2022 QCCQ 4231, 2022 QCCQ 4231

Ruest c. Steele Royal 2022 QCCQ 4231 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU «Civil Division» N° : 550-32-701337-195 DATE : June 22, 2022 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN, J.C.Q. ______________________________________________________________________ ANDRÉANNE RUEST et BENOÎT PARENT Plaintiffs c. LINDA STEELE ROYAL et ANDRÉ DUROCHER ARPENTEUR-GÉOMÈTRE INC.

Defendants/plaintiffs in warranty ABDELHAG BENNOUDE Defendant in warranty INTACT ASSURANCES Intervener ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I. INTRODUCTION [ 1 ] The Plaintiffs sue Mrs. Steele Royal for damages concerning the cancellation of a sale of a lot because a right of way was not declared and affected the lot. [ 2 ] Also, the Plaintiffs sue Mr. Durocher, surveyor, for malpractice because he did not put the right of way on his survey and plan.

Intact Assurances intervenes voluntary to this trial in behalf of Mr. Durocher. [ 3 ] Finally, the Court did not received any evidence concerning the demand in warranty against Mr. Bennoude. II. QUESTIONS IN LITIGATION [ 4 ] The Court has to decide if the Plaintiffs demonstrate, on the balance of probabilities: that their consent is vitiated by an error induced by fraud which resulted from silence or concealment of Mrs.

Steele Royal on the existence of a right of way; which affected the lot and which was not declared. [ 5 ] Also, The Court has to decide if the Plaintiffs demonstrate, beyond the balance of probability, that Mr. Durocher, surveyor, did a professional fault because he did not put involuntary the right of way on his survey and plan. III. FACTS [ 6 ] The Plaintiffs and Mrs. Steele Royal concluded a promise to purchase an immoveable property (lot) situated at [...], Pontiac (April 19, 2018). The Plaintiffs visited the lot and were initially satisfied.

When they did a second visit of the lot (August 11, 2018), they discovered that a road of 20 feet wide (situated on the South-East of the lot) was built on the lot to deserve a neighbour’s lot (Mr. Bennoude) to access to the public road. [ 7 ] By a letter dated October 27, 2009, Mrs. Steele Royal was informed that Mr. Bennoude vindicated a right of way on the lot, but she was informed by her notary and lawyer that the right was extinguished. [ 8 ] The right of way originated from a deed of sale between Mr. Lemay and Filiou (authors of Mrs.

Steele Royal), signed on July 3, 1973, but was not mentioned on her deed of sale (September 25, 2001) between her and her husband (Joseph Royal) and the vendor

Mrs. Scharfe. [ 9 ] Since the Cadastral Reform, the lot was known as lot [...] and before it as lot 3-2, Rang 2, Canton Eardley. Also, the Court noticed that on the immoveable index of the lot 3-2, Rang 2, Canton Eardley concerning the deed of sale between Mr. Lemay and Filiou (authors of Mrs. Steele Royal), signed on July 3, 1973, it is written in the remarks in brackets: «droit de passage». [ 10 ] On September 27, 2016, Mr. Durocher, surveyor, prepared a certificate of location of the lot.

Neither on his plan nor in his certificate, he made allusion of the right of way. [ 11 ] In 2018, an application for injunction was instituted between Mrs. Steele Royal and Mr. Bennoude concerning the right of way. On December 7, 2021, judge Faullem from the Superior Court signed a judgment in that case. He decided that the right of way was still existing and was not extinguished. Also, concerning Mrs. Steele Royal’s claim for damages and interest, judge Faullem wrote: [1] [46] Premièrement, selon l’

article 2943 C.c.Q. , un droit inscrit sur le Registre foncier à l’égard d’un bien est présumé connu de celui qui l’acquiert. La personne qui s’abstient de consulter le droit inscrit sur le Registre foncier, la réquisition à laquelle il est fait référence dans l’inscription ainsi que le document qui l’accompagne, lorsque cette réquisition prend la forme d’un

sommaire, ne peut repousser cette présomption en invoquant sa bonne foi. [47] La demanderesse est donc l’artisane de son propre malheur en ce qu’elle ne peut pas reprocher aux défendeurs son omission de bien vérifier l’étendue des droits de ses derniers et d’en aviser ses promettants-acheteurs, d’autant plus qu’elle avait été informée, dès 2009, de l’intention des défendeurs d’utiliser son terrain situé [à l’adresse 1] afin d’accéder [à l’adresse 3]. [ 12 ] The Plaintiffs’ Claim is of $ 11 963.75 and is detailed: Description Amounts Permis de la Municipalité de Pontiac pour un puits artésien 250,00 $ Permis pour l’installation d’une fosse septique 600,00 $ Permis de bâtiment secondaire 50,00 $ Permis de construction neuve 823,16 $ Confection d’un plan M.J.A.

Entreprises 1264,73 $ Plans du bâtiment Kroki 3D 5 173,88 $ Plan d’implantation Nadeau, Fournier arpenteurs-Géomètres 850,00 $ Notaire 2019,34$ Évaluation des lieux 488,64 $ Crédit municipalité pour annulation de permis - 500,00 $ Troubles et inconvénients 1 000,00 $ Total 11 963,75 $ [2] IV. ANALYSIS [ 13 ] A person seeking to assert a right must prove it on a balance of probabilities ( sections 2803 and 2804 of the Civil Code of Quebec (C.C.Q.)). [ 14 ] Evidence of a wilful intent to deceive is a key component of the legal regime found at

article 1407 C.C.Q. The plaintiff has to show that the other party wanted to take advantage of the situation by providing false or inaccurate information. As indicated at

article 1401 C.C.Q., an error induced by fraud may also result from silence or concealment. 1401. Error on the part of one party induced by fraud committed by the other party or with his knowledge vitiates consent whenever, but for that error, the party would not have contracted, or would have contracted on different terms. Fraud may result from silence or concealment. 1407.

A person whose consent is vitiated has the right to apply for annulment of the contract; in the case of error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claim damages or, where he prefers that the contract be maintained, apply for a reduction of his obligation equivalent to the damages he would be justified in claiming. [ 15 ]

Section 1457 C.C.Q. provides that every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another and that if he fails in this duty, he is liable for any injury he causes to another and is bound to make reparation for the injury. That person must behave like a prudent and diligent person placed in the same circumstances. A. The Court has to decide if the Plaintiffs demonstrate, beyond the balance of probability, that their consent is vitiated by an error induced by fraud which resulted from silence or concealment of Mrs.

Steele Royal on the existence of a right of way which affected the lot which was not declared.

[ 16 ] The Court concludes that the Plaintiffs demonstrated on the balance of probabilities, that their consent is vitiated by an error induced by fraud which resulted from silence or concealment of Mrs. Steele Royal on the existence of a right of way which affected the lot and which was not declared. In fact, she was aware of that fact since 2009. She should have told the Plaintiffs before the signature of the Promise to purchase. B. The Court has to decide if the Plaintiffs demonstrate, beyond the balance of probability, that Mr.

Durocher, surveyor, did a professional fault because he did not put involuntary the right of way on his survey and plan. [ 17 ] The Plaintiffs demonstrated on the balance of probabilities, that Mr. Durocher, surveyor, did a professional fault because he did not put the right of way on his survey and plan. The right of way appeared in deed of sale signed in 1973 and on the immoveable index of the former lot. The representant of Intact Assurances said that the right of way did not appear in the subsequent deed of sale.

It is true, but does not justify that the surveyor did not mention it in his certificate of location. The surveyor should do a diligent tittle search. It is part of the surveyor’s mandate and included in his duty to do the title search and to inform about the type of charges which affected the immoveable property. C. Compensatory damages [ 18 ]

Section 1607 and 1611 of the C.C.Q. are treating about injury or compensatory damages: 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived.

Future injury which is certain and assessable is taken into account in awarding damages. [ 19 ] The Court concluded that the Plaintiff’s the expenses in their claim are immediate and direct damages of the faults and that a link was established between the damages and the faults. It is evident that the Plaintiffs would never spend theses expenses without purchasing that lot. It is possible that the plans could be useful for the plaintiffs if they built it on another lot, but the Defendants did not demonstrated it on the balance of probabilities. A possibility is not sufficient to satisfy the onus of proof.

FOR THOSES GROUNDS, THE COURT: [ 20 ] CONDEMNS jointly the defendant Mrs. Steele Royale and the defendant Mr. Durocher to pay to the plaintiffs the amount of $11 963, 75 with the interest at the legal rate since the main letter dated January 31, 2019, and additional indemnity according to

section 1619 of the Civil Code of Quebec WITH THE JUDICIAL COSTS of $205 . __________________________________ SERGE LAURIN, J.C.Q. Date of hearing: June 6, 2022