2023 QCCA 1202, 2023 QCCA 1202

Aintabi c. Syndicat des copropriétaires de The Meadows Condominium 2023 QCCA 1202 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029505-211 ( 500-17-099445-176 ) MINUTES OF HEARING (Rectified on October 10, 2023) DATE: September 22, 2023 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. GUY COURNOYER, J.A. PETER KALICHMAN, J.A.

APPELLANTS COUNSEL Elie Aintabi Lesley Tannenbaum Mtre HOWARD SCHNITZER Absent RESPONDENT COUNSEL Syndicat des copropriétaires de The Meadows Condominium Mtre JEAN EL MASRI ( El Masri Avocat ) Absent IMPLEADED PARTY COUNSEL Intact Compagnie d’assurance Mtre CATHERINE MARTEL Mtre KATHERINE LORANGER ( Langlois avocats ) Absent On appeal from a judgment rendered on April 15, 2021 by the Honourable Bernard Synnott of the Superior Court , District of Montreal .

NATURE OF THE APPEAL: Property and ownership ─ Divided co-ownership ─ Syndicate of co-owners ─ Liability ─ Preservation of the immovable ─ Water infiltration ─ Corrective work ─ Temporary loss of enjoyment of the property during the work.

Clerk at the hearing : Anne Dumont Courtroom: Pierre-Basile-Mignault HEARING 9:32 Commencement of the hearing. Continuation of the hearing held on September 19, 2023. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT (Rectified on October 10, 2023) [ 1 ] This is an appeal from a judgment of the Superior Court (the honourable Bernard Synnott), dismissing the appellants’ action in damages against the respondent, a syndicate of co-ownership, and its directors. [ 2 ] The judgment also grants the directors’ application to declare the proceedings against them abusive and to condemn the appellants to pay them damages.

These conclusions are not raised on appeal. *** [ 3 ] In 2012, the appellants, Elie Aintabi and Lesley Tannenbaum, bought a townhouse in a 128-unit complex situated in Côte St- Luc, known as the Meadows Condominium (the Unit ), from Ms.

Tannenbaum’s parents. [ 4 ] As of at least 2015, the appellants, as well as thirty-five other occupants of the Meadows, experienced various problems of water infiltration and mold in their respective units. [ 5 ] Over the following years, the respondent, the Syndicat des copropriétaires de The Meadows Condominium (the Syndicate ), engaged numerous experts and contractors to uncover the sources of the problems and to remedy them.

The Syndicate paid for all repairs it deemed necessary. [ 6 ] In June 2017, the appellants and their children moved out of the Unit, primarily because of health concerns over the presence of mold and sued the Syndicate in damages. They returned roughly two years later. [ 7 ] Before the Superior Court, the appellants claimed damages of $717,694.12, which they reduced at the hearing to $472,694.12.

The Syndicate’s insurer, Intact Companie d’assurance, assumed its defence for most of that amount. [ 8 ] The damages claimed by the appellants stem from the costs they incurred or the damages they suffered as a result of having to vacate the Unit. The appellants also claimed damages due to the abusive way in which the Syndicate conducted the litigation. The judge dismissed the entirety of the appellants’ claim. *** [ 9 ] The appellants raise the following three grounds of appeal: i. The judge erred in dismissing the damages claimed on the basis of

article 1067 C.C.Q.

ii. The judge erred in dismissing the damages claimed on the basis of

article 1077 C.C.Q. iii. The judge erred in concluding that the Syndicate had not acted abusively in the conduct of the proceedings. [ 10 ] As a

preamble to the first and second grounds, each of which raises principally questions of fact, the appellants maintain that the judge viewed the case through a distorting lens. They appear to raise two distinct issues in this regard. The first is that the judge incorrectly viewed their claim as being based on latent defects, which caused him to apply the wrong legal test in analysing the evidence. The second issue is more general in nature.

The appellants argue that the judge had an unjustified negative impression of them that led him to make numerous errors in his analysis of the facts. [ 11 ] The Court does not agree that the judge viewed the evidence through a distorting lens. [ 12 ] As far as the latent defect analysis is concerned, there is no doubt that the judge considered that the claim appellants ought to have instituted was one based on latent defects in the Unit. Since, in his view, they did not want to sue Ms. Tannenbaum’s parents, they chose instead to sue the Syndicate.

Whether or not the judge was correct in reaching this conclusion is irrelevant. The appellants either have a valid claim against the Syndicate or they do not. Furthermore, if the appellants are correct that the judge mistakenly applied the test for a latent defect claim, this would constitute an error of law – an argument they do not raise - and not a distorting lens. [ 13 ] The Court is equally unconvinced that the judge’s apparently negative perception of the appellants constitutes a distorting lens.

For the most part, the judge’s harsh criticism of the appellants’ conduct is directly related to the questions at issue and is based on the evidence. The appellants have failed to convince the Court that these considerations skewed his analysis in any way. [ 14 ] With respect to the first ground, the appellants submit that the judge committed palpable and overriding errors of fact in concluding that they did not meet the test set out in

article 1067 C.C.Q . [1] In their view, it is clear from the evidence that the work carried out by the Syndicate caused a grave disturbance to their enjoyment of the Unit. They point to the “deconstruction” (open walls, protruding wires, etc.) of the Unit for a period of roughly two years until the decontamination could be completed and they could move back in.

In their view, the Unit was uninhabitable during this period as a direct result of the work carried out by the Syndicate and the judge committed a reviewable error in failing to conclude that they were entitled to be indemnified pursuant to this article. [ 15 ] The judge acknowledges that the work carried out by the Syndicate resulted in an inconvenience for the appellants but not a grave disturbance because, in his view, the proof does not support their assertion that they were required to vacate the Unit for health reasons. [ 16 ] The appellants have established no reviewable error in this conclusion. [ 17 ] The judge’s conclusion regarding the need to vacate was based primarily on the evidence of the three air quality experts, none of whom – not even the one called by the appellants -, concluded that it was dangerous to remain in the Unit.

The judge even notes that according to the expert for the appellants, the levels of contamination that were of most concern to the appellants were actually lower when they vacated the Unit in 2017 than when they returned in 2019. [ 18 ] Regarding health issues, the only evidence supporting the appellants’ position, apart from their own testimony, was the report of Dr. Zackon, which the judge effectively rejects as unpersuasive. Contrary to what the appellants argue, the judge was well within his discretion in concluding that the report did not establish that the health problems experienced by Ms.

Tannenbaum were linked to the presence of mold in the Unit, particularly as Dr. Zackon did not testify, did not diagnose Ms. Tannenbaum with any particular medical condition and when he examined her, one month after she vacated the Unit, x-rays showed that her chest was clear. [ 19 ] Furthermore, the evidence demonstrates that the Unit remained in disarray during the appellants’ absence primarily because they chose not to carry out the remedial work until they were satisfied that no further water infiltration was possible.

The judge committed no reviewable error in refusing to attribute this situation to the Syndicate’s work. [ 20 ] The second ground of appeal deals with

article 1077 C.C.Q . [2] The appellants argue that the judge erred in his application of this

article because he neglected to consider that the Syndicate is liable to a co-owner for the damage they suffer due to faulty design or construction defects in common portions. [ 21 ] In the Court’s view, it is not necessary to address this question since the appellants have failed to demonstrate that the judge committed a reviewable error in concluding that they had suffered no damages. [ 22 ] The damages claimed fall into two broad categories, both of which are based on the necessity of vacating the Unit. The first consists of hard costs, including rent for a new dwelling and the costs of carrying the Unit.

The second category relates to the disruption in the lives of the appellants and their children, including trouble and inconvenience and moral damages. The issue boils down to whether the judge committed a palpable and overriding error in concluding that the appellants decision to vacate the Unit was not justified by the health risks posed by the levels of contamination or by the state of disrepair of the Unit.

For the reasons set out above, the appellants have failed to make such a demonstration. [ 23 ] Finally, regarding the last ground of appeal, the appellants have failed to demonstrate any basis upon which to intervene in the judge’s determination that the Syndicate did not commit an abuse of procedure. FOR THESE REASONS, THE COURT: [ 24 ] DISMISSES the appeal with judicial costs.

GENEVIÈVE MARCOTTE, J.A. GUY COURNOYER, J.A. PETER KALICHMAN, J.A.