2015 QCCQ 7879, 2015 QCCQ 7879

Kasunich c. Lévesque 2015 QCCQ 7879COURT OF QUEBECSmall Claims DivisionCANADAPROVINCE OF QUEBECDISTRICT OF GaspéTOWN OF GASPÉCivil DivisionNo : 140-32-001977-146 DATE : June 29, 2015______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q.______________________________________________________________________ MATHEW KASUNICHPlaintiffv. BENOÎT LÉVESQUEDefendant ______________________________________________________________________ JUDGMENT______________________________________________________________________ [1] On March 27, 2014, Mathew Kasunich (M.

Kasunich) files a claim of $ 7 000.00 plus fees and interest against BenoitLévesque (M. Lévesque), for the motive that the work was not completed. [2] On March 10, 2015, Mr. Kasunich files an amended application to increase his claim $ 7 000.00 to $ 11 497.50. Mr. Lévesqueobjects. AMENDMENT [3] Before hand, it is appropriate to settle the debate regarding the request for amendment to the claim of Mr. Kasunich. [4] In his request lodged at the clerk's office on March 27, 2014, Mr.

Kasunich, to benefit from the provisions of the CivilProcedure Code on small claims, reduced to $ 7 000.00 a $ 11 497.50 claim, that he brings Mr. Lévesque. [5] This waiver appears on his original application and is duly sworn when he signs it. [6] In a recent decision that of, Thouin c.

Mallouk[1] rendered by the Honourable François Bousquet, he addresses the question: « [7] un nombre restreint de décisions a autorisé l’amendement recherché, mais la jurisprudence majoritaire a été d’avis de le refuser.Parmi ces décisions, il y a lieu de mentionner celles des honorables Denis Charrette, J.C.Q., et Richard Landry, J.C.Q., soit Rousseau c.Charest (J.E. 2003 — 761) et Trépanier c. Chevrette ( (QC CQ), J.E. 2003-424). [8] Dans Rousseau c. Charest, l’honorable Denis Charrette, J.C.Q., écrivait notamment ce qui suit : “38.

En réduisant volontairement sa créance à 3 000 $, la demanderesse, par l’effet de la loi, renonce à la différence de sa créance. Iln’est pas nécessaire alors qu’elle y renonce explicitement.” … » [7] In this case, there is an explicit renunciation of Mr. Kasunich regarding the amount of the claim. The increase in the monetarylimit does not invalidate the waiver clearly expressed. For these reasons, the Court does not grant the amendment sought by Mr.Kasunich in this case.

FACT and ANALYSIS [8] On February 13, 2011, the parties signed a purchase agreement on the sale of the residence and the land with an area ofapproximately 30,000 square feet of Mr. Lévesque, for $ 114 000.00.

[ 9 ] T he terms of the promise [2] in the addendum

section provide, notably; the following specific provisions: — « […] — Conditional on house inspection within 30 days — […] — vendor will finish the French drain and membrane in the old foundation; membrane will be proxy 60’.

This must be done by an entrepreneur general legally. — […]. » [ 10 ] T hese terms were reproduced in paragraph 17 of the notarized contract between the parties on March 30, 2011. [ 11 ] The notarized contract also provides for a sale without legal warranty, which reads as follows: «this sale is made without any legal warranty, but free and clear of all debts and hypothec.» [ 12 ] In his application, Mr. Kasunich claims that the work is partially carried out. He submits that only twenty feet of drain was installed.

Moreover, he stressed that: « there is still a large amount of water coming from the wall which Pierre Sansfaçon (M. Sansfaçon), contractor, worked on.» He also states «the north east facing wall was not been done. » [ 13 ] According to Mr. Lévesque, the work is done in April, 2011 by a first contractor, Mr. Sansfaçon. Mr. Kasunich complains to Mr. Lévesque about the poor quality of the work of that contractor. [ 14 ] In light of this, and to satisfy Mr. Kasunich, Mr. Lévesque hires in August, 2011, a second contractor Mr. Harry Leggo (Mr. Leggo) to redo some of the work performed by Mr.

Sansfaçon on certain parts of the house that Mr. Kasunich considers as botched. [ 15 ] Mr. Lévesque’s contractors installed, in all, 50 feet of french drain and membrane around the house, except where lies an "extension" of the home that has no foundation, representing about ten feet. To be able to place a drain under the "extension" this part of the house must be completely lifted. [ 16 ] The contract between the parties does not provide this for type of work.

In fact, there is no specification on how to perform such work nor at what level, other than the indicating of the laying of about 60 feet of french drain and membrane. In short, there was no work plan determined between them. [ 17 ] Mr. Kasunich says that the agreement was planned for about 60 feet around the old foundation and including under "extension" However, the contract does not specify that way. [ 18 ] According to Mr. Lévesque, the work was completed to the satisfaction of Mr. Kasunich. Moreover, their was never talk with Mr.

Kasunich, during the sale of the house, to raise "extension" to install a drain. [ 19 ] Moreover, Mr. Lévesque has even undertaken additional work not included in the agreement between the parties, in particular, he had the slope around the house softened to allow evacuation of the water and a had 100 feet a hard drain installed, again to promote the flow of water downward. [ 20 ] Mr. Sansfaçon wrote a letter [3] for which the deposit is received in evidence by the parties, in which he indicates having done the installation of 50 feet of french drain and membrane. [ 21 ] During his testimony, Mr.

Kasunich indicates that there are more than 20 feet of french drain that were installed contrary to the claims of his application. However, he considers them all as problematic except for the part repaired by Mr. Leggo. [ 22 ] It is admitted that Mr. Kasunich was well aware of the infiltration problem in the basement. Moreover, the evidence shows that he did not proceed to the inspection as provided for in the promise. [ 23 ] In addition, the property is acquired without legal warranty. [ 24 ] Considering the age of the house (90 years) and the known fact that water came through the walls of the basement, Mr.

Lévesque gave Mr. Kasunich an additional plot of 30,000 feet in area. [ 25 ] Mr. Kasunich has the contractor Miles Jean (Mr. Jean) heard in evidence on his quote concerning the costs of the work required to do remedial work, including the uprising of the "extension" of the house to pass the french drain. [ 26 ] Mr. Kasunich says the contractor, Mr Sansfaçon poorly realized the rest of the work, but he lays no evidence to this effect, such as a complete inspection confirming his pretensions. His contractor Mr.

Jean makes no further verification and can’t determine whether the work was done wrong on the other portion that Mr. Sansfaçon performed. He did not check what work must or must not be rectified. [ 27 ] Mr. Lévesque has the contractor Mr. Leggo heard. He confirms that the work performed by Mr. Sansfaçon in some places has been poorly executed. However, he can’t attest to the other sides of the house having not done more extensive verifications. In addition, according to him the work was done to the satisfaction of Mr.

Kasunich. [ 28 ] We are in the presence of an old house, the fact of installing drains and membrane is not a guarantee that there will not be more

water infiltration. [ 29 ] In addition, the two contractors assigned by the parties indicate that water infiltration can also be caused by the age of the concrete of the foundation, which as we know is more than 90 years. [ 30 ] Moreover, Mr. Kasunich does not minimize his damages, because since 2011, no corrective work is done by the latter, despite his insurer no longer covers for damages in relation to: water damage at foundations level and sewer backup. LAW APPLICABLE [ 31 ] In

section 1458, 2803 and 2804 of the Civil Code of Québec (C.c.Q.) are applicable for this case, they read as follows: « 1458. E very person has a duty to honor his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. 2803. A person wishing to assert a right shall prove the facts on which his claim is based.

A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. » conclusion [ 32 ] The evidence does not demonstrate that the work done by Mr. Lévesque’s contractors, are not consistent with the rules of art. In fact, those that were not were corrected quickly. [ 33 ] In addition, further work has been done by Mr. Lévesque in favor of Mr. Kasunich. The Court concludes that Mr.

Lévesque has fulfilled his contractual obligations towards Mr. Kasunich. [ 34 ] In civil law, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided for in

article 2803 C.c.Q ., by a preponderance of evidence, that its request is justified. He has not assumed its burden of proof. [ 35 ] After analyzing this case and the evidence adduced, the Court considers that the plaintiff has not established, through preponderant evidence, that his claim is well-founded. THEREFORE, the Court: [ 36 ] DISMISSES Plaintiff's claim, with costs $127.00. __________________________________ CELESTINA ALMEIDA, J.C.Q. Date of hearing: March 23, 2015