Extraits pertinents :

[3] Hebert is the owner of 6817, 2nd Avenue Montreal. The neighbouring semi-detached property, 6811, 2sd Avenue Montreal was purchased by the defendants on December 8, 2008[2].

[4] The defendants property had been abandoned for approximately 12 years. The City of Montreal had ordered its demolition no later than December 15, 2008.[3] The defendants purchased the property with the intent to demolish it and to build a duplex at the far extremity of their lot facing 6th Avenue Montreal.

[6] According to Bernard on the eve of demolition she met with both Ellis and Hebert. She introduced herself as their new neighbour and advised them as to the imminent demolition of the contiguous property.

[7] She states that she was well received by the Heberts. The meeting was brief but friendly. The parties exchanged telephone numbers. Hebert acknowledges that the meeting took place, but denies that he was notified of the pending demolition.

[9] Hebert asserts that within days he notified Bernard that the demolition had caused damage to his property including damage to the common wall, a fissure located at the corner of his residence extending from the roof to the foundation, his roof, the small roof on his extension, his frost fence and one of the garden’s sheds located on his property.

[16] The relationship between the defendant and the Heberts soured. Hebert grew increasingly frustrated and impatient that sixteen months had elapsed, and that there had been no effort by the defendants to repair the damages, including the exposed common wall which had remained without protection during the winter months.

[17] On August 4, 2010, Hebert sent a letter to the defendants setting out a detailed list of all damages that he had allegedly sustained as a result of the demolition of the defendants property and the construction of their duplex. He did not quantify his damages.[4] The defendants allege that they never received the correspondence.

[18] In November 2010, the defendants sent an offer of settlement to Hebert, which he found to be unsatisfactory and insulting.

[21] The tension between the neighbours continued to escalate and in March 2011, an altercation took place between Hebert and Bernard. Hebert accused the defendants of dumping snow on his property which is denied by the defendants. Hebert was charged with uttering death threats. Although he denies making such threats, he signed an undertaking to keep the peace in accordance with article 810 C.C.C

[28] In defence of Hebert’s claim, the defendants allege that during the course of the construction of the duplex Hebert and or Ellis provided their consent and preapproval either verbally or through an exchange of emails to actions taken by S. Lavigne, including but not limited to the installation of a hydro-pole, the use of electricity, passage through his property and the temporary installation of a French drain. Counsel for Hebert argues that he was unable to provide valid consent because he was under a regime of protection until September 2012.

[29] Was Hebert capable to provide his consent?

[31] Hebert's capacity to provide valid consent is doubtful because of the imposition of a protective regime which presumes, at the very least, a limited capacity to provide consent.

[33] However the evidence reveals that Hebert did not act alone. The Court notes that the name of Mary, his spouse and legal representative also appears at the end of the emails exchanged, as such it may be argued that, if consent was given, Mary as his legal representative consented to all such actions.

[34] Is Ellis' electronic signature sufficient to indicate her consent?

[35] The Civil Code does not include any provisions relating to the use of electronic signatures. It is, however, addressed at Article 39 of La loi concernant le cadre juridique des technologies de l'information[9] which provides :

Quel que soit le support du document, la signature d’une personne peut servir à l’établissement d’un lien entre elle et un document. La signature peut être apposée au document au moyen de tout procédé qui permet de satisfaire aux exigences de l’article 2827 C.C.Q.

[36] A review of the emails indicates that Mary actively participated in the content of same. She expressed her opinion or lack thereof with respect to the color of the facing of the defendants building. She provided directions with respect to the proportion of earth and rock to be replaced after the installation of the French drain. No evidence was led to demonstrate that the emails were written without her knowledge or authorization.

[37] In view of the foregoing the Court finds that even if Hebert was unable to provide valid consent, such consent, if proven, was duly provided by Ellis, his wife and legal representative.


[168] GRANTS, in part, Hebert’s claim;

[169] ORDERS the defendants to pay to Hebert, the amount of 18,200$ with interest at the legal rate and an additional indemnity calculated as of the date of the present judgment;

[170] WITH COSTS and, in addition, the cost of the expert report and his Court attendance.

Dernière modification : le 8 mars 2017 à 14 h 43 min.