2019 QCCA 2013, 2019 QCCA 2013

Jack c. Bergeron 2019 QCCA 2013 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-09-009603-173 ( 200-17-023043-151 ) MINUTES OF HEARING DATE: November 22, 2019 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A. MANON SAVARD, J.A. APPELLANT COUNSEL AUDREY JACK UNREPRESENTED (ABSENT) RESPONDENT COUNSEL ANDRÉ BERGERON Mtre JONATHAN DECHERF ( Tassé Bertrand Avocats inc . ) IMPLEADED PARTY COUNSEL JOHN YOUNG UNREPRESENTED (ABSENT) On appeal from a judgment rendered on August 14, 2017 by the Honourable Catherine La Rosa of the Superior Court, District of Quebec.

NATURE OF THE APPEAL : Sale (obligations of the seller – warranty of quality) Clerk : Lauriane Lavoie Courtroom: 4.33 HEARING 9:00 Continuation of the hearing held on November 19, 2019. The parties were excused from appearing in Court; Judgment; Conclusion of the hearing.

Clerk JUDGMENT [ 1 ] The trial judge dismissed the Appellant’s application for the resolution of the sale of her property due to latent defects, namely, a defective foundation and the use of construction waste as landfill materials. [1] She concluded that the Appellant had knowledge of the alleged latent defects prior to the purchase of the property in 2002 and, moreover, that the recourse in warranty for these defects was prescribed. [ 2 ] The appeal raises issues with respect to the conclusions of the trial judge regarding the landfill materials. [ 3 ] The Appellant and the Intervenant [2] firstly argue that the Respondent misled the court and that the trial judge erred by finding the latter more credible than the former. [ 4 ] Determinations about credibility are findings of fact that can only be reversed by an appellate court when there is a palpable and overriding error.

The Appellant and the Intervenant have failed to point to such an error. [ 5 ] The evidence in first instance was contradictory. The trial judge accepted the Respondent’s testimony and explained her reasons for doing so. Her conclusion was based on the evidence before her, and the documents introduced by the Intervenant before the Court do not support the Appellant’s contention that the Respondent misled the trial judge. Furthermore, the Appellant did not reproduce in her brief the transcript of her own testimony in first instance.

She has therefore failed to address any of the trial judge’s criticisms of her own testimony, and thus offers no basis on which the Court could intervene and interfere with the trial judge’s finding. [3] [ 6 ] The Appellant and the Intervenant further argue that the trial judge erred by not taking into consideration the fact that the Respondent had failed to respect on the one hand, the 1991 judgment ordering the previous owner, who illegally exploited the property as a sand pit, to restore it to its natural state, and, on the other hand, the obligation to the same effect he undertook when he bought the property in 1992.

According to them, the Respondent’s failure to respect such judgment and contractual obligation, by including materials other than those specifically permitted in the judgment, violated the standards applicable to the property at the time of the sale. [ 7 ] In the Court’s opinion, the 1991 judgment is of no assistance to the Appellant, given the trial judge’s conclusions.

Even if the Respondent had contractually agreed to respect such judgment and had not fulfilled his obligation, as the Appellant argues — a point which it is not necessary for the Court to decide — the trial judge, in any event, concluded that the Appellant had full knowledge of the landfill materials at the time she bought the property in 2002, and certainly before 2012.

Again, given the Appellant’s failure to reproduce the complete transcript of the evidence in first instance, the Court cannot review the trial judge’s conclusions of fact. [ 8 ] Finally, there is no need for the Court to address the issue raised by the Appellant at the hearing concerning the trial judge’s refusal to award her judicial and extrajudicial fees.

The Appellant did not raise this ground of appeal in her notice of appeal and, therefore, the Court cannot address it (art. 353 and 356 C.C.P. ). [ 9 ] The same must be said of the Intervenant’s request, formulated at the hearing, for the resolution of the sale of the property by his grand-father to the Respondent back in 1992.

This request clearly exceeds the limits of his intervention as authorized by the Court, introduces an entirely new cause of action that is not linked to the Appellant’s original action, and violates the principle that a party cannot raise, for the first time in appeal, a question that could have led to evidence in first instance. [4] [ 10 ] Given the foregoing, the Appellant and the Intervenant have not demonstrated that the trial judge erred when she dismissed the Appellant’s action for latent defects. FOR THESE REASONS, THE COURT : [ 11 ] DISMISSES the appeal, with costs. MARIE-FRANCE BICH, J.C.A.

DOMINIQUE BÉLANGER, J.C.A.

MANON SAVARD, J.C.A.