2011 QCCQ 8624, 2011 QCCQ 8624

Baird c. APCHQ 2011 QCCQ 8624 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF HULL TOWN OF GATINEAU Civil Division No: 550-32-017919-090 DATE: July 29 th , 2011 ______________________________________________________________________ BY THE HONOURABLE GATIEN FOURNIER, J.C.Q ______________________________________________________________________ JANICE BAIRD […], Gatineau, Qc, […] Plaintiff v. APCHQ 5930 Louis-H.-Lafontaine bvd , Anjou, Qc, H1M 1S7 And RICHCRAFT HOMES LTD. 2280 St-Laurent bvd, suite 201, Ottawa, Ont.

K1G 4K1 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Introduction [ 1 ] The Plaintiff claims from the Defendants an amount of $7000 for alleged damages caused by water infiltrations to her property.

The roof of the property would not have been built correctly. [ 2 ] The Defendants state that the roof was properly installed and they deny being responsible for the alleged damages claimed by the Plaintiff. [ 3 ] During the course of the hearing, the question of the extinctive prescription was raised by the Court.

Issues [ 4 ] The first issue here is to determine whether the action undertook by the Plaintiff against the Defendants is prescribed. [ 5 ] If the answer to this question is negative, then the Court has to determine whether the Defendants are responsible for the alleged damages in the amount of $7000 caused to the Plaintiff's property. Relevant facts [ 6 ] The Plaintiff (" Baird ") purchased a new home (the " Property ") from the Defendant, Richcraft Homes Ltd. (" Richcraft ") in September 2002.

The Property was covered by a new home extended warranty offered by the " Association provinciale des constructeurs d'habitation du Québec " (" APCHQ "). This warranty was valid for a period of 10 years. [ 7 ] Water infiltrations occurred at the Property of Baird as of spring of 2003. These water infiltrations would have been caused by the absence of ice and water shields in the valleys on the roof. [ 8 ] During spring of 2003, the Defendants were notified of the problem by Baird . A report was made by the APCHQ on April 25 th , 2003.

It indicates that: "Lors de notre inspection, une entente est intervenue entre les parties à l'effet que l'entrepreneur s'engage à effectuer les travaux suivants (points 2 à 13), et ce à l'intérieur des délais mentionnés à chacun desdits points. Par conséquent, la Garantie des bâtiments résidentielles neufs de l'APCHQ n'a pas à intervenir sur ces points en fonction du contrat de garantie." [ 9 ] Robert Clément from Richcraft confirms at the hearing that the undertaken work by Richcraft on the Property was completed.

A customer service report shows that the work on the roof had been completed in May 2003 (D-1). [ 10 ] Baird also signed a waiver (D-3) in favour of Richcraft in return of a sum of money by which she accepted and acknowledged that Richcraft was no longer responsible and /or liable for any items, inside or outside of the Property with respect to the repairs.

[ 11 ] Robert Clément adds that the company's records do not show any communication or correspondence with Baird since the signature of the waiver in September 2003, except for the demand before the Small Claims Division filed with the Court on September 1 st , 2009. [ 12 ] Donald Berubé from Toitures Bérubé testified at the hearing. He is the owner of the company which built the roof on the Property . He had been subcontractor for several homebuilders in the Ottawa - Gatineau area including Richcraft .

The company has built thousand of residential roofs on new homes. [ 13 ] He says that the building code was not requiring ice and water shield in the valleys at the time of the construction of the Property in 2002. He says that ice building has nothing to do with the roof. He went to the Property in 2003 to verify his work. He confirms that the work has been done in accordance with the National Building Code. He never heard about that roof until he was called to testify at the present hearing. [ 14 ] Baird submitted a copy of the National Building Code that was in effect at the time of the construction in 2002.

The National Building Code requires at

section 9.26.4.2 that where sloping surfaces of shingles roofs intersect to form a valley, it has to be flashed with a metal sheet no less than 600 mm wide or that 2 layers of roll roofing be installed. Mr. Derouin who did work for Baird on the roof of the Property confirms that the valley was in fact flashed. The National Building Code however, does not require that ice and water shield be also installed in the valley. [ 15 ] Baird sent letters of demand to the Defendants during the course of the year 2009. Baird filed her demand before the Court of Québec, Civil Division, Small Claims Court on September 1 st , 2009. Reasons [ 16 ]

Article 2925 of the Civil Code of Québec (CCQ) applies in the present circumstances. [ 17 ]

Article 2925 of the CCQ reads as follow: "An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established." [ 18 ] The personal right that Baird tries to enforce with the present Application is not subject to prescriptive period otherwise established. Thus, Baird 's personal right is prescribed by three years. [ 19 ]

Article 2880 of the CCQ indicates that " the day on which the right of action arises fixes the beginning of the period of extinctive prescription. " In other words, the three years period starts from the date when Baird became aware of the first infiltration. As per her testimony, the first infiltrations started during spring of 2003. Therefore, the three years period started on that time and expired during the spring of 2006. [ 20 ] Pursuant to

article 2892 of the CCQ , Baird had until the expiry of the prescriptive period to file her judicial demand before the Court to interrupt the extinctive prescription. Baird only filed her judicial demand before this Court on September 1 st , 2009. The action to enforce its personal rights against the Defendants was then prescribed. No other causes of interruption or suspension of the prescription were submitted at the hearing. [ 21 ] Furthermore, Baird signed a waiver by which she accepted and acknowledged that Richcraft was no longer responsible and /or liable for any items, inside or outside of the Property with respect to the repairs. [ 22 ] Also, pursuant to

article 2803 of the CCQ, " a person wishing to assert a right shall prove the facts on which his claim is based ." Consequently, to trigger the application of the APCHQ 10 years extended warranty, Baird had the burden to demonstrate on a balance of probabilities that the problem she encountered with the Property was caused by a major defect in the design or the construction of the Property within the meaning of the 10 years extended warranty. She did not meet that burden.

Thus, the 10 years extended warranty does not apply in the circumstances of the present matter and the APCHQ cannot be found liable toward Baird . FOR THOSE REASONS, THE COURT: DISMISS the application of the plaintiff, without costs; __________________________________ GATIEN FOURNIER, J.C.Q Date of hearing: April 11th 2011