2017 QCCQ 1743, 2017 QCCQ 1743

Adrien c. Acadia Apartments Inc. 2017 QCCQ 1743 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-22-222277-157 DATE: March 3, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ DOMINIQUE ADRIEN Plaintiff v. ACADIA APARTMENTS INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Dominique Adrien is suing Acadia Apartments Inc. ( Acadia ), a residential cooperative, for damages of $45,000 on the basis of loss of value of her coop unit as a result of work carried out by the administration of Acadia. The work involved the construction of an underground garage for the coop owners.

This work caused the raising of the level of the grade of the ground situated in the back of Plaintiff’s coop unit. [ 2 ] The work was completed in either 2003 or 2004. Ms. Adrien complains that the work done, in particular the raising of the grade, had a negative esthetic impact on the window view at the back of her unit on the interior lane. [ 3 ] At the time of the work Ms. Adrien made complaints to the Acadia administration but its representatives were unresponsive. In 2014, some ten years after the completion of the work, Ms.

Adrien put her coop unit up for sale. [ 4 ] She was disappointed with the response of potential buyers. She contends that the low level of buyer interest is caused by the “ugly and unsightly” view from her back windows. [ 5 ] In June 2015, she instituted the present legal proceedings claiming $45,000 as compensatory damages. Acadia denies any liability and states that, in any event, Ms. Adrien’s claim is prescribed. Questions in issue 1) Is Ms. Adrien’s claim prescribed? 2) If not, is Acadia liable for damages claimed by her? 3) If so, what are the damages suffered by Ms. Adrien? Context

[ 6 ] The Acadia is an eleven (11) storey residential cooperative building located in downtown Montreal on Sherbrooke Street. It contains fifty-five (56) units. Under the rules of the cooperative, owners acquire shares in the company that owns the building and acquire proprietary leases allowing them to occupy designated units. The Acquisition by Dominique Adrien of Her Unit [ 7 ] In December 2002, Dominique Adrien acquired Unit 11 of the Acadia. Her unit is situated on the ground floor of the building [1] .

She also acquired, for a supplemental charge, a garage space in the underground parking, the building of which was underway but not completed at the time. The work involved for the underground parking garage had begun in August 2002. [ 8 ] Ms. Adrien states that before or contemporaneous to the purchase of her unit, she was given by the previous owner of the unit or her real estate agent a document dated April 2000 entitled “Alternative Uses of the Property at […].” [2] . The document was prepared by the “Ad Hoc Committee Investigating Uses for […].”. [ 9 ] Ms.

Adrien states that she was told before the purchase that the illustrations in the document reflected the plan of the administration. In particular, she invokes the illustration on the front cover of the document as being representations and promises made by the Acadia administration as to the intended final result of the configuration in the area located in the interior alley adjacent to the back of her ground level unit. [ 10 ] There is no proof that the administration or any of its representatives made any such representations or promises to Ms.

Adrien. [ 11 ] In fact, the administration of the Acadia, represented at all relevant times by Mr.

Dany Fry, General Manager, denies that this document was ever prepared or intended to present a final plan for the intended configuration of the areas after the completion of the work for the underground parking. [ 12 ] The actual written text of the document supports its tentative nature which is consistent with the title of the document, namely a “Report on Options for the Disposition of the Property”. [ 13 ] According to the report, the mandate of the committee charged with its preparation was as follows: “The mandate of the Committee shall be to conduct a study, on the possible use and development of the House, located at 3418 Drummond, property of Acadia Apartments.

It will also investigate, the feasibility of a future garage, to be built under the pre-mentioned house, the lane and the space behind the Acadia building, presently used as visitors parking.” [3] [ 14 ] It is therefore clear, for anybody reading the report, that it was a proposal only. Mr. Fry testified that this report was only the preliminary result of a consultative process.

Many of its recommendations were not retained for reasons of costs, technical difficulty, legal issues or overall feasibility. [ 15 ] The eventual architecture and engineering plans, which Plaintiff had an opportunity to examine during the trial, did not adopt this proposed configuration, in particular with respect to the proposed landscaped garden surrounded by hedges in the lane. [ 16 ] Ms. Adrien did not attend the closing of the purchase transaction herself. She mandated, by power of attorney, an attorney to sign the closing documents on her behalf. [ 17 ] Ms.

Adrien is a banking/financial sector executive with a MBA.

[ 18 ] During the period from the acquisition in 2002 to 2007, she was regularly traveling back and forth from Montreal to the Bahamas. During this period, she would return to Montreal approximately every two (2) months and would only stay less than a week. Since approximately 2007, she resides in her unit on a permanent basis.

The Underground Garage Project [ 19 ] The construction of the underground garage was a large, complicated and technically difficult project, which required massive excavations under existing heritage century-old buildings which had to be held aloft by steel stilts [4] . [ 20 ] As mentioned, the project started in August 2002. It appears to have been completed in late 2003 or at the latest, early 2004. On May 31, 2004, Ms. Adrien received a certificate confirming her ownership of one of the underground parking spots [5] . [ 21 ] During the construction, Ms.

Adrien states that she was aware that the grade of the land in the alley at the back of her apartment was getting higher. That grade corresponded in general to the ceiling of the underground garage. [ 22 ] Ms. Adrien states that in 2003, she went to see Mr. Fry about what she perceived as the increasing height of the grade. [ 23 ] She states that Mr. Fry was reassuring and stated that there was nothing to worry about. Mr. Fry denies this. [ 24 ] After the work was completed, she is of the view that the final level of grade was much higher than in 2002. [ 25 ] In her legal proceedings, Ms.

Adrien alleges that, before the work and at the time of purchase, the height between the grade of the land and her back windows was approximately “three (3) to four (4) feet”. [ 26 ] She alleges that, after the work was completed, those windows were only “an inch or so above the ground”. [ 27 ] However, in her testimony, Ms. Adrien stated that before the work the height distance was approximately 2 ½ feet and that the current situation is that the windows are only 5 or 6 inches above. [ 28 ] Ms.

Adrien produced many photographs showing the present conditions [6] but no photographs showing the state of the configuration before or during the construction work. [ 29 ] Acadia adduced into evidence photographs of the general area of the lane before the work [7] . According to Mr. Fry’s evaluation of those photographs, the height distance prior to the beginning of construction of the underground parking project, was never more than one foot between the ground and the bottom of the windows in issue [8] . [ 30 ] After the work was completed, Ms.

Adrien complained about various other aspects of the final construction work that displeased her and that she felt were not in conformity to her understanding of the intended final result of the work. In particular, she complained that the final result was, with respect to the view from her unit, “ugly and unsightly”. In particular, she complained about: – the reduced height of the windows from the ground; – the installation of a fire exit door adjacent to the unit’s second bedroom, and that such installation caused an increase in the movement of persons close to her unit and noise;

– the area outside of her unit’s master bedroom was not terraced or landscaped resulting in an appearance that was unsightly; – the two parking spaces in the lane to the right of her unit’s master bedroom window were used by visitors and trade persons, which added noise in the proximity of her unit. [ 31 ] The administration of the Acadia was in general not responsive to Ms. Adrien’s complaints. [ 32 ] The administration took the position that it had made no promises to Ms. Adrien and denied any liability for the appearance of the interior lane. It took the position that Ms.

Adrien’s complaints constituted normal inconveniences of any person owning a ground floor unit. In particular, its representative stated that the parking spaces in issue had been present and used for such purpose well before the underground parking construction project was commenced. [ 33 ] Nevertheless, in 2006, to accommodate Ms. Adrien, the Acadia administration built a 20 foot flower box made of stone opposite Ms. Adrien’s back window in order to improve that view. The administration has planted flowers in the box every year [9] .

That was all the administration of the Acadia was prepared to do. [ 34 ] Therefore, after 2006, nothing more was done. [ 35 ] In the face of the Acadia administration’s denial of responsibility and refusal to do anything further with regard to her complaints, Ms. Adrien decided not to pursue the matter. [ 36 ] In Ms.

Adrien’s Judicial Demand, she summarized her own position at the time: “that finally, Plaintiff grew weary of complaining and resigned herself to living in the Unit without a garden and/or fence”. [10] Putting the Unit Up for Sale [ 37 ] In July 2014, ten years after the completion of the construction of the underground parking and eight (8) years after Ms. Adrien had decided not to pursue her complaints further, Ms. Adrien decided to put her unit up for sale [11] . [ 38 ] Upon the examination of the premises, the agents immediately told Ms.

Adrien that, as the unit was on the ground floor, the less than esthetic view on the alley or interior lane from the back of the unit would have a negative impact on the sale price and potential buyers’ interest in the unit. [ 39 ] Although there were many visits, Ms. Adrien testified that potential buyers were put off by the back view of the unit on the alley. Also, they were put off by the lack of height between the bottom of the back windows and the grade of the ground. Ms. Adrien testified that potential buyers felt that this gave a feeling of a semi-basement to the rooms in the back of the unit. [ 40 ] Ms.

Adrien takes the position that her unit would have a minimum fair market value of $630,000 were it not for the lack of height between the back windows relative to the ground level and the absence of a garden terrace in the back alley. [ 41 ] As the best offer that she has received is $585,000, she submits that Acadia’s various faults with respect to her have caused her damages of $45,000. [ 42 ] In September 2014, Ms.

Adrien advised the Acadia of the lack of interest of potential buyers in her unit and requested that work be undertaken to improve the view from the back windows or, alternatively, that she obtain financial compensation [12] .

[ 43 ] In November 2014, Acadia refused to accede to her requests [13] . [ 44 ] As previously mentioned, in June 2015, Ms. Adrien instituted the present legal proceedings. The first conclusions of the Judicial Demand at that time requested that the Court order the execution of the work envisaged in the April 2000 “Alternative Uses” report [14] . At the morning of the trial, the attorney of Ms. Adrien abandoned that conclusion and requested to proceed only on her request for monetary compensation of $45,000 in damages. Analysis and Decision Is Ms.

Adrien’s claim prescribed? [ 45 ] It is common ground that the prescription period that would be applicable to Ms. Adrien’s claim is three years, in accordance with

Article 2925 of the Civil Code of Quebec ( C.C.Q. ). [ 46 ] The Court must determine when the three year deadline began to run. [ 47 ] Article 2880 (2) C.C.Q. reads as follows: 2880(2). Le jour où le droit d’action a pris naissance fixe le point de départ de la prescription extinctive. 2880(2). The day on which the right of action arises determines the beginning of the period of extinctive prescription. The prescription deadline of three years began to run when Ms.

Adrien’s right of action arose. [ 48 ] According to the jurisprudence [15] and doctrine [16] , the right of action arises on the first day that the creditor of a claim is aware of: 1) the damages or the circumstances giving rise to the injury; 2) the identity of the person responsible for said damages; 3) the causal link between the two. [ 49 ] The law is clear that the knowledge of the damages is evaluated according to an objective test. It is not a subjective test. Therefore, the deadline begins to run when a reasonable person would have known of the confluence of the above factors. [ 50 ] Ms.

Adrien acknowledges that she does not invoke or plead any causes of suspension or interruption of prescription before the legal proceedings were deposited into Court in June 2015. [ 51 ] According to the objective analysis of the evidence, Ms. Adrien had knowledge of these three factors in 2006 when she became aware that Acadia would not carry out further work to address her complaints. [ 52 ] Ms. Adrien’s counsel argues that Ms. Adrien could not have sued in 2006 since she could not have requested at that time an

order that corrective work be undertaken. [ 53 ] With respect, the Court does not agree. There was no reason why a claim for work or other compensation could not have been made at that time. It may well be that such a claim might not have been well founded in fact on the basis that there was no contractual or extracontractual fault on the part of Acadia. But that is another issue. [ 54 ] Ms.

Adrien’s counsel also submits that she could not have instituted in 2006 a claim for financial damages since the property had not yet been put on the market. [ 55 ] The Court also disagrees with that submission. [ 56 ] There is no reason why Ms. Adrien could not have hired a real estate appraiser or a real estate agent to prepare a report documenting the alleged reduction of the fair market value of her unit caused by her complaints. [ 57 ] The reasons behind Ms. Adrien’s claim regarding the alleged loss of value to her unit have not changed since 2004 at the earliest or 2006 at the latest.

She was fully aware of these complaints at that time. She in fact complained at the time that these factors made the view from the back windows of her unit “ugly and unsightly”. [ 58 ] For gradual damages, the start of the deadline only runs from the time when the full extent of the damages are known [17] . [ 59 ] In the present case, the full extent of the damages were known when Acadia refused to accede to Plaintiff’s requests beyond the building of a flower bed in 2006. [ 60 ] Accordingly, Ms. Adrien’s legal recourse against Acadia arose at the very latest in 2006.

She decided, as she alleges herself in her proceedings, not to contest Acadia’s denial and refusal to address her concerns. She “resigned herself” to the view of the physical configuration of the lane in the back of her unit. [ 61 ] Accordingly, Ms. Adrien’s legal claim was extinguished by prescription at the latest in 2009. [ 62 ] As her legal proceedings were instituted six (6) and one half years later, namely in June 2015, her claim is prescribed. If not, is Acadia liable for damages claimed by her? [ 63 ] As the Court has concluded that Ms.

Adrien’s claim is prescribed, it is not necessary for the Court to respond to this question. However, even had the Court come to a different conclusion on the first question, there is insufficient evidence to support a finding of liability on the part of Acadia. [ 64 ] Ms. Adrien’s entire case was based upon the premise that Acadia had represented to her that the illustrations found in the April 2000 “Alternative Uses” Report [18] would be implemented. [ 65 ] Plaintiff has failed to establish that premise. The preponderance of the evidence instead showed that that report only issued tentative options.

Some were maintained, others were discarded. [ 66 ] More fundamentally, there was no proof that any representative of Acadia ever made any representations to Ms. Adrien regarding the binding nature of the options suggested in that report. Any representations would have been made by either Ms. Adrien’s

seller of the unit or Ms. Adrien’s real estate agent, neither of whom were called as a witness and neither of whom were sued as Defendants. In her e-mail of September 29, 2014 [19] , Ms. Adrien stated herself that those representations were made by her real estate agent. If so, what are the damages suffered by Ms. Adrien? [ 67 ] In light of the Court’s answers to the two previous questions, it is not necessary to answer this question. However, the Court notes that Ms.

Adrien did not discharge the burden of proof regarding damages suffered. [ 68 ] It would have been simple enough to have filed a report of a real estate agent or preferably a real estate appraiser establishing that Ms.

Adrien’s unit had a reduced value based upon the alleged faults of Acadia to carrying out certain work. [ 69 ] No such report was filed. [ 70 ] Plaintiff’s counsel called to testify the real estate agents involved in her present efforts to sell her unit. [ 71 ] The Court allowed certain evidence in this regard on the grounds of proportionality. [ 72 ] But in the end, there was insufficient evidence to discharge Plaintiff’s burden of proof to establish damages which were certain and directly attributable to the factors complained of by Ms. Adrien. Legal Costs [ 73 ] The Court will dismiss Ms.

Adrien’s claim on the basis of prescription. Defendant did not present a preliminary motion to dismiss Ms. Adrien’s legal proceeding on the basis of prescription, which could have avoided a trial. The court will therefore dismiss Plaintiff’s claim, without legal costs. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s Judicial Demand; WITHOUT legal costs. __________________________________ Jeffrey Edwards, J.C.Q. Me Marissa Frishman Levine Frishman Lancry Attorneys for Plaintiff

Me Carmine Mercadante Mercadante Di Pace Attorneys for Defendant Date of hearing: October 26 and 27, 2016 Request of parties to suspend deliberation: October 27 to December 9, 2016 Case taken under advisement: December 9, 2016