2014 QCCQ 9129, 2014 QCCQ 9129

Brown c. Sauvageau 2014 QCCQ 9129 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-129413-110 DATE: August 12, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ JUDITH BROWN Plaintiff v. ROBERT SAUVAGEAU -and- FORMADRAIN INC. , carrying on business under the name of DRAIN CLAIR -and- GAINAGE P.R.S. INC. , carrying on business under the name of DRAIN CLAIR Defendants v. 9193-0635 QUEBEC INC.

Defendant in warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Plaintiff Ms. Judith Brown sues Defendant for damages arising out of alleged faulty work and services provided by Defendants, companies that provide plumbing and drainage services. [ 2 ] Defendants filed a contestation into the Court record. Defendants also called into warranty a subcontractor, 9193-0685 Quebec inc., which carried out the problematic work.

Neither Defendants nor the Defendant in warranty appeared at the Court hearing, despite being duly notified thereof and called by Court loudspeaker on numerous occasions at the time. [ 3 ] At the Court hearing, Ms. Judith Brown testified that she is an owner of an apartment building located in the Notre-Dame-de- Grâce neighbourhood of Montreal. She was informed by her superintendant that there was a dark substance emanating from the kitchen sink of one of the dwellings. The superintendant recommended that the sink drain be cleaned. Ms.

Brown called Defendants which are related companies, and which specialize in such cleaning work. The next day, Friday May 13, 2011, a representative of Defendants, named Mario, came down to the premises. The employee put a camera in the drain and examined the situation. He filmed the examination. [ 4 ] After approximately one hour, the employee advised Ms. Brown and her superintendant that the plumbing pipe leading to the sink was broken at approximately 15 feet from the sink. The employee stated that there was nothing more that he could do and that a plumber had to be called to repair the broken pipe.

[ 5 ] Ms. Brown paid $205.63 for this service. Approximately one hour after the employee left, thick black water was pouring out of the back drain just outside the kitchen sink. Ms. Brown called the representative of Defendants to advise them. They said that there was no more that they could do and that it was now a plumber’s job to repair the broken pipe. Ms.

Brown called her plumbing company, Levine Brothers, but since it was Friday afternoon, they could only come down to the premises on the following Monday. [ 6 ] In the meantime, to control the backing up of the thick smelly black water, the plumber advised Ms. Brown and her superintendant to buy a pump and extension hose and pump the foul water into the back of the property. Ms. Brown and her superintendant did that and the cost was $266.55 (Exhibit P-2).

The entire weekend, the tenant of the premises and the superintendant had to monitor the pump and flowing of liquid to ensure that it was working properly and that it did not flood the apartment. [ 7 ] On Monday morning the plumber arrived at the premises. He took cognisance of the invoice/report of defendants (Exhibit P-1) which refers to a break in the pipe 15 feet from the kitchen sink. Basing himself on the accuracy of such report, the plumber broke open the hard wood floor along the hallway leading to the pipe. However, the plumber could not see any breakage in the pipe.

The plumber called its own company subcontractor, “Drainage Québécois” to verify the situation. Drainage Québécois carried out its own camera examination and stated that there was no breakage. The plumber called Defendants and advised their representative of the situation. The representative of Defendants made no comment and did not ask to examine anything. According to Drainage Québécois, the pipe simply needed to be cleaned, which it proceeded to do. [ 8 ] Afterwards, the drain and pipe have worked well. The cost of the plumbing company (including for Drainage Québécois) was $908.26 (Exhibit P-3). Ms.

Brown contacted Mr. Robert Sauvageau of Defendants and explained again the situation. Ms. Brown immediately sent a detailed demand letter by fax to Mr. Sauvageau (Exhibit P-6). [ 9 ] As the demand letter P-6 explains, apart from the cost of the services, Ms. Brown had another and equally pressing problem. The hard wood floor in her apartment was now partially broken up and opened as a result of the mistaken report of Defendants and Ms. Brown’s tenant was still living in the apartment. According to Ms. Brown, Mr.

Sauvageau acknowledged over the telephone the fault of his employee and that of his companies and the liability of his companies. He asked Ms. Brown to send the invoices that she had paid and was to pay to repair the problems caused by Defendant’s faulty assessment and advice. [ 10 ] Regarding the floor repairs, Ms. Brown decided to install a new floating flooring in the apartment. This was effected in June 2011. She had a floating floor installed almost throughout the apartment over an area of 370 sq. ft. Ms. Brown claims refund of the amount paid being $2,738.47 (Exhibit P-5).

The size of this renovation surface appears to the Court to be excessive. The Court is of the view that the repair work could have been carried out at a lesser cost. Ms.

Brown explains that the cost was necessary since the tenant was in the premises and she explains that she would like to have redone the floors in hard wood but that would have taken more time and been much more costly. [ 11 ] In light of the competing interests and based upon the evidence, the Court arbitrates that the amount of $1,900 would have been reasonable for the repair of the wood floor. [ 12 ] The defence filed by Defendants states that they were not given timely notice before the work was carried out.

Based upon the evidence, including the exhibits filed and the testimony heard, that defence is not accurate in fact or in law. On the contrary, Defendants were kept aware of developments throughout Plaintiff’s ordeal and given the urgency of the situation (Article 1597 C.C.Q.), Defendants were fully apprised and chose not to act or intervene. That defence is dismissed. [ 13 ] Based upon the above, the Court will grant the following established amounts: 1) $205.63 (Exhibit P-1), 2) $266.55 (Exhibit P- 2), 3) $908.26 (Exhibit P-3) and 4) $1,900, totalling $3,280.44.

The Plaintiff also sued Robert Sauvageau personally. There is no evidence to support a personal condemnation of Mr. Sauvageau and that claim will be dismissed without costs given the absence of Mr. Sauvageau at the hearing. FOR THESE REASONS, THE COURT: GRANTS Plaintiff’s motion in part;

CONDEMNS solidarily Defendants Formadrain inc. and Gainage P.R.S. inc. to pay Judith Brown the amount of $3,280.44 plus legal interest of 5% per year and the additional indemnity provided at

Article 1619 of the Civil Code of Quebec starting from May 16, 2011, date of the default of Defendants by the sole operation of law (Article 1597 C.C.Q.); WITH JUDICIAL COSTS of $129 in favour of Judith Brown; DISMISSES the motion against Robert Sauvageau and the motion in warranty against 9193-0685 Quebec inc., WITHOUT COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: June 16, 2014