2014 QCCQ 10998, 2014 QCCQ 10998

Backler c. Day 2014 QCCQ 10998 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-130359-112 DATE: November 12, 2014 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE VÉZINA, Q.C.J. ______________________________________________________________________ ESTHER BACKLER Plaintiff v.

HUGUETTE DAY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Esther Backler is suing Huguette Day for recurring leakage problems emanating from Mrs. Day's condominium unit located above Mrs. Backler's condominium unit. [ 2 ] Mrs. Backler claims $5,701.13 for five leaks which caused damages to her laundry and computer room ( the Room ). [ 3 ] Although Mrs. Day admitted that some leakage damages were caused to Mrs.

Backler's Room by her air conditioning system, she denied owing her any sum of money, referring to a specific clause in the applicable declaration of co-ownership preventing Mrs. Backler to sue another co-owner. QUESTIONS OF LAW

A) Has Mrs. Backler established her right to claim damages from Mrs. Day?

B) In the affirmative, what are the damages suffered by Mrs. Backler? CONTEXT AND ANALYSIS [ 4 ] In civil matters, a person wishing to assert his right shall prove the facts on which his claim is based [1] . In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probability, also called preponderance of evidence. This implies that the demand must demonstrate that the existence of a fact is more probable than its non-existence [2] . [ 5 ] Furthermore, every person has a duty to honour his contractual undertakings [3] .

A) Has Mrs. Backler established her right to claim damages from Mrs. Day? [ 6 ] The Court summarizes as follows the relevant facts from the evidence presented. [ 7 ] Mrs. Backler and Mrs. Day are co-owners in a condominium complex where the unit of Mrs. Day is located just above the unit of Mrs. Backler. [ 8 ] Both parties agreed upon the applicable declaration of co-ownership [4] . However, they disagree on the legal meaning of some clauses contained in it. [ 9 ] The air conditioning located in Mrs. Day's unit was leaking and necessitated repairs throughout the years (from 2008 to 2011).

Such air conditioning system was located just above Mrs. Backler’s Room. [ 10 ] Mrs. Backler referred to seven similar leakage incidents in her Room throughout the years, but only claimed for the last five events which occurred on July 26, 2008, October 2009, September 20, 2010, June 19, 2011 and July 2, 2011. [ 11 ] In that context, Mrs. Backler is now claiming reimbursement of her repairs’ expenses, to which she adds the lawyer's fees paid in order to try to solve the recurring problems. [ 12 ] Somewhere after July 2011, Mrs. Day changed the air conditioning system in her unit and from that time, Mrs.

Backler did not suffer any other leakage problems.

[ 13 ] In view of the number of incidents and the necessity to repair the damages each time, Mrs. Backler decided to sue Mrs. Day and sent a letter of notice on June 6, 2011 [5] . [ 14 ] Prior to such change, Mrs. Day admitted that she had to retain the services of contractors on various occasions for plumbing work on her air conditioning system and she paid for such repairs [6] . [ 15 ] Mrs. Day contested such claim and rather blamed the faulty management of the property by the Syndicate to explain Mrs’ Backler damages.

She also criticized her for failing to present a claim to her insurance company for the Room’s damages. [ 16 ] These arguments are irrelevant. [ 17 ] The Court has to decide whether or not Mrs. Day is responsible for the leaks suffered by Mrs. Backler in her Room and must analyze what is the impact of the applicable declaration of co-ownership on the rights of the parties. [ 18 ] At the hearing, Mrs. Backler used the expert Jacob Bratin from Plomberie Levine Bros Ltée to establish the cause of the various leakages. [ 19 ] Although the testimony of Mr.

Bratin contained some hearsay, the expert confirmed that emergency repairs were done in Mrs. Day's unit linked to her air conditioning system and consequently, repairs were also necessary in Mrs. Backler’s Room. [ 20 ] Furthermore, in view of Mrs. Day's own admission regarding the leakage of her air conditioning system leading to some damages in Mrs. Backler’s unit, the Court concludes that the damages to Mrs. Backler's condominium unit were indeed caused by the defective air conditioning system of Mrs. Day. [ 21 ] The declaration of co-ownership covers insurance issues [7] :

(4) INSURANCE BY A CO-PROPRIETOR (

a) Each co-proprietor of an Exclusive Portion shall be responsible for obtaining and maintaining, to the fullest extent obtainable, his own insurance on any additions or improvements made by the co-proprietor to his Exclusive Portion, and for furnishings, fixtures, equipment, decorating and personal property and chattels of the co-proprietor contained in his Exclusive Portion and his personal property and chattels stored elsewhere on the property, which policy or policies of insurance shall contain waivers of subrogation against the Administrators, Officers, Managers, Agents, employees and servants and against the other co-proprietors and any members of their household, or any co-proprietor of another Exclusive Portion, except for arson and fraud. [ 22 ] Other clauses of the declaration of co-ownership [8] must also be analyzed: VI.

USE OF EXCLUSIVE PORTIONS (…)

x) Responsibility - Each individual co-owner shall remain responsible to the other co-owners for damage caused by his fault or his negligence, or that of his employees, family, guests, lessees or any other occupant of his Exclusive Portion, or by the use of an

article belonging to him or for which he is legally responsible. (…) xxvi) Each co-proprietor shall, at his expense, keep his Exclusive Portion and its equipment and appurtenances in good order, condition and repair, in a clean and sanitary condition, and shall do all re-decorating, painting and varnishing which may at any time be necessary to maintain the good appearance and condition of his Exclusive Portion.

In addition to decorating and keeping the Exclusive Portion in good repair and without limiting the generality of the foregoing, the co-proprietor shall be responsible for the maintenance, repair or replacement of any plumbing and heating fixtures, water heaters and lighting fixtures. (…) IX.

MAINTENANCE AND REPAIR OF PIPING, PLUMBING, VENT AND GAS LINES, RADIATORS AND ELECTRICAL WIRING Notwithstanding any of the terms, clauses and conditions hereof or by Law, establishing pipes, plumbing, vent and gas lines, radiators and electrical wires as Common or Exclusive, and notwithstanding the passage of Exclusive pipes, plumbing, vent and gas lines and electrical wires through Common Areas, or passage of Common pipes, plumbing, vent and gas lines and electrical wires through Exclusive Areas, the responsibility for the maintenance and repairs thereof and the expenses for same shall be borne as follows: -

i) Pipes, Plumbing, Vent and Gas Lines The co-proprietors of each Exclusive Portion shall be responsible for : - All pipes, plumbing, vent and gas lines situate in the interior of an Exclusive Portion (…). [ 23 ] The declaration of co-ownership must be read in its entirety. [ 24 ] Mr. Justice François Bousquet analysed a clause similar to the one binding Mrs. Backler and Mrs. Day and explained [9] : [7] La clause 15.4.1 de la déclaration de copropriété, que les défendeurs allèguent à l'appui de leur contestation, se lit comme suit :

« 15.4.1 DEVOIR DU COPROPRIÉTAIRE D'ASSURER Chaque propriétaire est responsable de souscrire et de maintenir sans obligation de sa part toutefois , jusqu'au plus haut montant possible, sa propre assurance pour toutes les additions et améliorations effectuées par lui à sa

partie exclusive (unité de logement) et pour toutes les fournitures, fixtures, équipements, décorations, propriétés personnelles et meubles contenus dans sa

partie exclusive (unité de logement) et sa propriété personnelle et ses meubles se trouvant ailleurs dans la propriété (incluant notamment par extension l'espace de rangement dont il a la jouissance), laquelle police ou lesquelles polices d'assurance devant contenir la renonciation à la subrogation contre les administrateurs, les officiers, le gérant, leurs agents, employés et fonctionnaires et contre les autres copropriétaires et membres de leur famille. Il est aussi de la responsabilité du copropriétaire-occupant d'assurer tous les couvre- planchers de leur

partie exclusive. Ces polices d'assurance doivent contenir une clause par laquelle les assureurs renoncent à toute subrogation en leur faveur contre les administrateurs, concierges, mandataires, préposés et serviteurs, sauf en cas de fraude ou d'incendie volontaire. » [8] Cette clause ne prévoit pas qu'il n'y a « aucun droit de recours » entre les parties.

En effet, elle stipule plutôt qu'un copropriétaire n'a pas l'obligation de s'assurer mais que, s'il choisit de le faire, sa police d'assurance doit exclure la possibilité d'un recours subrogatoire par son assureur. [9] En supposant, pour les fins de la discussion, que la clause 15.4.1 soit ambiguë, le Tribunal conclurait que la déclaration de copropriété ne prohibe pas les recours entre copropriétaires puisque la clause suivante du même document les prévoit expressément: « 6.9 Responsabilité Sans autrement restreindre sa responsabilité en vertu des lois et règlements d'application générale, chaque propriétaire, individuellement, est responsable vis-à-vis des autres copropriétaires pour tout dommage causé par sa faute ou sa négligence ou celle de ses employés, de sa famille, de ses invités, de ses locataires ou des autres occupants ou usagers de sa

partie exclusive, ou par suite de l'utilisation de tout objet lui appartenant ou dont il est légalement responsable y inclus un animal tel que ci-haut prévu. » (references omitted) [ 25 ] The facts in the decision of Frenette c. Nadeau [10] are comparable to the situation explained by Mrs. Backler. In that case, Plaintiffs were suing Defendants following the flooding of their condominium unit caused by a faulty installation of the air conditioning unit.

The same argument was raised and the clause indicated the following: [36] Madame Nadeau allègue qu'en vertu de l'article 13.1.3.1 de la Déclaration de copropriété, il n'y a aucun recours possible entre copropriétaires ou contre les administrateurs. Elle dépose une copie de cet

article qui énonce : « 13.1.3.1 Une renonciation à toute subrogation à l'encontre des administrateurs, concierge, agents, employés, préposés et commettants, copropriétaire d'une

partie exclusive, sauf en cas de fraude ou incendie volontaire. » [ 26 ] Mr. Justice Jean-Pierre Archambault explained: [39] Le Tribunal est d'opinion que la renonciation prévue à cet

article ne vise d'aucune manière les dommages résultant des actes posés par un copropriétaire ou par ses préposés ou par un bien dont il est légalement responsable; [40] Une telle interprétation n'aurait aucun sens et priverait les copropriétaires de recours en dommages contre les autres copropriétaires qui causeraient de tels dommages; [41] Le Tribunal est d'opinion que cette responsabilité est plutôt énoncée à l'article 7.2 de la Déclaration de copropriété : « 7.2 RESPONSABILITÉ : Chaque copropriétaire est responsable, à l'égard des autres copropriétaires, des conséquences dommageables de ses actes ou de sa négligence et/ou de ses préposés, invités ou membres de sa famille, ou des dommages causés par un bien dont il est légalement responsable. » [ 27 ] Once again, a responsibility clause similar to that binding Mrs.

Backler and Mrs. Day was commented. [ 28 ] Furthermore, a waiver clause between co-owners does not apply in case of gross negligence [11] . [ 29 ] As an example, in Liverman c. Manaster [12] , Plaintiff alleged gross negligence from Defendants for recurring water infiltrations. Defendants were relying on the waiver clause between co-owners included in the declaration of co-ownership. [ 30 ] Mr. Justice Michel A. Pinsonnault indicated: [47] All in all, in light of the preponderant evidence, the Court is convinced that the damages sustained by Mrs.

Liverman were caused directly through a gross fault committed by Mrs. Manaster who totally ignored the need to take care of her bathroom equipment and plumbing system. Although there can be water leaks from time to time, under normal circumstances, it remains a rare occurrence. In the present instance, the frequent reoccurrences, regardless of their respective intensities, show that there exists a problem in the unit owned by Mrs. Manaster and the Estate, a problem that has not yet been corrected, based on the credible testimonies of Mrs. Liverman and Mr.

Socransky. (…) [53] Based on Defendants' position, if a co-owner, through negligence or not, causes repeated damages to another co-owner's unit and the other co-owner has to claim repeatedly from his or her insurer, thus causing a significant increase in the premium paid for the insurance coverage or even a loss of coverage, that co-owner would never be able to exercise any recourse in that regard against the former co-owner based on the provisions of the Insurance Clause (Article 56-

B) found in the Co-ownership declaration. The Court

respectfully does not believe that the provisions of

Article 56-B purport to go beyond its specific wording. In order to curtail the co- owners' fundamental right to exercise legal recourses in a court of law against other co-owners and/or the Syndicate, as suggested by Defendants herein, the wording must be more specific. [54] In the present instance, the wording of

Article 56-B only provides that each co-owner must hold an insurance policy and that such policy shall contain a waiver of subrogation against the administration of the co-ownership, their employees, agents, servants, and other co-proprietors, members of their household, guests or tenants, except in the case of fraud or arson . It does not even oblige the co-owner to claim under the insurance policy in the event of an accident. [ 31 ] In this case, Mrs.

Backler suffered seven leakage incidents in the same Room. [ 32 ] The Court concludes that the source of the damages was the same throughout the years and was linked to the air conditioning system of Mrs. Day. Hence, once replaced, the source of the leakage disappeared. [ 33 ] The number of events and the length of time over which they occurred qualify as gross negligence as per

article 1474 of the Civil Code of Québec : 1474. A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence. He may not in any way exclude or limit his liability for bodily or moral injury caused to another. [ 34 ] The Court concludes that Mrs. Backler established her right to claim damages from Mr. Day as the cause of her damages was linked to the recurring problem of the air conditioning unit owned by her.

B) In the affirmative, what are the damages suffered by Mrs. Backler? [ 35 ] The repairs [13] claimed by Mrs. Backler are detailed as follows: October 6, 2009 : painting and plastering of the ceiling: $ 812.70 repairs done by Plomberie Levine Bros. Ltée: $ 372.83 September 20, 2010 : filling hole and painting ceiling: $ 632.10 new smoke detector: $ 128.68 July 2, 2011 : painting and patching: $840.00 + taxes $ 956.97 October 20, 2011 : painting: $ 550.00 TOTAL : $3,453.28 [ 36 ] All these damages are linked to the leakage in Mrs. Backler’s unit. She established the payment of bills, except for $840.

For that one, Mrs. Backler only filed an estimate. Notwithstanding that, the Court concludes that repairs for that amount must have been done since October 2011 and grants $840 plus taxes. [ 37 ] The Court also concludes that Mrs. Backler paid all these expenses even though the cheques were not filed into the Court record. [ 38 ] Therefore, the Court grants the total of $3,453.28. [ 39 ] The action was brought by Mrs. Backler on September 29, 2011, any amount claimed for damages before September 29, 2008, would have been outside the limitation period of three years [14] .

The Court notes that no damages were claimed for the leakage of July 26, 2008. No amount would have been awarded for that incident. [ 40 ] Mrs. Backler also claimed an amount of $2,364.82 [15] for her lawyer's fees. She retained his services to solve the recurring problems she was facing. The total of all the invoices is $2,250.73, but only the invoice of $729.12 is not prescribed. [ 41 ] The recurrence of the problems was indisputable. Mrs. Day was aware of it [16] . Mrs. Day failed to rapidly address the problem and that obliged Mrs.

Backler to use the services of a lawyer to move her case along. [ 42 ] However, the Court will only grant direct damages [17] and the lawyers’ fees do not qualify as a valid head of damages in the circumstances. [ 43 ] The Court does not grant $729.12 as lawyer’s fees. For thEse reasons, the Court:

GRANTS in part the action of Plaintiff Esther Backler against Defendant Huguette Day; CONDEMNS Defendant Huguette Day to pay $3,453.28 to Plaintiff Esther Backler plus the interest rate of 5% per annum and the additional indemnity provided for in

Article 1619 C. c. Q., calculated as of June 6, 2011; THE WHOLE with the judicial cost of $159. __________________________________ Dominique Vézina, J.C.Q. Date of hearing: August 20 th , 2014