2017 QCCQ 2235, 2017 QCCQ 2235

Aviva, compagnie d'assurances du Canada c. White 2017 QCCQ 2235 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146160-157 DATE: January 25, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ AVIVA, COMPAGNIE D’ASSURANCE DU CANADA Plaintiff v.

RYAN WHITE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Aviva, Compagnie d’assurance du Canada (“ Aviva ”) claims from Defendant an amount of $6,462.48 following water damage sustained in a condominium that he rented in January 2013 (the “ Condominium ”). [ 2 ] Aviva indemnified its insured, the Syndicate of co-owners of the building in which the Condominium is situated, for the damage caused to the common portions of the building and was subrogated in the Syndicate’s rights.

It claims that Defendant is responsible for the damage because he left a patio door open after leaving the Condominium in very cold weather and this caused pipes to freeze and burst resulting in significant damage. [ 3 ] Defendant denies any liability. He claims that he vacated the Condominium before the damage was sustained and is adamant that all windows and doors were closed when he did. question in issue [ 4 ] The case turns on a single question, namely whether Plaintiff has proven that Defendant left the patio door open when he vacated the Condominium.

FACTUAL CONTEXT [ 5 ] In January 2013, Defendant was looking for an apartment to rent in Montreal for a period of six months. As a professional hockey player playing for the Montreal Canadiens at the time, privacy and discretion were important to him. [ 6 ] Defendant visited the Condominium in the presence of his real estate agent, Mr. John Garino, as well as the owner’s real estate agent from Relo Montréal, Mr. Nicolas Fortin. During this visit, Defendant specifically asked if the Condominium was for sale and was told that it was not.

He agreed to lease it and moved in on or around January 25, 2013, although the dishwasher and refrigerator had not yet been installed following renovations. [ 7 ] When the appliances were being installed on January 31, 2013, Defendant met with the owner, Mr. Amir Georges Sabongui, who advised him that the Condominium was for sale. Defendant immediately stated that he did not feel comfortable with this, as he did not want visitors in the Condominium in his absence. According to Defendant, Mr. Sabongui understood and offered to terminate the lease agreement and reimburse the amounts he had paid.

Defendant said that he would “sleep on it”. [ 8 ] The next morning, Defendant decided that he did not want to stay in the Condominium under those circumstances. He immediately packed up his belongings with the help of his parents. [ 9 ] Later in the day on February 1, 2013, Defendant, accompanied by his parents and his real estate agent Mr. Garino, walked through the Condominium to ensure that the premises were clean and that nothing was left behind. Defendant and his parents left the premises while Mr. Garino was doing a second walk-through. Defendant gave the keys to Mr.

Garino, who was to leave them in the Condominium, but he did not, preferring to return them in person. [ 10 ] On February 2, 2013, after being advised that neighbors were complaining of cold coming from the Condominium, Mr. Sabongui called Mr. Garino and asked him to meet him at the Condominium.

They entered the Condominium together and saw that the door to the back garden was open and that the extremely cold outside temperature had caused the pipes of the sprinkler system to freeze and burst, causing serious damage to the walls and furnishings. [ 11 ] Aviva paid $6,462.48 to the Syndicate and was subrogated in its right. [1]

ANALYSIS [ 12 ] In order to succeed, Aviva must prove on a balance of probabilities [2] that Defendant left the patio door open prior to leaving the Condominium on February 2, 2013, thereby committing an extra-contractual fault giving rise to his civil liability towards the Syndicate, Aviva’s insured. [3] [ 13 ] To meet this burden, the evidence offered must be clear and convincing [4] and the alleged facts must not only be possible, but probable. [5] The Court must determine liability on the basis of the most probable facts. [6] [ 14 ] Aviva has not met this burden of proof. [ 15 ] No direct evidence that Defendant left the patio door open was offered.

Aviva would like the Court to infer that Defendant did so because he was a tenant of the Condominium and had not yet returned the keys at the time of the damage. [ 16 ] Although presumptions of fact are a valid means of evidence, the Court cannot, on the basis of the proven facts, conclude to the existence of “serious, precise and concordant presumptions” required by law. [7] [ 17 ] Moreover, Defendant, his mother Mrs. Holly White and Mr. Garino are all three adamant that they did a complete walk-through of the Condominium before leaving on February 1, 2013 and that the patio door was not left open.

They testified in a clear and convincing manner and nothing justifies that the Court doubt their sincerity or set aside their testimony. [ 18 ] The evidence also shows that other people had access to the Condominium around the time of the damage. Notably, workers who were completing renovations in the Condominium prior to Defendant moving in had stored materials in a utility closet and work was still ongoing in another unit.

It is possible that they were granted access to the Condominium and that they left the patio door open. [ 19 ] On a balance of probabilities, the Court cannot conclude that it is Defendant who left the patio door open in the Condominium. In the absence of proof of a fault on the part of Defendant, Aviva’s claim must be dismissed. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH LEGAL COSTS of $159 representing the judicial stamp on the Contestation. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Dates of hearing: June 28 and November 1, 2016