Peloquin v. Rodriguez & Douville & Co. Date:, 2012 BCPC 165

Citation: Peloquin v. Rodriguez & Douville & Co. Date: 20120529 2012 BCPC 0165 File No: 1133885 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GENELLE EMILIA PELOQUIN CLAIMANT AND: EMMA EVELYN RODRIGUEZ, SUSANA RODRIGUEZ & DOUVILLE & CO. HOME INSPECTIONS LTD. DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: Genelle Peloquin Appearing for the Defendants: Susana Rodriguez Appearing for Douville & Co. Home Inspections Ltd. : Aaron Atkinson Place of Hearing: Vancouver , B.C.

Dates of Hearing: January 11, 2012 & April 4, 2012 Date of Judgment: May 29, 2012 Introduction [ 1 ] This matter came before me pursuant to the Simplified Trial Rules under the Small Claims Act . [ 2 ] The Claimant, the Defendant, Susana Rodriguez (“Ms. Rodriguez”), and the Defendant, Douville & Co. Home Inspections Ltd. (“Douville”), filed Trial Statements which are evidence in these proceedings. Randy Douville (“Mr.

Douville”) testified on behalf of Douville. [ 3 ] This claim arises from a Contract of Purchase and Sale for the purchase by the Claimant of a condominium at 112 – 853 East 7 th Avenue, Vancouver, B.C. (“East 7 th ”) from Ms. Rodriguez. [ 4 ] During the negotiations leading up to the Contract of Purchase and Sale, The Defendant, Emma Rodriguez was living away from Vancouver. She was assisted with the negotiations by her mother, Ms. Rodriguez. [ 5 ] Douville was retained by the Claimant to complete a home inspection for East 7 th .

Facts [ 6 ] The Claimant viewed East 7 th in early November 2009 during an open house. On November 23, 2009, the Claimant made an offer to purchase East 7 th . On November 26, 2009, Douville carried out an inspection of East 7 th . [ 7 ] On January 9, 2010, the Claimant obtained possession of East 7 th . That day, the Claimant viewed East 7 th with her mother, Janet Peloquin. At that time, they noticed a black patch on the floor in the northeast corner of the living room.

They observed that water was seeping up through the seams in the laminate flooring, along the wall under the baseboard heater, and there were stains on the floor. No one disputed these observations. [ 8 ] On January 9 and 10, 2010, the Claimant arranged with the strata manager to turn off the water. Some rotten laminate flooring and baseboards were removed, and the extent of the damage was determined. [ 9 ] On January 11, 2010, the strata manager arranged for a plumber to inspect East 7 th .

The plumber concluded that the leak was caused by the nailing of a baseboard into copper pipe behind it. [ 10 ] In late January 2010, Mr. Douville returned to East 7 th for a further inspection. At that time, Mr. Douville advised the Claimant that he did not use a moisture meter during his inspection of the north outside wall where the leakage occurred. [ 11 ] The Claimant paid $4,309.25 for repairs. Also, the Claimant has claimed the home inspection fee of $399 and a company search, filing and costs of service for a total claim of $4,951.58. [ 12 ] The Claimant was cross-examined by Mr.

Atkinson on behalf of Douville. The Claimant testified that she had been at East 7 th only on two occasions, once at the open house and once when Mr. Douville completed his initial inspection. The Claimant confirmed that she did not see any water leakage or water damage during Mr. Douville’s inspection. [ 13 ] When pressed by Mr. Atkinson to concede that it may have been possible for the damage to have occurred between the date of the home inspection and the date she took possession, the Claimant was not prepared to agree. [ 14 ] The Claimant and Ms.

Rodriguez agree that at the open house and at the inspection, the living room appeared substantially similar as it did in the photograph at Tab 5 of the Douville’s Book of Documents. As I understand it, this was the photograph used by the listing agent. It would have been essentially impossible to capture the water damage in the photograph, if it existed when it was taken, as most of the floor area was covered by a large carpet and furniture. [ 15 ] During cross-examination, the Claimant admitted that she had read and understood the contract that she signed with Douville.

As well, at the date of inspection, the Claimant confirmed that in addition to her mother, Mr. Douville, a member of strata council and her real estate agent were present. [ 16 ] The Claimant agreed that Mr. Douville explained the inspection report to her. [ 17 ] The Claimant referred to the photographs (7D, 7E and 7F) in her Trial Statement as evidence of the damages. These photographs were taken after the plumber had been at East 7 th . [ 18 ] When the re-inspection occurred, Mr.

Douville told the Claimant he was willing to reimburse the inspection fee, provided the Claimant signed a waiver, or as I understood it, a release of any claim against him. [ 19 ] The Claimant’s sister, Jocelyn Peloquin, also testified. She stated that on January 9, 2010, she was at East 7 th with her sister and there was water on the floor, but the source of the water was not evident. She and the Claimant testified that moisture on the floor was noticeable from quite a distance. [ 20 ] The Claimant’s mother, Janet Peloquin, also testified. She stated that her knees became wet when she knelt down to find the

source of the water on the floor. Janet Peloquin agreed, when asked by Mr. Atkinson, that when she viewed East 7 th at the open house and the home inspection, she did not see any water on the floor. [ 21 ] Ms. Rodriguez and Michelle Lee (“Ms. Lee”) testified on behalf of Emma Rodriguez. Ms. Lee managed East 7 th for 22 months on behalf of Emma Rodriguez, from October 2007 to July 2009. None of the tenants complained about water damage. [ 22 ] The listing agent, Deborah LeBlanc, also testified.

When she completed her final inspection of East 7 th , before providing the keys to the Claimant, she did not see any evidence of water damage. However, in cross-examination, she agreed that she may not have walked in the northeast corner of the living area. [ 23 ] Mr. Douville explained the limitations of the inspection, all of which are in the contract between Douville and the Claimant. Mr. Douville said that the inspection is only visual.

For example, he looked for apparent plumbing leaks in the kitchen, shower and bathroom, that the doors and windows were working adequately, and that light switches, the furnace and heating were performing as one would reasonably expect from a unit which was approximately 33 years old. [ 24 ] Mr. Douville testified that a moisture meter is a fairly small unit, and as such, it will detect moisture proximate to the location of where it was placed on a wall, but not over a large area if it is deployed only in one or two locations.

Issues [ 25 ] Did the Defendants, Emma Rodriguez and Susana Rodriguez conceal or misrepresent the condition of the East 7 th at the time of the sale? [ 26 ] I have summarized the issues identified by Mr. Atkinson regarding Douville, as follows:

a) Did Douville fail to meet the standard of care expected of a competent home inspector in similar circumstances?

b) If the finding is that Douville was negligent, did the statements made by Douville to the Claimant amount to negligent misrepresentation?

c) Is the claim barred by the effluxion of time, pursuant to Clause 3(1) of the contract, which provides a contractual limitation period of 1 year upon the date of the inspection report.

d) If Douville was negligent, and made a negligent misrepresentation and the claim is not statute barred, is the claim limited to the contract price, ie. the inspection fee? Discussion The Claimant and Emma Rodriguez and Susanna Rodriguez [ 27 ] The Claimant did not call any expert evidence to contradict Mr.

Douville’s testimony, nor an expert to testify about the likelihood that the damages could have occurred in about 9 weeks, ie. from the open house in November 2009 until possession on January 9, 2010, or alternatively, in about the 6 weeks from the inspection on November 26, 2009 to possession on January 9, 2010. [ 28 ] It is striking that the water damage that was evident when the Claimant obtained possession could have escaped the attention of the listing agent, the selling agent, Mr.

Douville, the Claimant, the Claimant’s mother, and the Claimant’s sister when they attended East 7 th prior to possession. [ 29 ] It may be that the furniture was staged in such a way that the water damage was concealed during the listing agent’s initial walk-through inspection, which is my impression of what occurred when the listing agent, Ms. LeBlanc, made her measurements. Neither Ms. LeBlanc, nor Mr. Douville, moved furniture or lifted the carpet for the preparation of the listing agreement or the inspection.

Also, neither the Claimant, nor her agent, moved the carpet or the furniture during their inspection. [ 30 ] I am also mindful of the evidence of Ms. Lee that there was no complaint about water leaking in East 7 th while she managed the apartment. Furthermore, Susanna Rodriguez testified that the laminate flooring was installed by the owner from whom her daughter purchased East 7 th . [ 31 ] Mr. Atkinson argued that there is no expert evidence to suggest how long the seepage would have to occur to cause the damage depicted in the photographs. This is the fatal flaw in the Claimant’s case. [ 32 ] Ms.

LeBlanc’s last inspection was cursory, at best. I have concluded that she did not pay attention to the northeast corner of East 7 th . I doubt if she inspected the unit beyond taking simple measurements for the listing, as her testimony was far short of her explaining that she did so. [ 33 ] I am mindful of the extent of the damage.

However, without any evidence and an expert opinion that I have described in paragraph 33, I cannot speculate at the cause or the time it took for the damage to occur. [ 34 ] Therefore, I conclude that the damages did not arise from the Defendants’, Emma Rodriguez and Susanna Rodriguez, misrepresentation of the condition of East 7 th , and the claim must be dismissed against those Defendants. The Claimant and Douville

[ 35 ] I have considered written submissions of Mr. Atkinson and the case authorities referred to in his argument. [ 36 ] There is no evidence to suggest that Douville did not carry its responsibilities under the contract. Mr. Douville noted deficiencies and concluded that East 7 th was in reasonable condition, for its age. I am satisfied that Douville carried out the inspection that was reasonably expected of it, and within the scope of the contract between Douville and the Claimant. [ 37 ] The more detailed inspection that the Claimant expected was not within the scope of the Douville contract.

If the Claimant had wanted furniture to be moved and the concealed portions of the unit to be inspected, she should have made such a contract with Douville. [ 38 ] I am unable to conclude that Douville was negligent. It follows that Mr. Douville did not make negligent misrepresentations to the Claimant. As a result of those findings, I do not need to consider the limitation argument, nor the extent to which the contract between the Claimant and Douville limited damages. [ 39 ] The case against Douville is dismissed. __________________________ Lawrence A. Kahn