Québec water case law 17: «Lower land is subject to receiving water flowing onto it naturally from higher land»

(BY HUGO)

In Petrecca v. Théodore (in French), the owner of a residence sues in civil liability his neighbour, the contractor who completed earthworks on the neighbour’s property, the seller/developer of his and his neighbour’s property, as well as the city where the two properties are situated. The damages claimed result from the swamping of the Plaintiff’s property further to the earthworks raised on the neighbour’s property.

The Superior Court decides that the neighbour is responsible on the basis of section 976 of the Civil Code of Québec (CCQ). Section 976 CCQ provides that 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. In other words, the earthworks created an abnormal neighbouring annoyance. The tribunal reminds that liability for neighbouring annoyances is a no fault regime according to the Supreme Court’s teachings in Ciment Saint-Laurent v. Barrette.

The property seller/developer is responsible only as a seller - and not as a developer - on the basis of contractual liability for false representations.

The contractor is not responsible under the general extra-contractual liability regime. The city acted correctly in all respect and also cannot be held liable.

Significantly, section 979 CCQ is only invoked when the tribunal proceeds to determine whether the damages claimed for stress, troubles and inconvenience are justified and establish their exact quantum (see §216).