2016 QCCQ 151, 2016 QCCQ 151

Ham c. Andrews 2016 QCCQ 151 COURT OF QUÉBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF GRANBY «Civil Division» No: 460-32-007527-152 DATE: January 14, 2016 ______________________________________________________________________ BY THE HONOURABLE PIERRE BACHAND, J.C.Q. ______________________________________________________________________ AMANDA HAM -and- MARK LACROIX Plaintiffs v.

JULIE ANDREWS -and- SCOTT EVANS Defendants -and- PREMIER TECH AQUA Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs are claiming for damages following a house sale. [ 2 ] They purchased the defendants’ property on September 29, 2011. A septic system Ecoflo installed in 2004 disposed of the waste water. [ 3 ] Large rocks were installed along the perimeter of the Ecoflo’s cover.

Nothing was discussed between the parties regarding the Ecoflo system prior to the sale except that it was working properly. [ 4 ] Contradictory evidence was adduced by both parties as regards the handing over of the owner’s manual by the vendors to the purchasers. Having to evaluate the parties credibility on this point, the Court is satisfied that, on a balance of probabilities, the Plaintiffs have proven that they did not receive this owner’s manual from the Defendants. [ 5 ] The Plaintiffs’ version was clear, unambiguous and affirmative.

The Defendants’ one was hesitant and did not go directly to the point, like in “we’ve given everything that we had.” [ 6 ] As we will see, this is of paramount importance because the Ecoflo system comes with a certificate of warranty where the owner undertakes to provide the next buyer with this owner’s manual. And this manual states that the owner should avoid placing any object weighing more than 200 kg. within 3 meters of the cover.

[ 7 ] According to Mr. Eric Dionne, Premier Tech representative, there was a clear causal relationship between the large rocks and the damages which were found in 2013 and disclosed to the plaintiffs in July 2014 by Premier Tech Aqua. [ 8 ]

Section 3.3. of the Regulation respecting waste water disposal systems for isolated dwellings (CLQR c Q-2, r. 22) provides: "3.3. Maintenance contract : The owner of a treatment system referred to in

section 11.1, 16.1, 87.7 or 87.13 must have a binding contract with the system manufacturer, the manufacturer's representative or a qualified third person in which it is stipulated that minimum annual maintenance will be performed on the system. The owner of the system must deposit a copy of the contract with the local municipality in which the isolated dwelling or the other building served by the treatment system is situated. At the request of the owner of the system, the person who performs the maintenance must provide the owner with a copy of the maintenance report as soon as possible.

The person must also, before 31 December each year, send the report to the municipality in whose territory the system is situated and make the report available to the Minister of Sustainable Development, Environment and Parks. The preceding paragraphs do not apply to an owner of a treatment system maintained by the municipality pursuant to

section 25.1 of the Municipal Powers Act (chapter C-47.1). The municipality must, however, at the owner's request, supply a copy of the maintenance report to the owner and make the report available to the Minister." Accordingly, both defendants and plaintiffs always had such a maintenance program enrollment for all these years between 2004 to this date with Premier Tech Aqua. [ 9 ] These services are provided locally by a sub-contractor.

In July 2014, Premier Tech Aqua advises the plaintiffs that at the time of the last inspection, in 2013, the fiberglass Ecoflo shell was severely damaged, could not be repaired and needed to be replaced. The letter also states that this is due to an excess load, exceeding the manufacturer’s recommendations. [ 10 ] This is the reason why the Plaintiffs advise the Defendants and sue them. [ 11 ] The latters suggest that the damages are not related to the rocks that they had placed around the septic tank’s cover. The Court cannot give effect to this argument.

It is established to the Court’s satisfaction that there is a clear connection between the rocks and the damages.

Normally, the shell’s lifespan would be at least 35 years and probably more. [ 12 ] The Defendants are responsible for the damages incurred for the following reasons: - First, they placed the rocks around the cover, contrary to the instructions of the owner’s manual. - Second, they did not provide the purchasers with this manual, which could have enabled the Plaintiffs to understand the situation and take the necessary steps to prevent the damages. [ 13 ] Furthermore, The Defendants have impleaded Premier Tech Aqua, holding them responsible because it never advised them nor the Plaintiffs of the danger of damages although it inspected the system annually.

Premier Tech Aqua argues that this was not part of its mandate and that it was the owner’s responsibility to follow the instructions in the owner’s manual . [ 14 ] The Court does not fully agree. According to the law, the owner of an Ecoflo septic system must necessarily have a binding contract for an annual maintenance, as we have seen before. [ 15 ] Such was the case for both the Defendants and the Plaintiffs for all those years, starting in 2004.

Although the Court was not provided with a copy of the contract for each year, Premier Tech Aqua filed the “Maintenance Program Enrollment” of the Plaintiffs for 2015. [ 16 ] Among other things, it states: " Committed to the complete satisfaction of all our customers, our team wishes to make sure that you receive the information regarding the importance of ensuring the proper follow-up of your Ecoflo Biofilter septic system.

" … " The annual maintenance of the Ecoflo Biofilter, will not only ensure the optimal performance of the system, but also enable you to avoid having to eventually pay additional administrative fees. " (Exhibit P-11) From this and also from the maintenance program’s purposes in general, it is clear that the obligations contained in the contract included the obligation to inform. [ 17 ] Needless to say, the “inspector” cannot just shut his (her) eyes to the close surroundings of the septic system if something may have an adverse effect on it. What would a reasonable person do in such circumstances?

[18] Can this person just say: “well, I looked into the hole and everything is O.K.. I see and I am aware, of course, that placing largerocks around the cover is contrary to the rules and that damages will likely occur but… tough luck!” The answer is obvious. Theinspector has the obligation to inform the owner to “ensure the optimal performance of the system” and what he (she) can see there is ofparamount importance for that purpose. [19] Permier Tech Aqua has a responsibility towards both the Defendants and the Plaintiffs.

During 9 years, it didn’t say anything to any of them, although it was fully aware of the situation. This does not obliterate the responsibility of the Defendants. [20] In fact, the rational conclusion is that they should share the liability towards the Plaintiffs, being solidarily liable.

The Courtdetermines, in virtue of art. 469 C.C.P., the share of each in the condemnation: both parties should share equally the liability since boththeir actions or negligence participated equally to the evolving and damaging situation. [21] As regards the damages sustained, the Court accepts the following amounts: 7,979.27$ for the replacement of the Ecoflo systemand 28.00$ for the permit. Plaintiffs are also claiming 1,500.00$, mainly for extra-judicial fees and loss of time and this is notrecoverable according to the jurisprudence, save the case of abuse of process: Viel v.

Les Entreprises immobilières du Terroir Ltée, (QC CA), AZ-50124437 (C.A.), Hinse v. Canada, 2015 CSC 35, par. 145. [22] The Court must take in account the additional value given to the immoveable. Plaintiffs had to replace a 9 years old systemhaving a normal lifespan of 35 years. Getting a brand new one provides an additional value assessed at 9/35 of the total cost. [23] This means that the defendants and the impleaded party must indemnify the plaintiffs for 26/35 of the total cost. This amountsto 5,927.46$ (7,979.27$ X 26/35) and 28$, cost of the permit. [24] The total indemnity amounts to 5,955.46$.

FOR THESE REASONS, THE COURT: [25] CONDEMNS solidarily the Defendants and the Impleaded party Premier Tech Aqua to pay to Plaintiffs an amount of5,955.46$ with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec,calculated from December 16, 2014. [26] THE WHOLE with judicial costs of 200.00$. [27] DETERMINES as follows, between the Defendants (Julie Andrews and Scott Evans) and the Impleaded Party (Premier TechAqua) only, their share in the solidary condemnation against them: 50% each. __________________________________ Pierre Bachand, J.C.Q. Date of hearing: December 8, 2015