Gabitov c. Syndicat des copropriétaires du condo Le Champlain 2016 QCCQ 17731 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139725-131 DATE: December 22, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ RASHID GABITOV Plaintiff v.

LE SYNDICAT DES COPROPRIÉTAIRES DU CONDO LE CHAMPLAIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Rashid Gabitov, owner of a penthouse unit in the condominium known as Condo Le Champlain, sues the Syndicat des copropriétaires du Condo Le Champlain (the "Syndicate") in relation to the quality of work carried out to replace a roof deck adjacent to his penthouse apartment.

This deck, which sits upon the roof of the building is designated in the Declaration of co- ownership (D-2), as being part of what is referred to as "Parties communes à usage restreint". [ 2 ] This means that the capital cost of the renovation of the deck, included in the terms “balcon”, “terrace” or “patio”, if and when required, is assumed by the Syndicate, but that the owner of the unit has the exclusive use of the deck (article 13).

As the co-owner that benefits from the exclusive use of this common portion, Mr Gabinov has certain duties with respect to the maintenance the deck : 1.5 Conditions relatives aux parties communes à usage restreint.

Article 106. Chaque copropriétaire qui bénéficie d’un droit de jouissance exclusive dans les parties communes à usage restreint énumérées ci-dessus à l’Acte constitutif de copropriété doit les maintenir en bon état de propreté, et de fonctionnement et est responsable de la réparation des dommages causés à ces parties réservées à sa jouissance exclusive, que ce soit par un manque d’entretien ou que ce soit par son fait, par le fait d’un membre de sa famille, par le fait de son locataire ou des personnes se trouvant chez lui.

À son défaut, cet entretien et ces réparations peuvent être effectués par le syndicat, mais à la charge du copropriétaire concerné . […] 107.1 Fenêtre, portes balcons, terrasses et patios […] Art.107.1.2 Chaque copropriétaire doit assurer, à ses frais, le bon entretien et la propreté du balcon, de la terrasse et du patio attenant à sa

partie privative d’habitation; il ne peut en changer l’apparence ni la consistance . Art. 107.1.3 Aucune terrasse ni aucun balcon ne peut être décoré, couvert, renfermé ou peinturé de quelque façon que ce soit sans avoir obtenu préalablement le consentement du conseil d’administration. […] Art. 107.1.6 Aucun recouvrement de sol ne peut être installé sur un balcon, un patio ou une terrasse sans avoir obtenu préalablement

le consentement écrit du conseil d’administration. De plus, le copropriétaire doit respecter les directives du conseil d’administration qui peuvent concerner le produit lui-même, son installation, son adhérence au béton, etc. Le copropriétaire dont le balcon, le patio ou la terrasse est recouvert d’un tel recouvrement de sol assume tous les frais d’entretien et de réparation dudit balcon, patio ou terrasse, lesquels peuvent être exécutés par le syndicat sur décision du conseil d’administration. Dans tous les cas, tels entretien et réparations doivent être faits à la satisfaction des administrateurs.

Les administrateurs ne sont pas tenus d’approuver aucun recouvrement de sol s’ils jugent qu’aucun produit ne permet de conserver intact le balcon, le patio ou la terrasse. Le copropriétaire dont le balcon, le patio ou la terrasse est recouvert d’un recouvrement de sol est également responsable de tout préjudice sérieux causé à un autre copropriétaire ou à un autre occupant de l’immeuble si ce préjudice résulte de l’installation de ce recouvrement de sol. [1] [ 3 ] During the summer of 2010, the Syndicate carried out work to replace part of the roof of the building.

These works required the demolition of the existing decks servicing the various penthouses, including Mr Gabitov’s unit, and its replacement. [ 4 ] Mr Gabitov alleges that, as of September 2010, it started to be apparent that the new deck was of poor condition. [ 5 ] He goes so far as to allege that the deck is, to some extent, dangerous, because of boards that are cracked and unevenly spaced.

He also complains of the poor esthetics of the deck, because of the geometric configuration of the boards, the poor quality of the wood, and the poor quality of the workmanship. [ 6 ] The Syndicate contests the claim alleging that the deck is of standard quality and construction, that it is of no concern that there may be cracks, because wood is a natural product, and that Mr Gabitov’s complaints are exaggerated and abusive. [ 7 ] There are allegations in Mr Gabitov’s demand about the inconvenience of water infiltration, presumably during the period before the roof was repaired, but there is no monetary claim in the conclusions about this aspect of the narrative. [ 8 ] In its Cross-demand, the Syndicate claimed a balance owing on an assessment that Mr Gabitov had not paid, in the amount of $ 2,783.76, and an additional $ 3,000 for troubles and inconvenience because abuse of procedures. [ 9 ] The amount of $ 2,783.76 is the difference between an assessment of $17 878.20 and $ 15,494.44, the amount paid by Mr Gabitov on this assessment.

At the hearing of May 28, 2015, the Syndicate’s representative Mr John Collins affirmed that this amount was still outstanding and correspondence received from Mr Gabitov confirms that the amount remains outstanding as of December 21, 2016.

ISSUES [ 10 ] To determine the outcome of this case, the Court must decide: 1) Has Mr Gabitov established that the replacement deck, of which he has the exclusively use, is of such poor quality that it must be replaced or repaired? 2) If so, what is the amount of damages to which Mr Gabitov is entitled because of the Syndicate’s fault? [ 11 ] Because the Syndicate raises the question of the owner’s duty of maintenance, the question arises whether Mr Gabitov would have the obligation to pay for such minor repairs as may be required and for the costs of finishing the deck with paint or stain.

FACTS AND EVIDENCE [ 12 ] Mr Gabitov established, through his evidence, that as of the beginning of September 2010, after the roof have been completed, he began to notice and complained to the Syndicate about problems that he perceived in the performance of the deck. [ 13 ] He engaged in a long process of dialogue with the representatives of the Syndicate, who made reasonable efforts to try to establish whether the deck had been faultily built or not, and, despite efforts on both sides, the positions of the two parties became polarized.

By the time the hearings in the case were conducted, the deck was approximately six years old, and the photos show a certain progression of the condition of the deck over that period of time. [ 14 ] After the first hearing was carried out in May 2015, the Court realized that Mr Gabitov, in addition to providing voluminous photographic evidence, wished to testify himself as to his research concerning wood products and technical issues concerning the quality of the work. [ 15 ] The Court continued the case to a later date to permit both parties to establish, through expert evidence, standards that apply to materials and workmanship concerning decks, and he was hoped that these experts would provide opinion evidence to the Court as to whether the deck did or did not meet such standards, and the value of repairs or replacement required if it did not. [ 16 ] When this evidence was heard, the Court was surprised that neither Mr Gabitov’s expert, Mr Yevgeny Govshievich, nor the expert witnesses heard on behalf of the Syndicate, the architectural technologist Michel Couture, and the architect and landscape architect Mr Ron Williams, could establish with any clarity or certainty, any particular standards relating to the construction of outdoor decks using treated wood. [ 17 ] The expert witnesses were also polarised in their opinion.

Mr Gabinov’s expert spoke of at least 30% of the boards being unacceptable and he called for the total replacement of the deck, while the Syndicate’s experts spoke of the deck as being acceptable and only requiring routine maintenance. [ 18 ] The Court gained the vague impression from the Syndicate’s expert, that because wood is a natural product, some of the boards may perform less well than others, and may require replacement.

Approximate numbers such as 5% or 10% of the boards being replaced per year, so that the entire deck would be rebuilt over 10 to 20 years, came out of the testimony, and there was also mention made of various degrees of quality of wood in as many as five categories from very expensive to very cheap, with corresponding degrees of quality. [ 19 ] The Defendant’s experts were candid enough to recognize that some of the boards on the deck were unacceptable and should be replaced.

In the case of Michel Couture, there was the admission that there had been some deterioration in the deck as shown in the more recent photographs, as opposed to the photographs that he took on December 13, 2015. [ 20 ] There is also quite a difference in the way photographs were taken: Mr Gabitov took many close-ups while Mr Couture’s photographs show the deck in wide-angle shots, therefore showing very little detail of the quality of the boards that would be observed by someone standing on the deck and walking around on it. [ 21 ] Estimates provided by Mr Gabitov show, without any contradiction from the Syndicate, that the reconstruction costs of the deck would be approximately $30,000. [ 22 ] The question of the finishing product also came up, but no conclusive evidence was given as to whether the deck was finished with materials being applied too early or too late, nor was there any clear evidence as to the proper programme over time of finishing the deck.

ANALYSIS

[ 23 ] Despite the problem of inadequate expert opinion, the Plaintiff’s case is made out on the basis that the existing deck, prior to its replacement, which was approximately 20 years old, was more pleasant to the eye, of a better quality and also very serviceable in terms of its performance when treated with stain. [ 24 ] The photographs of the pre-existing deck show a reasonably smooth and regular surface with a finishing of stain that looks acceptable.

When this 20-year old deck is compared to the photos taken of the deck over the period between 2010 and 2016, there is a dramatic difference. [ 25 ] Firstly, the older deck consisted of boards placed in a parallel configuration along the length of the various surfaces, whereas the new deck is in a parquet pattern, therefore having many more cuts and separations between the boards. [ 26 ] While the choice of a completely parallel configuration versus a parquet configuration, is a question of taste, it is obvious that when there are many more cuts and many more spaces, the opportunity for irregularities and for deterioration are increased. [ 27 ] What is more important than the configuration however, is the prevalence of cracks, especially around areas where boards have been fastened with screws to the structure, and the very unequal spacing of the boards, especially in the areas where there was a change of direction because of the checkerboard pattern. [ 28 ] Mr Gabitov tried to make the case that the deck was actually dangerous, because of it being uneven.

While he did not successfully make evidence of danger, the witnesses testifying as experts for the Syndicate were forced to admit that there were some boards that would have to be replaced because they were deformed or too severely cracked. [ 29 ] The Court did not perceive in any of the expert witnesses testimony a significant degree of objectivity and precision so as to make their testimony sufficiently reliable as to the extent of the deck’s poor workmanship and premature deterioration, but most probably an accurate and objective assessment lies somewhere between the two extremes. [ 30 ] Given the number of different qualities of wood available according to the experts, it appears probable to the Court that the contractors, who were working for the Syndicate, chose a very inexpensive product.

The photographic evidence certainly shows that the product has not performed well.

The presence of significant cracking around the places where the boards are screwed down, does not necessarily prove poor workmanship, but it is either the consequence of an inferior quality product or of poor workmanship or of both. [ 31 ] The question of the quality of an outdoor deck is not a question of mandatory standards, it is more a question dependent upon economic decisions. [ 32 ] Since Mr Gabitov, as owner of the unit, was used to having a deck of a reasonably high quality, as can be shown from photographs (D-19), the Syndicate should have provided a replacement deck of comparable quality and performance.

Otherwise, it would have failed to replace the owner with what had been demolished to make way for necessary repairs to the roof. [ 33 ] The argument that the condo owner would have the responsibility of regular maintenance of the deck by the replacement 10% to 20% of the boards per year over a 20-year period, is inconsistent with the obligations as defined in the declaration of co-ownership. [ 34 ] The deck is a common portion of the immoveable, although its use is exclusive to the unit owner.

The capital cost of building the deck and replacing it at a 20-year cycle, is exclusively that of the Syndicate and the idea of replacing 10% or even 5% of the boards per year, is a question of capital maintenance, not of general maintenance by the user. [ 35 ] Otherwise, the individual unit owner would end up, over a 20-year period, replacing the deck at his own costs, which would mean that he was absorbing the entire capital expenditure in relation to something that is a common portion.

[ 36 ] The deck that Mr Gabitov was provided with, after the roof was rebuilt, decreased the value of his property, as compared with the very serviceable deck that existed previously.

Both in terms of the esthetic appearance and the comfort of a person walking on the deck, it is of a lower value than the deck that was demolished as part of the roof rebuilding project of 2010. [ 37 ] While the idea of providing Mr Gabitov with a completely new deck is an exaggeration, it is also completely unfair to expect him to be the custodian and improver of the deck over its entire life cycle. [ 38 ] The Declaration of co-ownership is clear that he must have the approval of the Syndicate for any product used in connection with the maintenance of the deck, should he wish to carry out painting, for example.

This does not mean that he is expected to choose between assuming the cost of upgrading the deck, to an appropriate level or to simply live with it. [ 39 ] However, because this is a case of the Small Claims Division where the Plaintiff has sought a strictly monetary remedy, it is not possible for the Court to impose upon the Syndicate any particular programme of capital maintenance or repair, nor can this Court supervise the carrying out of any work. [ 40 ] As a question however of damages, the amount claimed of $6,000 in 2013 is only 1/5 or 1/6 of the total capital cost of the deck, and within an amount that the Court would have arbitrated as the probable value of the loss of enjoyment related to the poor quality of the deck.

It is also within the amount the Court would arbitrated as an impairment of the capital value of the unit of which this deck provides to the unit owner for his exclusive use. [ 41 ] The Court will not award expert’s costs however, because none of the experts truly answered the question that was relevant to the Court, i.e. the existence of an objective standard and an analysis of whether this deck met such an objective standard or not.

Instead, they lapsed into conjecture and polemics. [ 42 ] The Court was left with the obligation to arbitrate the result based on the material evidence as shown in photographs and on the testimony. [ 43 ] While the Court did not allow Mr Gabitov to testify as to technical issues for which he does not have the necessary qualifications, the Court did accept the sincerity of his testimony as to the unacceptable appearance and the functionality of the deck as compared with the deck that previously existed. [ 44 ] This testimony was not contradicted per se , the Syndicate simply attempted to make evidence that the deck was reasonable and acceptable in and of itself, without any real comparison to the previous deck that they demolished. [ 45 ] Therefore, each party will bear its own expert’s costs. [ 46 ] The care was certainly not abusive and the cross application in damages is therefore dismissed insofar as the claim in damages for $3 000 is concerned.

The claim for the unpaid balance of assessment is allowed. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $6,000, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Quebec , calculated from August 5, 2013, the date of the letter of demand; CONDEMNS the Defendant to pay the Plaintiff judicial costs equal to judicial stamp in the amount of $167; ALLOWS in part the cross application.

CONDENMS the Plaintiff to pay the Defendant le sum of $ 2,783.76 as a balance of assessment, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Quebec , calculated from October 3rd 2013, the date of the institution of the counter claim; EFFECTS COMPENSATION between the two condemnations inclusive of interest and costs up to the lesser amount of the two. WITHOUT costs on the cross application. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: May 28, 2015, December 7, 2015, and September 6, 2016