2016 QCCQ 6099, 2016 QCCQ 6099

Butt c. Bujalski 2016 QCCQ 6099 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146840-154 DATE: June 28, 2016 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ JOHN BUTT and CLARE McQUEEN Plaintiffs v.

MAREK BUJALSKI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS plaintiffs bought a 54 year old bungalow, from defendant, on August 13, 2014, for $354,500.00; [ 3 ] WHEREAS plaintiffs are suing defendant for latent defects, namely a leaking shower; [ 4 ] WHEREAS plaintiffs had the property inspected before purchasing it, but did not file the inspection report into the Court record; [ 5 ] WHEREAS plaintiffs first noticed that the shower was leaking, on September 19, 2014; [ 6 ] WHEREAS plaintiffs called a plumber who diagnosed the problem as follows: "Un problème de membrane de douche.

Sous la tuile." (invoice dated September 22, 2014, exhibit P-3) [ 7 ] WHEREAS said plumber did not testify; [ 8 ] WHEREAS , on September 30, 2014, defendant visited the property and observed the leakage; [ 9 ] WHEREAS defendant offered plaintiffs $1,000.00 to repair the shower, in writing, on November 4, 2014, (exhibit P-4), after which he left for Poland for 2 months; [ 10 ] WHEREAS defendant could be reached while in Poland; his agent Rita De Luca was in fact in touch with him during this time; [ 11 ] WHEREAS plaintiffs refused defendant's offer, proceeded with the repairs, on December 3, 2014 (invoice, exhibit P-5), and sent him a demand letter, on February 1, 2015 (exhibit P-7);

[ 12 ] WHEREAS defendant renovated the bathroom, himself, in 2012; [ 13 ] WHEREAS defendant disputes the cost of the repairs ($2,440.81); according to him, only the drain needed to be repaired, and there were extra tiles and grout in the property; [ 14 ] WHEREAS plaintiffs had the burden of proof (arts. 2803 and 2804 of the Civil Code of Quebec ); [ 15 ] WHEREAS , given the absence of expert testimony, be it Plomberie Alain Bernard Inc. or Darna Development Inc., and given defendant's credible testimony, the Court cannot grant the full amount of the claim; [ 16 ] GIVEN , furthermore, a depreciation factor of 2.5 years and the condition of the shower at the time of sale (picture, exhibit P-1); [ 17 ] WHEREAS the Court estimates a fair and reasonable compensation for all damages incurred to be $1,400.00; WHEREFORE THE COURT HEREBY: GRANTS plaintiffs' motion, in part; SENTENCES defendant to pay plaintiffs the sum of $1,400.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , from February 1 st , 2015, and legal costs in the amount of $107.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: June 1 st , 2016