2018 QCCQ 1778, 2018 QCCQ 1778

McPherson c. Syndicat de copropriétaires de copropriété association Place Viking 2018 QCCQ 1778 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151515-162 DATE: March 14, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ LLOYD MCPHERSON and ANNA ARGONDIZZO Plaintiffs v.

SYNDICAT DE COPROPRIÉTAIRES DE COPROPRIÉTÉ ASSOCIATION PLACE VIKING and KAREN SCIORTINO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lloyd McPherson and Anna Argondizzo claim from the Syndicat de copropriétaires de copropriété Association Place Viking (Syndicate) and Karen Sciortino $15,000 in damages. [ 2 ] They claim that the Syndicate was negligent in its maintenance of a common drainage pipe which failed in April 2015 and caused water to infiltrate in their condo unit, and that this negligence damaged the carpeting of the basement. [ 3 ] Moreover, they argue that the Syndicate was also negligent in that it delayed carrying out the repairs to the drainage pipe and that this delay caused them to suffer loss of rental income.

They further argue that Karen Sciortino, as president of the board of directors, is personally liable for the damages they have suffered because she acted while she was in a conflict of interest with the condo administrator. [ 4 ] Both the Syndicate and Mrs. Sciortino deny all liability. The former argues that it acted diligently at all times in regards to the repairs to the blocked drainage pipe and that the claim for lost rental income was not caused by any of its acts or omissions. [ 5 ] Mrs.

Sciortino adds that there is no basis for her personal liability as she was not in a situation of a conflict of interest. Questions in Issue

a) Is the Syndicate liable for damages to the basement flooring of Unit 120 following the water infiltration in Plaintiffs’ condo unit?

b) Have Plaintiffs proven that the Syndicate was negligent in its maintenance of the drainage pipe of Unit 120 because of the delay in repairing it, and that this negligence caused them to incur damages in the form of lost rental income?

c) Is Ms. Sciortino personally liable for the damages which the Plaintiffs alleged to have suffered?

d) What damages, if any, have the Plaintiffs suffered as a result of the Defendants’ fault? Context [ 6 ] Plaintiffs are the owners of a condo unit (“Unit 120”) in a building comprised of three rows of townhouses with 16 units each, for a total of 48 condo units (“Place Viking Condo”). Unit 120 includes a main floor and a basement. The Plaintiffs do not reside in Unit 120 as they rent it out to third parties. [ 7 ] Place Viking Condo building is held in divided co-ownership.

The co-owners have constituted the Syndicate to see to the maintenance of the common portions of the building amongst other tasks. [1] [ 8 ] Units 120 and 122 of the Place Viking Condo building share a common drainage pipe that services both units.

[ 9 ] On April 26, 2015, units 120 and 122 suffered water backup in their respective basements. It was subsequently discovered that this incident resulted from tree roots that had clogged the common drainage pipe of the units.

The tree belongs to the Syndicate. [ 10 ] The drainage pipe was unclogged on the same day by a plumber hired by the Syndicate. [ 11 ] Unit 120 suffered some water damage because of the water back-up which caused the Plaintiffs to replace the floor covering of the basement at a cost of $409.90 [2] [ 12 ] The drainage pipe of unit 120 and 122 was ultimately repaired in February 2016. [ 13 ] Plaintiffs claim they have incurred damages valued at over $15,000 as a result of the Defendants’ faults.

This includes $409.90 to replace the basement flooring of Unit 120 damaged by the water infiltration plus $15,000 in lost rental income (5 months @ $3000/month) caused by the delay in repairing the drainage pipe. [3] [ 14 ] Considering that the jurisdiction of this Court is capped at $15,000, they have reduced their claim for lost rental income to $14,590.10 as allowed by

section 538 of the Québec Code of Civil Procedure. Analysis and Decision

a) Is the Syndicate liable for the damages to the basement flooring of Unit 120 following the water infiltration in Plaintiffs’ condo unit? [ 15 ] All parties admit that the drainage pipe that failed and caused the water infiltration in Unit 120 is a common portion. Likewise, all parties admit that the water back-up was caused by a blockage of the water drain of units 120 and 122, which blockage was itself caused by the roots of a tree or of trees belonging to the Syndicate. [4] [ 16 ]

Article 1077 of the Civil Code of Québec (C.C.Q.) imposes on a syndicate of co-owners to the obligation to maintain the common portions of the building. This obligation is reflected as well in

Chapter VIII of the Declaration of Co-ownership. [5] [ 17 ]

Article 1077 of the Civil Code of Québec (C.C.Q.) states: 1077. The syndicate is liable for damage caused to the co-owners or third persons by faulty design, construction defects or lack of maintenance of the common portions, without prejudice to any recursory action. [ 18 ] That said,

article 1077 C.C.Q. does not create a presumption of fault. The party who invokes this

article must still prove that the syndicate committed a fault. This principle is explained as follows by Christine Gagnon in La copropriété divise : 598. Sanctions au défaut d'entretien . L'entretien des parties communes est un devoir du syndicat. Le Code civil du Québec sanctionne expressément le défaut d'entretien par le syndicat. L'

article 1077 C.c.Q. tient le syndicat responsable de tout dommage causé aux tiers ou aux copropriétaires par le défaut d'entretien des parties communes sans distinguer entre les parties communes générales et les parties communes à usage restreint. Encore faut-il que la faute soit prouvée. L'

article 1077 ne crée pas une présomption de faute envers le syndicat dès lors qu'un accident dans les parties communes survient. Le syndicat qui agit de manière prudente, raisonnable et diligente n'engage pas sa responsabilité sous l'

article 1077 C.c.Q. Il n'est pas tenu à un standard de perfection, mais assume une obligation de moyens. [6] [ 19 ] Similarly, in Asgar c. Syndicat de la copropriété Lofts Saint-Urbain [7] , Justice Payette summarized the state of the law as follows : 2.2 The law [14]

Article 1077 of the Civil Code of Quebec states that a syndicate is liable for damages caused to the co-owners by lack of maintenance of the common portions. This

article does not create a presumption of fault against a syndicate. In order for the Syndicat to be held responsible for her damages, Dr. Asgar must prove that it was negligent in its maintenance of the hallway and that her accident was caused by this negligence. In order to do so, she must prove that the Syndicat did not act in a prudent, reasonable or diligent fashion. [15] The Syndicat is not held to a standard of perfection. It has an obligation of means. Its decisions must be examined prospectively, not with the benefit of hindsight.

It does not have to foresee every possible incident and act in order to prevent every potential danger. Often in cases such as the one at hand, the time elapsed between the creation of a potentially dangerous situation and the reaction of the owner or keeper of the premises is key to determining if the latter is responsible for the accident which ensued. [ 20 ] Does the blockage of the drainage pipe servicing Unit 120, which itself was caused by the roots of a tree, result from a fault of the Syndicate? [ 21 ] For the reasons that follow, the Court considers that it does. [ 22 ]

Article 1465 of the C.C.Q. provides as follows: 1465. The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault. [ 23 ] This

article creates a presumption of fault on the custodian of a “thing”. A drainage pipe qualifies as a “thing” for the purposes of this

article as the courts have applied the liability regime of

article 1465 C.C.Q. to sewer systems and drainage pipes on numerous occasions. [8] Likewise, a tree also qualifies as a thing for the purposes of this article.

[ 24 ] Plaintiffs can benefit from this presumption of fault if they prove the following two conditions: (1) the Syndicate was the custodian of the drainage pipe and the tree; and (2) the injury (damages to the basement floor covering of Unit 120) was caused by the autonomous act of the drainage pipe (and the tree). [ 25 ] Once these 2 conditions are proven, there is a presumption of fault and the custodian ( i.e., Syndicate) can only rebut the presumption if it proves that it committed no fault, for example, by proving that the injury was caused by

an act of God ( force majeure ). [ 26 ] To have custody over a thing implies that one has the power to control, to supervise or to direct the thing. [ 27 ] The parties admit the drainage pipe in in issue was a common portion. Therefore, the Syndicate was the custodian of this thing for the purposes of

article 1465 C.C.Q. The Syndicate was also the custodian of the tree whose roots caused the blockage of the pipes. The first condition of

article 1465 C.C.Q. is met. [ 28 ] The second condition is also met given the admission as to the cause of the water infiltration. [ 29 ] Since the Syndicate did not adduce any facts to rebut the presumption of fault resulting from

article 1465 C.C.Q., the Court finds that it committed a fault. Pursuant to

article 1077 C.C.Q., the Syndicate must repair the injury suffered by the Plaintiffs’ with respect to the basement floor covering of Unit 120 which was damaged as a result of the water infiltration. [9]

b) Have Plaintiffs proven that the Syndicate was negligent in its maintenance of the drainage pipe of the Unit 120 because of the delay in repairing it, and that this negligence caused the damages they claim to have suffered? [ 30 ] The water infiltration occurred on April 25, 2015. Plaintiffs argue that the defective drainage pipe was only repaired by the Syndicate nine months later. They further contend that this delay constitutes negligence and a breach of the Syndicate’s obligations under

article 1077 C.C.Q. and the Declaration of co-ownership. [ 31 ] Moreover, they claim that because of the Syndicate’s delay in repairing the drainage pipe, they were unable to lease unit 120 from October 1, 2015 up to and including the month of February 2016 and thus, they lost rental revenue of $15,000 over that five-month period.

They contend that it was impossible to rent the unit since the unrepaired drainage pipe prevented the toilet and plumbing of the unit from working properly, and they could not risk renting an apartment with defective plumbing. [ 32 ] The Syndicate claims that it acted diligently and prudently in repairing the drainage pipe. [ 33 ] As the Court has already noted above,

article 1077 C.C.Q. imposes on a syndicate an obligation to maintain the common portions of the building. This obligation is also reflected in

Chapter VIII of the Declaration of Co-ownership. [10] [ 34 ] As in any civil case, the Plaintiffs have the burden of proving that, on the balance of probabilities, the Syndicate committed a fault in its delay to repair the drainage pipe, and that this fault caused the lost rental income. [11] [ 35 ] The balance of probabilities standard requires that proof be clear and convincing and based upon cogent evidence. [12] [ 36 ] The evidence adduced at trial reveals the following chain of events. [ 37 ] The water infiltration in units 120 and 122 was discovered on April 26, 2015.

Upon learning of this incident, the Syndicate dispatched a plumber to identify the cause of the infiltration and to repair any clogged pipes. [ 38 ] On the same day, a plumber from Mécanergie Inc. passed a plumbing instrument commonly referred to as a “fish” to unclog the drainage pipe common to units 120 and 122. [13] This caused the water which had accumulated in the basements of units 120 and 122 to recede and evacuate through the unclogged drainage pipe. It was also determined that roots from a tree had pierced the drainage pipe and clogged the drains.

The plumber recommended that a camera be inserted through the pipes to ascertain the state of the piping. [ 39 ] The Syndicate, in cooperation with Mr. McPherson, took steps to cut down the silver maple tree on the property whose roots had likely caused the drainage pipes to clog. [14] The Syndicate obtained quotes from various tree fellers and a permit from the Town of D.D.O. The tree was felled on July 23, 2015. [15] [ 40 ] In December 2015, a video camera inspection of the drainage pipes of the 48 units of the condo building was carried out by the Syndicate.

The video inspection confirmed the presence of tree roots in the drainage pipe of units 120-122. [16] [ 41 ] Moreover, the Syndicate also learned as a result of the video inspection that there was also a problem with the slope of the drainage pipes which needed to be addressed. [ 42 ] The Syndicate contacted various plumbers to obtain quotes to repair the problem. The first quote obtained recommended that the cement slabs of the basement floors in units 120 and 122 be destroyed to lay new drainage pipes.

The Syndicate felt that this solution would cause too much inconvenience to the occupants, and sought a second opinion. [ 43 ] In January 2016, it obtained from Plomberie Drain Inc. a quote for the repairs that did not entail the destruction of the cement slabs, and the Syndicate opted go with this quote. [17] [ 44 ] The work to permanently repair the drainage pipes of units 120 and 122 was finally carried out on February 9, 2016. [18] [ 45 ] Plaintiffs claim that the Syndicate breached its obligation to maintain the common portions in that the 9 month two week delay between the water infiltration (April 26, 2015) and the repairs (February 9, 2016) constitutes a fault.

[ 46 ] The Court disagrees. The Syndicate’s obligation under

article 1077 C.C.Q. is an obligations of means, and not of result. It cannot be held to a standard of perfection. This means that a delay in repairing or maintaining a common portion will only constitute a fault if the delay is the result of carelessness or lack of diligence.

In the present case, the Court finds that, based on the facts described above, the Syndicate acted in a prudent, reasonable and diligent fashion. [ 47 ] The urgent repairs were carried out on the same day as the discovery of the water infiltration. [ 48 ] The tree was felled within a reasonable period, after obtaining quotes from different suppliers and a permit from the City. [ 49 ] Finally, the permanent repairs carried out in February 2016 were also carried out within a reasonable time, given that the Syndicate had to obtain quotes from different plumbers. [ 50 ] Moreover, the Plaintiffs have not convinced the Court that the failure to rent Unit 120 and the loss of rental revenue was caused by the delay in carrying out the repairs.

Plaintiffs claim that because of the problem with the drain and the delay in repairs, they were afraid to rent out the unit because the tenants might experience problems with the plumbing and the toilet. This fear was unfounded. [ 51 ] Mrs. Madriz, the occupant of unit 122, suffered the same water infiltration on April 26, 2015. Unit 120 and unit 122 shared a common drainage pipe. According to Mrs. Madriz, she was able to live in her unit after the infiltration and not once after the incident did she experience problems with the draining or the plumbing.

She and the other occupants of her unit were able to use the toilet without experiencing any issues. [ 52 ] Plaintiffs further claim that their fear to not let anyone use the plumbing in unit 120 was also founded on the fact that they were told, after the December 2015 video inspection of the drainage pipes, not to use or flush toilet paper down the toilet until permanent repairs were carried out. [ 53 ] Mr. Bernard Boivin, an employee of Teracon Property Management, the Place Viking Condo administrator, supervised the video inspection work carried out in December 2015.

He denies ever being told by the plumber that the occupants of Unit 120 could not use the toilet or should refrain from flushing toilet paper down the toilet. [ 54 ] Moreover, Mr. Boguslevsaki, the plumber who actually carried out the work on December 11, 2015, likewise stated “At no time did I recommend that the occupants cease using or limit the use of the toilets which were fully functional at that time.” [19] [ 55 ] Mr.

Boivin and Boguslevsaki are credible witnesses and there is no reason to set their testimony aside. [ 56 ] Finally, it is telling that Unit 120 was rented and occupied until September 30, 2015. [20] If the premises were uninhabitable because the plumbing was defective as Plaintiffs claim, then why did the renters continue to pay rent and live in the premises? [ 57 ] In conclusion, Plaintiffs have failed to discharge their burden of proof and have not established that the delay in repairing the drainage pipe constitutes a breach of the Syndicate’s obligations under

article 1077 C.C.Q. or under the Declaration of Co-ownership. [ 58 ] Moreover, even if this delay had constituted a fault, the Plaintiffs have not proven that it caused the loss of rental income they claim to have incurred.

c) Is Ms. Sciortino personally liable for the damages which the Plaintiffs alleged to have suffered? [ 59 ] The Plaintiffs claim that Mrs.

Sciortino should be held personally liable for any damages that may be awarded to them on the grounds that she was in a conflict of interest and thus breached her obligations under the Declaration of Co-ownership (art. 9.4). [60] They claim that this conflict stems from the fact that she shares a last name with one of the directors of Karino Capital inc., a company who is one of the shareholders of Teracon Property Management, the Place Viking Condo administrator. [21] [61] This argument is without merit. There is no family relationship between Mrs. Sciortino and the director of Karino Capital inc.

Moreover, there are no facts which substantiate the Plaintiffs’ claim of conflict of interest or even an appearance of conflict of interest. [62] The Plaintiffs’ claim again s t Mrs. Sciortino will be dismissed.

d) What damages, if any, have the Plaintiffs suffered as a result of a fault of the Defendants? [63] The Court has concluded above that the Syndicate is liable to repair the damages caused to the Plaintiff’s basement flooring following the water infiltration. [64] No liability attaches to Mrs.

Sciortino. [65] The Plaintiffs claim $409.90 for the damaged basement flooring. [66] The Defendants offered no proof to contradict this portion of the claim. [67] Consequently, the Court will order the Syndicate to pay Plaintiffs $409.90. [68] As for the claim for loss of rental income, no amount will be awarded for the reasons expressed above. FOR THESE REASONS, THE COURT: [69] DISMISSES the Plaintiffs’ Claim against Karen Sciortino;

[70] GRANTS in part Plaintiffs’ Claim against the Syndicat de copropriétaires de copropriété Association Place Viking; [71] CONDEMNS the Syndicat de copropriétaires de copropriété Association Place Viking to pay to Lloyd McPherson and Anna Argondizzo $409.90 with interest at the legal rate, plus the additional indemnity stipulated in

article 1619 of the Civil Code of Québec , from February 19, 2016; [72] WITH LEGAL COSTS of $200 representing the judicial fees paid on the filing of the Claim. __________________________________ ENRICO FORLINI, J.C.Q. Dates of hearing: July 18 and November 28, 2017.