2019 QCCQ 7237, 2019 QCCQ 7237

Abboud c. Cochrane 2019 QCCQ 7237 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702856-172 DATE: November 18, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ CHRISTINA ABBOUD Plaintiff v.

LANE COCHRANE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Christina Abboud purchased from Lane Cochrane a residential property, which included an in-ground pool with a water heater and a spa. [ 2 ] Ms.

Abboud claims that the vendor breached the terms of the contract of sale in that she discovered after taking possession of the property that the pool had not been properly opened, that the water filtration system was not functioning properly, that the water heater installation did not comply with applicable legislation, and that the spa’s water pump was not functioning and had to be replaced. [ 3 ] She claims from Mr. Cochran $2,975, which she alleges she had to pay or will have to pay to remedy the seller’s breaches. [ 4 ] Mr. Cochrane denies having breached the contract of sale.

While he admits that he paid to replace some of the components of the water filtration system after Ms. Abboud complained, he argues that he does not owe anything beyond what he already paid. He denies that the pool equipment or spa pump are defective or that the pool water heater was noncompliant with the building Code . [ 5 ] On August 8 and 14, 2017, Ms. Abboud sent Mr. Cochrane two demand letters, enjoining him to pay for the damages she suffered, but he never claimed the letters delivered by Canada Post. [1] Issues [ 6 ] To decide the parties’ dispute, the Court must answer the following questions:

a) Did Mr. Cochrane breach his obligations under the contract of sale as it pertains to the pool opening, the water heater and the spa pump?

b) If so, what damages were caused to Ms. Abboud by this breach? Analysis and Decision

a) Did Mr. Cochrane breach his obligations under the contract of sale as it pertains to the pool opening, the water heater and the spa pump ? [ 7 ] A contract confers on the parties to it rights and obligations. Notably, a party to a contract has an obligation to honour his obligations stipulated in the contract or which flow from applicable legislation (

article 1458 of the Civil Code of Québec (“ C.C.Q . ”)). [ 8 ] In addition, unless the parties have specifically excluded these obligations, a contract of sale imposes on the seller the following obligations. [ 9 ] Firstly, the seller has the obligation to warrant that the property sold, including its accessories, is free of latent defects (

article 1726 Civil Code of Québec ). This is often referred to as the warranty of quality. [ 10 ] Secondly, a seller warrants to the buyer that the property sold does not run afoul of violations of public law restrictions. In other words, this warranty of ownership provides that the property sold complies with applicable municipal or provincial legislation, regulations and bylaws (

article 1725 Civil Code of Québec ).

[ 11 ] In the present case, Ms. Abboud asserts that that Mr. Cochrane failed to honour his obligations set forth in a Promise to Purchase Agreement as it pertains to the pool opening and the water heater. She further claims that since the pump of the spa was found to be defective, this constitutes a breach of the warranty of quality. Finally, she also asserts that the installation of the pool water heater does not comply with the provincial legislation. [ 12 ] Mr. Cochrane denies all of these claims. [ 13 ] In February 2017, Ms. Abboud signed a Promise to Purchase Agreement with respect to a property owned by Mr.

Cochrane located in Kirkland, which Mr. Cochrane accepted (“ Property ”). [2] The Property includes an in-ground salt-water pool, a natural gas water heater, and a spa. [ 14 ] Since the pool of the Property was covered in snow at the time, the parties agreed to insert the following clause in the Promise to Purchase Agreement (Clause 12.1): The seller shall have the pool opened by a pool company at least five days before the signing at the notary and declare that the pool liner is not torn and heater is functioning.

The buyer shall have a walk-through two days before the signing date. [3] The Pool [ 15 ] The walk-through took place on May 23, 2017. Although the pool was open and the pump was operating, the water was still green and many leaves were still at the bottom of the pool. [ 16 ] Mr. Cochrane’s real estate broker attended the walk-through, but he was not present. Ms. Abboud was not concerned about the colour of the pool water as Mr.

Cochrane’s real estate broker reassured her that the pool had been recently opened by a professional pool maintenance company. [ 17 ] Two days later, the contract of sale was signed before the notary and Ms. Abboud took possession of the Property on the same date. [ 18 ] After moving into the Property, Ms. Abboud noticed that the pool water was still green. She contacted Mr. Cochrane to ask him to help solve this problem. [ 19 ] Mr. Cochrane agreed to remedy the problem of the poor quality of the pool water.

He acknowledges that he opened the pool himself in May 2017 rather than have it opened by a professional pool maintenance company. He concedes that this is a breach of Clause 12.1. [ 20 ] Mr. Cochrane recognized that there was a problem with the quality of the pool water and in June 2017, he agreed to pay $1,772 to change the cartridge of the pool filter, purchase new chemicals, and replace the motherboard of the saltwater chlorination system. [4] [ 21 ] However, Mr.

Cochrane refuses to pay for the cost of a new turbocell, a component which delivers chlorine to the pool water. [ 22 ] Under clause 12.1 of the Promise to Purchase and pursuant to the warranty of quality, Mr. Cochrane had the obligation to open the pool by a professional pool maintenance company and deliver to Ms. Abboud a functioning in-ground pool, which necessarily includes pool water of swimmable and safe quality. [ 23 ] The evidence reveals that without the new turbocell, and despite the new components purchased by Mr.

Cochrane, the saltwater chlorination system was unable to deliver pool water of swimmable and safe quality. [ 24 ] Accordingly, the Court concludes that Mr. Cochrane breached his obligations under clause 12.1 and the warranty of quality by refusing to pay for the turbocell. [5] The Water Heater [ 25 ] Under the warranty against violations of public law restrictions of

article 1725 C.C.Q ., a seller must guarantee that the immovable being sold, including its accessories such as water heaters, does not violate municipal by-laws or building codes at the time of the sale. [ 26 ] If a violation is discovered after the sale, the seller will be liable towards the purchaser whether he knew of the violation or not unless: (

a) the violation was disclosed to the purchaser prior to the sale; (

b) a prudent and diligent purchaser would have discovered the violation; or (

c) the restriction that is violated was published on the land register. [6] [ 27 ] The installation and operation of a gas-powered water heater is notably governed in the province of Québec by the Construction Code [7] and the Natural Gas and Propane Installation Code CAN/CSA-B149.1-00. [ 28 ] The evidence establishes that the water heater sold with the Property does not comply with the Natural Gas and Propane Installation Code in many aspects. Notably, it: • Lacks a shutoff valve on the gas line as it enters the soil; • Does not rest on a concrete pad;

• Lacks a tracing wire to locate the underground gas line. [8] [ 29 ] These non-compliances were not disclosed by Mr. Cochrane to Ms. Abboud prior to the sale (he claims he was unaware of the Code violations) and she could not have discovered the violation prior to buying the Property. [ 30 ] Accordingly, Mr. Cochrane breached his obligation under the warranty against violations of public law restrictions by selling a water heater that did not comply with the Natural Gas and Propane Installation Code .

The Spa Pump [ 31 ] Two weeks after moving in, the spa pump broke. [ 32 ] This malfunction constitutes a breach of the warranty of quality ( art. 1726 C.C.Q. ) [ 33 ] In conclusion, Mr. Cochrane breached his obligations under clause 12.1 of the Promise to Purchase Agreement, the warranty against violations of public law restrictions and the warranty of quality.

b) What damages were caused to Ms. Abboud by this breach? [ 34 ] Mr. Cochrane will be ordered to pay Ms. Abboud the cost of purchasing and installing the turbocell component, namely $574. [9] [ 35 ] Likewise, the breach of the warranty against violations of public law restrictions as it pertains to the water heater will require making modifications to this component. According to an estimate filed into court by Ms. Abboud, these changes will cost between $600 and $700. [10] The Court will award $650. [ 36 ] Finally, Ms.

Cochrane claims $430.52 for purchasing and installing a new pump for the spa. [11] [ 37 ] Considering that the spa and pump were 9 to 10 years old and the time of the sale, the Court believes that it is just and reasonable to depreciate the amount claimed by 35%. Accordingly, $279.84 will be awarded under this head of damages. [ 38 ] Finally, Ms. Abboud claims $500 in damages for time lost from work, cost of letters and copies. As the Supreme Court of Canada stated in Hinse v. Canada (Attorney General) , the time and effort expended by a litigant to obtain justice are not generally recoverable.

They are considered not to be caused by the defendant’s fault that gave rise to the litigation but to be inconveniences inherent in litigation. Hence, the Court cannot award damages for the time spent by Ms. Abboud. [12] [ 39 ] No proof was adduced as to the cost of copies and letters. [ 40 ] The Court will award $1,503.84 in damages to Ms. Abboud. FOR THESE REASONS, THE COURT: [ 41 ] GRANTS in

part Christina Abboud’s Application; [ 42 ] ORDERS Lane Cochrane to pay to Christina Abboud $1,503.84 with interest at the legal rate and the additional indemnity provided for by

article 1619 of the Civil Code of Québec as of August 15, 2017. [ 43 ] WITH LEGAL COSTS of $100 payable by Lane Cochrane to Christina Abboud. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: July 16, 2019