2013 QCCQ 3951, 2013 QCCQ 3951

Tessler Smith c. Bovet 2013 QCCQ 3951 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-126512-104 DATE: April 10, 2013 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.Q.C. ______________________________________________________________________ Linda TESSLER SMITH Plaintiff v.

Sylvie BOVET Defendant/Plaintiff in warranty and François BOVET and PREVEL and SYNDICAT DES COPROPRIÉTAIRES DU 50 DES SOEURS GRISE Defendant in warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $3,386.25 representing the latent defects to the condominium purchased from the Defendant, Sylvie Bovet. [ 2 ] The Defendant denies being responsible for these defects. Subsidiary, the Defendant called in warranty her vendor, the developer as well as the Syndicate.

THE FACTS [ 3 ] Plaintiff explains that on September 13, 2010 by a contract of sale [1] , she purchased a condominium unit from the Defendant Bovet. [ 4 ] Plaintiff purchased the unit with the intent of renting it to a third party. In fact she did rent it. However, when the tenant moved in, he asked that an air conditioning be installed in the unit. [ 5 ] To this end, the Plaintiff retained the services of Les Services Techniques c . Mongeon Inc. who installed an air conditioning unit. [ 6 ] Mr.

Roger Beaulieu, the technician who proceeded with the installation, explained to the Court that when it was time to start the air conditioning it did not work. After an investigation, Mr. Beaulieu discovered that the wirer necessary to connect the air conditioning to the electrical panel, had been cut in the wall. [ 7 ] Les Services Techniques c . Mongeon Inc. proceeded to connect the unit at a cost of $3,386.25 [2] .

The Plaintiff also retained the services of Service Réno Déco SBL Inc. to repair the wall, at a cost of $217.85 [3] . [ 8 ] The Plaintiff claims these amounts from her vendor, the Defendant Sylvie Bovet. [ 9 ] Mrs. Bovet called in warranty her brother, the Defendant François Bovet, who sold her the condominium. She also called in warranty Prevel who was the developer of the project and sold the condominiums, as well as the Syndicat des Copropriétaires du 50 des Soeurs Grises. Ms.

Bovet called in warranty the Syndicat, since she claims that any repairs in the walls of the unit would be the responsibility of the latter.

[ 10 ] In the present case, it is not necessary for the Court to determine which of the Defendant or the Defendants in Warranty are liable towards the Plaintiff, for the following reason. [ 11 ] Ms. Bovet states that, when the Plaintiff informed her of the problem and claimed the amount of the repairs, these repairs had already been done. Ms Bovet's testimony is not contradicted by the Plaintiff. [ 12 ] In accordance with

article 1738 of the Civil Code of Québec , prior to proceeding to the repairs, the Plaintiff had the obligation of giving notice in writing and within a reasonable delay to the Defendant Bovet of the discovery of the latent defect. This notice is required to give the opportunity to the vendor to proceed to the repairs at its own cost. In the present matter, the Plaintiff sent a demand letter once the repairs had been done. This is fatal to the recourse undertaken by the Plaintiff. [ 13 ] For these reasons, the Plaintiff cannot now claim the cost of those repairs.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff's action, with costs in the amount of $118,00 representing the cost of the judicial stamp of the contestation. __________________________________ DIANE QUENNEVILLE, J.Q.C.