2023 QCCQ 9489, 2023 QCCQ 9489

Copeland c. Mercier 2023 QCCQ 9489 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-707781-193 DATE : December 1, 2023 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ NURRAY JOYCE COPELAND Plaintiff c.

ÉRIC MERCIER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Is the Defendant liable for the water infiltration and other damages discovered in the Plaintiff’s residence, that she attributes to the renovations done by the Defendant, qualified by her expert as ill conceived and not in conformity with industry standards. [ 2 ] By his Cross-Claim, the Defendant claims the cost of draining the water that has infiltrated in his basement, because of the actions of the Plaintiff plus the other expenses relating to the court proceedings. [ 3 ] To correct the issues, the Plaintiff retained Systèmes Sous-Sol Québec ( SSS ) who provided three separate estimates on the work to be done. [ 4 ] The first estimate dated November 23, 2020 [1] , quoted the cost of installing a drainage matting and permanently stabilizing floors in the crawlspace. [ 5 ] The next day, SSS provided a second estimate [2] .

It no longer would install a drainage system in the crawlspace but would permanently stabilize the foundation and would keep the crawlspace warm and dry by excavating it, installing a graphite insulation, and installing a drainage system. [ 6 ] On January 21, 2021, the Plaintiff obtained a third quote from SSS [3] , for the same work as in the first quote, but at a slightly higher price [ 7 ] No work had been executed at the time of the trial. [ 8 ] The Court understands that the Plaintiff’s complaints result from the renovations done by the Defendant and the removal of a portion of the downspout bordering the Plaintiff’s property. [ 9 ] In 2012 the Defendant’s backyard was excavated to repair the foundation wall and install a drainage system. [ 10 ] In 2014, the old shed on the Defendant’s property, which bordered the Plaintiff’s house [4] , was removed, excavation was done, and stairs and a walkout was built. [ 11 ] The Plaintiff complains that as of that date, water infiltrated in her crawlspace and the floor above the crawlspace was very cold in the winter months. [ 12 ] In April 2019, the Plaintiff retained the services of Meredith Inspection [5] , who addresses 17 issues, due in part from the water infiltration into the back of the Plaintiff’s crawlspace from the ground water that accumulates on the neighboring property. [ 13 ] On October 20, 2020, the Plaintiff also retained the services of Mont-Royal Consultants [6] to do a structural assessment of the Plaintiff’s foundation.

This expert concludes that the basement walkout of the Defendant’s property has been ill conceived and does not conform to industry standards, resulting in the Plaintiff’s foundation being compromised. [ 14 ] Moreover, this expert states that, during the construction undertaken by the Defendant, no consideration was done to underpinning, waterproofing or water pluvial management of the Plaintiff’s foundation.

[ 15 ] In its report, the expert concludes that the Defendant’s walkout must be reconstructed, the Plaintiff’s foundation stabilized and the wall waterproofed, and flashing installed to manage the pluvial water. [ 16 ] Notwithstanding these findings, the Plaintiff cannot succeed in her claim. [ 17 ] In 2019, the Defendant retained its own expert, Serge Dubé of Inspec-Thor. He did not submit a report, but his notes and photographs were provided to Dominique Sauvé of Informex who drafted his report in May 2021, which was only completed in April 2023 [7] , following the Plaintiff’s refusal so far that Mr.

Sauvé inspect the foundation and the crawlspace in her house. [ 18 ] The expert Sauvé, the only expert having testified at the hearing, does not entirely disagree that there are several issues with the Plaintiff’s foundation and crawlspace, however, he does not attribute these defects to the renovations undertaken by the Defendant. [ 19 ] The Plaintiff states that the downspout on Defendant’s property was removed in 2018, which is the source of the water infiltration in her crawlspace. [ 20 ] To this, the Defendant’s tenant, Stéphane Thouin, who testified, replies that he saw the Plaintiff on several occasions push the downspout with a broom, resulting in piercing it and eventually dislodging it.

The Plaintiff did not contradict this testimony. [ 21 ] Although, Mr. Sauvé agrees that a downspout must be connected to the Defendant’s gutter and must extend at least six feet away from both houses, he does not attribute the infiltration to this problem. [ 22 ] He notes that a negative slope existed on the Plaintiff’s grounds, only corrected in 2022, when the Plaintiff had new patio tiles installed. Even so, he concludes that water infiltrated in the crawlspace over a long period of time. [ 23 ] According to Mr.

Sauvé, the contractor retained by the Plaintiff should have insulated her foundation before installing the siding. [ 24 ] The second source of the infiltration are the tiles in front of the Defendant’s walkout. The Defendant’s tenant, Stéphane Thouin, reported to Mr. Sauvé having seen the Plaintiff dig under these tiles, dislodging them. At the trial the expert testified to this and again this testimony was not contradicted by the Plaintiff. [ 25 ] The other issue are the supporting beams in the crawlspace. At page 18 of Mr. Sauvé’s report a photograph shows the rotten state of the beams. In Mr.

Sauvé’s opinion, this is due to the siding installed below ground level, which is contrary to the building code. [ 26 ] Following the renovations by the Defendant, part of the siding on the Plaintiff’s house had come loose. The Plaintiff decided to replace the siding. However, as the siding covers a wood structure, sensitive to humidity, this caused the beams to rot over a very long period. [ 27 ] Mr.

Sauvé also notes that there is no common foundation wall, each house has a separate foundation wall. [ 28 ] The Defendant’s foundation wall presents no visible damage caused by water infiltration, contrary to the Plaintiff’s foundation wall which shows signs of efflorescence indicating that water infiltrated. In fact, during the inspection by Mr. Meredith he noted the foundation wall in the crawlspace was wet.

The Plaintiff also testified that she saw water infiltrating in 2014 and 2015. [ 29 ] As for, the Plaintiff’s complaint that cold seeped in the house during the winter months, this occurred shortly after the renovations to the Defendant’s walkout. [ 30 ] In

summary, the evidence shows that there are issues with the Plaintiff’s foundation and crawlspace, due in part to water infiltration, however, the Plaintiff cannot succeed in her claim and recover from the Defendant the cost of the repairs to be done. [ 31 ] Following the testimony of Mr. Sauvé, the Court does not conclude that these issues result only from the renovations done by the Defendant, as discussed above. [ 32 ] Moreover, even if the problems could be attributed to the renovations by the Defendant court, the Plaintiff concludes that claim is prescribed. [ 33 ]

Article 2925 of the Civil Code of Quebec provides that an action to enforce a personal right is prescribed by three years. [ 34 ] The Plaintiff admitted at Court that she noticed water infiltration shortly after the renovations.

Even if the Plaintiff did not have knowledge of the exact cause of the infiltration, she suspected it was attributable to the Defendant’s renovations, as in December 2014 she sent an email to the Defendant complaining of this fact. [ 35 ] The Plaintiff had the obligation of retaining an expert to determine the cause of the infiltration and other ensuing damages and institute her recourse no later than December 2017.

The Plaintiff instituted her recourse in May 2019. [ 36 ] The Defendant’s claims by his Crossclaim damages, however no evidence was provided that damages would have been caused to his property, due an infiltration of water, caused by the Plaintiff’s. This Crossclaim appears to have been filed only in answer to the Plaintiff’s recourse. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s recourse;

DISMISSES the Defendant’s Crossclaim; WITHOUT COSTS. ________________________ DIANE QUENNEVILLE, J.C.Q.