2015 QCCQ 2846, 2015 QCCQ 2846

Charalabous c. Naim 2015 QCCQ 2846 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-138201-134 DATE: March 23, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ CHRIS CHARALABOUS -and- CHRISTINA RIZAKOS Plaintiffs v.

CLOTHILDA NAIM -and- JEAN-PHILIPPE NAIM -and- ÉMILE NAIM Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Chris Charalabous and Christina Rizakos allege that there was a latent defect, in accordance with

Article 1726 of the Civil Code of Quebec , in the property purchased by them on May 25, 2012 from Defendants Clothilda Naim, Jean-Philippe Naim and Émile Naim. [ 2 ] In particular, they allege that the shower stall, membrane and its plumbing was defective, was leaking, caused extensive mold and that these problems could not be ascertained at the time of their pre-purchase inspection. [ 3 ] The Defendants did not appear at the hearing which proceeded ex parte . [ 4 ] After the discovery of the problem, on June 13, 2012, Plaintiffs allege that there were urgent circumstances in that the mold was so extensive that it constituted a health and safety risk to themselves, and in particular to their young children, aged 6 months and 4 years at the time. [ 5 ] According to Plaintiffs’ testimony, Defendants argue that the corrective work could have been done for less than the amount claimed. [ 6 ] Based upon the testimony and exhibits of Plaintiffs, including their contractor Mr.

Duney Villalobos Velasquez, the Court considers that Plaintiffs have established the existence of a latent defect in accordance with

Article 1726 of the Civil Code of Quebec . As a result of the proof made by Defendants, which was uncontested, it appears that there was an emergency to perform the work and accordingly, the Defendants were in default by operation of law (

Article 1597 of the Civil Code of Quebec ). Plaintiffs sent a written notice of discovery (

Article 1739 of the Civil Code of Quebec ) after discovery (Exhibit P-4) dated July 15, 2012. To the extent that the notice under 1739 C.C.Q. was not timely, the only prejudice of Defendants according to the proof is that they could have had the work done for less. The Court will take into account that argument when evaluating the amount that Plaintiffs can obtain in these proceedings. [ 7 ] Based upon the proof, Plaintiffs’ claim should effectively be reduced from the requested amount of $5,815.00. The Court

deducts from that amount certain items claimed in invoices for materials purchased which appear unrelated to the latent defects. After revision, the initial cost of the corrective work is reduced to $4,506.50. [ 8 ] The Court also considers that, since the existing bathroom was approximately five (5) to ten (10) years old, there should be a depreciation of 30% in order to avoid an undue enrichment of the Plaintiffs.

Also, part of the corrective work and accessories, especially the new glass wall of the shower, were improvements and that justifies a further reduction of 10% of the admissible amount for corrective work. Therefore, the total reduction will be 40%. Accordingly, the Plaintiffs are entitled to 60% of their claim, namely $2,703.63.

FOR THESE REASONS, THE COURT: GRANTS in part the claim of Chris Charalabous and Christina Rizakos.; CONDEMS Clothilda Naim, Jean-Philippe Naim and Émile Naim to pay Chris Charalabous and Christina Rizakos the amount of $2,703.63, plus legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec from the date of institution of the legal proceedings, February 12, 2013; WITH JUDICIAL COSTS of $167 in favour of Chris Charalabous and Christina Rizakos. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: March 23, 2015