2011 QCCQ 6781, 2011 QCCQ 6781

Lo c. CEC Ener-Tech inc. 2011 QCCQ 6781 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-120972-106 DATE: June 22, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ ANITA LO Plaintiff v. CEC ENER-TECH INC.

Defendant – Plaintiff in warranty and PLOMBERIE BERGERON EXPERT Defendant in warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Anita Lo claims from CEC Ener-Tech Inc. (hereinafter " Ener-Tech ") an amount of $950 alleging the non-performance of Ener-Tech's contractual obligations. [ 2 ] In its contestation, Ener-Tech pleads that Ms Lo's claim is "not founded in fact or in law".

Ener-Tech calls in warranty Plomberie Bergeron Expert (hereinafter " Bergeron ") who performs the plumbing work, as a sub-contractor. Questions in dispute [ 3 ]

a) Does Ms Lo establish any fault from Ener-Tech in the execution of the contract intervened between the parties ?

b) If so, is Ener-Tech's appeal in warranty against Bergeron well-founded ? The facts and analysis [ 4 ] On July 29, 2009, a contract is signed between Ms Lo and Ener-Tech by which Ener-Tech undertakes to supply and install an electric hot-water boiler and to replace Ms Lo's old furnace. [ 5 ] Ener-Tech's work is completed on September 2, 2009 and is fully paid by Ms Lo. [ 6 ] At the end of November, Ms Lo observes a lack of heating in some parts of her house. She puts in default Ener-Tech and Bergeron to rectify the problem. [ 7 ] Both Ener-Tech and Bergeron appoint their technicians to rectify the problem.

After assessing the situation, their position is to the effect that they executed in full their contractual obligations towards Ms Lo and if some parts of her house are not heated, it is due to the poor state of the existing pipes system. [ 8 ] To resolve the problem, Ms Lo hires the services of another plumber, Mr Morris Proshetsky, who took eight hours to find the problem and to "hook up the basement zone to the new heating system" and charged $950 claimed by Ms Lo in the present instance. [ 9 ] In the contract intervened between Ms Lo and Ener-Tech, it is expressly stipulated that "Ener-Tech is not responsible for existing heating / ventilation system". [ 10 ] From the evidence adduced, the Court concludes that Ener-Tech adequately performed its contractual obligations towards Ms Lo.

The evidence shows that Ener-Tech's representatives did replace Ms Lo's old furnace by a new electrical hot-water boiler, after

connecting the existent pipes. It is improbable that Ener-Tech's technicians would have forgotten to connect the existing pipes to the new system. On the contrary, the evidence shows that it took eight hours to another plumber to find the problem and to hook up the basement zone to the new heating system. [ 11 ] This being the case, the evidence is to the effect that Mr Proshetsky's work is necessary to resolve pre-existing problems related to the old pipes system. [ 12 ] Given all of the above, the Court cannot grant Ms Lo's claim but, exercising its discretion, do not impose any fees.

THEREFORE, the Court: DISMISSES Anita Lo's claim against CEC Ener-Tech Inc., without costs; DISMISSES CEC Ener-Tech Inc.'s recourse in warranty against Plomberie Bergeron Expert, without costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: June 15, 2011