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Daniel Freudman
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Hello, My neighbour wants to sue me over some damage to his

Customer Question

Hello,
My neighbour wants to sue me over some damage to his property (bush lot). I wonder if he has a case.
Details:
Province : Quebec
Background:
I hired a conractor to cut trees on my property.
The contractor has crossed the line (there is no servey) and cut $1500 worth of popplar (one load).
The contractor admitted the mistake and offered $2500 settelment + a cleanup of damage.
Neighbour wants $10,000 and wants that from me, not the contractor.
I had made all effort to mark the line and had shown it to the contractor. Contractor agreed to be responsible
for any mistakes.
It seems so unjust for me to be in this situation.
Does my neighbour have a case - claiming damages from me? and not the contractor?

2nd question: if he wins, am I expected to pay his costs?
Since he was offered a settlement and refused, am I supposed to pay for his greed?

Thank you for any hints.
Zenon Chmielowski
Province of Quebec
Submitted: 1 year ago.
Category: Canada Law
Expert:  Daniel Freudman replied 1 year ago.

As the damage came from your property, your neighbour can sue pretty much whoever may be responsible for the damage, which would include you. As such, s/he can sue you and/or your contractor for damages.

 

However, if s/he only sues you, you can add your contractor into the proceedings and claim against him. You'd effectively be saying that if any damage was caused, such was the fault of the contractor, and thus you're claiming full and complete indemnity for any damages your ordered to pay. In other words, if the court finds you liable for $10,000 to your neighbour, in the same action, you'd then say that your contractor must reimburse you this entire amount.

If the contractor is not a party to the action (i.e. if your neighbour only sued you so you need to add the contractor) then it would be done by a 'Third Party Action'. If the contractor is being sued as a party to the action (i.e. if your neighbour is suing both of you as co-defendants) then it would be done by a 'crossclaim' against the contractor. Whatever the case is though, the end result is that you are claiming against your contractor for any amount you are found liable to pay. This can include any legal costs you incur in the proceedings.

 

As for legal costs, it's not that simple. It is at the judge's discretion, though generally, the winner gets awarded costs. However, if the winner was awarded less money than the defendant's settlement offer is for, then he gets less costs. Similarly, if the defendant gets a settlement offer but rejects it and is ultimately found to have to pay more than that amount, then the defendant will generally get penalized and have to pay more.

 

But again, any costs you are found to owe, you can claim back against the contractor.

 

 

Hopefully that is of assistance.

 

If you are satisfied with my answer, please provide me with a positive rating so I can receive payment. Thank you.

 

DISCLAIMER: My communication is general legal information only and is not intended to be relied upon. This information is not legal advice, nor is it a substitute for such, and if you are seeking legal advice then it is recommended that you retain an attorney. There is no guarantee as to the accuracy of this information, nor shall I be held liable for any claim, demand or damages, actual or consequential, of any kind or nature, known or unknown, arising out of or in any way connected to this information or the issue it pertains to. No solicitor-client relationship has been created by this communication.

Customer: replied 1 year ago.

Thank you for a very prompt answer.


Not all is clear (forgive my ignorance).


"But again, any costs you are found to owe, you can claim back against the contractor."


Do I actually have to sue the contractor in a separate case to reclaim my costs?


 

Expert:  Daniel Freudman replied 1 year ago.

My apologies for not being clearer.

 

No, you don't have to sue for costs in a separate action. Rather, after the main action is resolved i.e. after the judge makes his/her ruling, s/he will ask for submissions on costs. This is where you say "based on the circumstances [obviously elaborate] I request costs from the contractor and/or the plaintiff, etc."

Customer: replied 1 year ago.

Sorry for not asking this right away.


1) Do the costs of surveys, expertise, etc. (not strictly legal fees)


belong the the case costs?


In other words, if the neighbor is required to do tree count, and


a survey, am I expected to bare those costs?


 


2). I have located a document


https://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source =web&cd=1&cad=rja&ved=0CCoQFjAA&url=http%3A%2F%2Fwww-personal.umich.edu%2F~purzel%2Fnational_reports%2FCanada.pdf&ei=arDLUeqPA4_L0gH304CAAQ&usg=AFQjCNGs1kgGB1PdsHssESrXlC7zGiE4Yw&sig2=g-7KjfGYKJ--RE7ZOZ1Qcw&bvm=bv.48340889,d.dmQ


which states that:


"In Quebec the loser pays very little, since the tariff of costs payable is maintained at a very low level, making the Quebec situation closer to the ‘American’ rule that each side bears their own costs. This position may also reflect the historic French position that lawyer’s fees are not recoverable (‘frais irrépétibles’). In the common law provinces the winner will recover more than in Quebec, but the amount will vary depending on the level of costs fixed by the court, which may vary from full through substantial to only partial indemnity, and by any further element affecting the discretion of the court, e.g., abusive procedure in a winning cause."


This suggests that the financial risk (in case of loosing the case) may be lower in the Province of Quebec.


Can you comment on this?



Thank you,


Zenon


 

Expert:  Daniel Freudman replied 1 year ago.

I see no harm in trying to claim these survey costs in your actions. If you can satisfy the judge on a balance of probabilities (i.e. make him/her more sure than not) that such costs are damages stemming from the other party's (mis)conduct, then you should be entitled to such costs.

 

Hopefully that answers your question.

Customer: replied 1 year ago.

I think you misunderstood my question.


 


My concern is that my neighbor will run up all sorts of expenses pursuing his suit (such as surveys, experts, etc) and in the end I will have to pay for all this. This could be more than the actual claim he is making.


 


When talking about the judge awarding costs, are we talking of all expenses that my neighbor may run up (including the surveys), or just legal fees?


 


You did not comment on the Quebec question.


 


Thank you


 

Expert:  Daniel Freudman replied 1 year ago.

Oh I see.

 

Those would not be legal costs. You can certainly try adding a part in your claim against the party (contractor or neighbour, or even both to try to maximize your chances of recovery) that you are claiming 'such further costs that may arise relating to this matter as the case proceeds', and that way you can claim these future expenses. It will be up to the judge whether he accepts that such costs are properly resulting from the other party's conduct, though I don't see any harm in trying to claim those costs as damages.

 

And yes, the financial risk (in case of loosing the case) may be lower in the Province of Quebec, though it is still a consideration. Even if you only have to pay 20% of the other party's legal costs rather than 40%, such an issue should still be a factor in deciding how to proceed with a court case.

Daniel Freudman, Lawyer
Category: Canada Law
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Experience: Lawyer
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