.

[88]        In a video dated May 30th, 2009, Mr. Walker is seen walking in his front yard at a rapid pace in the general direction of Plaintiffs’ house, then turning around the corner of his house towards his backyard. In the section of the video where he is seen walking along his front yard towards the general direction of Plaintiffs’ house, he rubs his thumb and his finger together. This gesture, identified by Plaintiffs as "the money sign" was interpreted by Mr. Thibault during his testimony as meaning that what they were doing to their property was very costly (the Plaintiffs transformed their award-winning garden over the years). This gesture, which was considered harassing by Plaintiffs, when added to others, would allegedly amount to homophobic behaviour.

[89]        The video shows otherwise. It shows a non-event, since Mr. Walker is not even looking towards the Plaintiff's property while making the "the money sign" gesture, that barely lasts two seconds. Proof was not made that, at that moment, either of the Plaintiffs were looking in the direction of Mr. Walker, except for the cameraman, but he was hidden from Mr. Walker, who consequently could not know that he was being watched.

[90]        In other words, the gesture, if it meant anything, was clearly not directed at Plaintiffs and therefore cannot in any way be construed as an attack upon them.

The genitals

[91]        One of the most important allegations against Mr. Walker is that he, on several occasions, made gestures of a sexual nature directed at the Plaintiffs. During the early years of 2000, Mr. Walker was accused of gross indecency by the Plaintiffs, but he was acquitted because the Plaintiffs did not bring to court the pictures of the alledged events that they supposed had taken. This time, the Plaintiffs had videos to support their allegations.

[92]        According to the Plaintiffs, the videos are an eloquent demonstration that they are the victims of harassment by Mr. Walker. Acording to their testimony, the videos show Defendant Walker, on several different occasions, harassing them by taking his genitals in his hand, a clearly homophobic behavior.

[93]        These videos do not show what the Plaintiffs claim to see. In fact, one wonders how Plaintiffs can sincerely conclude that these videos represent something even remotely associated with sexual harassment or homophobic behavior.

[94]        One of the videos, dated May 30, 2009,[24] shows Mr. Walker next to his car in his driveway, which is at least 80 feet from Plaintiffs’ property line. He is not directly facing the Plaintiffs' property, but turns his head towards it for two seconds. He then puts one of his hands in the general direction of his genitals in order to either scratch them or place them. The movement lasts about three seconds. In all, the video is eight seconds long.

[95]        The video was filmed from inside by M. Thibault while Mr. Walker could not and did not know that he was being watched. Mr. Walker was standing in his driveway, at a far distance from Plaintiffs. To see any kind of sexual meaning in the gesture is far fetched.

[96]        A second video dated April 27, 2009 shows Mr. Walker walking towards his car, a hockey stick in his hand, then stopping, calling his dog, scratching himself on his side, then scratching his genitals and walking towards his house. The video lasts twenty seconds, the scratching of his genitals, three seconds.

[97]        A section of this video was shown in slow motion. The section shows the scratching of genitals, which then lasts six seconds. However, it does not help the Plaintiffs. At the most, it helps to see that the gesture has no sexual connotation.

[98]        A third video dated May 8th, 2009 shows Mr. Walker with his dog next to his car. At one point, he toutches his genitals. The video lasts thirteen seconds and the touching of his genitals lasts two seconds.

[99]        This video, however, is presented in slow motion, at about half the normal speed. At the correct speed, Mr. Walker touches himself around his genitals during less than one second. No specific gesture is made by him. He is simply moving his hand rapidly in the area of his genitals. What is obvious, however, is that it bears no sexual connotation whatsoever.

[100]     A fourth video dated July 10, 2009, shows Mr. Walker walking towards Plaintiffs’ property, a tree cutter in his left hand. He is then seen touching his genitals, a gesture that lasts about six seconds. In this video, Mr. Walker is walking towards the Plaintiffs' property without looking at it, and he is still quite far from it. All the time, he is looking at the ground in front of him. The video then shows Mr. Walker continuing to walk towards a small tree on his property, still not looking towards the Plaintiffs' property.

[101]     This video was shown in slow motion, also at about half the normal speed. Once the speed is corrected, the touching of genitals lasts about three seconds. No sexual meaning can be inferred from the gesture. Once again, Mr. Walker may simply be scratching himself.

[102]     Moreover, the proof does not demonstrate that the Plaintiffs could be seen by the Defendant, except of course by the one holding the hidden camera, or, even more importantly, that Mr. Walker had any idea that he was being watched by his neighbours.

[103]     Consequently, having no demonstration of gestures of a sexual nature, or even that they were directed at Plaintiffs, the Court cannot conclude that these gestures constitute harassment, less so homophobic behavior.

 

 

The white chairs, the picnic table, the constant staring

[104]     Another significant allegation against Mr. Walker and Mrs. Litchfield is their incessant staring at the Plaintiffs. The Plaintiffs testified that their neighbours voluntarily stared, spied and stalked them with the intent to harass them, and that they did so “all the time”, on a daily basis.

[105]     The Plaintiffs presented several pictures as well as videos showing Mrs. Litchfield, but mainly Mr. Walker looking towards the Plaintiffs' property. Mr. Thibault testified that every single picture was taken while Mr. Wouters was outside gardening. According to M. Thibault, these pictures clearly show that the Defendants illegally spied on them and stalked them.

[106]     Almost all of the pictures were taken by Mr. Thibault through a large window on which was applied a reflective film so that the inside of the house could not be seen from outside.

[107]     The reason why such a reflective film was installed is explained by both Plaintiffs. According to them, the Defendants Walker and Litchfield looked at them continuously, in order to spy on them, making the Plaintiffs' life miserable.

[108]     The Plaintiffs consequently decided to install a film on the window overlooking their neighbour’s property. However, they did not install the film only on the bottom window, which is made of four large glass panes, which would have been sufficient to block the view from outside, they decided instead to install the film on all four windows, right up to the ceiling.

[109]     The Plaintiffs testified that they had to do this to regain some privacy, even if it meant losing much of the luminosity from the very large window.

[110]     Mr. Thibault was asked to explain the necessity of installing the film on the four windows instead of only on the bottom pane. He answered that the Plaintiffs had to do this  because, during winter, it could happen that Mr. Walker would climb onto his roof to remove the snow and could use this opportunity to spy on them. (Mr. Thibault later testified that he never, not even once, removed the snow from his roof.)

[111]     The perception of the Plaintiffs is that they are continuously being spied upon by their neighbours. In order to prove it, they presented pictures and videos. However, even though the pictures seem to show the neighbours looking towards the Plaintiffs' property, they have to be put in context.

[112]     The Court analysed attentively all of the pictures and videos presented as proof of the neighbours' actions.

[113]     The Court kept in mind that the pictures and videos were taken through a mirrored window, meaning that Mr. Walker was unaware that he was being photographed or filmed, therefore providing the Court with an objective view of what really happened.

[114]     The pictures and videos do not corroborate the Plaintiffs' position. On the contrary, they clearly corroborate the Defendants' assertion that the Plaintiffs' perception of reality is blurred and lacks objectivity.

[115]     Mostly, the pictures show Mr. Walker walking on his property, smoking a cigarette, reading some papers, reading newspapers, basking in the sun, etc. They do not show Mr. Walker spying on the Plaintiffs.

[116]     The photos give the impression that, while Mr. Walker was walking or reading a newspaper, the photographer waited for the “right” moment to take his picture, during an instant when Mr. Walker turned his head towards the Plaintiffs' house.

[117]     It may be true that at the moment the pictures were taken, one of the Plaintiffs was outside working on his property, and that Mr. Walker, reading his newspaper or otherwise doing whatever he was doing, could then look towards the neighbours' property. This does not mean that the “looks” were made in order to harass or otherwise insult the Plaintiffs. One has to keep in mind that almost all of the photos were taken using a telephoto lens of Mr. Walker sitting, walking, working or doing whatever one does on his property, most of the time at a respectable distance from the property line. No words were ever exchanged, and no gestures ever made towards the Plaintiffs.

[118]     The Court also notes that the Plaintiff who was working on his property when the pictures were taken, usually Mr. Wouters, did not even notice he was being looked at, or threatened.

[119]      Some of the pictures show Mr. Walker being accompanied by his wife or a friend looking towards the Plaintiffs’ property.

[120]     Again, the evidence does not show that on these occasions, the Plaintiffs were outside their house or that the Defendant's "looks” were directed at them rather than in the general direction of their property or, as Mr. Walker mentioned during his testimony, at the fence, which was the object of a dispute between the parties. The Court has again to keep in mind that the photos were taken behind tinted glass, meaning that Mr. Walker could not even know that the Plaintiffs were present in the house. It is therefore difficult to conclude that the photos show something that could even resemble harassment, of whatever kind.

[121]     The Plaintiffs add that the Defendants had no reason to put their chairs and tables along the property line, since they had a large property with other locations to put them. According to the Plaintiffs, the Defendants put their chairs and tables close to the property line with no other purpose but to harass the Plaintiffs.

[122]     The photos show that the white chairs are located at least 15 feet from the property line and therefore even farther from Plaintiffs’ house, and that the picnic table is even farther away. Moreover, Mr. Thibault admitted that his neighbours had been using this part of the property, and placing chairs and tables in this area, as far back as before the year 2000, when the parties stopped talking to each other.

[123]     Mr. Walker and Mrs. Litchfield explained that the tables and chairs were placed in that location a long time ago, to take advantage of the sunlight.

[124]     Consequently, the Plaintiffs’ allegations cannot be maintained.

[125]     The Plaintiffs allege that whenever one of them went out of the house to work in the garden, Mr. Walker came out of his house in order to stalk them. The Plaintiffs presented a video to illustrate what they call "stalking by their neighbour".

[126]     The event takes place on April 16, 2009, during a sunny spring day. The video was filmed with a telephoto lens. It shows Mr. Walker walking on his property towards the back of his house with a tray in his hand, a sandwich and a beer. He then sits on a chair next to his picnic table. He eats the whole sandwich while having a beer. At one point, he seems to make a gesture to himself, a sign showing amazement with a smile, quite subtle in fact.

[127]     Even though Mr. Walker is wearing sunglasses, it can be seen that he looks once in a while in the general direction of Mr. Wouters, who is watering the front of his property. However, Mr. Walker never looks at Mr. Wouters in an intimidating or negative way. The distance between the men is considerable, at least 75 feet, with plants and trees in between. While Mr. Thibault testified that the picnic table was located right next to the property line, as shown in exhibit D-7, the Court does not agree that, on the day this video was taken, the table was close to the property line as the video clearly shows.

[128]     Once Mr. Walker finishes eating his sandwich, he walks away.

[129]     The Court cannot conclude that Mr. Wouters was being stalked, contrary to the Plaintiffs' assertion.

[130]     Once Mr. Walker finishes eating his sandwich, he walks towards the front of his property, and then, rakes his front yard located between his cedar hedge and the street. The video shows that a certain amount of dust is raised by his action, but that he is actively raking and bringing the winter debris, rocks, etc. towards the street.

[131]     Mr. Thibault presents this video as proof that Mr. Walker acted in order to harrass Mr. Wouters. He states that Mr. Walker acted this way in order to raise dust and annoy Mr. Wouters.

[132]     The Court cannot conclude that such an action was done deliberately in order to annoy Mr. Wouters. Once Mr. Walker finishes raking and bringing the debris to the street, he uses a broom to gather the leaves and rocks into a small pile.

[133]     On the video, the dust is sometimes seen going towards the Plaintiffs' property. At other times, however, it goes in other directions, or is carried away by the air. There is simply not enough dust going towards the Plaintiffs’ property to give rise to a complaint.

[134]     What is seen in this video is, as already mentioned, a neighbour doing a normal activity on a sunny Sunday in early spring. One would be hard pressed to see otherwise.

[135]     The video shows Mr. Walker walking towards the back of his property to the spot where he ate his sandwich and sitting down with another beer.

[136]     According to the Plaintiffs, Mr. Walker then made a curious gesture with his mouth. Again the Court sees a gesture that means nothing and that is certainly not directed at the Plaintiffs, contrary to M. Thibault's belief. The Court points out that it is Mr. Thibault who was offended by this mouth gesture, since Mr. Wouters did not testify on the matter. However, Mr. Thibault was hidden at that time, and Mr. Walker was unaware of his presence, which makes Mr. Thibault's claim unfounded.

[137]     The rest of the video shows Mr. Walker doing nothing but enjoying the sun, except that, at one point, he seems to be doing the same mouth gesture while turning his head away, which indicates to the Court that, again, this gesture is made by someone who believes that he is alone in his backyard.

[138]      Finally, Mr.Thibault explained to the Court that the video shows Mr. Walker using his telephone to take pictures of Mr. Wouters.

[139]     The video clearly shows otherwise. It is obvious to the Court that the camera in the telephone, if such a camera indeed existed, is at no time directed at Mr. Wouters or in the direction of the Plaintiffs' property.

[140]     What do these videos tell us?

[141]     Firstly, that it must have taken Mr. Thibault hours and hours of filming in order to get these short extracts as proof of the Walkers’ alleged misbehavior, which effort, the Court finds, borders on obsession. When one remains hidden long enough with his camera pointed at any person, he is bound to film some gestures that can be made into something that they are not.

[142]     The vicinity of Plaintiffs' house was filmed 24 hours a day by four cameras, not to mention the one used on a regular basis to film the Walkers themselves.

[143]     Mr. Wouters testified that every morning he looked at the previous night's videos to see if something happened. Every evening he reviewed the videos taken that day. In all, he spent five hours a day, seven days a week, reviewing his film, just in case something had happened.

[144]     This is not to say that the vandalism the Plaintiffs feared was imaginary. Since the cameras were installed after 2000, the Plaintiffs were the victims of several acts of vandalism, including the throwing of eggs and paintballs and having their front yard destroyed by a passing car, however none of these acts were related to the Defendants, save for the beer cup incident that will be discussed later.

[145]     The videos chosen by Plaintiffs and shown to the Court are certainly meaningful and instructive, but not in the sense that is sought by the Plaintiffs : not only do the videos not show what the Plaintiffs see in them, they demonstrate that their testimony cannot be believed.

[146]     While presenting the videos, Plaintiffs never budged from their interpretation of what they believed they saw, even though it was obvious to the Court that what they were describing was simply not there to be seen.

[147]     The contents of the videos, according to the Court, discredit all their testimony. One cannot disbelieve a witness one moment and believe him the next.

The presence of the Defendants in the area

[148]     As already mentioned, the parties had settled their disagreements by signing a transaction on June 9th, 2008.

[149]     The terms of the transaction stated that the Walkers would move out of their home and settle somewhere else within a year.

[150]     They were under no obligation to sell the house, which they could rent to anyone except a member of their family.

[151]     Why then did the Plaintiffs react the way they did?

[152]     It is the Court's belief that the true motivation of the Plaintiffs for taking their action lies not in the allegations of their procedures but elsewhere: the Plaintiffs wish to get back the money that they accepted to pay the Walker family in the transaction of June 2008. This is what the Plaintiffs said in so many words when they were asked by their lawyer what they really wanted from their procedures.

[153]     Both Plaintiffs were quick to affirm the fact that they regretted signing the June 2008 transaction. The amounts involved were high and took away a large part of their savings.

[154]     As important, Mr. Thibault and Mr. Wouters were under the false impression that the Walkers would move out of their house rapidly, never come back and disappear from the Plaintiffs' lives. That is not what happened, and Mr. Thibault and Mr. Wouters did not accept it, as they both candidly admitted. Mr. Wouters declared in court that his strong reaction was due to the fact that every time he saw a member of the Walker family driving in the street “It is my life savings passing in front of my house” and that “I thought that after June 2009 we would never see them again”.

[155]     This false impression clouded the Plaintiffs' judgment in an uncommon way. From that day on, Plaintiffs lost their objectivity every time they saw their neighbours. The sheer sight of them made them react in a very strong and negative way, so as to blurr reality. As mentioned in Plaintiffs’ written argument : « [Plaintiffs] ont développé un véritable traumatisme à l’endroit du défendeur Robert Walker, la seule vue de ce dernier étant fort douloureuse pour les demandeurs et suffisante pour déclencher une grande angoisse. »

[156]     Here are some further examples of the exaggeration and lack of objectivity voiced by the Plaintiffs.

[157]     Plaintifs alledge that the Walker family did not move out of their house in May, 2009.

[158]      As already mentioned, the Walkers signed a lease for a condo located in the City of Dorval on April 11, 2009, effective from May 15, 2009, and moved out of their house located on Parkdale Avenue between May 15th and May 21th, 2009. They brought with them all of their furniture except what was to be thrown away. They made the apartment their domicile.

[159]     Mr. Wouters testified that he saw Mr. Walker’s car parked all night long in his driveway at least 15 times after they had moved away.

[160]     That was denied by Mr. Walker who said: he never spent a night there. His wife testified that he was at home in their bed every single night since they moved to Dorval. Their front neighbours corroborated: they never saw his car in his driveway at night since the Walkers moved out.

[161]     The Plaintiffs took so many pictures of their neighbours respecting so many less significant incidents that it is very surprising they did not take any photos of such a significant event, so much that the Court does not believe Mr. Wouters’ testimony.

[162]     The Plaintiffs presented copies of The Practical Directory, of the Yellow Pages and of the Canada411.ca page for "R. Walker" for the years 2009 and 2010 ending in March 2012. These three directories show two residential listings for the name "R. Walker", one on Parkdale and one on Brunet Street in Dorval. That, submit Plaintiffs, demonstrates that the Walkers still lived on Parkdale.

[163]     Mrs. Litchfield gave a comprehensive explanation for the presence of these two listings.

[164]     Firstly, the phone numbers are reversed, and are listed under the wrong address. Secondly, Mrs. Litchfield was not aware of the fact that the Walker name was listed twice until it was pointed out to them in the procedures, at which time she called the service provider to have the correction made. Thirdly, she testified that the new owner was correctly listed at the address on Parkdale.

[165]     It is therefore obvious that the listing of the Walkers' former address as well as the incorrect phone numbers were the result of an error by the listing company, which was duplicated in other directories that used the same data.

[166]     The Plaintiffs also allege that the Defendants left enough furniture in the house on Parkdale as to constitute proof of the fact that they still resided there. They presented pictures[25] of a mattress, a carpet and other material, taken during the summer and fall of 2009, after the prescribed date of relocation.

[167]     All the pictures were explained by Mr. Walker and Mrs. Litchfield as well as by their neighbour living across the street.

[168]     The objects that were left in the house were thrown in the garbage or given to a junk collector. The pictures show that and nothing else. Mr. Walker testified that they had moved everything of value to Dorval and what was left behind in the house was disposed of, as seen in the photos. The junk man is clearly seen in one of the pictures. Mr. Walker explained that after having spent 25 years in the house on Parkdale, there was a lot of cleaning and discarding to do, which he did (without Mrs. Litchfield's help) with the consent of the new owner who had not yet moved in. The Walkers did not dispose of all the garbage on the same day because, as Mrs. Litchfield explained, only a certain amount of garbage can be put along the curb in a single day, so they had to go back on several occasions.

[169]     Plaintiffs testified that Mrs. Litchfield continued to go on a daily basis to her former residence in order to walk her dog with the neighbour. Mr. Wouters specified that she was there every night and claimed that he had videos of that, which he did not produce as evidence.

[170]     Firstly, it should be pointed out that nowhere in the transaction is there a limitation to Mrs. Litchfield’s right to visit her former neighbour of many years.

[171]     Secondly, Mrs. Litchfield testified that she drove her car on Parkdale on 10 occasions at the most, either to go to her neighbour’s house to walk their dogs, to have coffee, to visit a neighbour’s child and twice to pick up her neighbour to go shopping.

[172]     Mrs. Litchfield stopped going to her friend’s house after an incident occurred with Mr. Wouters. One day, Mr. Wouters took pictures of Mrs. Litchfield's car that was parked in front of her neighbour’s house. Mrs. Litchfield called the police. Her neighbour's house is located right in front of her former house and is therefore situated diagonally from the Plaintiffs’ residence. In other words, Mrs. Litchfield's car was parked across the street from Mr. Wouters’ house and not directly in front of it.

[173]     From then on, Mrs. Litchfield and her former neighbour walked their dogs in a nearby park. This, it appears, was not sufficient, as one day, while they were walking their dogs, Mrs. Litchfield and her neighbour were seen by Mr. Wouters. He testified that they had gone there on purpose to harass him, knowing that he walked his dog there on a regular basis. Mrs. Litchfield testified that she never saw Mr. Wouters walk his dog in the park, not even on that day (which was not contradicted by Mr. Wouters).

[174]     Mr. Wouters' testimony cannot be relied upon : he tells the story as if Mrs. Litchfield was doing something totally illegal or horrific, which is obviously not the case. Not only does the transaction not prohibit her from visiting her neighbour once in a while, but Mr. Wouters did not even demonstrate that her behavior was remotely reprehensible.

[175]     The last time Mr. Walker was seen at his former house was on April 22, 2010, while he was getting a fuel tank from his shed. The photos that Mr. Wouters took[26] on that day show Mr. Walker taking the tank from the shed and bringing it to the neighbour across the street. Mr. Walker added that he had lent his lawnmower to his former neighbour and had forgotten the gas in the shed.[27] He spent a few minutes there. There is nothing illegal there.

[176]     After that date, Mr. Walker was seen by the Plaintiffs driving a man that had been hired by the new owner to plow the snow from his driveway. Mr. Walker testified that he did that as a Good Samaritan. On both occasions that were photographed, it appears that Mr. Walker stayed far away from the Plaintiffs’ house. Nevertheless, the Plaintiffs saw him and photographed him driving his car away on December 14, 2010[28] or parking at a certain distance from their house on Febuary 2, 2011[29] while Mr. Walker waited for the man to finish plowing the snow to drive him home.

[177]     Nothing happened on these occasions. No words were exchanged. Mr. Walker did not even get out of his car. Even so, the Plaintiffs considered his presence unacceptable because, according to them, Mr. Walker had no business being on the street.

[178]     Other incidents of lesser significance narrated to the Court do not add much to the Plaintiffs’ case. These incidents occurred in a grocery store (words were exchanged between Mr. Wouters and Mr. Walker), at Fabricville on January 15, 2011 (involving Mr. Wouters and Mrs. Litchfield); in the street (according to the allegations, Mr. Walker followed Mr. Wouters; Mr. Wouters sprayed Mr. Walker with a water hose; Mr. Walker yelled “I dare you idiot” at Mr. Wouters; in September 2008, Mr. Wouters stepped in front of Mrs. Litchfield’s car; in the parties' backyard (Mr. Walker allegedly placed a collar on a chair in the fall of 2009); or during a hearing of the Human Rights Commission in April 2010 (Mr. Walker allegedly made a "you're crazy" gesture at Mr. Thibault). None of these incidents meet the Plaintiffs' burden to demonstrate that they were being harassed by Defendants.

[179]     Of all the proof presented by Plaintiffs, there is only one occasion when no acceptable explanation was offered for Mr. Walker's behavior. It relates to an incident that occurred on October 28, 2008, during a rainy evening while the leaves fell on the street.

[180]     The video shows the city cleaning truck passing in front of the parties' property, southbound. About 15 minutes later, Mr. Wouters is seen walking slowly towards the Defendants' driveway using a broom to push the leaves that were not picked up by the city cleaning truck away from the curb. Mr. Wouters explained that there must be a clean passage along the curb for rain water to flow freely away from their property.

[181]     Approximately 2 and a half hours later, Mr. Walker is filmed arriving at his house. He parks his car in the driveway, goes on the street and pushes the leaves with his feet towards the manhole, the same leaves that Mr. Wouters had made into a small pile earlier. Mr. Walker is seen putting the leaves over the manhole.

[182]     One hour later, Mr. Wouters is seen walking on the street under heavy rain, towards the manhole, and pushing the leaves back into the street, away from the manhole.

[183]     The video does not show Mr. Walker driving away from his property. However, it shows a car going into his driveway about 20 minutes later, and, about 30 seconds later, someone wearing light-colored pants pushing the leaves with his feet over the manhole. Thirty-five minutes later, the video shows Mr. Wouters going back to the manhole, moving the leaves again onto the street, and walking back towards his property.

[184]     About 1 hour and 45 minutes later, a man wearing light-colored pants is seen again coming from Mr. Walker's driveway and doing something with a broom or a similar tool.

[185]     Finally, about 1 hour and 45 minutes later, Mr. Wouters is seen repeating the same exercise over again.

[186]     Of all the videos presented to the Court, this one is by far the least clear, since it is filmed by one of the surveillance cameras on a rainy evening. One cannot see who does what with the leaves. However, Mr. Walker did not deny being the person in the video and he did not explain his presence there. The only tangible proof is that the leaves were moved repeatedly in such a way as to obstruct the flow of water.

[187]     Mr. Walker's gestures were meant to cause harm or at least to annoy the Plaintiffs.

[188]     However, the gestures cannot be qualified as harassment based on sexual orientation.

[189]     This is not to say that these gestures are excusable. The fact that these neighbours, at this point in their relationship, hated each other, is an understatement.

[190]     Fortunately for the parties, no damage was caused to the Plaintiffs by Mr. Walker's fault.

[191]     Therefore, in the absence of any fault on the part of the Defendants Walker and Litchfield, and in the absence of any damages resulting from the fault of Defendant Walker related to the event concerning the leaves, the Plaintiffs' action against them will not be maintained.

The allegations against the son Brandon

[192]     As mentioned earlier, the transaction does not cover the Defendants' son Brandon. The Plaintiffs’ allegations against him will therefore have to be be dealt with.

[193]     Two incidents were alleged as amounting to harassment by Brandon, one during a party on St-Jean-Baptiste day in 2007, and the second during the early morning hours of February 1st, 2008.

[194]     Mr. Wouters testified that on Saint-Jean-Baptiste day in 2007, while Mr. Walker and Mrs. Litchfield had left for the weekend for their cottage, their son Brandon organized a house party. Mr. Wouters first realised this around 6:00 p.m. Later that evening he saw four guys sitting in a Mercedes car, and that one of them was "constantly eyeing" his property. That scared him. Consequently, Mr. Wouters and Mr. Thibault spent the evening watching the party-goers to make sure that nothing harmful would come to the Plaintiffs or their property.

[195]     Mr. Wouters testified that at one point he saw Brandon make a hand sign to his friends, which refers to gay people, then started to unbutton his pants. However, Brandon did not lower his pants.

[196]     This event occurred while the people at the party did not know they were being watched by the Plaintiffs. No proof was made that would lead one to believe that the gestures were directed at Plaintiffs, which makes it hard to conclude that the gestures in question were intended to hurt the Plaintiffs.

[197]     Nothing else reportedly happened that evening. Everything was denied by Brandon. However, the Court does not have to rely on his denial to conclude that the Plaintiffs did not meet their burden of proof.

[198]     On February 1st, 2008, the Plaintiffs' surveillance cameras show a car arriving at around 3:30 a.m. at the Defendants’ house. The car is seen backing up from their driveway, driving slowly in front of the Plaintiffs' property with a person walking alongside the vehicle. Once in front of the Plaintiffs' property, the person throws an object towards the house.

[199]     Both Plaintiffs were awakened by the noise. They collected the broken glass and gave it to the police the next morning.

[200]     Mr.Thibault was later told by the police officer in charge of the investigation that the people involved were “friends” of Brandon Walker, that is, people from Alberta who he had met at a bar that evening. No charges were ever laid against them.

[201]     Brandon’s testimony before the Court was identical to what was reported by the police officer to the Plaintiffs. In February 2008, the trial between the Plaintiffs and Brandon’s parents was about to proceed. It seems possible that this was related by Brandon to his “new friends” that evening, and that the laters’ act was motivated by hatred, if not by hatred related to the Plaintiffs' sexual orientation.

[202]     However, the proof does not demonstrate that Brandon either encouraged, participated in, or approved of, his friends' behavior. Therefore, his liability cannot be maintained.

The no-fault liability regime based on art. 976 C.C.Q.

[203]     Finally, the Plaintiffs allege that their neighbours' behavior constitutes a civil fault according to article 976 C.C.Q.:

976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.

[204]     In St. Lawrence Cement Inc. v. Barrette,[30] the Supreme Court of Canada decided that in Quebec civil law, there is, in respect of neighbourhood disturbances, a no-fault liability regime based on art. 976 C.C.Q., which does not require recourse to the concept of abuse of rights or to the general rules of civil liability. With this form of liability, a fair balance is struck between the rights of owners or occupants of neighbouring lands.

[205]     However, in the present case, the proof demonstrated that the neighbourhood annoyances that occurred subsequently to the parties' transaction, when analysed objectively, were absolutely normal, and that the problem rather lied in the abnormally low limit of tolerance shown by Mr. Thibault and Mr. Wouters.

FOR THESE REASONS, THE COURT :

[206]     DISMISSES the action, with costs.

 

 

 

__________________________________

STÉPHANE SANSFACON, J.S.C.

 

Mtre. Marie-Noël Jacob

Attorneys for Plaintiffs

 

Mtre. Rosalia Giarratano

Attorneys for Defendants

 

 

Date of hearing:

16, 17, 18 and 20 May, 2011, and July 19 and 20, 2011

 

The case was taken under advisement on November 7, 2011, following the reception of notes and authorities of the attorneys and of Plaintiffs' Written Pleading on September 6, 2011, Defendants' Written Pleading on October 21, 2011, and Plaintiffs' Reply to Defendants' Written Pleading on November 7, 2011.

 

 



[1] Exhibit D-20.

[2] Exhibit D-16, para. 6 (f).

[3] Exhibits D-18 and D-19.

[4] Exhibit D-20.

[5] Exhibit D-16.

[6] Exhibits P-1 and D-4.

[7] Art. 2633 C.C.Q.

[8] Exhibit D-9.

[9] Exhibits D-7 and D-8.

[10] Art. 2855 C.C.Q.

[11] Pages 5, 6 and 18 to 24 of the Written Pleading.

[12] Pages 5 and 24 to 26 of the Written Pleading.

[13] Art. 2858 C.C.Q;  see also Brais c. D'Amico, [ 2005] QCCA 881 , Justice Dalphond, para. 45: " Si tant est que l’on puisse dire que cet enregistrement constitue une violation du droit à la vie privée des appelants, cette violation est si mineure qu’elle n’est pas susceptible de déconsidérer l’administration de la justice considérant sa double pertinence au litige; en effet, il permet d’évaluer objectivement les conséquences de l’utilisation du chemin et la nécessité d’en ordonner le déplacement.".

[14] Syndicat des chauffeurs de la Société de transport de la Ville de Laval (CSN) c. Ferland, (C.A., 2001-01-31), AZ-01019038 , J.E. 2001-526 .

[15] Most of these events were presented during the trial although some of them appear from the judgment of Justice Falardeau of the Quebec Court, dated November 26th, 2002.

[16] Exhibits P-1 and D-4.

[17] Art. 2632 C.C.Q.

[18] Art. 2803 C.C.Q.

[19] Art. 2804 C.C.Q.

[20] C.Q. 2002-11-26, AZ-50152917 , J.E. 2003-149 .

[21] Art. 2811 C.c.Q.

[22] Art. 2854 C.c.Q.

[23] Art. 2856 C.c.Q.

[24] All videos were produced as exhibit P-5.

[25] Exhibits P-4, pictures 0007, 0097, 0128, 0321, 0415, 0421, 0417, 0441, 1191, 1219, 1702, 1785 and 1700 and picture 1019 of the junkman at P-8.

[26] Pictures 2783, 2786, 2787, 2789, 2790, 2792, Exhibit P-9.

[27] The lawnmower can be seen on picture 2792.

[28] Picture 3912.

[29] Picture 4000.

[30] [2008] 3 S.C.R. 392 , 2008 SCC 64.

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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