2020 QCCQ 948, 2020 QCCQ 948

White c. Arcobelli 2020 QCCQ 948 COURT OF QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-704358-185 DATE: March 9, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE HENRI RICHARD ______________________________________________________________________ SHERYL LYNN WHITE Plaintiff v.

VINCENT ARCOBELLI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In November 2010, Sheryl Lynn White hired Vincent Arcobelli to carry out a pre-purchase inspection on a building for which she had made a promise to purchase. [ 2 ] Ms. White alleges that Mr. Arcobelli did not mention that there was vermiculite in the attic insulation, which was discovered by another building inspector in April 2016, when she put her property up for sale. [ 3 ] Ms. White claims $15,000 from Mr.

Arcobelli for the costs of removing the vermiculite and for the loss in value of her building. [ 4 ] In defence, Mr. Arcobelli argued that during his inspection, he had access to the attic, but he could not see the vermiculite, which was covered by six to eight inches “of blown wool and cellulose for an R-20 rating”. Moreover, at trial, Mr. Arcobelli added that the presence of vermiculite does not constitute an apparent defect affecting the building. ISSUE [ 5 ] Was the vermiculite in the attic visible during the pre-purchase inspection carried out by Mr. Arcobelli in November 2010?

CONTEXT AND ANALYSIS [ 6 ] It is not disputed that the attic in Ms. White's building was insulated with vermiculite containing tiny particles of asbestos, which was covered by blown cellulose ranging in thickness from six to eight inches. [ 7 ] According to Mr. Arcobelli, the only way to get at the vermiculite was to move the cellulose layer, which is beyond the scope of a pre-purchase visual inspection. [ 8 ] Ms. White stated that the pre-purchase inspector who visited the building in April 2016, who was hired by the promisor- buyers, visually noted the presence of vermiculite in the attic.

Her testimony was corroborated by her witness, Ms. Kellie-Rae Ryan. [ 9 ] In civil matters, the burden of proof lies with the plaintiff according to the principle set out in

article 2803 of the Civil Code of Québec (the C.C.Q. ), which states that “[a] person seeking to assert a right shall prove the facts on which his claim is based.” [ 10 ] The Court renders its decision in accordance with the balance of probabilities, as set out in art. 2804 C.C.Q., which states that “[e]vidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 11 ] In addition, when the evidence adduced is not sufficiently convincing, or if the evidence is contradictory and it is impossible for the judge to identify the truth, the party upon whom the burden of proof lies will lose. [1] [ 12 ] After analyzing the evidence, both testimonial and documentary, the Court concludes that Mr.

Arcobelli’s version is more probable and more likely than that of Ms. White, for the following reasons.

[ 13 ] First, Mr. Arcobelli testified that had he observed the presence of vermiculite, he would have noted it in his report. It is admitted that the vermiculite was covered by cellulose ranging in thickness from six to eight inches.

Consequently, the only way to see the vermiculite was to move this layer of cellulose, which is not within the scope of a pre-purchase inspection, which is strictly visual. [ 14 ] In addition, according to the report by the pre-purchase inspector who visited the building in April 2016 and the photographs appearing in that report, it appears that the cellulose layer was moved with the help of an instrument, as the photograph appearing on page 19 of his report demonstrates (Exhibit P-5). [ 15 ] Moreover, according to the statement in lieu of testimony of Mr.

Jonathan Ehrlick, real estate broker who was hired to sell Ms. White’s property, he had access to the attic after the pre-purchase inspection in April 2016, and he stated that, “I climbed up into the attic to extract samples of the insulation.” This, therefore, is an acknowledgment that the attic insulation has been moved around, thus making it possible to see the presence of vermiculite under the cellulose layer. [ 16 ] In addition, the contract between Ms. White and Mr. Arcobelli is a contract for services, within the meaning of art. 2098 et seq . of the C.C.Q .

As such, the obligation of the pre-purchase inspector is an obligation of means, regarding which the Court of Appeal has said that the pre-purchase inspection is not an expert opinion and the examination must be attentive and serious, even though it is somewhat fast and cursory. In the absence of a telltale sign, the buyer or the inspector does not have to open up the walls, dig around the foundations, or undertake any other movement of objects. This is because the pre-purchase inspection is a visual inspection. [2] [ 17 ] At trial, Mr.

Arcobelli referred to the “Professional Standard of Practice for the Visual Inspection of Chiefly Residential Buildings” of the “Quebec Association of building inspectors” to establish the scope of a pre-purchase inspection: Art. 6 The purpose of a visual building inspection performed in accordance with this Standard is to provide the client with the information needed to gain a better understanding of the condition of the building described in the inspection service agreement, as observed at the time of inspection.

Art. 7 The building inspection performed in accordance with this Standard is an attentive visual examination that is not meant to be technically exhaustive. Art. 8 The building inspection consists in visually observing and reporting on the physical condition of the readily accessible installed systems and components listed in this Standard. … Art. 11 Inspections performed in accordance with this Standard of Practice is subject to certain limitations.

Namely, the inspector is not required to: … 11.3 move personal items, furniture, material and equipment, ceiling tiles, plants, soil, snow, ice, or debris which obstruct access or visibility; … Art. 55 The inspector shall observe and describe in the report all insulation materials and vapour barriers seen in unfinished spaces (attics, walls, ceilings and floors) ; Art. 56 With respect to the building insulation, the inspector is not required to report on the building’s compliance with standards, or on the uniformity and adequacy of the insulation in the building. (Emphasis added) [ 18 ] To properly identify the obligations of a pre-purchase inspector with regard to the presence of vermiculite, the Court refers to the analyses of the Court of Quebec in Bérubé c.

Simard (Marimel enr. et Amérispec, Laurentides—Rive-Nord) [3] and Guertin c. 3924734 Canada inc. (Ins-Pec) . [4] These judgments established the state of the law on this subject matter and concluded that a pre- purchase inspector does not have to report the presence of vermiculite in his or her report since its presence does not constitute an apparent defect.

Several other judgments are to the same effect and specify that the presence of asbestos does not, in itself, constitute a hidden defect since it does not result in any loss of use unless renovation work is carried out or the insulation in which it is contained is moved. [5] [ 19 ] Consequently, the Court dismisses Ms. White’s action but, exercising its judicial discretion, does not impose any costs. FOR THESE REASONS, the Court: DISMISSES the application of Sheryl-Lynn White against Vincent Arcobelli, each party to pay their own costs. __________________________________ HENRI RICHARD, J.C.Q.

Date of hearing: January 28, 2020