2018 QCCQ 3824, 2018 QCCQ 3824

JF 1075 Kowalski c. Brown 2018 QCCQ 3824 COURT OF QUEBEC (Small Claim Division) CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU N°: 550-32-700145-177 DATE: April 18, 2018 ______________________________________________________________________ PRESENT: THE HONOURABLE JEAN FAULLEM, J.C.Q. ______________________________________________________________________ PHILIPPE KOWALSKI -and- ALEXANNE CARBONNEAU Plaintiffs v.

MELODY BROWN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] After having taken possession of their new residence acquired from the Defendant on June 6, 2014, Plaintiffs noticed some problems related to the plumbing system of the house. [ 2 ] Alleging the presence of a latent defect, Plaintiffs are claiming from Defendant $5,538.26 representing the cost of the work done to find the cause of the problems and to proceed to their reparation.

They are also claiming $1,000 in damages for the troubles and inconveniences they have suffered resulting from the actions of Defendant. [ 3 ] By her contestation, Defendant is primarily stating that she could not be found responsible for the damages alleged by Plaintiffs since she was not properly notified of the discovery of the different defects before they carried on with the repairs. I— QUESTIONS IN DISPUTE [ 4 ] The questions of facts and the questions of law to which the Court must respond in the case under review are the following:

A) Does the defect alleged by Plaintiffs constitute a latent defect within the meaning of

article 1726 of the Civil Code of Québec ?

B) If so, to what amount of compensation is Plaintiffs entitled? II— CONTEXT AND ANALYSIS

A) The latent defect [ 5 ] On June 6, 2014, Plaintiffs purchased from Defendant a house located on Montée de la source, in Cantley. [ 6 ] The sale included the legal warranty, which includes the warranty against latent defects provided for in articles 1726 and following of the Civil Code of Québec ( CCQ ). [ 7 ] Prior to purchasing the house, Plaintiffs had the property inspected by Jean-Michel Chénier. No major problem was uncovered

by this certified inspector. [ 8 ] On January 11, 2015, Plaintiffs first noted that the water in the ground level sink, shower, dishwasher and washing machine was not draining as usual. [ 9 ] The next day, Plomberie Lalonde was called to inspect the premises, but nothing peculiar was found at that time. [ 10 ] On February 21, 2015, Plaintiffs noted the same plumbing problem.

Once again, the services of Plomberie Lalonde were requested. [ 11 ] In its invoices dated March 1, 2015, Plomberie Lalonde wrote the following comment: “[T]ente de débloquer ou dégeler drains; pas capable de passer avec la pression car pas d’accès et le drain “split” à l’intérieur; doit ouvrir plancher pour avoir accès.” [ 12 ] Before the second visit of Plomberie Lalonde, Plaintiffs contacted Defendant to inquire about previous similar experience with the plumbing system.

Defendant confirmed that the drain pipes had frozen twice during her ownership of the house. [ 13 ] However, in her mandatory vendor’s declaration (section D8.1), Defendant declared never having noticed before any plumbing- related difficulties, notably concerning “freezing pipe” and “plumbing drainage or backup problem”. [ 14 ] At trial, Mr. Jean-Frédérick Marengère, one of Plomberie Lalonde’s employee who inspected the premises in 2015, confirmed that the draining system was not installed properly.

The camera’s inspection executed during that inspection showed that the pipes were frozen principally because of the U-shaped slope in the drain pipe extending over a long distance. It also confirmed that the draining pipe of the sink was not connected to the septic tank, but was rather exiting the house directly into the soil. [ 15 ] Mr. Marengère then concluded that this situation explains the reason why the plumbing system froze during wintry weather. He added that the plumbing system of the house did not meet the industry standards and needed to be corrected. [ 16 ] As

article 1726 CCQ indicates, the latent defect must render the property unfit for the use for which it was intended or so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of the defect. [ 17 ] In his book, La garantie de qualité des vendeurs en Droit Québécois , Jeffrey Edwards, J.C.Q., writes the following: [TRANSLATION] 360— The determining criterion is set out in

article 1726 C.C.Q. Only a defect leading to a loss of use to the point “that the buyer would not have bought it or paid so high a price” is suppressed. [1] [ 18 ] It is precisely this loss of use that is in question in the case at hand. [ 19 ] There is no doubt that the plumbing system was deficient at the time of the purchase. Plomberie Lalonde’s inspection confirms this statement. [ 20 ] Moreover, the Defendant was aware of the existence of a problem with the plumbing system surfacing in cold temperature. This information should have been reported in the vendor’s declaration. As mentioned before,

section D8.1 of the declaration states that the defendant had never noticed any difficulty regarding the plumbing system. That statement does not constitute the truth per the defendant’s own testimony at the hearing of the case. [ 21 ] Defendant pleaded that she would have opted not divulging the freezing pipes situation based on the recommendation of her real estate agents.

In a written request for assistance addressed to the Organisme d’autoréglementation du courtage immobilier du Québec on April 7, 2017, Defendant confirmed that she had previously consulted another realtor who clearly instructed her to include this information in her declaration. [ 22 ] Defendant therefore knew of the importance of holding back such a vital information. Note that if the defendant’s submission regarding the recommendation of her real estate agents is true, she might consider introducing a claim against them.

However, as for the Plaintiffs’ claim, this explanation does not constitute a valid contestation. [ 23 ] If Plaintiffs would have been informed of the potential defect of the plumbing system prior to the purchase, they would not have paid the same price for the house. [ 24 ] By not informing Plaintiffs of this particular circumstance, Defendant is liable for the damages suffered by the formers in surplus of getting an adjustment of the selling price of the house, per

article 1728 CCQ. [ 25 ] However, this is not the case as for the defect discovered in one of the house’s wall. [ 26 ] During the renovations of the plumbing system, Plaintiffs discovered that one of the exterior walls had been rotted by mildew. They have not notified the Defendant of that discovery, as they did with regards to the plumbing situation, before proceeding to repair this defect. [ 27 ] According to

article 1739 CCQ, a buyer who ascertains that a property is defective shall give notice in writing of the discovery of the defect to the seller before proceeding to the repairs. This obligation gives the vendor a chance to inspect the premises and to decide his course of action. [ 28 ] The Court concludes that the presence of mildew in the exterior wall was not related to the plumbing defect. Since it constituted a

new deficiency, Plaintiffs should have notified Defendant of its discovery. [ 29 ] Moreover, the Court finds that Defendant was not aware of this specific situation at the time of the sale. The evidence accepted by the Court does not show that Defendant withheld information regarding the possibility of finding mould within a wall. On the contrary,

section D3.1 of the vendor’s declaration indicated that a window had leaked water and that the wall was replaced by a patio door and then rebuilt. [ 30 ] For all those reasons, the Court concludes that the alleged defect regarding the plumbing system constitutes a latent defect, which is not the case with regards to the mould. [ 31 ] Consequently, Defendant must indemnify Plaintiffs for the repairs of the plumbing system and for the damages they suffered because of the defendant’s actions with regards to this specific situation.

B) Value of the restoration of the selling price and of the damages suffered

i) The restoration of the selling price [ 32 ] The testimonies of the Plaintiffs and the documentation file in the court’s docket confirms that the Plaintiffs have incurred a cost of $5,538.26 to find the cause of the plumbing system defect, repaired it and for the replacement of the exterior wall and floor structure. As for the repair of the exterior wall, Plaintiffs confirmed that they have paid $1,466.25 for its reparation.

Therefore, the Court concludes that the value of the damages resulting from the plumbing situation cause Plaintiffs $4,072.01 worth of damages. [ 33 ] However, the case law acknowledges that the indemnity granted a buyer who is the victim of the presence of a latent defect must not represent a source of gain regarding the defect. [2] [ 34 ] Depreciation of the property must thus be considered in establishing the indemnity. [3] The house bought by Plaintiffs was built in 1957. [ 35 ] To determine the indemnity, the Court must take into consideration all the circumstances of the case. [4] [ 36 ] The Court considers that a reduction of 50% of the sum paid for the repair of the plumbing system represents an adequate indemnification in the circumstances described here above, notably considering the age of the house at the time of the sale. [ 37 ] Therefore, plaintiff has the right to obtain a sum of $2,036 for the restoration of the price paid to acquire the house. ii) Damages [ 38 ] As for the indemnification claimed by Plaintiffs for the troubles and inconveniences resulting from the actions of the defendant, there testimonies and the documentation file in the court’s docket are sufficient, in conformity to articles 2803 and 2804 CCQ, to grant them a compensation of $250 for the injuries suffered. [ 39 ] Considering all the above, Plaintiffs are entitled to a total compensation of $2,286, namely as a restoration of the selling price ($2,036) and as an indemnity for the suffered damages ($250). [ 40 ] To this amount of $2,286 is added interest at the legal rate and the additional indemnity provided for in

article 1619 CCQ, calculated from March 24, 2016, that is, the date the demand letter expired. [ 41 ] Finally, per sections 339 and 340 CCP, the Court grants Plaintiffs reimbursement of the court’s costs and fees of $185 paid for the filing of the claim, as legal costs. [ 42 ] FOR THOSE REASONS, THE COURT: [ 43 ] CONDEMNS Defendant to pay Plaintiffs $2,286 plus interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , calculated from March 24, 2016; [ 44 ] CONDEMNS Defendants to pay Plaintiffs the legal costs of the claim, fixed at $185. __________________________________ JEAN FAULLEM J.C.Q. Date of the hearing: January 8, 2018