2023 QCCQ 9865, 2023 QCCQ 9865

Chugunov c. Gaspard 2023 QCCQ 9865 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” No.: 550-32-702557-213 DATE: November 30 th , 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE STEVE GUÉNARD, J.C.Q . ______________________________________________________________________ OLGA CHUGUNOV Plaintiff v. SHANI GASPARD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs.

Chugunov becomes the owner, on July 1 st , 2021, of a property located at [...] in Gatineau. [ 2 ] Said property, built in 1993 [1] , had been, at the time of the sale, owned by the Defendant, Ms. Gaspard, for an approximate period of 2 years. [ 3 ] The sale [2] , made with the legal warranty, was concluded for a total amount of 273 000$. [ 4 ] Mrs. Chugunov’s objective is, at that time, to rent the property as soon as practicable, following which she would become the occupant of the dwelling in 2023. [ 5 ] In the days following Mrs.

Chugunov’s arrival in her new property, and while doing some cleanup of the basement shower, she discovers that a puddle of water can be seen in the vicinity of said shower. [ 6 ] She originally believes that she mistakenly created such puddle while rinsing the shower. So she dries up said puddle and continues to clean up the shower, only to realize that the puddle quickly forms again. [ 7 ] Mrs. Chugunov then realizes that the interior connection of the shower wall to its base is not waterproof. Basically, she notices that the shower is leaking from the base.

She confirms such apprehension with a home inspector, Mr. Myron Angeloff [3] . [ 8 ] Mrs. Chugunov quickly gives notice [4] of such a situation to Ms. Gaspard. [ 9 ] The parties disagree as to the chronology of events starting from such notice. [ 10 ] Essentially, Mrs. Chugunov states that she offered to Ms. Gaspard to share, on a 50/50 basis, the costs associated with the installation of a new shower. Ms. Gaspard, she states, would have accepted to do so, only to retract herself on July 15 th . In those circumstances, Mrs. Chugunov is claiming 100% of the costs needed to install a new shower. [ 11 ] Ms.

Gaspard confirms that Mrs. Chugunov offered to share 50/50 the costs linked with such a new shower. She indicates that she mentioned to Mrs. Chugunov that she would verify with a lawyer – or a notary – to confirm her potential liability. In case of such liability, she would agree to disburse 50% of the costs associated therewith. However, considering her discussion with an attorney in the following days, she consequently denies [5] owing anything to Mrs. Chugunov. [ 12 ] Unsatisfied with such a development, Mrs.

Chugunov introduces, on October 18 th , 2021, a Claim in front of the Small Claims Division of the Court of Québec. Her Demand totals an amount – in capital – of 5 764,65$, which details as follows: a) 3 567,15$ for the cost of replacement of the shower cabin [6] ; b) 343,78$ for the basement clean up after the replacement of the shower [7] ; c) 1 650$ for the loss of rental income for August 2021 [8] ; d) 60$ for the cost associated with the home inspector;

e) 143,72$ for lawyer’s fees. [ 13 ] Ms. Gaspard contests the Claim. She argues that the defect noticed by Mrs. Chugunov should not qualify as being a “hidden defect”. Subsidiarily, she contests the various amounts claimed from her. ANALYSIS [ 14 ] Mrs. Chugunov’s claim is civil by nature. Consequently, the burden to demonstrate that it is well founded rests upon her shoulders, as per sections 2803 and 2804 of the Civil Code of Québec (hereinafter the C.c.Q. ). [ 15 ] The evidence provided must therefore be preponderant .

To qualify as such, the evidence must be clear and convincing [9] . [ 16 ] The potential liability of Ms. Gaspard is contractual by nature [10] . [ 17 ] Mrs. Chugunov alleges that the property that she bought suffered from a hidden defect related to the basement shower. [ 18 ] Considering that the sale was indeed made with the legal warranty,

section 1726 C.c.Q. states the general rule in such regards: 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. [ 19 ] The Courts have established that 5 criteria must be met to successfully claim an indemnification based on such legal warranty [11] :

i) The defect must be sufficiently serious by nature; ii) It must exist at the time of the sale; iii) It must be unknown to the buyer at the time of the sale; iv) It must be hidden at the time of the sale. A hidden defect is one that cannot be perceived by a buyer acting in a reasonably prudent and diligent manner;

v) It must be denounced [12] to the seller in a reasonable delay. A letter of demand must be sent, except in some restricted circumstances, prior to the execution of repairs. [ 20 ] First, the buyer must qualify, in order to be able to successfully invoke the effects of the legal warranty, as a reasonably prudent and diligent buyer. The test related to such criterion is objective by nature [13] . [ 21 ] Ms. Gaspard argues that this would not be the case because it should have been simple for Mrs. Chugunov to notice the problem associated with the shower during the inspection.

Furthermore, some discoloration on the washroom baseboards should have served as a warning. Finally, the pre-sale inspection report would have raised red flags regarding said basement washroom. [ 22 ] Ms. Gaspard, alternatively, pleads that she should not be liable for the inspector’s lack of serious verifications. [ 23 ] Those arguments were well pleaded by Ms. Gaspard. However, they do not, respectfully, convince the Court and such, for various reasons. [ 24 ] The obligation of the buyer is to proceed to a normal, reasonable and serious inspection [14] . Mrs.

Chugunov’s obligation was one of means, and not one of result [15] . [ 25 ] The evidence demonstrates that Mrs. Chugunov proceeded to two visits. She was accompanied by a home inspector during her second visit. The home inspector, Mr. Arseny Reider, charged her a fee of 550$ for the visit and for the 36-page report [16] . [ 26 ] It is consequently noticed, during that inspection, that the washroom cabinet is loosely installed. Ms. Gaspard agrees to correct the situation before the sale and so she did. [ 27 ] It is to be noted that such visits occur in January 2021 .

The sale concludes in July 2021 , nearly 6 months afterward. Such delay was explained by Ms. Gaspard’s willingness to only leave the premises in the summer. [ 28 ] It was easily obvious, at the time of the inspection, that the shower was not brand new. The parties cannot specify the date of its installation which would have occurred sometime between 1993 and 2019. [ 29 ] Mrs. Chugunov knew that some of the renovations made in the basement washroom were done by Ms. Gaspard herself.

She consequently adjusted her evaluation of the situation, knowing that the installation of a new toilet [17] was made by a person who did not qualify as a contractor. [ 30 ] Surely enough, Mr. Reider’s report refers to caulking material deterioration in said basement washroom. However, caulking deterioration does not automatically equate to perceived water damage. [ 31 ] Indeed, Mr. Reider’s report does not refer, in the relevant

section of the property, to water damage or any other inquiries

necessary in the circumstances. [ 32 ] The Court is of the opinion that Mrs. Chugunov acted in a reasonably prudent and diligent manner. [ 33 ] Furthermore, Ms. Gaspard states – and the Court believes her – that she never noticed, herself, any difficulty regarding the connection of the shower walls to its base. [ 34 ] Ms. Gaspard confirms that she was not using the basement shower and that such was used by her 14-year-old cousin. [ 35 ] In other words, Ms. Gaspard’s argument is to the effect that Mrs.

Chugunov should have, during those two visits, discovered a problem that she never had any knowledge of for a period of two years while living on the premises. [ 36 ] That argument does not convince the Court in the current instance. [ 37 ] Of course, Mrs. Chugunov, in one of her first text messages [18] following the sale, refers to some discoloration of the baseboard in the corner as well as the application – by Ms.

Gaspard - of an “extra layer of caulking” in said corner. [ 38 ] However, the evidence adduced at Trial tends to point out that such a perceived situation was different from the one noted by the parties during the inspection done six months prior. [ 39 ] Indeed, in all likelihood, the existence of that “discoloration” would have been noted by the inspector if it existed at the time of the inspection.

Furthermore, the existence of that “extra layer of caulking” seems to be a direct response to the inspector’s comment as to the existence of caulking deterioration. [ 40 ] The review of the evidence adduced at Trial establishes that the 5 criteria necessary to demonstrate the existence of a hidden defect are indeed met. [ 41 ] The evidence demonstrates that the defect with the shower was serious by nature, preventing any safe usage of such. It is, of course, abnormal for a shower to generate a puddle of water in its vicinity. The Court is convinced that Mrs.

Chugunov would have negotiated a reduction of the sale price of the property if she knew about the condition of the shower. [ 42 ] Mrs. Chugunov’s testimony was convincing as to the verifications that she makes and as to the problems that she notices. Mr. Angeloff’s report is to the same effect. [ 43 ] The defect relating to the proper connection of the shower walls to its base did exist at the time of the sale. Indeed, such defect is noticed in the days after the deed is signed in front of the notary. [ 44 ] Said defect was unknown to Mrs.

Chugunov at the time of the sale. [ 45 ] And as already mentioned, the Court is of the opinion that Mrs. Chugunov does qualify as being a reasonably prudent and diligent buyer. [ 46 ] Even if the Court would arrive to the conclusion (and it does not) that the defect should have been detected by the home inspector prior to the sale, that – in itself – would not be sufficient to qualify Mrs.

Chugunov as a non-prudent and non-diligent buyer. [ 47 ] Indeed, the Courts have reaffirmed the principle that the criterion relating to the buyer is not one associated with the existence of negligence of the pre-purchase inspector [19] . In other words, the Court must focus on the buyer’s verifications and inspection, evaluating all the relevant circumstances. [ 48 ] In the circumstances of this file, the Court considers that Mrs. Chugunov acted the same way that a reasonable and prudent buyer would have. [ 49 ] The Court, again, does not doubt Ms.

Gaspard’s affirmation that she did not know [20] about the defect. [ 50 ] However, such knowledge from the seller of the existence of a defect is not a prerequisite for the application of the legal warranty.

The impact of such absence of knowledge reflects, however, and as we will see afterwards, on the type of damages that can be granted to the buyer. [ 51 ] Indeed, sellers have been found liable for various hidden defects even if they did not know about their existence at the time of the sale. [ 52 ] Consequently, the Court concludes to the existence of a hidden defect relating to the basement shower. [ 53 ] Such conclusion does not mean, however, that Mrs. Chugunov is entitled to the entire amount that she is claiming from Ms.

Gaspard. [ 54 ] Let us see why. [ 55 ] First and foremost, the Court cannot conclude to the existence of an agreement – also known as a Transaction [21] - between the parties that would establish that Ms. Gaspard agreed to pay 50% of the costs associated with the shower replacement. [ 56 ] Indeed, the evidence is highly contradictory on such topic. The Court, in the circumstances, has no reason to reject Ms. Gaspard’s version of the chronology of events when she states that she only agreed to pay 50% of said costs if her attorney confirmed to her that she was liable.

[ 57 ] Considering that attorney’s opinion rendered to Ms. Gaspard, she then confirmed to Mrs. Chugunov that she did not think she was liable for any costs associated with the replacement of the shower. [ 58 ] As we have seen, the Court is of a different opinion. However, the evidence does not demonstrate the existence of a verbal Transaction between the parties. [ 59 ] Indeed, Mrs. Chugunov’s testimony is in itself insufficient to demonstrate the existence of such a Transaction, as per

section 2862 C.c.Q. , which states: 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500. However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in the ordinary course of business of an enterprise. [ 60 ] That being said, if the Court had concluded to the existence of such a Transaction, Ms.

Gaspard would have been only liable for 50% of the costs, as per the alleged agreement. Indeed, the non-respect of a Transaction gives the right to the other party to claim for its valid execution (thus the payment of said 50% [22] ). [ 61 ] As we will see however, the end result will somewhat be quite similar to Mrs. Chugunov’s original offer, but for distinct reasons and using a different path. [ 62 ] Sections 1607 , 1611 and 1613 C.c.Q. establish the general rules applicable to the evaluation of the indemnification that can be granted to a creditor. Those sections read as follows: 1607.

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and assessable is taken into account in awarding damages. 1613.

In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance. [ 63 ] The objective of indemnification is not to enrich – nor to impoverish - the creditor. [ 64 ] In fact, the indemnification must be reasonable and justified. [ 65 ] The Court will consequently analyze the various portions of the claim presented by Mrs.

Chugunov. a) 3 567,15$ for the cost of replacement of the shower cabin [ 66 ] That portion of the Claim divides itself into three separate subsections. [ 67 ] First, there is an amount of 807,94$ for the buying of a new acrylic shower (base, frame, door, drain). [ 68 ] Second, there are various disbursements for the material bought to proceed with the installation of the new shower (compound, grout, molding, sealer, etc). [ 69 ] Third, there is the cost of labor by a worker known as Mr.

Serguei. [ 70 ] The result will be different for those three portions of the claim, and such, for various reasons. [ 71 ] Firstly, it is obvious that the shower cabin, at the time of the sale to Mrs. Chugunov, dated back numerous years. The evidence is not clear as to the initial date of installation, but it dated back, in all likelihood, a period of at least 15 years. [ 72 ] Consequently, it is obvious that the installation of a new shower cabin does generate some added value [23] to the property. [ 73 ] In other words, Mrs.

Chugunov, at the time of the sale, knew that the shower cabin in the basement had some important mileage. The Court must consequently keep in mind such a situation while establishing the relevant indemnification. [ 74 ] In those circumstances, the Court considers that the shower had reached, at the time of the sale, 50% of its normal life expectancy.

Furthermore, the evidence points out that the new shower presents larger dimensions (36 inches) than the original version (30 inches). [ 75 ] That being said, the evidence also demonstrates, preponderantly, that the shower could not be repaired but had to be replaced.

[ 76 ] In light of all those circumstances, the Court will reduce the amount claimed (807,94$) by 50% to take into consideration the added value of the presence of a brand- new shower. [ 77 ] Consequently, the Court grants an amount of 403,97$ for the cost of the shower cabin. [ 78 ] Secondly, the various disbursements associated with the installation of the new shower will be totally granted.

Indeed, those disbursements for sealer, grout and so forth, do not generate any added value to the property but were necessary to install the shower cabin. [ 79 ] The Court will consequently grant an amount of 689,66$ [24] for those disbursements. [ 80 ] Thirdly, the claim associated with the costs for labor, by Mr. Sergueï, totals an amount of 2 069,55$. [ 81 ] However, that portion of the claim is, in part, problematic. [ 82 ] First and foremost, the receipts prepared by Mr. Sergueï are very succinct.

They only refer to “Service renovation”, with a price with added taxes. [ 83 ] The evidence does establish that Mrs. Chugunov had the intention to proceed with some renovation in her newly acquired property. [ 84 ] It appears, in all likelihood, that a portion of that “Service renovation” did refer to other work not directly linked with the replacement of the shower, especially since the receipts refer to a long period of time (July 13 th to August 25 th 2021). [ 85 ] The Court does not doubt that disbursements were indeed made by Mrs.

Chugunov for labor in order to proceed to the necessary work associated with the shower. However, the evidence produced does not demonstrate, preponderantly, that the full amount requested is here relevant to Mrs. Chugunov’s claim against Ms.

Gaspard. [ 86 ] In those circumstances, the Court establishes that the labor disbursements that are demonstrated preponderantly total an amount of 1 000$. [ 87 ] Consequently, the first portion of the Claim will be partially granted, for an amount of 2 093,63$. b) 343,78$ for the basement clean up after the replacement of the shower [ 88 ] The invoice from Nettoyeur de la Cité describes the work done. It refers to the cleanup of the carpet in the basement as well as to its restoration and antibacterial treatment.

It is dated September 15 th , 2021. [ 89 ] The Court is satisfied with the link of that disbursement with the defect found with the basement shower. [ 90 ] That portion of the Claim will consequently be granted. c) 1 650$ for the loss of rental income for August 2021 [ 91 ]

Section 1728 C.c.Q. reads as follows: 1728. If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer. [ 92 ] As previously stated, the Court does not believe that Ms. Gaspard knew about the defect associated with the basement shower. [ 93 ] Mrs. Chugunov, in all intellectual honesty, does confirm that she simply does not know if Ms. Gaspard knew about the situation. [ 94 ] In those circumstances, the additional prejudice claimed by Mrs.

Chugunov – other than the repairs per se [25] – cannot be granted. [ 95 ] Furthermore, it does appear somewhat surprising that the work needed in the basement shower would prevent a property owner from renting the dwelling, notably considering that another full washroom is located on the main floor of the property. [ 96 ] In those circumstances, and for those reasons, that portion of the Claim will not be granted. d) 60$ for the cost associated with the home inspector (Mr. Angeloff) [ 97 ] That portion of the Claim cannot be granted.

[ 98 ] Indeed, no invoice is produced about such disbursement that would have been incurred by Mrs.

Chugunov. [ 99 ] The Court is consequently of the opinion that the evidence provided in support of this portion of the Claim cannot be qualified as being preponderant. e) 143,72$ for the lawyer’s fees [ 100 ] The Courts have established that the parties do normally remain responsible for their own lawyer’s invoices [26] . [ 101 ] That principle certainly applies with at least as much vigor in Small Claims Division files. [ 102 ] Some exceptions do exist but none of them do apply in the current file. [ 103 ] In those circumstances, that portion of the Claim cannot be granted. [ 104 ] Consequently, the Court will partially grant Mrs.

Chugunov’s Claim, for a total amount – in capital – of 2 437,41$. FOR THOSE REASONS, THE COURT: PARTIALLY GRANTS the Plaintiff’s Claim; CONDEMNS the Defendant to pay to the Plaintiff the amount of 2 437,41$, with the legal interests as well as the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from October 18 th , 2021 [27] ; THE WHOLE , with the legal costs in favor of the Plaintiff [28] . __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: November 6 th , 2023