2021 QCCQ 10619, 2021 QCCQ 10619

Nguyen c. Clinique de la toiture FCA inc. 2021 QCCQ 10619 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL "Civil Division" No: 500-32- 706736-180 DATE: October 27, 2021 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ NAM PHUONG NGUYEN Plaintiff v. CLINIQUE DE LA TOITURE FCA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims the sum of $28,670.14, which she accepts to reduce to $15,000, representing the cost of replacing the roof, the cost of the repairs following the infiltration of water, expert fees and loss of rent. [ 2 ] The Defendant Clinique de la toiture FCA Inc. ( FCA ) contests this claim on the basis of the time limitation.

Additionally, FCA alleges that the warranty became void once repairs were done by a third party to the roof. [ 3 ] In August 2012, a new roof was installed by FCA on the triplex belonging to the Plaintiff, in accordance with the work described in the contract concluded between the parties [1] , consisting of an EPDM 60 MIL membrane. A 10-year warranty was included. [ 4 ] 15 months later, the roof started leaking in one of the apartments on the upper floor. The Plaintiff states having immediately called FCA to report this leak.

They assured her that someone would inspect the roof, but no appointment was scheduled. [ 5 ] As rain was predicted, the Plaintiff asked her spouse Mr. Xuan-Tri Tran to temporarily repair the roof. [ 6 ] Mr. Tran states that in doing so he discovered a small hole on the membrane that he patched with duct tape. [ 7 ] The Plaintiff adds that she mandated an expert to inspect the roof, Mr. Toan Nguyen, an engineer. Mr. Nguyen was not qualified by the Court as an expert being the Plaintiff’s brother. [ 8 ] Mr. Nguyen states that he inspected the roof with Mr. Tran and was satisfied with the repairs done.

He adds that he spoke to FCA’s representative who also voiced the opinion that Mr. Tran had done a good job. [ 9 ] Mr. Nguyen also noticed, while walking on the roof he noticed that it was weak, but did was not a concern since a 10-year warranty had been given. [ 10 ] In April 2016, a second leak was discovered in the other apartment of the top floor. The Plaintiff called FCA who sent a technician who charged $287,44 [2] , that she refused to pay as she had a warranty. [ 11 ] In June 2017, a third leak occurred in the same apartment that was repaired by Mr.

Tran as the Plaintiff did not want to pay the expense. [ 12 ] At the time these two leaks occurred, the Plaintiff did not speak to her brother as he was on vacation. [ 13 ] In the summer 2018, more leaks occurred in both top-floor apartments. Again the Plaintiff asked that Mr. Tran repair the roof. [ 14 ] On August 28, 2018 the Plaintiff sent a demand letter to FCA [3] , enclosing the “expert report” prepared by Mr.

Nguyen [4] , insisting that the roof be replaced. [ 15 ] On receipt of the demand letter, FCA inspected the roof and provided the Plaintiff with its findings [5] : - The chimney sealer was open; - The chimney cap was missing and the top part opened; - The sealer between the shingles and the brick wall was opened; - A broom was left on the roof;

- Several patches with duct tape was noticed; - The presence of cracks in the chimney joints were noticed. [ 16 ] FCA insists that the Plaintiff never reported the leaks in 2013, 2016 and 2017. [ 17 ] In April 2016, FCA’s representative did go on the roof but only to clear the debris in the drain and to replace the drain pommel. [ 18 ] FCA refused to proceed with the repairs alleging the claim was barred due to the time limitation and because damage was done by a third party, voiding the warranty.

The analysis [ 19 ] The Court agrees with the arguments raised by FCA and concludes that the Plaintiff cannot succeed in her claim. [ 20 ] As early as 2013, the roof started leaking. The Court prefers the testimony of FCA’s representative, Mr. Yannick Fournier, due to the many contradictions in the testimonies of Plaintiff’s witnesses. [ 21 ] Mr. Nguyen states that he was not concerned by the state of the roof since FCA had provided a 10-year warranty, to subsequently add that he and the Plaintiff were very worried, to the point they did not sleep until 2018. [ 22 ] This testimony is also contradicted by Mr.

Nguyen’s report of August 2018, where he states that as of 2013 he inspected the roof and discovered a hole that Mr. Tran patched with duct tape. He adds: - While inspecting the roof we could feel that a lot of water has leaked through and stayed/accumulated underneath the membrane sheet.

We warned the client (the owner) AND the roofer that it is required to have a necessary job of repairing the roof immediately. [ 23 ] He continues, reporting on his inspections of 2018: -By this visit, it was confirmed that there was no repair that had been done to the roof accordingly to our warning after the first water leaking. - In addition, to the previous hole and it patched up, there were totally 9 patch ups with duct tape done by the owner’s husband.

We were there on site during the job of sealing up the holes on the membrane. [ 24 ] This last comment clearly contradicts his testimony and Plaintiff’s, when they state Mr. Nguyen did not inspect or was he advised of the 2016 and 2017 leaks. [ 25 ] He continues his report of his last inspection in the summer 2018: - When we inspected the FOURTH TIME of the leaking (five days after the third leaking): - We found two more opening holes on the membrane; - The owner’s husband sealed the 2 new holes by duct tape. [ 26 ] Mr.

Nguyen concludes that no more investigations are required, the roof must be replaced. [ 27 ] This comment may explain why, when FCA retained the services of its expert Mr. Richard Lapointe, of Lapointe du conseil Inc., the Plaintiff refused to give him access to the roof. [ 28 ] The Court concludes that the Plaintiff cannot succeed in her recourse as a leak was discovered in 2013, whereas the claim was instituted in 2019, six years later when the time limitation is three years. [ 29 ] Moreover, the cause as to why the membrane was perforated was never explained.

It is surprising that in 2018, nine holes were discovered, all patched up by Mr. Tran. Was he the one who perforated the membrane by walking on it or while clearing ice? No explanation was provided. [ 30 ] The fact that the membrane was patched up voided the warranty, another reason for Plaintiff not succeeding in her claim. [ 31 ] Finally, the Plaintiff had the obligation of giving the opportunity to FCA and its expert to inspect the roof, the third reason to reject the Plaintiff’s claim.

FOR THESE REASONS, THE COURT : DISMISSES the Plaintiff’s claim; WITH COSTS in the amount of $302 representing the judicial stamp of the Contestation.

__________________________________ DIANE QUENNEVILLE, J.C.Q . Date of hearing: September 20 th , 2021