2023 QCCQ 3635, 2023 QCCQ 3635

Iny c. Peng 2023 QCCQ 3635 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-714711-217 DATE : June 6, 2023 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ EDWARD INY Plaintiff c.

DAN PENG Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE OUTLINE [ 1 ] The Plaintiff alleges that the property purchased from the Defendant in April 2019 has latent defects for which he claims $14,904.06. [ 2 ] The Defendant denies any liability, amongst other reasons, the latent defects did not exist prior to the sale, moreover, the Plaintiff was negligent in not following the recommendations mentioned in the inspection report.

THE CONTEXT [ 3 ] In April 2019 the Plaintiff purchased the property belonging to the Defendant located in Town of Mont Royal, having a municipal value of over $900,000 and put up for sale at $1,680,000 [1] . [ 4 ] Prior to purchasing, the Plaintiff retained the services of Grimaldi Inc. who provided its Pre-Purchase Inspection Report [2] . [ 5 ] Following the sale, the Plaintiff had renovations done to the property, until the end of August 2019. [ 6 ] The Plaintiff states having discovered three defects which he claims are latent defects, firstly, that the air conditioning did not cool the premises, the A/C leaked and the irrigation system had to be replaced. 1.

Defective air conditioning [ 7 ] The renovations which the Plaintiff undertook lasted until the end of August 2019. [ 8 ] In July 2019, when the temperature increased, the Plaintiff started the A/C for the workers. No cool air came out from the unit. [ 9 ] Considering that the workers were uncomfortable, on July 15, 2019 the Plaintiff had the A/C unit repaired by Ari Aydin Sim at the cost of $504.06. [ 10 ] On July 18, 2019 [3] a message text was sent by the Plaintiff to the Defendant informing her of the expense incurred which consisted of the labor, as the parts were still under warranty. 2.

Damages caused by the leak of the air conditioning unit [ 11 ] One year later, on August 20, 2020, the air conditioning unit leaked during 16 hours, causing serious damage to the walls and floor as appears from several photographs [4] . [ 12 ] This consisted in a major flood for which the Plaintiff filed a claim with his insurer who paid the cost of the repairs of nearly

$30,000. [ 13 ] The Plaintiff does not claim any portion of the cost of the repairs, but the increase in his insurance premiums. [ 14 ] In an email dated February 2 nd 2023 [5] , Melina Mayorga of Fort-Group, Plaintiff’s insurance broker, provided a breakdown of the cost of the premiums. [ 15 ] For the period of 1990-20 the yearly premium was $1,823 plus tax, for 2020-21 the premium was reduced to $1,616 plus tax, however, for the period of 2021-2022 the premium increased to $5,631.91 and for the period of 2022-2023 the premium was $4,215 plus tax. [ 16 ] The Plaintiff claims an increase of $972.84 per month for a total of $6,140.97, plus the insurance deductible of $1,000. 3.

The irrigation system [ 17 ] In the spring - summer 2019, the Plaintiff discovered that there was a problem with the irrigation system. A notice was given by email to the Defendant on December 22, 2019 [6] , enclosing the quotation obtained from Enterprise Rossi Ltd. of October 30, 2020 [7] at the cost of $5,250 plus tax, which represents the replacement of the system, which was no more expensive than trying to identify where the problem was located and repairing it. [ 18 ] The Defendant argues that she was unaware that such a system existed. [ 19 ] This system has not yet been replaced.

THE ANALYSIS [ 20 ] The burden of proving his claim rests on the Plaintiff’s shoulders, in accordance with the principles found in Articles 2803 , 2804 and 2845 of the Civil code of Quebec : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. 2845.

The probative force of testimony is left to the appraisal of the court. [ 21 ] The basis for Plaintiff’s claim is found at

Article 1726 of the Civil code of Quebec dealing with the warranty of quality. 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. [ 22 ] In order to succeed the Plaintiff must show that the latent defect was present prior to the sale, that it was hidden, unknown to the buyer, and it rendered the property unfit for the use for which it was indented, or which it so diminishes its usefulness that the buyer would not have bought it or paid so high a price. [ 23 ] These principles requirements were examined by the leading authority namely the Supreme Court of Canada [8] . [ 24 ] In addition, the buyer must, within a reasonable time after discovering the latent defect, give notice to the seller, in writing [9] .

The lack of denunciation is fatal.

The cost of repairing the A/C [ 25 ] The cost of repairing the A/C on July 15, 2019 for $504,06, will not be granted, as notice to the Defendant was only sent on July 18, 2019, once the repairs were completed. [ 26 ] The Court understands that the workers may have been uncomfortable working in hot weather, which is no different than workers working outside, however, nothing would have prevented the Plaintiff to immediately send the email to the Defendant prior to engaging the cost of repairs. [ 27 ] At Court, the Defendant stated that the A/C had been maintained yearly and was still under warranty, which would have given the opportunity to the Defendant of referring the Plaintiff to the manufacturer before any work was done on the unit, had she received the notice.

The leaking A/C and the increase in the insurance premiums [ 28 ] The second portion of the claim will also be dismissed regarding the increase in the insurance premiums.

[ 29 ] The Plaintiff explains that, once he realized water was coming from the attic, in August 2020 he removed the insulation found at the base of the A/C and discovered that a connection drain had dislodged from the unit, as appears from the photos [10] . [ 30 ] The only conclusion the Court can reach is that the connection point could not have dislodged itself prior to April 2019, the date of sale, as the damages would have occurred in the first summer of 2019, when the A/C was first used. [ 31 ] It is impossible that the water leaked during the whole of the summer 2019 until August 2020, when the leak was discovered. [ 32 ] The Plaintiff did not fulfill his burden of showing that the defect existed prior to the sale. [ 33 ] Court will not grant this portion of the claim.

The cost of repairing the irrigation system [ 34 ] Finally, the irrigation system, at the cost of $5,250 plus tax to replace it. [ 35 ] The house was built in 1958, the Defendant purchased the property in 2016 and did not know an irrigation system existed. Therefore, it is uncertain the date at which the system was put into place. [ 36 ] There is no question that this defect existed prior to the sale. The question is if this defect fulfils the requirements of

Article 1726 CCQ namely, does if this defect render the property unfit for the use for which it was intended or so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of it. [ 37 ] Several decisions have examined this requirement [11] . [ 38 ] Irrespective of the existence of a latent defect, it does not provide the buyer to claim the cost of the repairs, the replacement of the item or damages in all circumstances. The buyer must convince the Court he would not have purchased the property or paid the purchase price had he known of the defect prior to the sale. [ 39 ] If so, it would render this condition found in

Article 1726 CCQ of all meaning. 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. [ 40 ] As decided in the relevant authorities [12] it is not only the cost that must be considered, the Court must also consider the inconvenience suffered by the buyer, the extend at which the value of the immoveable is diminished and the time spent to proceed to the repairs. [ 41 ] In the present matter, the buyer did not suffer any great inconvenience, as the irrigation system has not been replaced. [ 42 ] As for the cost of the repairs of approximately $5,000 versus the value of the immoveable approximately $1,500,000, the Plaintiff has not convinced the Court that it is of such gravity that it justifies the Defendant to pay for the repairs.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s claim . WITH COSTS in the amount of $211 representing the judicial stamp of the Contestation. ________________________ DIANE QUENNEVILLE, J.C.Q.