2018 QCCQ 4385, 2018 QCCQ 4385

Becker c. A & G Puisatiers Experts inc. 2018 QCCQ 4385 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Civil Division No: 455-32-700633-174 DATE: June 27, 2018 ______________________________________________________________________ BY JUDGE SOPHIE LAPIERRE ______________________________________________________________________ Burkhard BECKER , […], Sutton (Quebec) […] Plaintiff v.

A & G PUISATIERS EXPERTS INC. , 682 Dufferin Street, Granby (Quebec) J2H 0Z2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing Defendant, a well-digger, for a total of $14,939 for the replacement cost of a water pump and its accessories. [ 2 ] Defendant is absent at the hearing. ISSUES [ 3 ] The Court has to decide if Defendant is responsible for the malfunction of the pump and its loss, and if the exoneration clause in the contract is applicable.

CONTEXT [ 4 ] The parties signed a contract on July 25, 2016, by which Defendant undertook to drill a well and install a water pump on Plaintiff’s property for $15,869.42. [ 5 ] The well was drilled in August and the pump was later installed, ready for use. [ 6 ] At that time, Plaintiff’s house has not yet been built and there was no electricity on site. [ 7 ] In September, a septic tank was put in place and had to be filled with 500 gallons of water. Using an electric generator, Plaintiff was able to pump enough water from the well to fill up the septic tank.

No further use of the well was required until the following year. [ 8 ] The following year, Plaintiff tried to use the well. By then, a permanent electric system had been installed on the property. The pump functioned only intermittently and there was not enough pressure in the system. As soon as the electric power was cut off, the water was forced back into the well. [ 9 ] Plaintiff tried to retrieve the water pump from the well without success. The pump was stuck in the well. [ 10 ] Plaintiff asked Defendant to solve the problem.

Defendant tried to retrieve the pump using a truck with a winch but the pump refused to budge. Before trying to retrieve the pump with other means, Defendant asked Plaintiff to sign a discharge. He refused. [ 11 ] Plaintiff finally decided to have a second well drilled by another well-digger in October 2017. The second well is 30 feet away from the first one. The second well is almost a 100 feet shallower than the first one. It works perfectly fine. [ 12 ] Considering that the well probably caved in, Defendant invokes

Section 6 of Conditions générales of the contract which reads

as follows : 6° A & G Puisatiers Experts inc . ne sont pas responsables des défauts géologiques de terrain ni des éboulements de roc. ANALYSIS [ 13 ] The following sections of the Civil Code of Quebec apply to this case : 2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. 2100.

The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract.

Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. [ 14 ] It appears that with the exception of the pump’s first use in October 2016, the well and its pump never worked as they should have. Did the damage occur to the pump because the well caved in?

It is a supposition at this point and it was not for Plaintiff to prove. [ 15 ] The Court considers that Defendant is bound by an obligation of result and the expected result has clearly not been achieved. [ 16 ] In order to be exonerated, Defendant had to prove that the well caved in and that this is equivalent to superior force. Defendant didn’t offer any proof in this regard. [ 17 ] The exoneration clause is of no help to Defendant. Such a clause is to be interpreted restrictively.

The proof is insufficient to conclude that the well caved in and that such a phenomenon is equivalent to an éboulement de roc in accordance with the terms of the contract. [ 18 ] As for damages, Plaintiff explains that he only claims the cost of the pump and its accessories that are no longer of any use to him. [ 19 ] The Court is satisfied with the proof that was offered by Plaintiff. FOR THESE REASONS, THE COURT: [ 20 ] GRANTS the originating application; [ 21 ] CONDEMNS Defendant to pay to Plaintiff the sum of $14,939 with interest thereon at the legal rate, plus the additional indemnity provided pursuant to

Article 1619 of the Civil Code of Quebec as of May 30, 2017; [ 22 ] CONDEMNS Defendant to the judicial costs of $200. __________________________________ SOPHIE LAPIERRE, J.C.Q. Date of hearing: May 28, 2018