2013 QCCQ 914, 2013 QCCQ 914

Varela c. Feldberg-Felsentein 2013 QCCQ 914 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-124034-101 DATE: JANUARY 30, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ RICHARD VARELA Plaintiff v. ANNE FELDBERG-FELSENSTEIN and 4153413 CANADA INC. f.a.s.n. G.T.

Inspections Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized with a claim in the amount of $7,000 against the Vendor of a duplex, Mrs. Feldberg-Felsenstein, and the inspection company which conducted the pre-purchase inspection, G.T. Inspections. THE CONTEXT [ 2 ] In May 2008, Plaintiff was looking to buy a home and in the course of his research, he visited Defendant's duplex located at 5070- 5072, de la Peltrie, in Montréal (the building).

Negotiations between the parties took place and they finally agreed on a price of $365,000. [ 3 ] Following said negotiations, Plaintiff retained the services of Defendant G.T. Inspections for the pre-purchase inspection. The mandate between Plaintiff and G.T.

Inspections, filed before the Court, contains the following clause: ARBITRATION Any and disputes, differences or claims arising of or in connection with the present contract shall be referred to and finally settled by arbitration according to the Quebec Civil Code of Procedure, to the exclusion of judiciary courts, and the arbitration decision will be executory, final and without appeal. [ 4 ] The inspector visited the building with Plaintiff on June 4, 2008 and said visit lasted approximately two hours.

According to Plaintiff, the inspector examined both the exterior and the interior of the building as he followed him. Plaintiff explains that in the basement, he noticed efflorescence on the south wall, dampness and a smell. He also noted the presence of a sump pump which was discussed with the inspector. [ 5 ] From Plaintiff's standpoint, the inspector's findings led him to conclude that there was no major problem with the building and that should he fix or change the sump pump, any humidity problem in the basement would be solved. [ 6 ] Following the inspection and the report filed by Defendant G.T.

Inspections, Plaintiff negotiated a reduction of the price of the building to an amount of $350,000. [ 7 ] A few months after he moved into the building, Plaintiff found water in the basement. He refers to big puddles spread out and he took pictures which indicate the extent of the infiltrations. Following the water infiltrations, Plaintiff obtained from Aquafuge Fondation an assessment of the cost to fix the infiltration problem.

According to Plaintiff, Aquafuge Fondation suggested to install a french drain along the outside of the west and south walls for an amount of $16,980. [ 8 ] Following said quote, Plaintiff retained the services of an attorney and sent letters of default to both Defendants: – To Mrs. Felsenstein, he complained of hidden defects considering that the listing prepared by Remax only mentioned that the basement of the building was not finished and should have mentioned that the property did not have sufficient drainage. – To G.T.

Inspections, he indicated that he held them liable for not informing him of a water infiltration problem in the basement. [ 9 ] G.T. Inspections’ representative, Mr. Cartmel, reviewed at the hearing the content of the report filed following the inspection of the building. Mr. Cartmel refers to several extracts of the report, the most important one being the following: INTERIOR

10.0 BASEMENT/CRAWL SPACE LEAKAGE – efflorescence, stains, dampness, prior repairs with the following indications: Further evaluation is required on an immediate basis There is also a chart indicating: þ Evidence of leakage þ Cannot predict how often or badly crawl space or basement will leak þ Read

Section 10.0 in the text before taking action. In addition, in the bottom line section, it is mentioned the following: IF A DRY BASEMENT IS REQUIRED, CONSULT A SPECIALIST. [ 10 ] According to Mr. Cartmel, the report prepared by G.T. Inspections clearly referred to water infiltrations in the basement as numerous signs of said infiltrations have been noted and commented by the inspector in his report. [ 11 ] As far as the Vendor is concerned, Mrs. Felsenstein, she never lived in the building and explained that she was never asked specific questions with respect to the condition of the basement.

She never prepared a Vendor's Declaration regarding the specifics of the building, including the basement. ANALYSIS G.T. Inspections [ 12 ] Plaintiff’s recourse against G.T. Inspections relies on the mandate signed by the parties. The mandate, as mentioned in paragraph 3, contains an arbitration clause. [ 13 ] Sections 2638 and 2643 of the Civil Code of Québec read as follows: 2638. An arbitration agreement is a contract by which the parties undertake to submit a present or future dispute to the decision of one or more arbitrators, to the exclusion of the courts. 2643.

Subject to the peremptory provisions of law, the procedure of arbitration is governed by the contract or, failing that, by the Code of Civil Procedure (chapter C-25 ). [ 14 ] Both parties decided to accept the arbitration clause and therefore, Plaintiff’s claim against G.T. Inspections shall be referred to and settled by arbitration. [ 15 ] In view of the foregoing, the Court must decline jurisdiction with respect to Plaintiff’s claim against G.T. Inspections.

Anne Feldberg-Felsenstein [ 16 ] In order for Plaintiff to obtain compensation from the Vendor on the ground of latent defects, he must prove, amongst other things, that the defects were not apparent. In the present case, Plaintiff’s testimony refers to the fact that at the time of the pre-purchase inspection, he noticed efflorescence on the wall of the basement, dampness, a smell and the presence of a sump pump. In addition, the report filed by G.T.

Inspections following the pre-purchase inspection clearly refers to evidence of leakage, efflorescence, stains and dampness in the basement. [ 17 ] The Court finds that Plaintiff has neglected to demonstrate that the defects which caused the water infiltration were hidden. The Court must dismiss Plaintiff’s claim against the Vendor. IN VIEW OF THE FOREGOING, THE COURT: DECLINES jurisdiction for Richard Varela’s claim against 4153413 Canada inc. f.a.s.n. G.T.

Inspections; DISMISSES Richard Varela’s claim against Anne Feldberg-Felsenstein; THE WHOLE , with costs ($194 and $148). __________________________________ JULIE VEILLEUX, J.C.Q.

Date of hearing: January 8, 2013