2018 QCCQ 7507, 2018 QCCQ 7507

Qian c. Chen 2018 QCCQ 7507 COURT OF QUEBEC “ Small Claims Division “ CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “ Civil Division “ No: 500-32-700058-169 DATE: October 11, 2018 ______________________________________________________________________ BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ WEIXIAN QIAN -and- YULEI HUANG Plaintiffs v. YIXIN CHEN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Qian and Ms. Huang hired Mr.

Chen to perform a pre-purchase inspection of their house, which he did on June 1, 2014 [1] . They are suing him for damages in the amount of $12,695.48 [2] , on account of his failure to advise them of defects affecting the house. [ 2 ] These damages breakdown as follows: 2.1. Damages caused by a leaking bathtub: $9,524.48 [3] 2.2. Replacement of a broken kitchen drain and vent pipe: $1,356.70 [4] 2.3. Replacement of a kitchen counter: $1,814.30 [5] [ 3 ] Initially, Mr. Qian and Ms.

Huang also sought a compensation in the amount of $874.00 to repair a backyard fence, and unquantified damages relating to a cracked foundation wall. At trial, they admitted that they had no evidence to support these items and waived that portion of their claim. [ 4 ] Mr. Chen produces pictures of the bathtub that he took when he went back to verify the plaintiffs’ allegations in August 2014. These pictures show that the plaintiffs have patched the bathtub with what looks like a piece of duct tape. Mr.

Chen testifies that there was a tiny hole in the bathtub, of approximately 1/20 of an inch, when he examined it in August. However, he is adamant that this hole was not there when he carried out the inspection in June. As part of his inspection, he filled the tub with water and it did not leak. [ 5 ] Likewise, he denies that the toilet downstairs was cracked at the time of his inspection. [ 6 ] As regards the kitchen drain and vent pipe, he remembers running the kitchen faucet during his inspection to ensure that no water leaked underneath the kitchen sink. This verification revealed no anomaly.

The situation was the same when he verified it again in August. [ 7 ] Finally, Mr. Chen questions the plaintiffs’ claim regarding the kitchen counter. He observes that logically, water leaking from underneath the sink cannot damage the countertop above. Further, a damaged countertop is plainly visible. As such, it does not need to be addressed or commented in an inspection report [6] . ANALYSIS [ 8 ] To establish Mr. Chen’s liability, the plaintiffs rely heavily on emails from representatives of his professional insurer, which contain offers to settle their claim herein [7] .

These emails were explicitly sent without prejudice, and clearly with a view to reaching a settlement, obviously to no avail. They are therefore inadmissible [8] . [ 9 ] As regards the leaking bathtub, Ms. Huang testified that the hole causing the leak was so small that it was not visible to the naked eye. As a result, even if this hole existed in June 2014, it is not covered by the scope of Mr.

Chen’s inspection [9] . [ 10 ] As regards the toilet downstairs, the plaintiffs have produced no quotation or other proof of what it would cost to fix or replace it, nor have they testified as to what damages this crack has caused. [ 11 ] As regards the kitchen drain and vent pipe, the quotation filed by the plaintiffs shows that in order to identify the problem, a

camera inspection was carried out, and that it will be necessary to open the ceiling and the wall to repair it. This demonstrates that this defect was not perceivable without an intrusive investigation, which, again, exceeds the scope of Mr. Chen’s mandate. [ 12 ] The damaged countertop, however, was not mentioned in Mr. Chen’s report. While a hidden defect need not be identified pursuant to a visual, non-intrusive inspection, a visible one must be. Whether or not the countertop was damaged by water leaking from underneath the sink is not relevant.

FOR THESE REASONS, THE COURT: GRANTS the action, in part; CONDEMNS Yixin Chen to pay to Weixian Qian and Yulei Huang the amount of $1,814.30 with interest at the legal rate and the additional indemnity provided by

article 1619 of the Civil Code of Quebec , to accrue from November 24, 2016, with costs in the amount of $200.00. __________________________________ VINCENZO PIAZZA, J.C.Q. Date of hearing: June 11, 2018