2017 QCCQ 1749, 2017 QCCQ 1749

Gordon c. Sampson 2017 QCCQ 1749 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-150760-165 DATE: February 7, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ VANESSA GORDON -and- DARREN SHORE Plaintiffs v.

CONNOR SAMPSON -and- SOPHIE MAYES Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Further to their purchase in February 2013 of a 45% undivided ownership interest in a residential property owned by the Defendants, Plaintiff Buyers are suing Defendant Sellers for alleged latent defects affecting the property. [ 2 ] The two alleged problems are a chronic unresolved rat problem and a structural issue regarding improper construction of studs. [ 3 ] The Court will deal first with the second issue. [ 4 ] The proof is not sufficient to confirm that the residential building had a defective structural problem regarding part of the wall in the basement.

It is unclear whether the problem complained of is an original defect at the time of the construction. The property was built in approximately 1875. It is approximately 142 years old. [ 5 ] The wooden structure has proven the adequacy of its construction for lasting such a period of time. The Buyers should have known that a property of that age, before the advent of modern construction codes, was often built according to artisanal standards and those standards varied.

The Court concludes that no defect in that regard has been established. [ 6 ] Furthermore, the Buyers did not give notice to the Sellers before correcting the problem. Recent jurisprudence of the Court of Appeal, namely Claude Joyal inc. v. CNH Canada Ltd. [1] , has lessened the consequences on the Buyer of the failure to respect the requirement of notice before carrying out the corrective work. [ 7 ] However, in the present circumstances, given the extreme age of the property, the sellers were entitled to question the nature,

existence and magnitude of the work.

The absence of notice has caused them prejudice in that regard and is fatal to that part of the claim. [ 8 ] With regard to the chronic rat problem, the evidence establishes that there was an ongoing problem of rat infestation at the time of purchase, dating from at least 2010 and probably before. [ 9 ] The various experts and professionals who testified on the subject state that the cause of the problem relates to the configuration of the structure and openings in the plumbing pipes. [ 10 ] It has long been established in Quebec that an infestation of rats as well as the improper construction of a building allowing such an infestation is a defect under the warranty of quality owed by a seller to a buyer [2] . [ 11 ] In addition to establishing the existence of the defect, the Buyers must prove that it satisfies four (4) conditions in order to qualify as a latent defect. [ 12 ] These conditions are stipulated at

Article 1726 of the Civil Code of Quebec ( C.C.Q. ): 1) The problem must not be apparent . Before the purchase, the Buyers had the property inspected by a pre-purchase inspector who did not detect any rat problem. Buyers were very prudent and diligent in their inspection. When a possible problem was raised, they undertook and carried out further investigation, such as occurred for a structural investigation. For that purpose, the Buyers retained an engineer. The preponderance of the proof is that the problem was not apparent. 2) The problem must have existed before the sale . The rat problem was an ongoing issue.

During the period that the previous occupants resided at the property, they had trapped and disposed of many rats. Only months before the pre-inspection by the Buyers, the previous occupants had trapped a large rat. The previous occupants considered purchasing the property but the costs involved for renovation, including those required to resolve the rat problem, dissuaded them. This condition is also satisfied. 3) The problem must be serious . The evidence of a chronic rat infestation was overwhelming.

The testimonial evidence heard, including that from specialized exterminators, and photos produced into evidence, established the serious financial costs involved, as well as the significant health and safety concerns caused by the problem. In addition, for work to be carried out for extermination measures and other attempts to resolve the problem, Plaintiffs have had to vacate the premises over several months at various times. The condition regarding the seriousness of the problem is also satisfied. 4) The problem has to be unknown to the buyers . The problem was unknown to the buyers.

Defendants plead that it was disclosed in their sellers’ declaration. The Court does not share that view. The abundant proof is that the problem existed, was active and ongoing at the time of the sale. The Sellers’ statement of disclosure does not even contain the word “rat”. It does not express or even hint at the seriousness or ongoing nature of the problem. Instead, it is a comforting, and in the circumstances, misleading statement that indicates simply that a previous undeclared “pests” problem existed.

Furthermore, the statement indicates that the previous problem has been resolved since 2008 as it refers to a leak in a pipe that was replaced at the time. Knowledge of the Ongoing Rat Problem by the Sellers [ 13 ] The Seller Mr. Sampson states that he thought that the problem was resolved and his declaration reflected that. [ 14 ] However, with respect, that submission is inconsistent with the preponderance of the proof. [ 15 ] The previous occupants stated to the Court that they had an ongoing problem with rats.

[ 16 ] That problem in all of its magnitude and seriousness was not disclosed. [ 17 ] It was the responsibility of the Sellers to fully disclose the problem. [ 18 ] Since the sellers stated that the problem was resolved, they should have at least confirmed with the occupants at the time who would have told him that it was not. [ 19 ] There were even traps present at the time of a pre-purchase inspection made by the previous occupants. [ 20 ] One of those occupants, Ms. Holland, asked Mr. Sampson whether he had disclosed the rat problem to the new potential buyers.

He responded in the affirmative and told her that to not do so would be a “vice caché”. [ 21 ] But the evidence shows that he did not in fact disclose the problem to the Buyers. [ 22 ] Instead, he provided an incomplete, partial and misleading statement which did not indicate either the presence of rats or, most importantly, the chronic and ongoing nature of the rat infestation problem. [ 23 ] After Ms. Holland asked whether the problem was declared, the Court is of the view that it is no longer credible for the Sellers to state that their understanding was that the problem had been resolved or was in the past.

Otherwise Ms. Holland would not have raised it. [ 24 ] Furthermore, the Sellers received a copy of Ms. Holland’s pre-purchase inspection report which indicates, with photographs of traps at the time of the inspection, an active and ongoing rat problem. [ 25 ] When Ms.

Holland was asked why she declined to proceed to purchase the property, she referred, amongst other things, to the cost of work to eliminate the rat problem. [ 26 ] The Buyers also submit that accordingly to the applicable real estate brokerage rules, they should have been told that the previous potential buyers had had a pre-purchase inspection performed and declined to proceed to the sale as a result of the problems raised. [ 27 ] There is no doubt that had that report been given to the Buyers, they would have been made aware of the rat problem. [ 28 ] The Seller Mr.

Sampson stated that he felt that the rat problem was a “seasonal” and normal problem. The Court does not share that view. There is nothing normal or seasonal about a recurring rat problem in a residential property. The proper construction of residential properties does not and should not permit rats to enter, through the plumbing pipes or otherwise. The presence of rats, especially in interior areas designed for human habitation, is abnormal and renders a residential property unfit for its purpose and usage and constitutes a health and safety risk for its occupants. Notice for the Rat Problem

[ 29 ] Regarding the requirement of notice, according to the evidence, it is clear that the Buyers, as soon as they became aware of the undisclosed rat problem, advised the Sellers. The work to try to eliminate the problem has been ongoing ever since. The last intervention in that regard was several weeks before the trial.

Sellers’ Legal Liability Under the Warranty of Quality and Damages [ 30 ] Quebec jurisprudence has often emphasized the obligation of good faith of the sellers to fully disclose an important issue to a buyer and especially to not mislead or falsely reassure buyers regarding the existence of known problems affecting the property. [ 31 ] In Proulx-Robertson v. Collins [3] , speaking for the Court of Appeal, Judge Louis LeBel, later of the Supreme Court, stated that a real estate transaction, especially in a residential context, should not be a game of hide and seek or cat and mouse.

He wrote as follows: “Les relations entre un vendeur et un acquéreur d’une propriété immobilière ne s’assimilent pas à un jeu de cache-cache. Les vendeurs demeurent soumis à des obligations d’honnêteté et de loyauté vis-à-vis de l’acquéreur potentiel. Connaissant un problème sérieux, ils se doivent, à tout le moins, de ne pas induire en erreur l’autre

partie en l’envoyant délibérément sur une fausse piste ou en induisant chez elle un sentiment de fausse sécurité. Le dol présent dans ce dossier contribue à rendre caché un vice qui, dans d’autres circonstances, pourrait être apparent.» [ 32 ] Buyers could have alleged a fault on the part of the Sellers for having omitted to disclose an ongoing rat problem under Articles 1401 and 1407 C.C.Q. [ 33 ] They have instead based their recourse on the warranty of quality under

Article 1726 C.C.Q. The Court concludes that the evidence in the present instance is sufficient for the Buyers to succeed under that article. [ 34 ] There was an ongoing and active problem, or at the very least, a major high risk of a return of the problem. That was not disclosed by the Sellers. The Sellers’ version of events to the contrary is, with respect, neither credible nor consistent with the evidence. [ 35 ] To the extent that the Seller Mr.

Sampson was, as he states, unaware of the ongoing nature of the problem, which the Court does not accept as a question of fact, it is because he preferred not to be fully aware of it, and especially of the active, ongoing and chronic nature of the problem. [ 36 ] According to the evidence, the Sellers, during the period of their ownership of the property, carried out work to try to resolve the rat problem. But those efforts were insufficient and unsuccessful.

[ 37 ] As the Court concludes that the sellers were in fact aware of the problem and did not disclose it to the Buyers, the Sellers are responsible under

Article 1728 C.C.Q. both for repairs in order to fix the problem and for all damages suffered by the Buyers. [ 38 ]

Article 1728 C.C.Q. reads as follows: 1728. Si le vendeur connaissait le vice caché ou ne pouvait l’igno rer, il est tenu, outre la restitution du prix, de réparer le préjudice subi par l’acheteur. 1728. If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer. [ 39 ] The actual damages suffered by the Buyers are detailed in a table produced by them as Exhibit P-22 in the Court Record.

The damages are as follows: Category Date Invoice/Damage Full cost Plaintiff share 45% Exhibit Extermination 04/04/2014 Arrelle Extermination Enr. $103.48 $46.57 P-9 12/04/2014 Les Entreprises DM Services d’Extermination $488.73 $219.93 P-10 10/10/2014 Orkin Canada $86.23 $38.80 P-13 22/01/2015 Orkin Canada $86.23 $38.80 P-14 13/10/2015 ABC Gestion Parasitaire $327.68 $147.46 P-20 Subtotal, Extermination Costs: $1,092.35 $491.55 Camera tests, smoke tests and other expert reports 6/06/2014 Inspection by Plomberie Bertrand Durand (camera blocked) $282.84 $127.28 P-11 30/01/2015 Camera test by Plomberie Copa $356.42 $160.39 P-15 18/03/2015 Smoke test by Plomberie Lachine $428.29 $192.73 P-16 26/05/2015 Report on rats and studs by architect Latimer Hu $931.30 $419.09 P-17, P-18 23/09/2015 Smoke test by Test Enr. $206.96 $206.96 P-19 13/10/2016 Consultation by architect Latimer Hu $54.61 $24.57 P-23 15/09/2016 Consultation by ABC Gestion parasitaire $143.72 $64.67 P-24 2/12/2016 Smoke test by Plomberie Lalumière $776.08 $349.24 P-25 Subtotal, Expert Costs: $3,180.22 $1,544.93 Repairs 11/06/2014 Bathroom demolition by contractor Brodsky $5,586.04 $2,513.72 P-12 29/05/2016 Bathroom reconstruction by contractor Caron (66% of bathroom expenses) $9,847.20 $4,431.24 P-26 29/05/2016 Concrete slab under stairs by contractor Caron ($2,800+tx) $3,219.30 $1,448.69 P-26 28/11/2016 Smoke test and drain repair by Plomberie Lalumière $378.98 $170.54 P-27 9/12/2016 Smoke test and drain repair by Plomberie Lalumière $1,303.53 $586.59 P-28

Subtotal, Repair Costs: $20,335.05 $9,150.77 Varia 17/9/2015 Replacement of rat-infested stove (2nd- hand) at Villani $175.00 $175.00 P-29 Ongoing Troubles, ennuis, inconvénients (incl. 7 mois manqués de jouissance) $5,000.00 $5,000.00 P-30 13/01/2017 Family therapy with Stacey Rubin $3,782.90 $3,782.90 P-31 26/08/2015 Expenses for rat-proofing supplies in summer 2015 $201,31 $90.59 P-32 Subtotal, Varia: $9,159.21 $9,048.49 Total Expenses: $33,766.83 $20,235.74 [ 40 ] Buyers have suffered in an almost unimaginable way for approximately four (4) years and dedicated extensive personal efforts and resources to try to resolve a chronic and difficult problem.

This has caused major distress and pain for them as persons, parents, and as a couple. [ 41 ] All of this could have been avoided had the Sellers declared to the Buyers at the time of inspection, and before the sale, that there was an existing and chronic problem of rat infestation affecting the property. [ 42 ] The Buyers have been very prudent to claim only the actual damages suffered to attempt to resolve the rat problem. [ 43 ] If the costs are high, it is because they were left to solve the problem that the Sellers did not resolve and did not declare before the sale. [ 44 ] The Buyers were in fact left “holding the bag” for the pre-existing problem with all the pain, suffering, loss of enjoyment of the premises and constant interventions, including by various professionals, to try to solve the problem. [ 45 ] As appears above, the amount claimed as damages by the Buyers is $20,235.74.

In light of the evidence, the Court concludes that all those damages have been established. [ 46 ] The Buyers reduced the amount claimed to $15,000 in order to introduce their claim in the Small Claims Division of this Court.

That amount will be granted. [ 47 ] The Buyers also claim a further amount for estimated further damages as it is not certain, even at the time of the trial, that the rat problem has been definitively resolved. [ 48 ] As the maximum amount of $15,000 in the Small Claims Division has already been established, no further amount will be considered. [ 49 ] The amount claimed includes invoices that are contemporaneous in time to the trial. On that basis, interest will run from the date of the present judgment.

FOR THESE REASONS, THE COURT: [ 50 ] CONDEMNS solidarily Defendants Connor Sampson and Sophie Mayes to pay Plaintiffs Vanessa Gordon and Darren Shore the amount of $15,000 with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , starting from the date of the present judgment. [ 51 ] WITH LEGAL COSTS (Court Stamp) of $200 in favour of Plaintiffs Vanessa Gordon and Darren Shore. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: February 7, 2017