2019 QCCQ 4126, 2019 QCCQ 4126

Evangelidis c. Delatolas 2019 QCCQ 4126 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-703594-178 DATE: April 23, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ALEXANDER EVANGELIDIS Plaintiff v.

SAMANTHA DELATOLAS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Alexander Evangelidis, who purchased a condominium unit from the Defendant, Samantha Delatolas, in November 2016, claims $4,231.08, the cost of replacing a wall mount air conditioning unit that he alleges was affected by a latent defect at the time of the sale. [ 2 ] He asserts that it was not possible to inspect this air conditioning unit at the time of the prepurchase inspection and to discover that it did not function properly at the time of the sale. [ 3 ] Ms.

Delatolas invokes clause 11.5 of the promise to purchase, signed October 22, 2016 [1] , which was incorporated into the deed of sale [2] dated November 25, 2016. [ 4 ] This clause entitled “inclusions” mentions, among other things, the air conditioning unit and states that these items “[…] are sold without any legal warranty of quality, at the BUYER’s own risk, but must be in working order at the time of delivery of the IMMOVABLE”. [ 5 ] The Defendant alleges that, at the time of the sale, the unit was in working order and that this exclusion of the legal warranty therefore applies to it. [ 6 ] When Mr.

Evangelidis began using the air conditioning the following June, he noticed the air coming out of the unit was warm. Although the fan worked, the cooling process was not effective. [ 7 ] He wrote to Ms. Delatolas June 7, 2017 informing her of the lack of cooling and enquiring with her as to whether she had experienced any problems with the unit during her time at the condo. [ 8 ] Ms. Delatolas replied June 8 th , stating that: I got the AC unit cleaned last year and they also added fluoride in the roof unit (I think that’s what its called which is what keeps it cool).

In general, I would keep it at 20-21 on the remote for the condo to feel cool (the temperature on the remote doesn’t necessarily match the thermostat). The people who installed the unit (and also added the fluoride last summer) are AC Services T.A.D. [ 9 ] On June 12 th , Mr. Evangelidis informed her that he contacted T.A.D. Services whose technician confirmed that he had refilled the unit with Freon gas the previous year.

He quotes the technician as stating that “there is a leak in the unit as there is no longer any Freon remaining in the machine which should not be the case if it only been refilled one year ago”. He mentions the technician’s recommendation to replace the unit unless the leak can be repaired. [ 10 ] He calls upon Ms. Delatolas to assist in the solution of the problem. After a subsequent communication of Mr. Evangelidis, Ms.

Delatolas replied on June 18 th , confirming that the AC unit was functional when she sold the condo, that it was six years old and had a one year warranty at the time of her acquisition, and denying responsibility for the issue. [ 11 ] On June 18 th , Mr. Evangelidis gives a final request for her cooperation and advises that he is contemplating legal action under the Quebec law relating to hidden defects. [ 12 ] Having obtained no offer from the Defendant, Mr. Evangelidis proceeded to have the unit replaced at a cost of $4,231.08 and made the present Claim against the Defendant.

Issue [ 13 ] Is the Defendant responsible for the replacement of this unit in the circumstances described above? The clause [ 14 ] Clause 11.5 is an effective renunciation to the guaranty of quality in respect of these specific items listed, which include the air conditioning unit. [ 15 ] This renunciation to the right to claim for a “latent defect” is conditioned upon the air conditioner being in working order at the time of the sale. [ 16 ] Ms. Delatolas testifies sincerely that, throughout the time she was the owner, the air conditioner worked up until the time of sale.

She had obtained the services of a technician the previous summer to clean the unit and the technician added cooling fluid. [ 17 ] On the day that the pre-purchase inspection was carried out, November 2, the building inspector did not consider that the outdoor unit was accessible. He wrote: “the inspection limited / prevented by low outdoor temperature”. He makes various recommendations concerning the evaporator coil: We recommend to clean the evaporator coil as part of regular maintenance and to realign/straighten bent fins when necessary to maintain system efficiency and prolong life expectancy.

Implication(s) : increased cooling costs | Reduced comfort Task : Clean Improve Immediate Regular maintenance. [3] [ 18 ] He also mentions that the discharge point of the condensate line is not visible: […] as the exterior unit may be installed on the roof. Implication(s) : Equipment not operating properly. Task : Locate Improve Immediate If necessary. [4] [ 19 ] Under “Air Conditioning Evaporator fan” he states: We recommend to clean the top of the unit & the reusable filters regularly along with the indoor coil when necessary to maintain equipment efficiency and improved air quality.

Implication(s) : Reduced system life expectancy | Increased cooling costs Reduced comfort Task : Clean Immediate Regular maintenance. [5] [ 20 ] While the exact words used by the inspector might suggest that he detected that the equipment was not working properly, this appears to be a clerical error in the drafting of the report.

It more probably means that it is not possible to ascertain technically whether the equipment works properly without performing the inspection of the condensate line and the exterior unit. [ 21 ] The Plaintiff is convinced that it was impossible to verify if the unit provided any cooling on the day of the visit, because the outside temperature was cold.

He is under the impression that this is a unit that provides cold air from the outside, and that if the air coming out of the inside unit was cold, this was not because the unit was working but because it was simply transferring cold air from the outside. [ 22 ] The Plaintiff’s evidence does not however establish that the unit was not in good working condition at the time of the inspection. [ 23 ] The inspection report itself is not very clear as to whether it was in good working order or not, but one would have thought that the inspector would have at least been able to say whether the cooling provided by the unit was effective or not.

On the whole, the Court prefers the evidence of the Defendant, whose honesty has not been put into question. [ 24 ] The renunciation clause limits the sellor’s obligation to that of providing an air conditioner that was functional but which the purchaser accepts at his risks and peril with no guaranty as to quality. [ 25 ] On the whole, the evidence shows that it is more likely than not that the unit was functioning at the time of the sale. Therefore the seller as no other obligation. [ 26 ] It was also quite apparent to the Court that the Plaintiff claim’s was for an amount in excess of his true prejudice.

He was buying an air conditioner unit not of particularly high quality, as it was the unit provided by the contractor, with only a one year manufacturer’s warranty. [ 27 ] It was six years old and getting to the point where its useful life was more and more limited. [ 28 ] It was included in the sale, as an extra, for which the Defendant had paid an additional $ 3,000.00.

[ 29 ] When it required service or replacement, it is not surprising that the Plaintiff opted to simply replace it rather then try to have it repaired, given that it was close to the end of its useful life. [ 30 ] His prejudice, if in fact the Defendant had been liable, would be for the residual value of the existing unit, which would have been a small fraction of the cost of replacing it with a new unit.

Its claim for the full cost of replacement represents, for the most part, betterment. [ 31 ] The Court therefore comes to the conclusion that the Plaintiff has not fulfilled his burden of proving that at the time of the sale, the air conditioner unit did not function. Even if it were, the Defendant who had the burden of proving it was functional, her testimony satisfies this burden of proof. BY THESE REASONS, THE COURT: DISMISSES the Plaintiff’s Claim; WITH legal costS in favour of the Defendant. __________________________ David L. Cameron, J.C.Q. Date of hearing: March 25, 2019