Court of Appeal of Quebec

Groupe François Poirier inc. v. Bibeau

500-09-027815-182

Savard, Schrager, Ruel

Appeals from a judgment of the Superior Court granting in part the appellant’s application based on article 992 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.). Principal appeal dismissed and cross-appeal allowed.

In 1999, the predecessor of the respondents performed backfilling work on lots that it owned. The slope created exceeded the limits of the backfilled lots and encroached on the contiguous lot, which is now owned by the appellant. In 2002, the appellant’s predecessor brought an action seeking the removal of the encroachment on the basis of article 992 C.C.Q.

Before analyzing the issue of encroachment, the trial judge first dismissed the action in regard to the respondents Isabelle, Carbonneau, and Desaulniers on the ground that they had the benefit of a release signed in February 2011 in favour of their predecessor. Next, he found that the encroachment, the existence of which the respondents did not challenge, was not a considerable one,  nor did it not cause the appellant serious injury, within the meaning of the second paragraph of article 992 C.C.Q. According to the judge, this finding did not resolve the dispute because the appellant was entitled to the benefit of the first paragraph of this provision. He therefore found that the appellant could ask the respondents Bibeau and Paquin to acquire the parcel encroaching on its lot or to pay an indemnity for the temporary loss of its use.             

The judge should have found that none of the respondents could invoke the release in their favour. As for the merits of the dispute, whether an encroachment is a considerable one concerns its size. However, the exercise is not purely mathematical and conducted in the abstract; it must also take into account the actual area encroached upon, in light of the specific situation of the immovable encroached upon. The issue of the possible raising of the appellant’s land was not relevant in regard to the characterization of the encroachment. A proposed or hypothetical use of the lot does not change the fact that the encroachment, at the time of its construction, was or was not a considerable one. Moreover, the fact that the encroachment would prevent [translation] “the development of the immovable’s full potential” concerns the effects of the encroachment, rather than its size. This issue is relevant to the assessment of the injury caused by the encroachment, but not to whether it is considerable in nature. In this case, the evidence supports the conclusion that the encroachment was not a considerable one and did not cause the appellant serious injury. Deference is owed on this issue.

However, once this was established, and in light of the conclusions sought by the appellant as well as the history of this case, the judge should have dismissed its application. It was not open to the judge to issue the declaratory conclusion granting the appellant the right to claim the benefit available under the first paragraph of article 992 C.C.Q., 16 years after the proceeding was filed and without having made an application to that effect.



Text of the decision: Http://citoyens.soquij.qc.ca

 

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