2019 QCCQ 2720, 2019 QCCQ 2720

Beaudry c. Syndicat de copropriété Le Manhattan 2019 QCCQ 2720 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL « Civil Division » N°: 500-32-701537-179 DATE: May 8, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE SYLVIE LACHAPELLE, J.C.Q. ______________________________________________________________________ BERNARD BEAUDRY Plaintiff c.

SYNDICAT DE COPROPRIÉTÉ LE MANHATTAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The facts [ 1 ] On or about February 4 th , 2015 the fire sprinkler above the spiral staircase burst causing damage to the living space of unit 206 property of Mr. Bernard Beaudry " Mr. Beaudry ". [ 2 ] Mr. Beaudry is represented by his son Jacob Beaudry " Mr. Jacob " who actually lives in that condo. [ 3 ] Mr. Beaudry contacted his insurance company, the Wawanesa, and he alleges that he would have been told by Mr.

Éric Perron " Mr. Perron " of Wawanesa that the Syndicat de copropriété Le Manhattan " Le Manhattan " insurance had to be contacted so that they could see what coverage there was and what their deductible was, to be able to proceed. [ 4 ] Mr. Beaudry argues that because Le Manhattan had refused to and had delayed contacting their insurer he was unable to do repairs to the condo and returned to Winnipeg even though he had hired a contractor to do so. [ 5 ] The proof reveals that the Wawanesa paid the repairs that amount to $9,459.07 but according to Mr.

Beaudry the Wawanesa only covered $3,000 for room and board and transportation. [ 6 ] Mr. Beaudry alleges that this amount served only for two weeks, so additional costs to what the Wawanesa provided occured. [ 7 ] Mr. Beaudry therefore claims damages to the amount of $10,857.06 broken down as follows : 1. The deductible of their insurance policy * $500 2. Return fare for two to Montreal from Winnipeg $1,200 3. Transportation (auto rental) $805 4. Costs of lost wages for Mr. Beaudry for 2 weeks $3,000 5. Board and room for 14 days at $300 per day $4,200 6.

Inconvenience cause by the delays $3,235 Total: $ 12,940 [ 8 ] Le Manhattan contests that claim and argues that Mr. Beaudry is solely at fault because Mr. Beaudry installed a plexiglass in the condo unit which would have prevented the sprinkler system from warming up and therefore freezing and bursting, causing damage to Mr. Beaudry’s condo. [ 9 ] Le Manhattan argues that it contacted their own insurance company to learn that the deductible of the insurance coverage is of $10,000, whereas Mr. Beaudry claimed at the time of the incident $9,459.07 for the alleged repairs. [ 10 ] Thus, the insurance for Mr.

Beaudry, the Wawanesa, covered Mr. Beaudry’s loss, considering that Mr. Beaudry’s insurance covers the damages if no coverage applies for the building as confirmed by Mr. Perron from the Wawanesa. " Il existe une clause dans notre contrat qui nous permet de couvrir en l’absence d’assurance de copropriété. Nous pouvons donc couvrir le montant de la franchise prévu à leur contrat, soit les 10 000 $.

[ 11 ] On July 3 rd , 2015, Mr. Beaudry was confirmed by Mr. Perron that the damages would be paid either by the Wawanesa or the building insurance. [ 12 ] Mr. Perron precises that it is not because the Wawanesa accepts to pay the deductible of Le Manhattan’s insurer company that Wawanesa admits responsibility [1] . [ 13 ] On August 13, 2015, Mr. Beaudry claims $10,857.06 from Le Manhattan for the additional expenses incurred in addition to the costs of the repairs of the condo arguing that Le Manhattan would be responsible for any amount after the $10,000 deductible is reached. [ 14 ] First, Mr.

Beaudry who has the burden of the proof did not establish that the damages in the unit were caused by a problem that falls under the building responsibility and that it is the condo’s building insurer that should have covered that loss and the cost of repairs above $10,000. [ 15 ] Second, had Mr. Beaudry succeeded to convince that Court that the bursting of the sprinkler was caused by the fault or the negligence of Le Manhattan which he did not, the damages claimed are either indirect and unreasonable. [ 16 ] As a matter of fact, as soon as July 3 rd , 2015, Mr. Beaudry was confirmed by Mr.

Perron that one insurer or the other would cover the damages caused in the unit. [ 17 ] Mr. Beaudry had no reason to delay the necessary repairs and restorations and he could have done the work during his stay in Montreal during the summer 2015. [ 18 ] Mr.

Beaudry has the obligation to mitigate his damages and he failed to do so. [ 19 ] Therefore, the Court does not grant the cost of return transportation for two to Montreal from Winnipeg ($1,260) as well as the cost of a rental car able to accomodate his wife electric scotterthat she needs as she cannot walk ($1,127) and also the board and room for 14 days ($4,200), and inconvenience for the delay ($3,235). [ 20 ] Also, Mr. Beaudry claims the costs incurred to hire a replacement at his work over this period ($1,400). [ 21 ] Mr.

Beaudry was not present to testify on that part of the claim being represented by his son Jacob who is not the right witness. [ 22 ] In addition, Mr. Beaudry did not provide the Court with sufficient documentary evidence to substantiate that part of the claim, thus the Court concludes that Mr. Beaudry failed to meet his burden of the proof. FOR THESE REASONS, THE COURT : DISMISSES Mr. Bernard Beaudry’s claim; WITH COSTS. __________________________________ SYLVIE LACHAPELLE, J.C.Q. Date of hearing: October 1 st , 2018