2018 QCCQ 5007, 2018 QCCQ 5007

9347-7974 Quebec inc. c. Albert 2018 QCCQ 5007 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155142-161 DATE: July 4, 2018 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ 9347-7974 QUEBEC INC. Plaintiff v.

LOUISE ALBERT Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing Defendant for $4,943.92 for latent defect or failure to disclose a defect. [ 2 ] Plaintiff purchased a property from the Defendant on September 13, 2016. The sale was made without legal warranty.

That condition of exclusion was announced by the Defendant when she put the property on the market and it appears in the real estate listing. [ 3 ] Plaintiff carried out serious inspections and was aware of possible water infiltration risks in the future. Her specialized French drain inspector Mr. Michael Moore also noticed a heaving of the basement slab. Plaintiff requested a reduction of the sale price to cover future work for installation of a French drain. The amount of that reduction was $14,000.

The price was accordingly reduced to $215,000. [ 4 ] After the sale, at the time of carrying out the work for the French drain, it was discovered that the previous foundation repair work done in 2001 by the seller, mentioned in the seller’s declaration to the best of her ability, was not optimal and caused the frost heave of the slab noticed before the sale. There was an opening between the concrete slab and the bottom of the foundation wall. The costs to repair was $4,943.92, which is the amount claimed by Plaintiff. [ 5 ]

Article 1732 of the Civil Code of Quebec ( C.C.Q. ) states: 1732. The parties may, in their contract, add to the obligations of legal warranty, diminish its effects or exclude it altogether …. [ 6 ]

Article 1733 C.C.Q. states that an exclusion of warranty has a legal limit: a seller may not exclude or limit his or her liability, if he or she does not disclose a latent defect known to the seller. [ 7 ] Accordingly, in law the only way that the Plaintiff could set aside the exclusion of warranty clause in the circumstances would be to show that Mrs. Albert knew of the existence of the defect and did not reveal it before the sale.

[ 8 ] The Court heard from Mrs. Albert and from her son Paul Albert. The repair work to the foundation of 2001 was carried out at the time at the request of Mrs. Albert’s deceased husband after a water infiltration was discovered in the basement. He hired a professional company to repair the water infiltration. For the next fifteen (15) years, there was no problem of water infiltration. Furthermore, even at the time of the sale of the property in 2016, there had never been another water infiltration incident in the basement. Mrs.

Albert testified that she thought that any past problem in that regard was resolved. [ 9 ] Based on the proof heard, the exclusion clause is valid and Plaintiff’s claim cannot succeed. [ 10 ] The Court concludes that the Defendant was unaware of the problem complained of by the Plaintiff. In the circumstances, the exclusion clause is an effective defence to Plaintiff’s claim. The evidence shows that the seller was transparent and honest in the transaction. [ 11 ] The seller’s declaration states that the statements made are correct “to her knowledge” only.

The Plaintiff did not ask for further details regarding the answer given in the seller’s declaration with respect to the repair of a crack in the foundation. [ 12 ] There was no guarantee given for the previous work carried out on the foundation. That was precisely the purpose and legal effect of the exclusion clause of the warranty of quality. [ 13 ] At the hearing, Mrs. Albert waived her right to refund of legal costs (Court Stamp Fee). FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s claim; WITHOUT LEGAL COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: July 4, 2018