2011 QCCQ 14990, 2011 QCCQ 14990

Modlmayer c. Rodimax inc. 2011 QCCQ 14990 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-123552-103 DATE: November 16, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Chris MODLMAYER […] St-Laurent (Québec) […] Plaintiff v.

RODIMAX INC. and MAISONS DE VILLE DU NOUVEAU SAINT-LAURENT 1600, Henri-Bourassa Ouest, #600 Montréal (Québec) H3M 3E2 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from defendants the sum of $2 466.00 in reimbursement of costs he will have to assume in the future as a result of the construction of a condominium unit purchased by him and sold to him by Defendant, Maisons de Ville du Nouveau Saint- Laurent (Maisons de Ville). [ 2 ] More particularly, Plaintiff alleges that Defendant, Maisons de Ville, did not build the condominium unit according to the plans agreed upon. [ 3 ] In the action instituted against Defendants, Plaintiff describes the cause of action as follows: « Defendant, in constructing plaintiff's house, failed to follow the agreed upon plans and built a bulkhead in the walk-in closet, located on the 2 nd floor in the master bedroom.

This bulkhead effectively prevented any clothes rails or other shelving from being installed on the adjacent wall, reducing the usable hanging space by almost half. A solution was found to be acceptable by both parties, wherein the defendant would remove the bulkhead and move its contents (HVAC tubes) into the adjacent wall, however defendant then refused to perform the work or correct the problem. Plaintiff seeks recompense for the parts and labour required to have an independent contractor perform the work. » [ 4 ] Defendant, Rodimax Inc., contests Plaintiff action alleging the following: « 1.

La compagnie Rodimax Inc. n'a jamais été en relation d'affaires avec le demandeur. 2. La compagnie n'a jamais construit ni vendu l'habitation à la demanderesse. » [ 5 ] Defendant, Maisons de Ville, contests Plaintiff action. In his contestation, its states the following: «1. Le client connaissait les faits lors de la construction de son unité d'habitation. 2. Lors de l'inspection avant livraison aucune mention aux déficiences à cet effet fut notée. 3.

Le client a pris possession de son unité sans autre question. » [ 6 ] The evidence adduced at trial has revealed that Plaintiff purchased a condominium unit "on plans" to be constructed and sold by Defendant, Maisons de Ville.

[ 7 ] The contract of sale concluded between the parties is dated November 1 st , 2007 for the price of $305,000.00. [ 8 ] According to the plans agreed upon between the parties, a walk-in closet located on the second floor in the master bedroom was to be built. This closet was to measure 5'11'' by 6'. [ 9 ] However, during the construction, Defendant, Maisons de Ville, was advised that Plaintiff requested a central air conditioning and heating system.

This being so, Defendant, Maisons de Ville, realized that the heating and air conditioning ducts had to be installed in such a manner as part of the space allocated to the closet would be lost. [ 10 ] Discussions between Plaintiff and Mrs Sonia Cusson, representative of Defendant, Maisons de Ville, did take place on this issue on various occasions the object of the said discussions being to find a satisfactory solution to the problem.

However, although different solutions were discussed, no resolution to the problem was arrived at between the parties. [ 11 ] Following the above mentioned discussions and the exchange of emails, a meeting was held between the parties on September 15, 2008, at which time, the issue of the closet area was once again discussed. [ 12 ] According to Mr.

Aldo Di Zazzo, superintendent of Defendant, Maisons de Ville, he was willing to build a second wall in front of the first wall of the closet so as the hide the pipes of the heating and air conditioning system. [ 13 ] According to Plaintiff, Defendant, Maisons de Ville, ultimately decided against the solution which, according to Mrs Sonia Cusson, was also refused by Plaintiff. [ 14 ] Subsequently, on September 30, 2008, Plaintiff sent Mrs Cusson an email where he wrote the following: « As we discussed yesterday on site, here is a list of items that we would like addressed before delivery.

Please let me know if you have any questions. 1. The HVAC pipes in the walk-in closet must be rearranged to maximize interior space. Your architect seemed to feel that building a second wall in front of the first in the master bedroom was the easiest solution, effectively doubling the thickness of the wall and providing enough space for the pipes. This would be quite acceptable as long as my inspector okays it and as long as the new wall is straight and meets smoothly with the existing structure at either end. Aldo has refused to do the changes that you, the architect and I agreed on.

I'm not happy about this but there's not much I can do. Please make sure the closet organizer installs the standard hangar on the RIGHT WALL ONLY, not on the back wall. (…) » [ 15 ] According to the testimony of Mr.

Guido Di Zazzo, vice-president of Defendants, prospective clients such as Plaintiff were advised that the area and the dimensions indicated on the plans could vary during the construction in order to compensate for necessary adjustments requested by structural, mechanical and electrical equipment. [ 16 ] In this regard, in the plans filed in Court (exhibit P-4), the following note is included: « note generale : les superficies et les dimensions indiquees au plan peuvent varier legerement lors de la construction afin de s'ajuster aux nombreuses conditions de chantier tel que dimensions standardise des manifacturiers, structure, passage de la mecanique et de l'electricite… » (sic) [ 17 ] On December 2, 2008, the condominium unit was delivered to Plaintiff and a deficiency list was then drafted (exhibit P-1).

On this list, notwithstanding the fact that the closet that was built was not to the satisfaction of Plaintiff, he did not mention this fact on the said deficiency list. [ 18 ] Furthermore, between December 2, 2008 and the signing of the deed of sale in February 2009, Plaintiff did not advise Defendant that he was holding it liable for the damages allegedly sustained by him as a result of the loss of area of the closet built.

In fact, he waited until September 28, 2009 to send his first letter of demand to Defendants (exhibit P-8). [ 19 ] This being so, considering that Plaintiff did not list the deficiency relating to the closet area in the deficiency list (exhibit D- 1), considering that his first letter of demand on this issue was sent on September 28, 2009 and considering the ''general note'' included in the plans advising him that the area and dimensions indicated therein could vary, the Court concludes that the problem of loss of area of the closet is not a ''deficiency''. [ 20 ] Furthermore, the Court also concludes that the said problem is not a latent defect pursuant to

article 1726 of the Civil Code of Quebec . [ 21 ] Finally, as the plans that were drafted for the construction of the unit indicate that the area and dimensions could be adjusted as a result of the project conditions relating to the structure and mechanical and electrical equipment, the Court is of the opinion that the problem relating to the loss of area of the closet is not one which is of such importance as to render Defendant, Maisons de Ville, liable for the damages allegedly sustain. [ 22 ] On this issue, the Court refers the parties to

article 1720 of the Civil Code of Quebec which states the following: « The seller is bound to deliver the area, contents or quantity specified in the contract, whether the sale was made for a price based on measurements or for a flat price, unless it is obvious that the certain and determinate property was sold without regard to such area, contents or quantity . »

[ 23 ] In the present case, although Plaintiff testified that the area allotted to the closet in the plans was a importance to him, the preponderance of the evidence is such that the Court concludes that the condominium unit was sold without regard to the precise area of the closet. [ 24 ] Finally, as the evidence has revealed that Defendant, Rodimax Inc., is not the builder or vendor of the house, the action against it will also be dismissed. FOR THE FOREGOING REASONS, THE COURT: DISMISSES the action instituted by Plaintiff against both Defendants, without costs. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: October 25, 2011.