2019 QCCQ 1062, 2019 QCCQ 1062

Jast c. Intact Insurance 2019 QCCQ 1062 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL "Civil Division" No: 500-32-155735-170 DATE: March 6, 2019 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ PAUL JAST and JANA JAST Plaintiffs v.

INTACT INSURANCE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs claim damages of $22,468.49, that they reduced to $15,000 and forego to claim the difference, resulting from water seeping in their basement. [ 2 ] The question in issue is whether these damages result from a sudden flow of water or fall within the exclusion found in the insurance policy issue by the Defendant?

THE FACTS [ 3 ] On November 24, 2014, the Plaintiffs discover water in their basement and inform the Defendants. [ 4 ] The Plaintiff Paul Jast maintains that the water infiltration was sudden and due to the downpipe, located near the house, that was disconnected, preventing the water to be directed away from the house. [ 5 ] Three days later, the Defendant dispatches Mr. Guillaume Landry, its claims representative, to inspect the damages. The next day, Mr. Landry, writes to the Plaintiffs [1] and denies coverage, stating that the occurrence falls within the exclusion found in the insurance policy, at

Article 3: We do not insure water damage: 3. Caused by continuous or repeated discharge, seepage or overflow of water, whether or not the Insured was aware of such discharge, seepage or overflow. [ 6 ] At the hearing, Mr. Landry states that when he inspected the Plaintiffs’ residence, he saw mold at the base of the walls, in other areas of the basement and on a sofa that was situated close to the wall. [ 7 ] Mr.

Landry, who has been a claims manager for ten years, concludes that the water may have seeped in the basement because the downpipe was disconnected or due to a problem with the french drain or because of cracks in the basement, but certainly not because of a sudden flow of water. THE ANALYSIS [ 8 ] On November 26, 2014, Les entreprises S.C. [2] retained by the Plaintiffs issued its report following the inspection by Mr.

Casault in which he concludes that the water damage was caused by a sudden flow of rain water from the gutter down-pipe located at the front-right corner of the house, or was accidently disconnected.

He further adds that the mold found in the basement was the result of this recent sudden high humidity due to the water infiltration combined with a very poor air circulation in the basement room . [ 9 ] The burden rests on the Plaintiffs to establish, on a balance of probabilities, that the damage resulted from a sudden flow of water, as provided in Articles 2803 and 2804 of the Civil Code of Québec : 2803 A person seeking to assert a right shall prove the facts on which his claim is based. 2804 Evidence is sufficient if it renders the existence of a fact more probable than its none existence, unless the law requires more convincing proof.

It is possible that the downpipe was disconnected, causing water to infiltrate in the basement. However, the Plaintiff Paul Jast cannot confirm when the downpipe would have been disconnected, since he only realized this on November 14, 2014, because he had stopped mowing the lawn. [ 10 ] Moreover, no evidence was provided to the Court that on the days shortly before November 14, 2014, an unusual rainfall occurred.

This evidence would have been crucial. [ 11 ] The exclusion found in the insurance policy is clear, the Defendant does not cover discharge, seepage or overflow of water caused by continuous or repeated discharge. [ 12 ] The Plaintiffs did not convince the Court that the water damage did not fall within the exclusion in the policy. FOR THESE REASONS, THE COURT : DISMISSES the Plaintiffs’ recourse; WITH COSTS in the amount of $300 representing the judicial stamp of the Contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q .