2017 QCCQ 9910, 2017 QCCQ 9910

Burke c. Groupe conseil Pierda (Canada) inc. 2017 QCCQ 9910 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-023919-167 DATE: September 6 th 2017 ______________________________________________________________________ BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ DUSTIN RYAN BURKE and RITA E. HERRMANN Plaintiffs v.

GROUPE CONSEIL PIERDA (CANADA) INC. and SYNDICAT LES CHATEAUX DE LA MONTAGNE A-B Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs (mother and son) are the co-owners of a Condominium located at 148 des Jonquilles Avenue in Gatineau. Mr. Dustin Burke (hereinafter referred to as Dustin ) is present during the trial, he will testify but he is represented [1] by his father Charles Burke (hereinafter referred to as Mr. Burke ). Mrs. Rita E.

Herrmann is not present at trial. [ 2 ] It appears that the Condominium has a problem with its two sliding doors and some of its windows. [ 3 ] It is not contested by the Defendants that some of the doors and windows of the Condominium need to be replaced. [ 4 ] The Plaintiffs sue the Defendants for negligently handling their demands regarding the replacement of said doors and windows. Dustin testifies to the effect that this problem has existed for the past 4 years. They claim an amount of 15 000$ for the following reasons:

i) For the repairs to be taken for the water damage in the Condominium; ii) For the replacement of said doors and windows; iii) For the compensation for general damages including not being able to enjoy a quality of life expected by the unit owners [2] ; [ 5 ] Defendant Groupe Conseil Pierda (Canada) inc. (hereinafter Pierda ) and the Syndicat Les Châteaux de la Montagne A-B [3] (hereinafter Syndicat ) contest the Application.

They admit that some of the windows and sliding doors need replacement, but they contest that this problem has been communicated to them 4 years ago, and they allege that the total lack of cooperation from Dustin and more precisely, of his father, Mr. Burke, explains the delays in the file. [ 6 ] Pierda and the Syndicat reiterate, during the Trial, their willingness to replace the damaged windows and doors. QUESTIONS IN ISSUE [ 7 ] The present file raises the following questions of facts and law:

i) Do the Plaintiffs demonstrate that either Pierda or Syndicat have been negligent towards their complaint as to the windows and doors? ii) In case of a positive answer to question i), what are the damages that are demonstrated, through preponderant evidence by the Plaintiffs? iii) Do the Defendants demonstrate, in case of a positive answer to question

i) and ii) that the Plaintiffs are themselves responsible, either totally or partially, for the delay necessary in replacing said sliding doors and windows? ANALYSIS OF THE FACTS AND OF THE EVIDENCE SUBMITTED [ 8 ] The evidence submitted by Dustin and by Mr. Burke is quite succinct. [ 9 ] Dustin testifies to the effect that his mother and himself have been the owner of the Condominium for about 6 or 7 years. He is an engineer. [ 10 ] Dustin testifies to the effect that he sues the Defendants because it has been a “period of 4 years of writing back and forth” with the Defendants.

We will see that this timeline is not only contested but it is inaccurate. [ 11 ] Dustin indicates that there is an email dated 4 years ago to that effect. He does not have a copy, however, in his possession. [ 12 ] Dustin insists that he has suffered from 4 cold winters in the Condominium, and that he did not get proper and timely responses from the Defendants, even though he pays an approximate amount of 240$ of monthly condo fees.

Dustin also mentions that he has paid, three times, an amount of 1 200$ for the emergency fund of the co-ownership. [ 13 ] As for the windows, Dustin states that they are leaking and that they are “fogged” up. However, he never took any photo of such situation and thus has no photos to produce as exhibit to that effect. It appears from his testimony that the problems concern 2 sliding doors and 4 large windows. Dustin does not produce any exhibits demonstrating the alleged water infiltration that he refers to. [ 14 ] Dustin adds that moisture is seen anytime there is a rainstorm.

He does confirm, however, that there isn’t water “pouring” in on such occasions. There is, on some occasions, water “sipping” in at the bottom of said windows. [ 15 ] Dustin mentions that he cannot proceed directly, in accordance with the co-ownership bylaws, to the repair work needed. Consequently, he did not search to obtain a quote for said work. [ 16 ] As to the value of the claim, Dustin mentions that this 15 000$ amount is a figure that he “ is throwing out there ”.

That amount includes, without being in any way detailed, a reimbursement for condo fees, for his contributions to the emergency fund, to reimburse him of higher electricity costs as well as to obtain a compensation for a reduction in his quality of life. [ 17 ] Dustin concludes his testimony by adding that he is aware that other owners did get their windows and doors replaced even though they have brought that problem to the attention of the Defendants after himself and his mother. [ 18 ] Mr. Burke also testifies for the Plaintiffs. [ 19 ] Mr.

Burke argues that shortcomings in the Syndicat’s budget is not the Plaintiff’s problem.

[ 20 ] Mr. Burke adds that the Syndicat and Pierda sent a couple of “experts” in windows and doors and that they keep sending new “experts”, up until there will be one “ that will agree with their theory that the windows do not need to be changed ”. [ 21 ] Mr. Burke cannot understand why the “job has not been done yet”. He does concede, however, that some availability dates were offered, for visits inside the Condominium, but that he rejected some of those dates. After all, he adds, he “did not see what the rush was”, since the Plaintiffs have been waiting for many years now. [ 22 ] Mr.

Burke asks the question as to what would happen to the Condominium, with such leaking windows and doors if “a tornado would occur.” [ 23 ] The Court mentioned during the Trial, on a couple of occasions, to the Plaintiff as well as to Mr. Burke that, because of their status as Plaintiffs, that the onus of evidence, not only regarding the Defendant’s alleged negligence, but also regarding the alleged damages, rested clearly on their shoulders. Mr. Burke concedes, during trial, that some of the damages that are alleged are “not substantiated”. [ 24 ] Mr.

Burke ends his testimony by mentioning that it was the Defendant’s responsibility to make sure that the budget was sufficient in order to proceed to the necessary work inside the Plaintiff’s Condominium, arguing that the decision should have been made, by the Syndicat, to ask for higher monthly condo fees. He concludes by stating that the Syndicat and Pierda have acted, in the current file, in a “totally incompetent” manner. THE EVIDENCE SUBMITTED BY THE DEFENDANTS [ 25 ] Mrs. Nathalie Gendron testifies for the Syndicat. [ 26 ] She mentions that 150 units are included in said co-ownership.

The buildings were built in 1985. She mentions that, indeed, the buildings are getting older and that a Long term plan has been established 10 years ago in order to proceed to the necessary renovations, including for doors and windows. [ 27 ] Major work has been done in the past years, including for new staircases and for the replacement of windows and doors. [ 28 ] Mrs. Gendron testifies to the obvious, notably to contest the Plaintiff’s claim, that condo fees are used not only to repair windows and doors but also for a long list of chores (snow removal to name only one).

The emergency fund is used for major renovations. [ 29 ] Mrs. Gendron adds that a system was devised to establish priority for the work to be done and in order to respond to the co-owners’ complaints. That system has been established by the Syndicat, which is elected by the co-owners. [ 30 ] The Syndicat hires Pierda for the day to day operations. [ 31 ] Mrs. Gendron does confirm that two window and door “experts” visited the Plaintiff’s Condominium and both arrived to the conclusion that the windows and sliding doors had to be replaced.

However, because of the potential “vested” interests of those “experts” [4] , the Syndicat decides to send a third person, namely Mr. Pierre Girard, a Property manager for Pierda, to inspect all Condominiums, including the Plaintiff’s. [ 32 ] By doing so, Mrs. Gendron argues that a person with no “financial interest” in the replacement of windows and doors will be able to provide them with an impartial view of the repairs and/or replacements to be made. The fact that Mr.

Girard proceeds to the inspection of all the Condominiums adds, she says, to the uniformity, consistency and fairness of the process since the same person is evaluating all the units. He will, consequently, be in a better position to make his recommendations as to the priorities to be taken. [ 33 ] Mrs. Gendron testifies clearly to the effect that the first contact made by Dustin or by Mr.

Burke regarding any problems relating to the windows and doors dates back to September 3 rd 2015 . [5] Consequently, the Syndicat and Pierda strongly deny that the problems have been known for about 4 years as mentioned by Dustin during his testimony. [ 34 ] In the following days, the Plaintiffs are informed that the 2015 budget is dry and that their Condominium is added to the spring 2016 list of units to be visited and inspected. [6] [ 35 ] On March 30 th 2016, a notice is sent to all the relevant co-owners, informing them that the inspections will be held on April 6 th or 7 th between 6pm and 7:30pm. Mrs.

Gendron adds that if a Co-owner calls Pierda indicating special circumstances, that it is possible to set up a special appointment date. [ 36 ] The Syndicat and Pierda do not receive any news from the Plaintiffs. Consequently, Mr. Girard proceeds to knock on the Plaintiff’s door on the evening of April 7 th . Mr. Burke responds, informs Mr. Girard that he has guests for supper and that this is an inconvenient time for an inspection. Mr. Girard informs Mr.

Burke verbally [7] that the lack or refusal of an inspection will generate further delays because there won’t be any replacement of windows or doors without a proper inspection. [ 37 ] But to no avail. The inspection cannot proceed on the evening of April 7 th . [ 38 ] It appears that Mr. Burke or Dustin do not contact the Syndicat or Pierda in the next following weeks. However, Mr. Girard tries, for a second time, on May 6 th 2016, to proceed to an inspection but to no avail – nobody answers when he knocks on the door of the Condominium. [ 39 ] As early as June 2016, Mr.

Burke begins to raise the possibility of a lawsuit against the Defendants. [ 40 ] On June 30 th 2016, Mr. Rock Trépanier, from Rénovabec, proceeds to the inspection of the Condominium. He confirms clearly to Pierda that the windows and the sliding door need to be replaced shortly. His email [8] , sent by Ms. Marie-Josée Quesnel from Rénovabec, states the following: Suite à la visite de Rock Trépanier au 148 des Jonquilles, il constate un manque flagrant d’entretien sur les portes et fenêtres. Selon lui, le remplacement des fenêtres et de la porte patio doit se faire à court terme.

Il y a infiltration d’eau et d’air par la porte patio et les volets des fenêtres coulissantes sont presque tous courbés. Rien ne peut être corrigé temporairement, tout doit être remplacé complètement. [ 41 ] Rénovabec’s report is, basically, put aside in order for the Syndicat [9] to obtain a second opinion. Because the budget for replacing windows and doors has again dried out, the Syndicat wishes to obtain an opinion as to whether it is possible to simply repair the windows and not replace them. [ 42 ] That second “expert”, Mr.

Pascal Signori, who is also sent to inspect by the Defendants, visits the Condominium on July 19 th 2016. He arrives to the same conclusion than Rénovabec. [ 43 ] The process to obtain tenders is launched and it appears that both Rénovabec and Mr. Signori are interested in “doing the job”. Pierda writes to Mr. Burke on July 27 th , 2016, to explain the process while thanking him “for his patience”. [10] [ 44 ] On August 1 st 2016, the Conseil d’administration of the Syndicat concludes that a third opinion should be obtained since it appears that both Rénovabec and Mr.

Signori had possible “vested interests” and that both of their opinions should be set aside. [ 45 ] Consequently, it is decided that Mr. Pierre Girard will proceed to the inspection. [ 46 ] On September 20 th 2016, a notice is sent to the Plaintiffs informing them that Mr. Girard will proceed to the inspection on October 4 th 2016 between 6 and 8 pm. However, nobody is present at the Condominium on that evening. Mr. Girard knocks but to no avail. [ 47 ] Mrs.

Gendron does admit that the windows and sliding doors need to be changed but that it is difficult since the Plaintiffs have not made themselves available and that they did not cooperate properly with the Syndicat and Pierda. [ 48 ] The last visit, by Mr. Girard, is done on February 27 th 2017. He was able to inspect the windows on the first floor of the Condominium but not the ones on the upper floor since Mrs. Herrmann is present while being sick. [ 49 ] It is not contested that Mr. Girard is a Property manager.

He is not a “window” expert. [ 50 ] Pierda asks, on July 28 th 2017, to proceed to another inspection, during which they would mandate Mr. Éric Ayotte, from the firm Imo-Check. He is qualified in Pierda’s email of July 28th [11] , as an “objective witness”, who is not in the “replacement of windows” business. The Syndicate tries to convince Mr. Burke by stating that Mr. Ayotte is totally independent from both the Syndicate and Pierda (which is not the case of Mr. Girard). [ 51 ] That offer is rejected, on the same day, by Mr. Burke. [12] [ 52 ] Mrs. Sylvie Lafontaine testifies for Pierda.

She mentions that, since 2016, that a second annual inspection has been added in order to accelerate the process regarding window repairs and replacements. She mentions that to her knowledge, 149 of the 150 co-owners are “happy” with the process put forward in order to establish the priority of the work to be done. [ 53 ] Mr. Pierre Girard also testifies for the Defendants. He mentions that it is hard to have “150 co-owners to collaborate at the same time”, but that there is a clear lack of cooperation from Dustin and especially from his father, Mr. Burke.

His role is to visit all the requested Condominiums to have a broad and neutral view in order to establish a priority list. He adds that he tried to cooperate on many occasions with the Plaintiffs, but to no avail. “We proceed with those who cooperate”, he adds. He adds that the windows facing north are normally prioritized.

[ 54 ] Mr. Girard testifies to the effect that upon his February 27 th 2017 visit, that he notices that one of the windows [13] is not even in the “right window track.” Mr. Burke would have mentioned to him at that occasion that the window had been “like that for the past 6 years”. [ 55 ] Mr. Girard testifies to the effect that he did not notice any signs of water infiltration. He further adds that, to his knowledge, he nor Pierda were ever called in because of a water infiltration incident.

APPLICABLE LEGAL PRINCIPLES AND DECISION [ 56 ] In civil matters, the parties need to establish, by way of preponderant evidence, their claims and the factual elements related to such claims. Sections 2803 and 2804 of the Civil Code of Québec (hereinafter CCQ ) enunciate the following: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 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. [ 57 ] As to the applicable sections of the CCQ regarding divided co-ownership, the Court refers to the following sections: 1067.

A co-owner who, as a result of work carried out, suffers injury in the form of a permanent diminution in the value of his fraction, a grave disturbance to enjoyment, even if temporary, or through deterioration, is entitled to obtain an indemnity from the syndicate if the syndicate ordered the work or, if it did not, from the co-owners who did the work. 1071. The syndicate establishes, according to the estimated cost of major repairs and the cost of replacement of common portions, a contingency fund to be used exclusively for such repairs and replacement, which is liquid and available at short notice.

The syndicate is the owner of the fund. 1072. Each year, the board of directors, after consultation with the general meeting of the co-owners, fixes their contribution for common expenses, after determining the sums required to meet the expenses arising from the co-ownership and the operation of the immovable, and the amounts to be paid into the contingency fund. The contribution of the co-owners to the contingency fund is at least 5% of their contribution for common expenses. In fixing the contribution, the rights of any co-owner in the common portions for restricted use may be taken into account.

The syndicate, without delay, notifies each co-owner of the amount of his contribution and the date when it is payable. 1085. The day-to-day administration of the syndicate may be entrusted to a manager who may, but need not be, chosen from among the co-owners. The manager acts as an administrator of the property of others charged with simple administration. 1096. Decisions of the syndicate, including a decision to correct a clerical error in the declaration of co-ownership, are taken by a majority vote of the co-owners present or represented at the meeting. 1103.

Any co-owner may apply to the court to annul a decision of the general meeting if the decision is biased, if it was taken with intent to injure the co-owners or in contempt of their rights, or if an error was made in counting the votes. The action is forfeited unless instituted within 60 days after the meeting. If the action is futile or vexatious, the court may condemn the plaintiff to pay damages. [ 58 ] As for damages that are claimed, not only those must be proven by way of preponderant evidence, but they must be in direct relation, le cas échéant , with the Defendant’s default.

Sections 1607 and 1611 CCQ mention the following: 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. [ 59 ] The principle as to a Syndicate’s obligation to act diligently is provided not only in the CCQ but also in the relevant case-law that has been rendered.

Section 1458 of the CCQ provides that: 1458. Every person has a duty to honour 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. [ 60 ] Justice Jean Faullem, J.C.Q., reiterates the obligation for a Syndicat of co-ownership to act with celerity when informed of complaints by co-owners, in the D’Allaire v.

Syndicat des copropriétaires Les Jardins du Château [14] case. [ 61 ] Justice Faullem stated the following: [91] Ainsi, il s’est écoulé un délai de plus de six mois avant que le Syndicat se prononce définitivement quant à son obligation de réparer ou non la toiture de la copropriété occupée par monsieur D’Allaire. [94] De plus, la jurisprudence de notre Cour reconnaît l’obligation d’un Syndicat d’agir avec célérité lors de demandes adressées par les copropriétaires. [95] Par exemple, dans l’affaire Charest c.

Syndicat de la copropriété les Jardins St-Charles, Phase I, le juge Daniel Lavoie, J.C.Q., confirme qu’en vertu de l’

article 1067 C.c.Q. , qui institue un régime d’indemnisation sans faute afin de compenser un copropriétaire, le Syndicat peut être tenu de payer une indemnité en cas de lenteur de ce dernier à exécuter les travaux de réparation nécessaires à la remise en état d’une copropriété. [96] Dans ce dossier, une indemnité de 2 000 $ est accordée par le juge Lavoie au demandeur en considération d’une période d’attente de six mois avant l’exécution de travaux de réparation.

Il est à noter que pendant cette période, le demandeur a dû loger à sa résidence secondaire. [97] Dans l’affaire du Syndicat de copropriété Les Lofts de la Couronne c. Gaudreau, le juge Jacques Désormeaux, J.C.Q., condamne également un Syndicat à verser des dommages moraux compte tenu du délai important pour régler définitivement le problème vécu par les copropriétaires, et ce, même si le Syndicat avait prêté une attention particulière aux problèmes d’infiltration rapportées par ces derniers.

Constatant qu’il a fallu au Syndicat un délai de cinq ans avant de régler définitivement les problèmes d’infiltration d’eau vécus par les copropriétaires, le juge Désormeaux leur raccorde une indemnité globale de 5 000 $. [98] Plus récemment, le juge Benoît Emery, J.C.S., dans l’affaire Bergeron c. Pichette, condamne un Syndicat de copropriétaires à indemniser un copropriétaire en raison de son délai injustifié de un an avant que ne soient exécutés les travaux de décontamination et de reconstruction de la copropriété.

L’indemnité consiste au remboursement de loyer payé par le copropriétaire pour se loger ailleurs pendant cette période. [ 62 ] Obviously, every file is different and is linked to the precise factual evidence which is submitted.

One thing is certain though, courts have recognized the obligation for the Syndicate and its representatives, namely Pierda in the present file, to act in a reasonably diligent and prudent manner. [ 63 ] The standard of diligence and prudence is not one of perfection, but rather one of reasonable duty and care for a Syndicate or a Property manager placed in the same circumstances. [ 64 ] The Court does recognize that it is certainly difficult, as put by Mr. Girard, to have 150 co-owners to collaborate at the same time for inspections. A budget is certainly not an exact science.

And it is clear, in the current instance, that Dustin and Mr. Burke’s cooperation has been far from being exemplary, or even reasonably acceptable, but the Court considers that the Defendants did lack in certain instances as to their obligation to act with celerity in attending the Plaintiff’s complaints. [ 65 ] Indeed, the Court refers to the following elements:

i) It takes more than 7 months (September 3 rd 2015 – April 6 th 2015), for the first inspection to be put forward following the initial complaint as to the sliding doors and the windows; ii) Because of the lack of cooperation from Mr. Burke, who refuses the inspection by Mr. Girard on April 7 th because he has guests for supper, the next inspection is scheduled, because of the Defendant’s follow-up [15] , on June 30 th 2016. iii) During such inspection, executed by Rénovabec, which is a firm that is mandated to visit the Condominium at the Defendant’s request, it is established clearly, as it was already mentioned,

that the sliding doors and windows need to be replaced; iv) The Defendants, acting upon the Board’s instructions, decide to put aside that opinion and to obtain a second one;

v) A second inspection is done on July 19 th 2016 by Mr. Pascal Signori. Mr. Signori is, again, chosen by the Defendants. He arrives to the same conclusion than Rénovabec; vi) Again, the Defendants decide to put aside that report in order to obtain a “neutral” opinion, even though it was probably obvious, from the beginning, that Rénovabec and Mr. Signori could have a “vested” interest in obtaining the contract for the said replacement of windows; vii) The Plaintiffs are informed that Mr.

Pierre Girard will proceed to a new inspection, and that the replacement will not occur before the Spring of 2017; viii) Deciding that Mr. Girard’s opinion could be somewhat attacked by the Plaintiffs because he is linked with Pierda and because he is not a “window guy”, the Defendants offer, in the Summer of 2017, to mandate Éric Ayotte, from Imo-Check in order to obtain a totally independent and non-interested opinion; [ 66 ] Respectfully, if the Defendants wanted to have objective and neutral inspections, they could have arranged, quite earlier, to mandate Mr. Éric Ayotte.

They could have asked either Rénovabec or Mr. Signori to sign an undertaking that they would not tender an offer to proceed with the window replacements. [ 67 ] Respectfully, the Defendants could have acted upon quicker in September 2015 when informed, for the first time, of the problems of the Condominium. At the very least, even if the budget was dry, a preliminary inspection could have been made in order to assess quickly the problems raised by the Plaintiffs. [ 68 ] And as mentioned by the Court during the Trial, it is more than probable that both Rénovabec and Mr.

Signori arrive to the conclusion that the windows need replacement, not because of mercantile intentions, but because the windows just indeed, simply, need to be replaced. [ 69 ] That first delay of 7 months and some of the delays afterwards, because of the decisions to put aside not 1, not 2, but 3 opinions obtained, cannot be qualified as reasonably diligent. It cannot be said that the Defendants acted with celerity in the file. [ 70 ] That being said, the Plaintiffs did not cooperate, neither, in a diligent manner . [ 71 ]

Section 1478 CCQ does provide the following: 1478. Where an injury has been caused by several persons, liability is shared between them in proportion to the seriousness of the fault of each.

The victim is included in the apportionment when the injury is partly the effect of his own fault. [our emphasis] [ 72 ] The Plaintiff’s version of the events is partly erroneous. [ 73 ] The Plaintiff’s main argument against the Defendants is the delay taken by them to react and to correct the situation. [ 74 ] Dustin testifies that the problems have existed for 4 years. [ 75 ] In their claim, the Plaintiffs state that the Defendants have been told about the problematic since 2014. [16] [ 76 ] In a July 2016 email [17] , Mr.

Burke states that he approached Pierda regarding this problem in early 2015 . [ 77 ] During the Trial, when it becomes clear that the first contact is made by Mr. Burke on September 3 rd 2015 [18] , Mr. Burke mentions that it does not really matter, since “even 6 months is too long”, moreover 2 years or 4 years, whichever it is . [ 78 ] But the difficult cooperation from the Plaintiffs, notably from Mr. Burke who is directly mandated by Dustin to that effect, appears throughout the file, more notably:

i) The refusal of Mr. Burke to let Mr. Girard in for the inspection on April 7 th 2016, because of the presence of dinner guests, is quite baffling. Either the situation described by the Plaintiffs is important, and urgent, and needs and requires attention, or it is not the case. To refuse for the inspection at that time, even though a notice had been sent as to the time and date, is not, respectfully, reasonable in the circumstances.

At the very least, if a party acts in such manner, the correct way to proceed afterwards is to at least admit that this conduct has, in itself, generated further delays – delays that could have been avoided; ii) Mr. Burke tries to minimize such conduct stating that there “was no rush to proceed on that specific time and date”. This shows that Mr. Burke does not want the Defendants to establish, for him, a timetable for the visits. This conduct, in itself, added to already quite long delays; iii) Mr.

Burke’s propensity to proceed with judicial procedures is apparent and transpires from the Correspondence produced in evidence. It appeared also from Mr. Burke’s testimony; iv) Even though a judicial process has been launched, Mr. Burke, who is clearly very mistrustful towards the Defendants, refuses for a further inspection in the summer of 2017 and states, on February 21 st 2017 [19] the following: First let me point out that any inspection by Mr. Girard is pointless since my clients have already issued a statement of claim through the courts and fully intend to pursue that irregardless.

I sincerely hope that you are not under the impression that you replace the windows and everything is solved.

v) On July 28 th 2017 [20] , Mr. Burke – as to the offer for a further inspection – refuses and states: As per instructions from my client there will be no more inspections prior to the court appearance. That being said I see no benefit for my client and as far as the syndicate goes they have had three years to act on this problem. [ 79 ] In other words, either the Plaintiffs want the alleged problem to be solved or they do not want it solved.

Some of their behaviour seem more to point towards an unnecessary vindictive and “war path” conduct than anything else. [ 80 ] As to the collective decisions regarding the budget, the allocation of funds and the possibility to raise the monthly condo fees, those decisions are taken by the Syndicate’s co-owner’s assembly.

Section 1103 CCQ provides the method to attack those, as quoted hereinabove. The Plaintiffs have not duly tried to have those decisions quashed. [ 81 ] Following the analysis of all the evidence submitted to the Court in the current instance, the Court establishes that the liability for any damages suffered by the Plaintiffs has to be split in an equal manner between the parties. Consequently, the liability is established, under

section 1478 CCQ as being equal (50/50) between the Plaintiffs and the Defendants. [ 82 ] In other words, 50% of any damages awarded will have to be supported by the Plaintiffs themselves. THE DAMAGES SUFFERED AND PROVEN BY THE PLAINTIFFS [ 83 ] The Court first notes that the Defendants do recognize that the windows in question must be replaced. The Court duly takes note of that undertaking. [ 84 ] As mentioned earlier, the evidence submitted by the Plaintiffs as to the damages suffered was very succinct.

As mentioned by Dustin, it is an estimate, it is a number that we are “ throwing out there ”. [ 85 ] As established, sections 2803 and 2804 require preponderant evidence as to the damages actually suffered, even though general damages can be granted based on the evaluation of the entire evidence submitted to the Court. [ 86 ] That being said, and as it was established by the Defendants, any reimbursement of the amounts paid by the Plaintiffs for the monthly condo fees and for the emergency funds is ill- founded in the present circumstances.

Indeed, those fees and contributions do serve many purposes and to condemn the Defendants to reimburse such amounts is not appropriate nor justifiable. [ 87 ] Furthermore, there is no evidence produced by the Plaintiffs as to the higher electricity costs nor to the direct link of those to the Defendant’s alleged conduct. [ 88 ] As for the general (moral) damages claimed, it appeared clearly both from Dustin and Mr. Burke’s testimony, that those are the damages they are really after. [ 89 ] However, the Plaintiffs do not produce photos – or any specific evidence as to the alleged water infiltrations.

That being said, some of the evidence produced by the Defendants themselves do demonstrate that Rénovabec established clearly that some of the alleged problems are indeed real and thus, proven. Rénovabec does mention in its June 30 th 2016 email that: (…) le remplacement des fenêtres et de la porte patio doit se faire à court terme.

Il y a infiltration d’eau et d’air par la porte patio et les volets des fenêtres coulissantes sont presque tous courbés. [ 90 ] In light of the evidence submitted, as well as the various exchanges between the parties, the Court concludes that an amount of damages of 3 000$ is accurate, appropriate and reasonable

in the circumstances. [ 91 ] As mentioned before, that amount of damages will have to be divided equally because of the Plaintiff’s own 50% liability in the delays necessary to proceed, eventually, with the installation of new windows. [ 92 ] Consequently, the Defendants will be condemned to pay 1 500$ to the Plaintiffs. THE COURT COSTS [ 93 ] As to court costs, section 340(1) of the Civil code of procedure [21] provides the following: 340.

Legal costs are owed to the party that was successful, unless the court decides otherwise. [ 94 ] In the current instance, because of the rather mitigated result of the Application of the Plaintiffs, the Court determines that both parties will support their own court costs. FOR THOSE REASONS, THE COURT: GRANTS partially the Plaintiff’s claim; TAKES NOTE of the undertaking of the Defendants to replace windows in the Plaintiff’s condominium; CONDEMNS the Defendants, solidarily, to pay to the Plaintiffs an amount of 1 500$, with interests at the legal rate, and the special indemnity provided in

section 1619 of the Civil Code of Québec , starting from December 20 th 2016 [22] ; THE WHOLE , both parties assuming their own court costs. __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: August 30th 2017.