2017 QCCQ 8343, 2017 QCCQ 8343

Korres c. Services A-Climatisé (2747-9229 Québec inc.) 2017 QCCQ 8343 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-150842-161 DATE: May 18, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ CHRISTOPHER KORRES, and MICHELLE CAMPBELL, Plaintiff v.

LES SERVICES A-CLIMATISÉ, (2747-9229 QUÉBEC INC.), Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Christopher Korres and Michelle Campbell, owners of a residence in Pointe Claire, Québec, sue the Defendant, Les Services A-Climatisé (“A-Climatisé”) , a division of 2747-9229 Québec Inc., in connection with the replacement of the heat pump which services the residence, carried out in May 2014, shortly after they purchased the home. [ 2 ] The Plaintiffs allege that the unit that was installed, a 30,000 BTU heat pump that worked in conjunction with the forced-air heating system, was providing too much cooling capacity and was therefore ineffective and inappropriate. [ 3 ] They claim for costs of servicing the system, $ 686.98, the cost anticipated to replace the heat pump with an adequate unit, $ 5,538, time taken off work for appointments $ 320, and damages of $ 500, for a total of $ 7,044.98. [ 4 ] A-Climatisé denies any liability, stating that it installed what the Plaintiffs ordered and, in any event, the technical solution to the problem complained of would have cost a mere $ 500, had the Plaintiffs agreed to its proposal.

ISSUES [ 5 ] To resolve this dispute, the Court must answer the following questions : 1. Is A-Climatisé responsible toward the Plaintiffs in respect of its installation of a new heat pump in May 2014? 2. If so, what is the amount that the Plaintiffs are owed as a reparation of the prejudice that has resulted from A-Climatisé’s fault? [ 6 ] When Mr. Korres and Mrs. Campbell acquired the house, the heat pump, apparently a 2.5 ton unit, was broken and required replacement.

A-Climatisé quoted to supply and install a unit described in detail as to its cooling thermal capacity, i.e. 30,000 BTU, the make and model and other technical details. [ 7 ] The package included the replacement of the evaporative coil and the disposal of the existing condensing unit (heat pump and evaporative coil). [ 8 ] The price, inclusive of taxes, was $ 3,615.96 paid by way of a deposit and the balance after the work was completed in May 2014. [ 9 ] The heat pump is a piece of machinery that provides cooling in the summer and heating in the winter.

[ 10 ] The problem that arose relates to the cooling capacity of the unit and the capacity of the ventilation system in the house, consisting of a fan in the furnace and ductwork around the building to transfer energy in the form of heat to the heat pump, where it is evacuated to the outside during the summer, and to transfer heat from the system into the air during the winter to compliment the oil heating. [ 11 ] Mr. Azad Papazian, the principal of A-Climatisé, testified that his major concern was to provide adequate heating as the heat pump would provide substantial savings in energy costs in the winter.

The testimony of the Plaintiffs shows that they were more concerned with the cooling function of the device. [ 12 ] Shortly after the installation, the pipes carrying cooling fluid from the evaporative coil to the condensing unit would freeze up which was taken as a bad sign. A-Climatisé identified the problem as having to do with the air return. In other words, when air is blown over the evaporating coil to be cooled and then forced through the ventilation ducts to the various rooms of the house, it must be compensated with an equal volume of air returning to the furnace so that it can be recirculated.

If not enough air is returned, not enough air can be blown back through the system, resulting in the freon in the condensing unit remaining too cold and impeding the functioning of the pump. [ 13 ] Alerted to the problem, A-Climatisé, in order to prevent the pump from being damaged, installed a switch which would turn the unit off when necessary.

It also recommended to the Plaintiffs that they leave the door to the furnace room open at all times to provide extra flow of air back toward the furnace. [ 14 ] This created a problem for the Plaintiffs in that the use of the basement as a living space was impeded because of the noise resulting from the furnace-room door being left open.

They tolerated the situation for the summer but in the following year did not use the heat pump preferring to use the basement which was naturally cool and foregoing the use of the cooling function for the upper floors. [ 15 ] They sought the advice of a competitor, A1 Agences Techniques (A1) , and they spent a total of $ 686.98 (P-1 & P-2) for various adjustments and studies on the part of A1 in order to find a solution. [ 16 ] The Court heard from Adriano Faoro, the technician who provided this service and who explained the solution proposed by A1 which consisted in replacing the existing 2.5 ton unit by a smaller one of 2 tons. [ 17 ] In Mr.

Faoro’s opinion, the problem lies with the fact that the ductwork only has the capacity to handle the cooling provided by a flow of air that is less than what is needed to handle a 2.5 ton cooling unit.

Unless the customers were willing to reconfigure the ductwork, he concluded that the best solution would be to reduce the cooling capacity to make it consistent with both the ductwork and the building’s requirements. [ 18 ] The price of this replacement, which includes all the design calculations necessary for the specifications, is quoted as $ 5,538, substantially more than the price A-Climatisé charged for the installation of the higher capacity heat pump in May 2014. [ 19 ] The Court also heard from an expert proposed by the Plaintiffs, Philippe Lepage, also in charge of a similar business. Mr.

Lepage’s testimony shed light on the issues but he was not able to give a suitable prognosis having not carried out the complete study that he said would be required to determine how the problem can be solved. [ 20 ] In the meantime, the Plaintiffs have ceased using the unit since the winter of 2014 and it is of no value if it is taken out of the premises. Mr. Papazian stated that he would not be interested in taking it back. [ 21 ] Mr. Papazian had proposed a solution in response to a formal demand made by a lawyer on behalf of the Plaintiffs in July 2015 (P-12).

He was willing to replace the unit with a unit of lesser capacity, as proposed by A1, but he required payment of $ 500, because of the increased cost of the equipment due to the devaluation of the Canadian dollar. The Plaintiffs refused this proposal and A-Climatisé refused to replace the unit at no cost. ANALYSIS [ 22 ] Returning to the questions raised as issues in this case, the Court is of the view that the Defendant is at fault in proposing and providing a cooling and heating unit which, at least from the point of view of its cooling function, could not work adequately in the existing system.

Either the cooling capacity was too great for the ductwork or the ductwork was insufficient for the cooling capacity.

Depending on which way you look at it, either the ductwork would have to be modified in some way or the heat pump unit substituted with one having less cooling capacity. [ 23 ] Less cooling capacity would also mean less heating capacity in which case the smaller unit would save less money in the winter as compared with the larger capacity unit currently installed. [ 24 ] The evidence does not permit, however, to establish with scientific certainty what the best approach would be. [ 25 ] The approach proposed by A1 appears to be fairly well thought out though the comments of the other expert, Philippe Lepage, suggested that it was perhaps a compromise and that there may be a better solution incorporating some changes to the ductwork, although the details of such changes have not been made known. [ 26 ] Therefore, in assessing the quantification of the prejudice caused to the Plaintiffs because of the inadequate work done by A- Climatisé, the Court is not prepared to include the cost of upgrading the duct work system which, if A-Climatisé had recommended it at the beginning, would have been incurred as the normal cost of installation.

In other words, A-Climatisé’s installation of the equipment was not a full solution to the problems, which ought to have been anticipated and, if anything, it was underpriced. [ 27 ] In the Court’s opinion, however, the vendor, not the purchaser, must assume the risks associated with an inadequate specification.

[ 28 ] The solution proposed by A1 includes recommendations and various guarantees which may explain why it is more expensive.

If, for example, after installing the unit A1 did not get it right it would be accountable and would have to stand by its design specifications. [ 29 ] If the Plaintiffs had this work carried out there would be an added value as compared with the work of A-Climatisé which was simply the installation of new parts. [ 30 ] In the Court’s view, the true measure of the Plaintiffs’ damages is the payment they made for the heat pump which has become useless, $ 3,615.96, plus costs spent in servicing and evaluating the problem, $ 686.98. [ 31 ] Because the Plaintiffs are back to square one, as it were, and have suffered a setback, the Court will add a global award of $ 500 for all lost time and inconvenience. [ 32 ] The total award will therefore be for the amount of $ 4,802.94.

BY THESE REASONS, THE COURT: CONDEMNS the Defendant to pay to the Plaintiffs, the sum of $ 4,802.94, together with interest at the legal rate and the additional indemnity provided in

Article 1619 of the Civil Code of Québec , calculated from July 3, 2015; THE WHOLE with judicial costs in the amount of $ 185 for the Court stamp. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: March 27, 2017