2017 QCCQ 8818, 2017 QCCQ 8818

Shaaban c. Desjardins Assurances générales inc. 2017 QCCQ 8818 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal CITY Of montreal Civil Division No: 500-32- 151973-163 DATE: August 1, 2017 ______________________________________________________________________ BY THE HONOURABLE catherine pilon J.C.Q. ______________________________________________________________________ AHMED SHAABAN and ELBABLY SAMAH Plaintiffs v. DESJARDINS ASSURANCES GÉNÉRALES INC .

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs Ahmed Shaaban ("Mr. Shaaban") and Samah Elbably (“Ms. Elbably") claim $12,000 from the Defendant Desjardins Assurances Générales Inc. ("Desjardins") for damages to a building they own which would be covered by their insurance with Desjardins. [ 2 ] Desjardins contests this claim which, in its view, falls within exclusions of coverage contained in the insurance policy. The question at issue - Do the damages claimed by Mr.

Shaaban and Ms. Elbably fall within the scope of the exclusions contained in their insurance policy with Desjardins? The facts [ 3 ] Mr. Shaaban and Ms. Elbably purchase a three-apartment residential rental building in Châteauguay in August 2013 (the “Building”). [ 4 ] In the course of 2014, while it is insured with another insurer, the Building suffers damages caused by water leakage from the roof. [ 5 ] From June 1, 2015, to June 1, 2016, the Building is covered by an owners property insurance policy with Desjardins (the “Policy”).

The Policy contains the following exclusions: (7) loss or damage caused by wear and tear, deterioration, defect or mechanical, electrical or electronic breakdown or disturbance, rust or corrosion, dampness of atmosphere, extremes of temperature, wet or dry rot, fungi or spores, but resulting damage to other property caused by a peril not otherwise excluded is insured. (….) (10) settling, expansion, contraction, moving, bulging, buckling or cracking of any insured property, except resulting damage to building glass. (…)

(16) water damage : - caused by continuous or repeated seepage, leakage, discharge or overflow of water. (…) [ 6 ] Mr. Shaaban and Ms. Elbably also purchase an endorsement to cover water damage which is otherwise excluded by the Policy. This endorsement (#42) provides additional coverage for “sudden and accidental loss” caused by water. It also contains exclusions including for “loss or damage caused by continuous or repeated entrance or seepage of rain or snow” and “loss or damage caused by wear and tear, deterioration, defect or mechanical (…) breakdown (…), rust or corrosion, dampness of atmosphere (…)”.

Resulting damage, if it is not covered by other exclusions, is insured. [ 7 ] On December 20, 2015, a tenant calls Mr. Shaaban to advise that the higher part of the outside brick wall in front of the Building is bulging. Andrew Edery ("Mr. Edery"), the expert who testified on behalf of Mr. Shaaban and Ms. Elbably, refers to this as a "ventre de boeuf". [ 8 ] Mr. Shaaban attends to the Building and calls Desjardins which sends an adjuster the same day. The adjuster advises Mr.

Shaaban that the masonry risks collapsing, that he should secure the area, and that he should hire a contractor to remove the masonry which has detached from the wall. Mr. Shaaban does not pursue this recommendation. He is concerned that any repairs could lead to a spoliation of the evidence of the cause of the damages. He also wants to wait for Desjardins’ position with respect to coverage before undertaking any work. [ 9 ] A city inspector visits the premises on December 20, 2015, and also advises Mr. Shaaban to remove the masonry which poses a threat of collapsing. [ 10 ] Mr.

Shaaban calls Desjardins on a few occasions in the following weeks asking for its position. He is told that they are looking into it. [ 11 ] On January 13, 2016, the City of Montreal issues a ticket to Mr. Shaaban for not having taken necessary steps to correct a dangerous condition in relation to the Building, and fines him $ 491. Mr. Shaaban has pleaded not guilty to this offence for which the hearing has not yet been set. [ 12 ] Maçonnerie Héritage provides an estimate of $ 8,623.13 addressed to Mr. Shaaban for the work to be done to remove the masonry and rebuild it with new anchors.

The estimate, dated January 19, 2016, also indicates that the wall should be repaired urgently. [ 13 ] On January 20, 2016, Mr. Edery, an engineer specialized in materials, inspects the Building and prepares a report at the request of Mr. Shaaban and Ms. Elbably. He concludes that the “ventre de boeuf” is likely caused by a deterioration of the anchoring between the wall and the masonry as a result of exposure to humidity and corrosion of the anchors.

He advises that the state of the masonry poses an imminent threat and further recommends that the wall be repaired immediately. [ 14 ] The brick wall collapses partly on January 28, 2016. One glass window is broken. Luckily, no one is injured. [ 15 ] Also on January 28, 2016, Mr. Shaaban and Ms. Elbably send Desjardins a demand letter through their attorney. They request permission to repair the wall and indemnification of the repair costs under the policy. [ 16 ] Desjardins advises Mr.

Shaaban on March 2, 2016, that the damages are excluded from coverage under the Policy based on a number of exclusions, including exclusions 7, 10, and 16.1 cited above. [ 17 ] Desjardins produces a report from Eric Tremblay, engineer, dated May 18, 2016. Mr. Tremblay visited the premises on January 13 and 29, 2016. He mentions that Mr. Shaaban was present during both his inspections, and that in particular, he advised Mr. Shaaban on January 13 to secure the area and to dismantle the affected masonry as soon as possible. He concludes similarly to Mr.

Edery that the anchors are corroded, and that the wall presents signs of humidity. He additionally notes that the masonry does not present weep holes which would have allowed condensation to escape, the whole in violation of the provisions of the National Building Code . [ 18 ] Mr. Shaaban files an invoice of $1,217.49 for replacement of the brick. No proof of payment of the work itself, as per the estimate of Maçonnerie Héritage, is presented, nor for the replacement cost of the broken window.

Analysis and decision [ 19 ] In insurance law, the insurer bears the burden of proof to adduce evidence that a particular exclusion contained in a policy applies the damages claimed by its insured. [ 20 ] In addition, pursuant to

article 2480 of the Civil Code of Quebec , the insurer must properly and clearly identify any exclusions in the insurance policy which do not result from the ordinary meaning of words: 2480 .

In addition to the particulars prescribed for insurance policies generally, an indication shall be made in a property insurance policy of any exclusion of coverage not resulting from the ordinary meaning of the words or any limitation of coverage applying to specified objects or classes of objects, specifying the conditions on which the contract may be cancelled by the insured, as well as those on which the insurance may be reinstated or continued after a loss. [ 21 ] The following facts appear from the evidence and are undisputed:

a) The masonry was attached to the wall with anchors;

b) There was accumulated humidity between the wall and the masonry;

c) This humidity caused the anchors to be corroded and the masonry to expand;

d) The masonry detached itself from the wall causing a “ventre de boeuf”. [ 22 ] Exclusion #7 of the Policy does not contain any ambiguity. It excludes damages caused by wear and tear, deterioration, rust and corrosion, or dampness of atmosphere. Both corrosion and humidity (dampness) are the more probable cause of the damages according to the experts of both parties and led to a deterioration of the wall. This suffices to conclude that the damages were excluded from coverage under the Policy. [ 23 ] However, other exclusions also apply to the damages claimed by Mr. Shaaban and Ms.

Elbably, namely exclusion #10 with respect to expansion and bulging, except for resulting damage to building glass, and exclusion #16 with respect to water damage caused by continuous or repeated seepage of leakage. Given the factual findings, mentioned above, i.e. bulging and expansion and exposure to humidity, these exclusions also apply to the damages. The cost of repairing the broken window, a damage resulting from the incident, was covered under the Policy, but Mr. Shaaban and Ms. Elbably failed to adduce evidence of this cost. [ 24 ] Mr. Shaaban and Mrs.

Elbably purchased additional coverage through endorsement #42 and felt that damages should be covered by this endorsement. The purpose of this coverage is to provide protection for sudden or accidental damage caused by water. It is consistent, and clearly stated, that this additional coverage is subject to the other exclusions of the Policy, including deterioration, rust or corrosion, and dampness. Based on the evidence adduced at trial, including the water leakage only a year before, the Court finds that the presence of humidity which caused the anchors to corrode was not sudden nor accidental.

The damages are therefore also excluded from coverage under the endorsement. FOR THESE REASONS, THE COURT : DISMISSES the Application of the Plaintiffs; CONDEMNS the Plaintiffs to pay the Defendant the costs of 300$. __________________________________ CATHERINE PILON, j.c.q. Date of hearing: July 5, 2017