2015 QCCQ 9477, 2015 QCCQ 9477

JF 1075 Sabev c. Fowler 2015 QCCQ 9477 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Civil Division N° : 550-22-015715-145 DATE : October 13, 2015 ______________________________________________________________________ PRESENT : THE HONOURABLE JEAN FAULLEM, J.C.Q. ______________________________________________________________________ DESSISLAV SABEV -and- FLORINA GABOREAN Plaintiffs v.

LÉONARD FOWLER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A few months after having taken possession of their new residence, acquired from the defendant on June 25, 2013, the plaintiffs learned that they needed to have the French drain replaced. [ 2 ] Alleging the presence of a latent defect, the plaintiffs are claiming $27 930.89 from the defendant, detailed as follows: - Cost of expertise $ 1807.99 - Cost of repairs $15 012.12 - Cost of wall finishing $ 1110.78 - Troubles and inconveniences $10 000.00 TOTAL: $27 930.89 [ 3 ] In defence, the defendant is primarily claiming that the alleged defect does not constitute a latent defect, since it does not render the residence unfit for the use for which it is destined. [ 4 ] Subsidiarily, the defendant alleges that the plaintiffs' claim does not take into account the depreciated value of the French drain. [ 5 ] In addition, constituting himself cross-plaintiff, the defendant is claiming $11 500 from the plaintiffs in repayment of the fees for the professional services of his expert, as well as damages for trouble and inconvenience stemming from the plaintiffs' legal proceedings, which the defendant alleges are frivolous and abusive.

I- QUESTIONS IN DISPUTE

[ 6 ] The questions of fact and the questions of law to which the Court must respond in the case under review are the following: With respect to the principal claim:

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

article 1726 of the Civil Code of Québec ?

B) If so, to what amount of damages are the plaintiffs entitled? With respect to the cross demand:

C) Is the principal claim frivolous and abusive? II- CONTEXT [ 7 ] On June 25, 2013, the plaintiffs purchased from the defendant a single family residence located on rue du Solstice in Gatineau (Exhibit P-1). [ 8 ] 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 ). [ 9 ] As soon as they took possession of the residence, the plaintiffs noticed the presence of humidity in the basement. [ 10 ] At the time of the plaintiffs' pre-purchase visits, the basement was heated.

They consequently did not detect any particular humidity at that time. [ 11 ] Once they had moved into the residence, aside from the humidity noticed in the basement, the plaintiffs did not observe any other specific element that could reveal the presence of any defect there. They stored storage boxes in the basement, notably in the northwest corner. [ 12 ] A few weeks later, while some of their friends were visiting, their friends mentioned a strong odour of dampness as soon as they went down to the basement.

It should be noted that none of the plaintiffs' friends came to testify at the trial to confirm the plaintiffs' statements. [ 13 ] Shortly thereafter, the plaintiffs noted the presence of black spots at the bottom of the walls and on the floor of the northwest corner of the basement. [ 14 ] Concerned, the plaintiffs called on an enterprise specializing in renovation and building foundation repair, namely Basement Systems Québec Inc. One of the enterprise's salespersons, Georges Zatarain, went to the residence and informed the plaintiffs that, according to him, the black spots consisted of mould.

He recommended to them that they consult an expert in order to proceed with a more thorough inspection of the basement and of the foundation. The plaintiffs decided to have their residence examined by professionals. [ 15 ] On September 13, 2013, the plaintiffs mandated an attorney to send the defendant a written notice of denunciation with respect to the black spots and the presence of humidity in the basement of the house. The formal notice offered the possibility of coming to inspect the site. [ 16 ] On October 2, 2013, Entreprise Drainspec carried out an initial inspection of the residence.

The defendant was present at that time. [ 17 ] During the visit, the employees of Drainspec opened up one of the walls of the basement in order to gain access to the French drain. They immediately noted marks of efflorescence on the inside of the foundation wall, once the wall was stripped.

The decision was then made to obtain a comprehensive expert examination of the residence's French drain system in the company of a building inspector. [ 18 ] On October 18, the employees of Drainspec, accompanied by the building inspector, Jean-Michel Chénier, returned to complete the inspection. [ 19 ] At that time, the employees of Drainspec excavated the back left hand corner of the residence, in order to be able to inspect the French drain. [ 20 ] Immediately after the excavation, the expert Chénier saw that the four-inch drain pipe constituting the French drain had collapsed at the point where it was excavated. [ 21 ] An inspection by optical camera carried out thereafter revealed that the piping was crushed from about 30% up to 70% in front of the residence and up to 90% behind it. [ 22 ] The expert Chénier concluded that the situation prevented the French drain from functioning properly and that it impaired the evacuation of ground waters, causing, in turn, an elevated level of humidity in the basement, as well as water saturation at the base of the exterior foundations of the residence. [ 23 ] The expert Chénier recommended that the entire French drain system be replaced.

He gave the plaintiffs a written report of his observations and recommendations.

[ 24 ] In light of the expert Chénier's conclusions, the plaintiffs obtained four different estimates to remedy the situation. [ 25 ] After analyzing the costs and inconveniences, the plaintiffs retained the least costly solution, which consisted in installing an alternative system using interior pumping proposed by Basement Systems Québec Inc. [ 26 ] On November 8, 2013, the plaintiffs' attorney notified the defendant in writing of the existence of the four estimates received and claimed from him, on behalf of his clients, payment of the cost of the remedial work to be done under the lowest estimate, in addition to reimbursement of costs and consulting fees paid to that date. [ 27 ] On November 25, 2013, the employees of Basement Systems Québec Inc. carried out the repair work.

The defendant was present while the work was being done. [ 28 ] It should be noted that the defendant did not retain the services of a professional to accompany him during the visits that he made on October 2 and November 25 at the plaintiffs' residence. [ 29 ] It is only after having been served with the plaintiffs' motion to institute proceedings, in March 2014, that the defendant mandated engineer Jacques Sauvé to obtain a second opinion from him. [ 30 ] The expert Sauvé produced a report on August 7, 2014 (Exhibit D-7), which was based exclusively on Mr.

Chénier's inspection report as well as on the other documents produced by the plaintiffs in support of the motion to institute proceedings. Mr. Sauvé did not visit the site before the production of this first report. [ 31 ] In the report, the expert Sauvé concluded that despite the state of decline of the French drain, it was still functional, and that its condition therefore did not justify the immediate replacement of the French drain. III- ANALYSIS AND CONCLUSIONS [ 32 ] Within the meaning of

article 1726 CCQ, to qualify as a latent defect, the defect must be prior to the sale, serious and must not have been known to the buyer. [ 33 ] In the case at hand, all parties admitted that the malfunction of the French drain could not have been detected at the time of the purchase.

There was no apparent indication that could have suggested the situation. [ 34 ] In addition, it was also admitted that the defect existed prior to the sale, since the collapse of the piping goes back to when the residence was built. [ 35 ] Therefore, only the seriousness of the defect was called into question by the defendant. [ 36 ] The doctrine and the jurisprudence acknowledge that for a latent defect to satisfy the criterion of seriousness in

article 1726 CCQ, damage need not necessarily have been caused to the property. [ 37 ] 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. [ 38 ] In his book, La garantie de qualité des vendeurs en Droit Québécois , my colleague Jeffrey Edwards J. 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] [ 39 ] It is precisely this loss of use that is in question in the case at hand. [ 40 ] There was no doubt that the French drain had partially collapsed at different spots. The expert Sauvé acknowledged this himself in his report. [ 41 ] However, the video made by Drainspec of the French drain did not show any accumulation of water or sediments inside the

drain. [ 42 ] The French drain's draining capacity was thus diminished, but this did not constitute, according to the expert Sauvé, a loss of use. [ 43 ] In civil matters, a person seeking to assert a right is responsible for proving preponderantly the facts on which his or her claim is based, in accordance with articles 2803 and 2804 CCQ. [ 44 ] The onus is thus on the plaintiffs to prove the loss of use of the French drain. [ 45 ] In his report of October 18, 2013, the expert Chénier concluded that the partial collapse of the French drain [TRANSLATION] "thus prevents it from functioning properly and hinders an adequate evacuation of the ground waters".

This malfunction would be the "cause of the elevated degree of humidity and of the water saturation at the base of the exterior foundations of the residence". [ 46 ] The expert Chénier did not expand on this affirmation in his written report. [ 47 ] During his testimony, Mr. Chénier mentioned that he did not personally observe traces of humidity or traces of mould in the basement of the residence. Nor did Mr.

Chénier detect any cracks in the foundation that could have given rise to such an infiltration of water in the basement. [ 48 ] The expert Chénier spotted only traces of efflorescence on the inside of the wall of the house's foundation, where Drainspec removed the wall covering during its initial visit. [ 49 ] Though he wrote in his report that traces of efflorescence confirmed a water saturation problem, Mr.

Chénier admitted, during his testimony, that this was not necessarily always the case. [ 50 ] In addition, the report of the expert Chénier indicated that the condition of the French drain caused the "high degree of humidity" observed by the plaintiffs in the basement of the residence. Yet, an objective measurement was never carried out as regards the humidity level. [ 51 ] The plaintiffs were not able to establish the basement's actual level of humidity by their own testimony either.

Though the plaintiffs confirmed having felt some humidity when they took possession of the residence and afterwards, no objective measurement of it was taken. [ 52 ] Moreover, as regards the black spots noted by the plaintiffs, they decided instead, on the recommendation of Mr. Zatarain, to buy a product to clean any trace of humidity and possible mould, without taking any photographs whatsoever of this evidence. [ 53 ] As regards Mr.

Zatarain's testimony, which confirmed the presence of high humidity in the basement as well as black spots that he considered to be mould, the Court recognizes but scant probative force of testimony, since it was Mr. Zatarain who, in the end, convinced the plaintiffs to acquire the alternative drainage system of his employer Basement Systems Québec inc. Mr.

Zatarain thus had a special interest in the plaintiffs being convinced of their French drain's malfunction. [ 54 ] For his part, the expert Sauvé, having consulted the video of the French drain made by Drainspec, observed that there was no accumulation of water or sediments in the piping.

For him, this confirmed that, despite some collapses, the drain was still functional. [ 55 ] The expert Sauvé explained that if the drainage system was not functional, important signs would have been apparent well before: 4.6 If this drainage system was not functional, there would have been reccuring water infiltrations, presence of water at the base of the wall and under the flooring, dark staining of the concrete, heavy efflorenscence , and mould and rot of the finished wall assembly. This is not the case.

In addition, the floating type of flooring is normally sensitive to water and high humidity and would have been curled and would not have been re-usable. This is not the case since it was re-used. Furthermore, prior infiltrations have not been reported by previous owners. Photo 2. [ sic ] [ 56 ] Mr. Sauvé explained that it is not unusual to observe traces of efflorescence inside a foundation wall. They can result from the transfer of the humidity coming from the exterior of the foundation wall.

He explained that efflorescence appears when the humidity that transfers toward the inside of the foundation dries on the wall surface. This does not automatically indicate that water is infiltrating. [ 57 ] The expert Chénier did not contradict Mr. Sauvé's conclusions or affirmations in that regard. On the contrary, Mr.

Chénier acknowledged that the presence of efflorescence on the foundation wall did not necessarily indicate water saturation at the base of the exterior foundations of the residence, as his report reflected. [ 58 ] In these circumstances, the Court allows greater probative force to the testimony and report of Mr. Sauvé.

The expert Sauvé's more precise and detailed explanations convince the Court that the drainage system was still functional in 2013. [ 59 ] The expert Sauvé's follow-up report dated October 2, 2014, as well as the explanations he provided at the hearing, confirmed that the new drainage system installed in the basement of the residence was superfluous, since all it did was pump the water from the water table that was present under the foundation of the residence. [ 60 ] Indeed, it appears that the new drainage system's pump was installed approximately 18 inches below the footing of the

foundation. Mr. Sauvé explained that a French drain is never installed at a level lower than the footing of the foundation. In the present case, the pump of the new alternative drainage system draws the water directly from the water table that lies under the footing of the foundation, whereas no French drain, even one in excellent condition, could eliminate the presence of that water in any case. [ 61 ] In Mr. Sauvé’s opinion, the new alternative drainage system is redundant, and above all, useless, since the French drain was still functional.

Consequently, according to him, the defect alleged by the plaintiffs would not constitute a loss of use in 2013. [ 62 ] On the other hand, as already mentioned, the expert Sauvé acknowledged that the condition of the French drain in 2013 was not optimal. Mr.

Sauvé expressed himself in the following manner in paragraph 4.8 of his report: 4.8 The inspection report recommends the replacement of the exterior drain system, which is a normal recommendation , but not necessarily an immediate and absolute requirement since there were no signs of actual water seepage. [Emphasis added.] [ 63 ] The Court infers from this comment that there is a potential risk for the entire French drain to collapse and be blocked. It should not be forgotten that sections of the drain were more than 70% collapsed and that one

section was more than 90%. [ 64 ] Mr. Sauvé confirmed, in paragraph 4.10 of his report, that at the very least, the

section where the drain was most collapsed could have been repaired. [ 65 ] The Court retains from Mr. Sauvé's testimony that the French drain is affected by a potential loss of use. [ 66 ] In Sévigny v. Teasdale , [2] the Court of Québec, per Guylaine Tremblay J., concluded that a significant probability of a loss of use satisfies the condition of seriousness for constituting a latent defect: [TRANSLATION] [8] The position of the defendants is a negation of responsibility since there currently is no problem with the drain.

As well, for them, the drain was properly installed. . . . [10] In the case at hand, each condition is fulfilled. The two specialized firms who went to the sites are independent of each other and both concluded that the French drain had reversed gradients. That is a functional defect that affects the normal use of the drain where there are reversed gradients, thereby creating a loss of use that deprived the buyers of the practical usefulness of the drain. At present, water is stagnating in the drain.

According to the preponderance of evidence, this loss will increase over the years; the absence of consequences at this time is not an obstacle to this action, which the buyers had no choice of introducing, given their knowledge of the defect, in order to avoid prescription of their suit. [11] The lack of functionality is sufficiently serious to constitute a latent defect given the importance of adequate drainage of foundations, particularly in a clay soil that does not drain well. [Emphasis added.] [ 67 ] In Corbeil v.

Séjourné , [3] Massol J. concluded in the same way in the context of a real threat of a loss of use: [TRANSLATION] [51] It was also claimed that the plaintiffs had not demonstrated the serious and urgent nature of the situation since they had not proceeded with repairs since 2004, when they had observed the problems. [52] In this regard, the jurisprudence has determined that a detected defect need not result in immediate, disastrous consequences to constitute a loss of the usefulness of the property. [4] [TRANSLATION] An owner who discovers a latent defect does not have to wait for disastrous consequences of the defect to manifest themselves.

In the matter at hand, the plaintiffs do not need to wait until the front wall collapses to repair it. Even though the problem will take on such magnitude only over the long term, usefulness decreases the moment the defect is discovered. The Court indicates that a significant probability that the defect will cause a loss of use of a building is sufficient to lead to the application of the principles contained in

article 1726 C.C.Q. when in the presence of defective material resulting in a great and real threat relative to the use of the material. [5] [ 68 ] Lastly, in Larochelle v. Kelly , [6] Lina Bond J. also recognized the seriousness of the loss of use in the case of a risk of collapse, even if it is not immediate, but where it [TRANSLATION] "is not hypothetical and stems from poor construction rather than wear over time." [7] [ 69 ] In the case at hand, the plaintiffs were thus justified in having the French drain repaired since the evidence revealed that there was a serious, non-hypothetical potential loss of use resulting from a construction defect.

B) Value of the damages

[ 70 ] The plaintiffs' decision to have an alternative drainage system installed rather than proceed with the partial or full replacement of the existing French drain does not impact on the evaluation of damages, for the reasons set out below. [ 71 ] According to the defendant's submission, the plaintiffs could have proceeded with the repair of the French drain without having all of it replaced. [ 72 ] As already mentioned, the person seeking to assert a right is responsible for proving the facts that support the claims.

The evidence must be preponderant. [ 73 ] The onus is thus on the defendant to demonstrate that there was a less costly technique for repairing the French drain than the one used by the plaintiffs. [ 74 ] The mere affirmation of the expert Sauvé that a localized repair would have cost only a few thousand dollars is not very convincing evidence since it was not founded on any tangible fact.

Preponderance of evidence is that which renders the existence of a fact more probable than its non-existence. [ 75 ] Quite to the contrary, the evidence submitted by the plaintiffs demonstrated that the configuration of the lot was restrictive, seriously complicating any excavation, even partial excavation. [ 76 ] Consequently, in the absence of any element of evidence corroborating his expert's suggestion, the defendant is unable to prove that a partial repair would have cost less than the installation of a new drainage system. [ 77 ] As regards the choice of the repair method, there is no doubt that replacement of the French drain would have required more of an investment than did the purchase of the alternative pumping system that the plaintiffs purchased.

Though the plaintiffs' choice appeared inadequate in the opinion of the expert Sauvé, it was their decision to make and they must live with any consequences should the alternative system prove ineffective, when the French drain no longer functions at all. [ 78 ] The Court will thus use the value of the costs associated with the installation of the new drainage system to evaluate the indemnity to be awarded the plaintiffs. [ 79 ] The courts acknowledge that the indemnity granted a buyer who is the victim of the presence of a latent defect must not represent a source of gain in regard to the defect. [8] [ 80 ] Depreciation of the property must thus be taken into account in establishing the indemnity. [9] [ 81 ] Lastly, to determine the indemnity, the Court must take into consideration all the particular circumstances of the case. [10] [ 82 ] The two experts agree on the length of the useful life of French drains−the subject matter of the dispute−which is about 30 years. [ 83 ] While Mr.

Chénier indicated in his report that, under the best conditions, a French drain has a useful life of 40 years, he acknowledged that Mr. Sauvé's opinion of the useful life being 30 years for this particular drain, given the soil characteristics and the configuration of the sector where the residence was located.

Since the residence was built around the 2000s, the French drain had already reached nearly half of its useful life at the time of the events. [ 84 ] In these circumstances, the Court will take a 50% depreciation rate into consideration in determining the indemnity (decrease in the selling price) to be granted the plaintiffs. [ 85 ] In view of the evidence as to the value of the damage suffered by the plaintiffs, namely $16 151.41 (Exhibit P-6), the plaintiffs are entitled to a decrease of $8075.61 in the selling price. [ 86 ] To this amount is added interest at the legal rate and the additional indemnity provided for in

article 1619 CCQ, calculated from November 8, 2013, that is, the date the formal notice expired. [ 87 ] As regards the fees of the expert Chénier, the Court does not grant the reimbursement that the defendant is seeking from the plaintiffs, since neither his report nor his testimony were decisive for the purpose of this judgment.

C) The cross demand [ 88 ] Given the conclusion of the Court, the defendant's cross demand is denied, since allowing the action of the plaintiffs, even in part, means that it cannot be considered a futile and abusive procedure. [ 89 ] Consequently, the defendant cannot obtain damages from the plaintiffs. [ 90 ] THEREFORE, THE COURT: [ 91 ] ALLOWS in part the plaintiffs' motion to institute proceedings; [ 92 ] CONDEMNS the defendant to pay the plaintiffs $8075.71, plus interest at the legal rate, and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , from November 8, 2013;

[ 93 ] DISMISSES the cross demand; [ 94 ] THE WHOLE with costs. __________________________________ JEAN FAULLEM J.C.Q. Mtre. Jean-Philippe Fortin Lapointe, Beaulieu Counsel for the plaintiffs Léonard Fowler Defendant Dates of the hearing: April 9 and 10, 2015