2022 QCCQ 173, 2022 QCCQ 173

Geres c. Harris 2022 QCCQ 173 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-024794-205 DATE: January 21, 2022 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN, J.C.Q. ______________________________________________________________________ KRISTEN GERES Plaintiff v. BRADLEY HARRIS and MARY HOWARD Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I. INTRODUCTION [ 1 ] Mrs.

Geres is suing Mr. Harris and Mrs. Howard for two latent defects affecting the house that she purchased from them. II. QUESTION IN LITIGATION [ 2 ] Did Mrs. Geres demonstrate according to the balance of probability all the elements of her burden of proof concerning those latent defects and in this eventuality, is it legitimate to ask for the said price reduction? III. FACTS [ 3 ] The plaintiff visited the immovable with her sale agent. [ 4 ] Subsequently, she hired a home inspector, Mr. Renaud, who inspected the immovable and wrote a report.

He did not notice any defect to the skylight neither the fireplace. [ 5 ] On August 17, 2016, she acquired from the defendants the immovable property. A. Skylight [ 6 ] On or around February 24 th , 2019, the plaintiff experienced water infiltration which came from the skylight. [ 7 ] The plaintiff contacted and informed her insurer, Industrial Alliance, of the water infiltration who sent Les Toitures Delaire in order to determine the origin of the water infiltration. [ 8 ] On March 6, 2019, Les Toitures Delaire listed the following issues on the roof:

- Water infiltration by the roof; - Six (6) feet of membrane; - Poor workmanship at the wall cladding, no flashing and the tips are not cut; - Ice accumulation under the skylight, no membrane (12 feet from the beginning of the roof); - Slight defect at the skylight’s shingles; - Lack of sealant. [ 9 ] On March 28 th , 2019, Industrial Alliance sent, on behalf of the plaintiff, to the defendants, a letter of demand informing them of the latent defects affecting the immovable, as it appears from the letter dated March 28 th , 2019. [ 10 ] Despite the fact that the defendants were duly informed of the latent defects, they failed to visit the immovable affected by the defect. [ 11 ] Following the water infiltration that happened on February 24 th , 2019 and in order to minimize damages, the plaintiff applied caulking to seal the skylight. [ 12 ] Nevertheless, the water infiltration persisted, causing additional damages to the immovable. [ 13 ] Considering the urgency of the situation, the plaintiff had no other choice but to repair the skylight promptly. [ 14 ] Consequently, the plaintiff hired Gaudon Construction Inc. to perform temporary repairs to the roof preventing further water infiltration. [ 15 ] The total cost of the repairs was of $287.44, as it appears from the invoice from Gaudon Construction Inc. dated May 8 th , 2019. [ 16 ] The defects affecting the skylight were identified as the following by Gaudon Construction Inc.: - No ice & water shield around the skylight; - Step flashing not replaced; - Improper shingling around and above the skylight; - Shingle above the skylight not fastened; - Skylight aluminum flashing not clipped properly; - The repairs to the skylight as enumerated in the invoice P-5 were temporary due to the urgency of the matter and they were done in order to avoid further damage to the Immovable and, by doing so, the Plaintiff mitigated her damages. [ 17 ] The total amount for the repair of the skylight and the roof is of $8,623.13, as it appears from the estimate prepared by Gaudon Construction Inc. [ 18 ] The invoice in the amount of $287.44 was deducted from the amount of the estimate.

B.

Fireplace [ 19 ] Furthermore, during the winter 2019, the plaintiff noticed cold air circulating in the immovable. [ 20 ] The plaintiff also noted that the electricity bills were higher during the winter months. [ 21 ] The plaintiff noticed that the cold draft was coming from the fireplace and that the decorative tiles surrounding the said fireplace were extremely cold. [ 22 ] Consequently, the plaintiff decided to replace the fireplace for a more effective one. [ 23 ] The plaintiff hired La Maison du Foyer to replace the old fireplace. [ 24 ] When La Maison du Foyer removed the old fireplace, a hole behind the fireplace was discovered, which directly lead to the exterior wall of the immovable. [ 25 ] The plaintiff also noticed the presence of mice as well as damages to the insulation. [ 26 ] In addition, it appears that the fireplace was not built according to the applicable norms at the time of its construction. [ 27 ] Following the discovery of such defects, the plaintiff contacted Gilles Proulx Construction Limited to evaluate the damages. [ 28 ] Gilles Proulx Construction Limited informed the Plaintiff that the following repairs had to be done:

- The siding of the chimney box must be removed; - The chimney floor must be redone; - The inside walls of the chimney box must be redone; - The insulation must be redone with a vapour barrier. [ 29 ] The cost for the repairs, including restoration of the site, is of $7, 243.43. C.

Price reduction [ 30 ] The plaintiff asks that the price of the immovable be reduced by the amount of $16,366.56 which is detailed as follows: Description Amount Repairs of the roof 8 623,13 $ Repairs of the fireplace 7 243,43 $ Plaintiff’s insurance claim deductible 500,00 $ Total 16 366,56 $ [ 31 ] The plaintiff voluntarily reduces the amount of her claim to $15,000.00 in order to remain under the jurisdiction of the small claims court. IV.

Analysis [ 32 ] The plaintiff has to demonstrate according to the balance of probability all the elements of her burden of proof. [1] [ 33 ] The Legislator defines the warranty of quality at

section 1726 C.c.Q. : 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect. An apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. A.

Skylight [ 34 ] The defects affecting the skylight were not visible or presumable at the time of the purchase. Inspector Renaud’s pictures demonstrated that the shingles on the roof around the skylight and the ceiling inside the immovable were in good state.

No signs of water infiltration were notifiable. [ 35 ] At no time, did the defendants informed the plaintiff of the defects affecting the skylight nor verbally nor in the defendants’ declaration (they only spoke about sump pump failure for water infiltration; also they said the roof was installed in 2014, and they did not experience accumulation of icicles). [ 36 ] The plaintiff acted as a prudent and diligent buyer as she notably hired a building inspector in order to conduct a pre-purchase inspection of the immovable and he did not mention any apparent defects concerning the skylight. [ 37 ] The plaintiff also inspected the immovable and did not notice any defect affecting the skylight. [ 38 ] Regardless, a visual inspection of the skylight would not have been sufficient to detect the latent defect of the skylight. [ 39 ] Moreover, in the vendor’s declaration, the defendants never disclosed the defaults affecting the roof neither the skylight. [ 40 ] The Court concludes that a latent defect was affecting the roof around the skylight. [ 41 ] The plaintiff would not have bought the immovable or paid so high a price if she had been aware of the existence of the defects affecting the skylight and the roof. [ 42 ] The plaintiff is justified to ask that the price of the immovable be reduced to the amount of $8 623.13 for the skylight latent defect.

B. Fireplace [ 43 ] The Court cannot qualify the plaintiff’s alleged defects of the fireplace as a latent defect. [ 44 ] The plaintiff already decided to replace the fireplace, had signed a contract with La Maison du Foyer to replace it and discovered the defects when they demolished it. Also, that fireplace had the age of the immovable which was built approximately in 1992. The standard at that time was far from the actual standard. Finally, the plaintiff did not notice the presence of the mice before the

demolition of the old fireplace. She did not demonstrate that it was a severe defect and that she suffered a prejudice from it. [ 45 ] The Court concludes that the plaintiff did not demonstrate that the old fireplace was affected by a latent defect. FOR THESE REASONS, THE COURT: [ 46 ] GRANT partially the present demand; [ 47 ] CONDEMN jointly the defendants Bradley Harris and Mary Howard to pay to the plaintiff Kristen Geres the amount of $8 623.13 with interests at legal rate as of the letter of demand dated October 23, 2019, and additional indemnity according to

section 1619 of the Civil Code of Quebec since October 23, 2019, with the JUDICIAL COSTS of $209 . __________________________________ SERGE LAURIN, J.C.Q. Dates of hearing: May 26, 2021, January 5, 2022