2023 QCCQ 10006, 2023 QCCQ 10006

Ouellette c. Dennis 2023 QCCQ 10006 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-702436-210 DATE: August 22, 2023 ______________________________________________________________________ BY THE HONOURABLE PATSY BOUTHILLETTE, J.C.Q. ______________________________________________________________________ LAURA OUELLETTE and STEVEN OUELLETTE Plaintiffs v.

KATHLEEN DENNIS and MAUREEN GERVAIS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The plaintiffs seek $ 3 600 in reduction of the purchase price of the property acquired from the defendants because of misrepresentations. [ 2 ] The defendants deny making false statements. ISSUES

i) Is the claim for a reduction of the selling price justified because of a fraud allegedly committed by the defendants? ii) If so, how much are the applicant entitled to? ANALYSIS [ 3 ] To be successful in their action, the plaintiffs must prove by preponderant evidence the facts supporting their claim, in compliance with Civil Code of Québec , sections 2803 and 2804 . [ 4 ] The onus is on the plaintiffs to establish that there was a defect.

A defect is a loss of use that makes the property unfit for the use for which it is intended or reduces the usefulness to such a degree that the purchaser would not have paid so high a price. [1] [ 5 ] As for the error, it can be caused by fraud. [2] [ 6 ] In Lépine v.

Khalid , the Court of Appeal defines fraud as follows [3] : [52] A recent definition of the concept, which takes an excerpt from a scholarly article, is worth quoting here: "A means intended to deceive a person with the aim of getting him to commit himself by a legal act or to commit himself on terms different from those he would normally have accepted." For a long time, fraud could only result from positive actions taken to deceive the contractor.

Today, it sanctions the bad faith of the contractor, whether it comes from a positive gesture, deception, lying, fraudulent practice or an omission, reluctance, or silence. Whether or not it consists of a positive gesture, fraud is a means to an end, and it must always be assessed according to its purpose, which is to mislead someone in order to get him to contract to his disadvantage. (...) » [Reference omitted]

[ 7 ] It is up to the buyer who invokes the fraud of his seller to establish proof. This burden is quite heavy. [4] [ 8 ] In this case, did the defendants intend to deceive the plaintiffs? [ 9 ] The plaintiffs purchased the defendants’ property on June 29, 2021, for a price of $ 345 000. [ 10 ] The plaintiffs bought the property, around 2019.

The defendants declare that the air conditioning was working during the time they were the owners. [ 11 ] The property was built in 1993, so the air conditioning was 28 years old, at the time of the transaction between the parties. [ 12 ] Faced with contradictory evidence, the Court must determine the issue of the case upon the party who have the burden of proof, in this case the plaintiffs. [ 13 ] According to the plaintiffs, had it not been for the defendants’ fraud (by not disclosing) which misled them, they would not have paid the same price. [ 14 ] Fraud is

an act of pure bad faith, and it is not presumed. It consists in intentionally causing an error in the mind of its co- contractor to lead him to conclude the contract or to conclude it under different conditions. [ 15 ] The plaintiffs allege that the fraud of which they were the victim resulted from the defendants’ failure to disclose a fact that was, for them, essential to the conclusion of the sale. [ 16 ] Whether it proceeds from lying, reluctance or silence, fraud is characterized by the intention to deceive.

It must also be decisive on the will of the contracting party since it induces a diverted consent. [ 17 ] In civil law, the good faith of the contracting parties is presumed.

It is for the party alleging bad faith to reject this presumption and to prove that its counterparty has voluntarily vitiated its consent on an essential consideration of the contract. [5] [ 18 ] However, with the age of the air conditioning, the plaintiffs should have been aware that the equipment could have cease functioning at any time. [ 19 ] Let say that the Court, find it most improbable that the sale would not have gone through because a 28 th years old air conditioning was not working. [ 20 ] So even if the equipment was not in function, what could be the damage or the reduce price to go through with the sale? [ 21 ] An equipment value at $ 3 500 [6] , which is supposed to have a life between 8 and 15 years, is at a $ 0 value at the age of 28 years. [ 22 ] An analysis of all the evidence presented by the parties leads the Tribunal to conclude that the defendants did not intentionally fail to inform the plaintiffs, but even if it was not the case, the number of damages claimed by the plaintiffs, does not correspond with the real value of a 28-year-old air conditioning. [ 23 ] The Tribunal concludes that the duty of care and diligence in acquiring the property was not respected by the applicants for the following reasons, the air conditioning was already past his normal time life. [ 24 ] The plaintiffs should have made more inquiries if it was, as alleged, a major factor in the transaction. [ 25 ] Furthermore, to succeed in a hidden defect case, the plaintiffs must prove that the defect is important.

A $ 3 500 defect, which value is depreciated because of his age, doesn’t not qualified as a major defect. FOR THESE REASONS, THE COURT: [ 26 ] DISMISSES the claim. [ 27 ] EACH PARTY paying their respective costs. __________________________________ PATSY BOUTHILLETTE, J.C.Q. Date of hearing: August 16, 2023