Executive Summary: Key Legal and Evidentiary Issues

• Desjardins Assurances générales inc., as subrogee of its insured Eleanor Toll Powers, sought recovery of amounts paid for the reconstruction of two retaining walls destroyed or damaged by Marc Fortin's unsanctioned backhoe work near a servitude easement.
• At issue was whether Fortin's excavations on the seat of a right-of-way servitude — which he mistakenly treated as his own property — constituted a civil fault under Article 1457 C.c.Q.
• The first claim, tied to the April 13, 2021 collapse of the wooden retaining wall, failed because the wall had already reached the end of its useful life before Fortin's intervention, breaking the necessary causal link between fault and compensable damage.
• Established by preponderant evidence was that Fortin's November 27, 2022 excavation works seriously undermined the base of a newly built stone retaining wall that was recent, solid, and properly constructed.
• Fortin's liability for the second incident rested on his failure to consult any professional, contractor, or neighbour before performing dangerous excavation works adjacent to a structure he knew existed on his neighbour's property.
• The court awarded Desjardins $33,429.12 in relation to the second incident, together with legal interest, the additional indemnity under Article 1619 C.c.Q., and costs of justice including the fees of land surveyor Steve Tremblay.

Facts of the case

At all material times, Desjardins Assurances générales inc. (Desjardins) insured a property located in Val-des-Monts, Quebec, owned by Eleanor Toll Powers. The neighbouring property had been owned by Marc Fortin since 2000. Both properties benefited from a servitude granting a right of passage to the public road and to Lac McArthur, with the seat of that servitude running between the two properties. In 2001, Fortin undertook drainage works — without any authorization — beneath the easement area, installing underground infrastructure and a trench he referred to as his "ditch." A retaining wall, originally built around 1982 using railway timber planks, stood on the Toll property near the servitude area. Additional wooden logs were added to the wall in 2020 by one of Mme Toll Powers' sons.

Dissatisfied with those additions and alleging they impeded proper water drainage, Fortin rented a Kubota backhoe and, on April 13, 2021, unilaterally undertook excavation works. During those works, several sections of the wooden retaining wall collapsed into his trench. Fortin then dismantled the fallen portions and placed the debris on the Toll property. By the end of that day, the wooden wall no longer existed. Mme Toll Powers' daughter, Debora Toll, reported the incident to Desjardins, the municipality, and police. Desjardins subsequently mandated Multi-Excavation, owned by Guy Perron, to replace the wooden wall with a stone retaining wall and to replant cedar hedges, at a total cost of $32,652.90. That amount was paid conjointly to Mme Toll Powers and Multi-Excavation.

Fortin remained dissatisfied with the new stone wall. In a letter dated May 16, 2022, he informed Mme Toll Powers that the stone wall had "started to crumble," demanded its removal, and insisted that the drainage pipes installed by Multi-Excavation had frozen his drains and needed to be removed as well. On November 27, 2022, Fortin performed another round of excavation works near the new stone wall. Guy Perron subsequently returned to the site and found that Fortin's works had seriously undermined the foundation of the stone wall, making it dangerous and requiring a complete rebuild. A second stone retaining wall — more massive at its base — was completed in the summer of 2023 at a cost of $33,429.12, again paid by Desjardins conjointly to Mme Toll Powers and Multi-Excavation. Desjardins filed its claim before the Court of Québec in 2024, amending it on July 8, 2025 to include the consequences of the second reconstruction, invoking its subrogation rights under Article 1651 C.c.Q.

Policy terms and contractual clauses at issue

Desjardins' insurance policy covered the insured property on a "valeur à neuf" (replacement cost value) basis, as reflected under the "Coverage A – Dwelling" section of the policy. The covered risk in relation to both incidents was identified as vandalism, as confirmed by Desjardins' claims adjuster, Mikaelle Veilleux-Mantha. Insurance coverage was not disputed by either party for either incident. The subrogation mechanism applied was Article 1651(2) C.c.Q., which provides that a subrogee acquires no greater rights than those of the subrogor — a principle the court applied in its analysis of the first claim.

The servitude of right of passage was also a key instrument. The court referenced Article 1184 C.c.Q., which permits the owner of the dominant tenement to carry out works necessary to use and maintain a servitude at their own expense, absent a contrary stipulation in the constituting act. Fortin relied on this provision to justify his excavations. The court, however, found that neither the April 2021 nor the November 2022 works qualified as mere maintenance under that article, characterizing the latter more aptly as demolition works.

Reasoning and analysis

The court applied the three-part test for extracontractual civil liability under Article 1457 C.c.Q.: fault, damage, and causation. Preponderant evidence was required, meaning proof that was clear and convincing, whether direct or by way of serious, precise, and consistent presumptions under Article 2849 C.c.Q.

As to the April 2021 incident, the court had no difficulty finding fault. The evidence — including the testimony of neighbour Danny Alves and Fortin's own admissions — clearly established that Fortin's backhoe operations caused the collapse of the wooden retaining wall. The wall stood on the Toll property, confirmed by a survey certificate dated June 1, 2021, prepared by land surveyor Steve Tremblay. Even if Fortin had not directly struck the wall with the backhoe, a reasonably prudent person would have foreseen the risk of collapse, particularly given that Fortin himself acknowledged the wall was leaning toward his trench. The court found fault was clearly established.

However, the first claim failed on causation. The court gave significant weight to the testimony of Guy Perron, who described the wooden wall — upon his first visit in autumn 2020 — as holding on "by fear alone," meaning it had already reached the end of its useful life before April 2021. Fortin's actions may have delivered the final blow to an already severely compromised structure, but the court found no quantifiable compensable loss causally linked to the fault. Even if causation had been established, the court stated it would have applied a 100% depreciation to the claimed amount, given the manifest betterment resulting from replacing a decades-old wooden structure with a new stone wall. The claim relating to the cedar hedges was treated as following the same fate as the wall.

As to the November 2022 incident, the court found fault clearly established on the basis of a constellation of serious, precise, and consistent circumstantial evidence. Fortin did not deny performing new excavation works on that date. Perron's testimony established that those works had significantly undermined the base of the new stone wall, causing dangerous settlement. Fortin himself admitted during testimony that he had "torn out" the drainage system installed by Multi-Excavation. The court rejected Fortin's claim that the first stone wall had been deficiently constructed, finding no evidentiary support for that hypothesis. The stone wall was found to be recently built, solid, and constructed in accordance with proper standards. No depreciation was warranted.

Unlike the first incident, all three elements of civil liability were established for the second incident: fault (reckless excavation without consultation, in disregard of the stability of an adjacent structure), damage (destruction of the stone wall, drainage system, and cedar hedges), and causation (Perron's credible and detailed testimony directly linking the damage to Fortin's works). The court also rejected Fortin's argument that Desjardins had failed to seek his version of events, noting that Fortin had shown complete disinterest in the insurer's investigation and had ignored multiple written communications directed to him.

Ruling and overall outcome

The court partially allowed Desjardins' amended claim. The first claim, relating to the $32,652.90 paid for the reconstruction of the wooden wall and cedar hedges following the April 13, 2021 incident, was dismissed on the basis that no causal link existed between Fortin's fault and a compensable loss, given the wall's pre-existing state of deterioration. The second claim, relating to the $33,429.12 paid for the reconstruction of the stone wall and associated works following the November 27, 2022 incident, was granted in its entirety. Desjardins was the successful party on the second head of claim. The court ordered Fortin to pay Desjardins the sum of $33,429.12, together with legal interest and the additional indemnity under Article 1619 C.c.Q. as of January 31, 2023, plus costs of justice in favour of Desjardins, including the fees of land surveyor Steve Tremblay.