2020 QCCQ 825, 2020 QCCQ 825

Lagendyk c. Paré 2020 QCCQ 825 JC00G0 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL MONTREAL “Civil Division” CIVILE No: 500-22-242410-176 DATE: February 12, 2020 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ KIMBERLEY LAGENDYK Plaintiff v.

GEORGETTE PARÉ Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Kimberley Lagendyk, sues the Defendant, Georgette Paré, in connection with her purchase of Mrs. Paré’s residence, a single family dwelling in Beaconsfield, in 2016. [ 2 ] Mrs. Lagendyk claims a reduction of price of approximately $ 32,000, alleging defects in the building’s foundation walls and floors, and the absence of a sump pump and pit, features of the building that were not apparent during the pre-sale visits.

In addition to the claim for reduction of price based on the warranty of quality, the Plaintiff alleges that that the Defendant knew of these defects and failed to disclose them prior to the sale. Based on this, the Plaintiff claims damages for inconvenience and stress, in the amount of $ 3,500. [ 3 ] The Defendant contests, stating that there were no unapparent defects of quality that would have affected the purchaser’s decision to buy at the price agreed to, and that the amount claimed is greatly exaggerated.

She asserts that she was in good faith and did not fail to disclose, during the process leading to the sale, any fact that she knew about the residence. [ 4 ] She also defends, alleging inadequate notice of the defects, prior to their alleged correction.

ISSUES [ 5 ] To resolve this case, the Court must determine: 1) Do the issues affecting the foundation walls and floors of the building constitute serious defects that existed prior to the sale and of which the Plaintiff was unaware at the time of purchase; 2) Are they serious enough that they would have affected the Plaintiff’s decision to purchase or to pay a so high price?

3) If so, what is the appropriate reduction in price? 4) Was the Defendant aware of such serious defects, and did she fail to disclose them, prior to the formation of the bilateral promise to sell? 5) If so, what damages are owing to the Plaintiff? FACTS [ 6 ] Mrs. Lagendyk and her husband Glenn Lagendyk were looking for a home in the neighbourhood, and became interested in Mrs. Paré’s property at [...].

The home had a view of the water, was a bungalow, i.e. a home with only one floor above ground, and it had the architectural features that the Plaintiff was seeking. [ 7 ] The Plaintiff intended to purchase the home, carry out extensive renovations of the interior, including the replacement of the electrical circuits and plumbing, to upgrade the building’s insulation, to extend a wall of approximately 40 linear feet, moving it 4 feet ahead in order to enlarge a bedroom.

In doing so, she would not change the home’s volumes, exterior finishes, nor its general architectural aspect. [ 8 ] She and her husband visited the house on more than one occasion. They consulted their architect about the changes contemplated and their contractor provided advice as to the value of the home and the construction program that would be necessary. After negotiations, they agreed with the Defendant on a price of $ 620,000. [ 9 ] The Plaintiff’s contractor advised her that it would be to her financial advantage to simply demolish the building and build a two story dwelling.

According to him, this would be the best investment relating to this site, where the land itself was of significant value. [ 10 ] Mrs. Lagendyk was not interested in this solution, preferring to keep the house, with her design changes and upgrades, even if this would not follow the contractor’s economic advice. [ 11 ] Her concern was that the house have good “bones” meaning that the structure of the house be adequate and not require any major inputs.

Particularly, the basement should be “dry”. [ 12 ] The visits and examinations of the house revealed no issues pertaining to the foundation being solid and dry, except that a cold- storage room leaked at the joint between the top of the foundation wall on the façade and the concrete steps resting on the foundation wall. This was not an issue, because it would be easy to repair this defect. [ 13 ] There was also, according to Glenn Lagendyk, a previously-repaired vertical crack in the foundation wall of the furnace room.

He asked the Plaintiff’s broker about this, and was told that water had infiltrated during an ice storm in the late 1990’s and that the problem had been adequately repaired. [ 14 ] The Declaration of the Vendor discloses that there is no sump pit (and therefore, no sump pump). There are two specific disclosures as to water infiltration as follows [1] : […] D.8.2 L’immeuble est-il équipé d’un puisard ou d’une fosse avec ou sans pompe d’évacuation (“sumpump”) ? non

a) À quelle fréquence la pompe fonctionne-t-elle ? sans objet

b) Avez-vous eu connaissance de la présence d’eau « rouillée » ou de dépôt jaunâtre ou rougeâtre dans le puisard ou la fosse ? non […] D-14 Précisions et améliorations importantes à l’immeuble D3.1 Pendant la tempête du verglas de 1998, il y a eu une petite infiltration au sous-sol dans l’atelier pendant le dégel. Il y a eu une étanchéité d’un des joints dans la chambre froide.

« Akton Injection » a donné une soumission pour ajouter du polyurethane au joint (approx $585+tax) […] [ 15 ] After taking possession and commencing extensive gutting of the house, the Plaintiff learned through her contractor that there were several cracks in the foundation wall, none of which were visible at the time of the visits, because they were covered with the interior wall finishes.

There were several drill holes in the concrete floor, also not visible, because of floor finishes. [ 16 ] When a sauna was removed from a room in the basement, it was discovered that, beneath the sauna, there was a sump pit, which was no longer in use, the conduits having been blocked. Photos show that there was water in this condemned sump pit.

When excavating in front of the area where a new wall was to be built, the contractor met a tremendous flow of water that required two days to pump dry. [ 17 ] The contractor recommended repairing the cracks with injections, replacing the French drain system, and equipping the basement with a new sump pit, properly drained with a long conduit sloping away from the house toward a drainage ditch. [ 18 ] Before proceeding further, the Plaintiff wrote a letter to the Defendant on September 22, 2016 (P-6), including photos and a report and estimate from her contractor. [ 19 ] The Defendant states that the letter was delivered to her home when she was not there on September 23 rd , a Friday.

She became aware of it when she returned the following Monday, September 26 th . The letter states the features of the basement that the Plaintiff complains of and requests that, given the urgency of the construction project, an answer be given within three days. [ 20 ] The Defendant immediately spoke to her broker, who went to the house on September 27 th , along with a friend who has technical knowledge. Mr.

Ali Suini testified that he was met by the contractor, and visited briefly to observe what he could. [ 21 ] According to him, the French drain had already been replaced and he could see the gravel covering it in the trenches around the house but could not see a sump pit. He states that all of the repair work had already been carried out, so that there was nothing he could see and report back to the Defendant, other than that observation. [ 22 ] Mr.

Glenn Lagendyk testifies that the repairs had not yet been carried out on September 27 th , that the condition of the cracks in the foundation, the drill holes in the floor, and the presence of the condemned sump pit were quite visible. [ 23 ] He states that the trenches around the house had not yet proceeded to the stage of installing the new French drain system. [ 24 ] Photos taken by Mrs. Lagendyk on September 29 th , show that the exposed sump pit was still visible, that a wall fissure had been repaired, but that the trench around the house was already refilled with sand.

The Court’s finding of fact is that Mr. Suini’s recollection that the sump pit had been closed is inaccurate, but his recollection that the trenches were back filled with granular material

is probably accurate. Two days later, the trench was filled, so that all of the exterior foundation work could have been quite advanced, if not completely finished. [ 25 ] The only work that was not yet advanced or completed was the interior work. [ 26 ] The works carried out were part of a global cost-plus contract for approximately $ 600,000.

The Plaintiff presents, in support of her monetary claim, estimates coming from the contractor of approximately $ 25,000 for the French drain system, and waterproofing membrane, as well as approximately $ 3,500 for injections in the cracks and the installation of the new sump pump. [ 27 ] The Plaintiff mentions, very emphatically, that she did not know that the City of Beaconsfield required, in its bylaws, the installation of a sump with a pumping system.

She learned this after the sale, in planning the work and securing building permits. [ 28 ] Now that such system is installed in her home, she notices that the pump is almost always actively pumping, and she cannot imagine how the basement could have been dry during the time that Mrs. Paré lived there. [ 29 ] There are no photos showing any water damage to the basement finishes, nor were Mrs. Lagendyk and her husband able to assert that they had seen water damage to the interior finishes. Mr. Lagendyk interprets some of her photos of cracks as showing moisture, but this is not probative.

The contractor removed all of the basement finishing materials and disposed of them very quickly in the construction process. [ 30 ] Mrs. Paré states that, apart from the specific items she mentioned in her pre-sale declaration, she had never had any problem with water infiltration in the basement. She mentions that she has 10 grandchildren and she would not have allowed them to use the basement if there was any mould, moisture or water infiltration.

Her son testified to support the allegation that he had not seen any signs of infiltration during his presence in the home. [ 31 ] While there is no specific evidence about the presence or not a French drain system, the contractor, in his estimate, which is attached to the cost-plus contract form, included the excavation around the foundation wall, the preparation of the foundation wall for a waterproofing membrane, and the installation of a new French drain system and a pump. Mrs.

Lagendyk admits that the contractor told her that the existing French drain system, dating probably to the construction of the house in 1962, was obsolete and should be replaced. [ 32 ] She decided, however, that this would not be part of the construction work, although there is no agreement with the contractor to this effect documented. [ 33 ] She states that she did not want to include excavation around the house and the replacement of the French drain system, because it was not necessary, given that the basement was “dry”.

Even though it is part of her cost-plus contract, she states that in her oral agreement with the contractor, this work was not to be carried out. She changed her mind, and agreed upon the work that the contractor was recommending as a correction because of what was discovered once the work commenced, the fissures and the lack of a sump.

ANALYSIS [ 34 ] Because of the declaration made by the Vendor in the pre-sale documentation, the defects complained of can be broken down into three distinct components: The sump pit and pump, the French drain system and fissures in the foundation walls. [ 35 ] The declaration makes specific reference to the absence of a sump pit and pump. Therefore, the Plaintiff would have known that it was necessary to install a sump pit and pump, as this is a regulatory requirement in Beaconsfield.

It would normally have been part of a construction programme involving major renovations, unless the contractor believed there was a sum pit and pump in good working condition. He did not, because he only discovered the abandoned sump pit when he commenced the demolition. Therefore, the absence of a sump pit is not a latent defect; it is a condition of the building disclosed by the Vendor. [ 36 ] The fact that there was an abandoned sump pit, hidden under a sauna is not that significant, because it would simply be a question of filling that opening with concrete, as part of the renovation process.

[ 37 ] In the Court’s view, is it therefore not necessary to discuss any further the absence of a sump pit and pump. [ 38 ] There is no evidence as to what French drain system existed or did not exist when the house was built in 1962, and no evidence as to what the contractor encountered when he dug trenches around the building to install a new French drain and apply a waterproofing membrane to the foundation. [ 39 ] The contractor specifically foresaw these works as he indicated in his estimate, dated July 20, 2016 which is attached and made part of the cost-plus contract, dated July 21, 2016 (D-8).

The Plaintiff signed this contract, though she makes the point that, in a subsequent oral agreement with the contractor, she declined his offer and recommendation to replace what he considered as an obsolete French drain system, assuming there was one. Because the house was built in 1962, some 54 years earlier, the contractor’s recommendation to take the opportunity of the renovations to replace it would appear to have been a very wise recommendation. [ 40 ] The Defendant could decide to live with the existing French drain system or the lack thereof, which, according to Mr.

Paré’s experience and that of her family, was not causing any problems but it was a risk that she wished to take despite her contractor’s counsel. [ 41 ] Given that the bylaws of Beaconsfield require a sump pit, and given that she knew there was no sump pit in the plumbing relating to the French drain system, she should have foreseen the costs of building a sump pit and connecting it to the French drain system. [ 42 ] The requirement of a new French drain system, which was recommended and which eventually would have been necessary, cannot be seen as a latent defect.

It is part of the obsolescence of the original construction dating back to 1962. [ 43 ] The third element of the claim is the necessity or, at least, the advisability of filling any apparent cracks with a polymer material, a minor repair which, according to the evidence in the file, costs approximately $ 350 per crack.

This cannot, in the context of the present case, be considered as a serious defect that would have had an impact on her decision to buy. [ 44 ] Firstly, when the inspection took place, the furnace room being part of approximately 20% of the basement that was not finished, clearly had a very long vertical fissure extending from top to bottom that had been filled, apparently with concrete. This was the crack that Mr. Lagendyk asked about in his conversation with the broker.

He was told that there had been an infiltration of water during the ice storm. [ 45 ] The declaration made by the Vendor states that this was an infiltration during a thaw (“dégel”). The repair of the crack was obvious and the fact that it had some efflorescence toward the bottom would have indicated to a knowledgeable purchaser, such as Mrs. Lagendyk and to her husband, that there had been, at some time, moisture in the vicinity of this crack. [ 46 ] To not suspect that there would be any other cracks, anywhere else in the foundation, was not realistic.

The foundation dating back to 1962 may well have been cracked, which would require polymer epoxy injections, but this is not something that affected the solidity of the structure, its load-bearing capacity or even its degree of impermeability. The proof of this is that the Plaintiff’s contractor did not replace in any way any part of the foundation walls, it was simply a question of parging from the outside and repairing the fissures from the inside. Apart from that detail, which cost approximately $ 1,750, there was no other concern.

In a project such as this one, where the initial investment was approximately $ 1,300,000 taking into account the purchase price and the amounts paid to the contractor, a difference of $ 1,750, a fraction of 1% of the investment, would not have had a determining impact on the purchasers’ decision to buy, nor on the price paid. The negotiations for the purchase of the property fluctuated between the asking price of $ 680,000 and the final price of $ 620,000.

An amount of $ 1,750 is not of significant impact and cannot be considered as a “serious defect”. [ 47 ] As stated above, it was not truly latent, even though the five cracks, apparently discovered by the contractor, were all covered with wall finishes. In light of the presence of a major crack in the furnace room, these cracks should not have come as a surprise: they were a minor issue and one that was not demonstrably unusual for a foundation of this age.

[ 48 ] In the Court’s view, therefore, none of the three elements complained of gives rise to a claim by the purchaser for a reduction of price pursuant to the warranty of quality. [ 49 ] The parties may wish to know the Court’s opinion as to the claim for damages representing inconvenience, frustration, stress, etc. The Defendant appeared to be a very honest and forthright person. Prior to the sale, she declared entirely what she knew about the state of the foundation and its history.

There has been no demonstration that she failed to disclose anything she knew. [ 50 ] Some attention was given to the knowledge of the existence of the condemned sump pit.

While this is really a red hearing, because she had disclosed that there was no sump pit, the evidence is consistent with her assertion that she did not know that there had been, at one time, a sump pit that was now under the sauna. [ 51 ] When she had had the sauna built several years earlier, the floor was already covered with a finish, as the room had been used as a dark room by a previous owner. [ 52 ] The Court accepts the sincerity of her testimony that she did not know of the prior existence of a sump pit, abandoned and covered over with the sauna.

As well, there is no evidence that there was water infiltration, other than the event that the Defendant disclosed. It would have been necessary to examine the basement finishing materials to see whether they showed signs of water infiltration and the mould that one could expect as a consequence. [ 53 ] Neither pictures, no testimony, nor any other means of proof was presented by the Plaintiff to make this demonstration. There is only the

interpretation by photographs of Mr. Lagendyk, which does not have high probable value, and the inference that, because the contractor discovered underground water, the basement must have been subject to water infiltration. There is no technical explanation of why the contractor came across ground water. It may have been because the French drain system was no longer functioning, given the contractor’s excavations. It may have been because there was a temporary source of water, that had been inert, such as a broken conduit, or it may have been water drained from a swimming pool. This is speculation.

There is no basis on which the Court can decide which, if any of these explanations is the right one. Assuming it was a question of hydrostatic pressure in the soil, even if this hydrostatic pressure was operating under the foundation and the floor slab, there were certainly no indications that this hydrostatic pressure caused any infiltration.

If that were the case, the basement would have been flooded. [ 54 ] Thus, there was no basis for damages resulting from the disclosures made by the Defendant, who was in good faith. [ 55 ] Finally, in terms of the sufficiency of the Plaintiff’s notice, the Court would have said that it was a sufficient notice in the case of the wall fissures, if any had not yet been repaired, and of the abandoned sump pump, were its not for the pre-sale disclosure of the absence of the sump pump.

With respect to the French drain system, however, the notification was clearly inadequate and prejudicial to the Purchaser, Because the French drain had already been installed and was covered with gravel, soon to be backfilled with sand, it would have been impossible for the Defendant to verify whether the extant French drain system was functional, how it was connected, and where the water was draining to.

This would have prejudiced the Defendant in her right to a full defence. [ 56 ] So, if it had been necessary for the Court to decide, its opinion would have been that the claim for the replacement of the French drain system should not be allowed, because the Defendant did not have the benefit of notification permitting an investigation, and the exercise of an option to either contest, based on the evidence obtained, or to admit and arrange for the most feasible and inexpensive solution. [ 57 ] The amount of $ 25,000 assessed by the contractor does not necessarily establish the appropriate cost, and it was the right and prerogative of the Defendant to have the opportunity to investigate and obtain her own estimate. [ 58 ] The time limit given in the notification of three days I would not have been adequate to permit the Defendant to carry out this investigative assessment process, which is an inherent part of a good-faith vendor’s rights in the case of the assertion of the breach of the warranty of quality, in a case such as this one.

The Plaintiff admits that the urgency to complete the work was not a technical urgency, to

protect the property; it was a financial imperative, because she had a construction

schedule to respect. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s action, with legal costs in favour of the Defendant. __________________________________ DAVID L. CAMERON, J.C.Q. Me Alain Godin Attorney for the Plaintiff Me José Macedo Lata Jose M. Lata Avocat Attorney for the Defendant Date of hearing: September 26, 2019.