2021 QCCQ 3895, 2021 QCCQ 3895

Borg c. Desjardins General Insurance Inc. 2021 QCCQ 3895 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” No.: 550-32-024626-191 DATE: May 11, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE STÉPHANE D. TREMBLAY, J.C.Q. ______________________________________________________________________ PAUL BORG Plaintiff v. Desjardins General Insurance Inc.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1. Dispute [ 1 ] On March 22, 2019, Mr. Borg’s residence was damaged by water infiltration. He is claiming $ 9,301.50 from his insurer, Desjardins General Insurance Inc. (“ Desjardins ”) for the cost of repairs caused by the water infiltration and $4,000 for living expenses. 2.

Background [ 2 ] JT 1888 From the evidence, the Court accepts the following relevant facts, which describe the context needed to resolve the questions raised in this matter. [ 3 ] On March 22, 2019, Mr. Borg informed Desjardins of the water infiltration. The same day, Desjardins mandated First General, property damage restoration specialists, to perform emergency repairs, which basically consisted of drying the water-damaged surfaces. [ 4 ] Desjardins also mandated First General to produce an estimate describing the repairs to be done and the cost of these repairs.

Around May 14, 2019, the Desjardins claims adjuster contacted Mr. Borg to inform him of the estimate’s conclusions. The cost of repairs was estimated at $9,301.50. [1] [ 5 ] At that time, Mr. Borg expressed his dissatisfaction with the delay between the date of the water infiltration and the date the estimate was produced. Moreover, First General could not perform the work described in the estimate until late July 2019, which only added to Mr. Borg’s frustration. [ 6 ] Desjardins then informed Mr. Borg that he could mandate his own contractor or do the repairs himself, which did not lessen his dissatisfaction.

He felt that Desjardins should do, or have someone else do, the repairs right away. Because he felt that it was not up to him to manage the repair work, he refused to inform Desjardins how he planned to have the repairs done. [ 7 ] Realizing this, and to comply with the deadline set out in art. 2473 C.C.Q to pay the indemnity, Desjardins sent him a cheque for $6,817.15 as a provisional indemnity. This amount equalled the estimated cost of the repair work minus the administration fee, profit, and sales taxes. Mr. Borg was however informed that the indemnity could be readjusted if a contractor performed the work.

The amount for sales taxes and the contractor’s administration and profit would then be added to the indemnity. [ 8 ] Unsatisfied with this proposal, Mr. Borg sent a formal notice on June 10, 2019, [2] and filed this Application on June 26, 2019. [ 9 ] On August 23, 2019, Desjardins filed its defence in the court record reiterating its offer to pay the $6,817.15 indemnity. [3] On March 3, 2020, Desjardins tendered and deposited this amount into the court record. On March 1, 2021, Desjardins tendered and deposited an additional $1,984.

3. The claim for the repair costs [ 10 ] As of the date of the trial, Desjardins had tendered and deposited into the court record a total of $8,801.15. This amount represents the cost of the work estimated by First General minus the $500 deductible under the insurance policy. [4] [ 11 ] At trial, without admitting Desjardins’s liability, but to avoid a debate on the need for and cost of the repairs, Desjardins’ representative waived the deductible. She also undertook to deposit an additional $500 in favour of the plaintiff with the court office. [ 12 ] In doing so, Mr.

Borg’s application concerning the indemnity for the cost of the work will be entirely satisfied. Thus, considering the position adopted by Desjardins at trial, the Court grants Mr. Borg’s claim in full for the cost of the corrective work. 4. The claim for living expenses [ 13 ] The claim for living expenses is described as follows: I went to have an estimate, if I went and live in this hotel [Holiday Inn Express & Suites], how much will they charge. And it is approximately for one month around 6000$ plus the taxes.

We are 6 peoples living in my house uncomfortably because we are missing the main bedroom for 4 months.

For that I am asking a 1000$ for each of the month to compensate for the months, we are living uncomfortable. [5] [ 14 ] The plaintiff’s home insurance policy with Desjardins covers his residence and the additional living expenses in the event of a loss that makes the dwelling unfit for occupancy: [6] Coverage D – Additional Living Expense and Fair Rental Value We insure the additional living expense that you have to incur when your dwelling is made unfit for occupancy as a result of loss or damage caused to your insured property by an insured occurrence .

Payment will be made solely for the reasonable time required to repair or rebuild the dwelling or, if you parentally relocate, the reasonable time required for you to presently settling in a new dwelling. [7] [ 15 ] In the definition

section of the contract, the expression “Additional living expense” is defined as: Additional living expense means any necessary increase in living expenses, including moving expenses, incurred by the Insured to maintain his or her regular standard of living. [8] [ 16 ] Based on its analysis of the relevant insurance policy clauses, the Court finds that the provisions stipulating that living expenses will be reimbursed covers only expenses actually incurred over and above regular living expenses. [ 17 ] Yet, Mr.

Borg admits that he lived in his home uninterrupted from the time the water infiltration occurred to the time he performed the repairs in July 2019.

Moreover, no evidence was adduced establishing that the loss resulted in additional living expenses and the plaintiff has not shown any additional expense arising from the loss. [ 18 ] As such, Desjardins does not have to pay anything for additional living expenses. [ 19 ] Furthermore, the result would be the same even if the application had been analyzed from the standpoint of a claim for damages to compensate the injury caused by the inherent delay in performing the repairs. [ 20 ] As Crête J.S.C. stated, trouble and inconvenience resulting from the loss are not compensable, unless stipulated in the insurance policy: [ translation ] [40] The trouble, inconvenience, and moral damages claimed from the insurers are unfounded.

The legal relationships between the plaintiffs and their insurer are essentially contractual and determined by the terms of the insurance policy. Nothing in that policy can serve as any basis for such a claim. The inconvenience suffered by the plaintiffs was a consequence of their loss and not the insurance policy. The insurance policy does not provide for compensation of this damage nor can the insurer be held liable. In addition, nothing in the evidence establishes malice or bad faith by Desjardins. [9] [ 21 ] Nor can this claim be founded on any alleged fault of Desjardins in the way it managed the claim.

In the circumstances of this case, Desjardins managed the claim irreproachably. Mr. Borg certainly would have preferred that First General perform the repairs sooner. Desjardins had no control over this delay. [ 22 ] The claim for living expenses is dismissed. [ 23 ] Desjardins determined the amount of the indemnity based on the information at its disposal in late May 2019. It was also prepared to pay the indemnity within the 60 days prescribed by law. [10] [ 24 ] Desjardins therefore cannot be held liable. 5. Interest and legal costs

1.1 Interest [ 25 ] The C.C.Q. states that damages which result from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, in the absence of any agreement, at the legal rate. [11] According to author Bergeron, cited with approval by the Court of Appeal, insurers are bound to pay interest on the amount due to their insured on the expiry of the period set out in art. 2473 C.C.Q. [12] [ 26 ] In this case, Desjardins determined the amount of the indemnity based on the information at its disposal in late May 2019.

Desjardins fulfilled its obligation to indemnify its insured by sending him a cheque [13] for $6,817.15 within the period set out in art. 2473 C.C.Q. The amount of the indemnity determined by Desjardins corresponds to the information it had at the time. The partial indemnity was reasonable in the circumstances. [14] [ 27 ] It should be recalled that Desjardins subsequently reiterated its tender in the defence it filed with the Court, and that it later deposited with the court office.

Nothing prevented the plaintiff from withdrawing the amount deposited in his favour with the court office. [ 28 ] The Court will therefore grant the interest prescribed by law only on the portion of the condemnation in excess of the $6,817.15 indemnity offered by Desjardins before the application was filed. 1.2 Legal costs [ 29 ] Legal costs are ordinarily awarded to the party that was successful, unless the Court decides otherwise. [15] [ 30 ] In this case, considering the tenders deposited into the Court record by Desjardins and given the very limited result of the plaintiff’s action, the Court will not award legal costs.

FOR THESE REASONS, THE COURT: GRANTS the application in part; CONDEMNS Desjardins General Insurance Inc. to pay Paul Borg $ 9,301.15 , with interest at the legal rate and the additional indemnity under art. 1619 of the Civil Code of Québec , as of May 22, 2019, on the amount in excess of $6,817.15, that is, $2,484; WITHOUT LEGAL COSTS.

To partially satisfy the judgment: AUTHORIZES Paul Borg to withdraw $6,817.15 deposited in his favour by Desjardins General Insurance Inc., as evidenced by the Receipt of Judicial Deposit dated March 3, 2020, bearing number 0402690; AUTHORIZES Paul Borg to withdraw $1,984 deposited in his favour by Desjardins General Insurance Inc., as evidenced by the Receipt of Judicial Deposit dated March 1, 2021, bearing number 0402808; AUTHORIZES Paul Borg to withdraw $500 deposited in his favour by Desjardins General Insurance Inc., as evidenced by the Receipt of Judicial Deposit dated March 15, 2021, bearing number 0402811. __________________________________ STÉPHANE D.

TREMBLAY, J.C.Q. Date of hearing: March 10, 2021