2017 QCCQ 6212, 2017 QCCQ 6212

Cai c. Lefebvre 2017 QCCQ 6212 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-150786-160 DATE: May 19, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ JIAN CAI Plaintiff v.

BERNADETTE LEFEBVRE -and- PROPRIO DIRECT INC. -and- LINE BERNIER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Jian Cai is suing Defendants Bernadette Lefebvre, Proprio Direct inc. ( Proprio Direct ) and Line Bernier for $15,000 on the respective grounds of latent defects and professional real estate broker fault. On June 23, 2014, Ms. Cai purchased from Ms. Lefebvre a condominium unit located on Île-des-Soeurs (Nuns’ Island).

The condominium unit is no. 8 and is located on the top 3 rd floor of the building. The sale was made with legal warranty of quality [1] . [ 2 ] Ms. Lefebvre, the seller, listed the property for sale through Proprio Direct and the assigned real estate broker was Ms. Bernier. Questions in Issue [ 3 ] Regarding the claim against the seller Ms.

Lefebvre, the questions in issue are: 1) Is the condominium unit subject to flooding? 2) Is the unlevel nature of the floors throughout the condominium unit a latent defect? 3) Is the plumbing defect preventing the supply of hot water in the shower a latent defect? [ 4 ] Regarding the claim against the real estate agency Proprio Direct and the real estate broker Ms. Bernier, the questions in issue are: 1) Did Ms. Bernier know of the problems and intentionally not disclose them?

2) Did Ms. Bernier advise Ms. Cai that it was not necessary to hire a professional pre-purchase inspector and in so doing commit a professional fault? Analysis and Decision [ 5 ] As Plaintiff in the legal proceedings, Ms. Cai has the burden to prove her allegations before the Court (Articles 2803 and 2804 of the Civil Code of Quebec ). Recourse Against Seller 1. Condominium Unit Allegedly Subject to Recurrent Flooding [ 6 ] Ms. Cai offers no proof as to the existence or the cause of such alleged repeated flooding (roof, plumbing or other).

She only says that “some people” in the building, who did not testify before the Court, have told her that floods have occurred in the past in her unit and have originated from her unit. [ 7 ] However, the actual evidence before the Court was to the opposite effect. [ 8 ] According to the neighbour and co-owner (Ms. Léa Lamirande) and Ms. Lefebvre, in 2012, after the washing machine in the unit was temporarily removed for renovation work, it was put back. A connecting water entry/out flow pipe was wrongly connected and water came out. No water appeared in Unit 8.

But water did leak into the condominium unit below. Ms. Lefebvre did not make an insurance claim for the damages. Instead, she personally paid the small amount ($570) to repair the damages caused to the unit below. The paid invoice for such repairs was filed into evidence [2] . [ 9 ] Ms. Cai vacated the unit on September 1, 2014. Since that time, she has rented the unit out to various tenants. Over the short time during which she lived in the unit (2 months), there was never a flood.

Also, over the period of almost 3 years since her departure up to the date of the trial, there has not been a flood reported by any of her tenants who have occupied the unit. [ 10 ] There is therefore no proof of a recurring problem of flooding and Ms. Cai’s allegations are without foundation. Ms. Cai’s claim in that regard is therefore dismissed. 2. Unlevel Floors [ 11 ] The condo building was built in 1987. According to the evidence, most or all of the units of the building have unlevel floors. [ 12 ] The neighbour (Ms.

Lamirande) who testified stated that when she purchased her unit, she saw the unlevel floors. She lives with them and it causes no inconvenience for her. [ 13 ] Ms. Lefebvre testified that when she bought her unit, she also noticed the unlevel floors. They were less obvious at the time because of a carpet on the floors. But the unevenness was still noticeable. In 2012, she removed the carpet and installed a floating floor. From that point, the unlevel nature of the floor became obvious. [ 14 ] Ms. Cai alleges that the unlevel floors constitute a latent defect.

[ 15 ] However, according to Article 1726 (2) of the Civil Code of Quebec ( C.C.Q. ), in order for a defect to be considered latent, it must not be apparent to a prudent and diligent buyer. [ 16 ] According to Ms. Cai’s own testimony, she only visited the property on two occasions before purchasing. She did so alone and for an approximate duration of five (5) minutes on each visit. The broker Ms. Bernier states that the visits lasted longer, approximately 15 to 20 minutes. [ 17 ] Ms.

Cai made no proof whatsoever of the problem, its extent, or its alleged abnormal nature, by way of photographs, expert testimony or otherwise. [ 18 ] For the last century, Quebec jurisprudence under the warranty of quality has decided that, with regard to private sales by sellers of used residential properties, the unlevel state of floors constitutes, in general, an apparent defect. [ 19 ] In 1916 in Laberge v.

Gervais [3] , Weir, J. held: “… que, d’après le témoignage de Mme Destrembes, une des locataires de la maison en question et témoin du demandeur, longtemps avant que le défendeur acheta la propriété de Perrier, le mur du côté Est penchait et que le plancher de son logement n’était pas de niveau. …. Considérant que le demandeur, par un examen ordinaire de la maison en question avant la vente, aurait pu se rendre compte des défauts…” [ 20 ] In 1928 in Arpin v.

Francoeur [4] , Demers, J. held: “Considérant que le vice dont était affecté la maison en question était tel que l’acheteur aurait pu se convaincre par une vérification de la chose vendue; qu’il était visible que le plancher était baissé;” [ 21 ] That judgment was confirmed by the Court of Appeal. For the Court, Tellier, J. held: “Il [l’acheteur] n’avait qu’à regarder le plancher qui était baissé par le milieu et qui creusait. N’importe qui pouvait voir cela.” [5] [ 22 ] More recently, in 1971 in Arcand v.

Clément [6] , the Court of Appeal again held: “La preuve révèle hors de tout doute que la dénivellation du plancher était apparente lors de la vente. Tous les témoins sauf Clément l’affirment. Même celui-ci reconnaissait qu’il s’en est aperçu dès qu’il emménagea dans la maison. S’il a vu le défaut à ce moment, rien ne l’empêchait de le voir avant la vente. S’il est exact que le défaut lui échappa c’est qu’il n’a pas prêté une attention suffisante. Il n’a que lui-même à blâmer de sa négligence.” [ 23 ] This reasoning has been followed in recent jurisprudence [7] . [ 24 ] If Ms.

Cai had acted as a prudent buyer and examined diligently the premises, even without furniture present, she would have noticed that the floors were not level, just as Ms. Lamirande and Ms. Lefebvre had noticed when they purchased their units.

[ 25 ] The Court concludes that Ms. Cai was negligent in her inspection. [ 26 ] Ms. Cai could have hired a professional pre-purchase inspector. The right to do so was even stipulated in the promise to purchase. But Ms. Cai decided not to exercise that right. [ 27 ] Furthermore, there is no proof that this problem causes or has caused any serious inconvenience or loss of value to the property. Many floors in many residential properties are not level, especially in older constructions. The claim under this point is therefore also dismissed. 3.

Plumbing Defect Preventing Supply of Hot Water in the Shower [ 28 ] After taking possession of the unit and discovering the lack of hot water supplied by the shower, Ms. Cai immediately advised in writing Ms. Lefebvre of this problem [8] . Ms. Lefebvre neither examined nor corrected the problem. [ 29 ] Ms. Lefebvre states that after Ms. Cai started to use abusive and insulting language in her communications, she refused to deal with her. [ 30 ] The proof in the record unfortunately supports the allegation of the use of such language.

The e-mails notifications contained language that was inappropriate and less than helpful in trying to obtain the cooperation of Ms. Lefebvre. But the unfortunate use of such language does not alter the parties’ rights and obligations, in particular the legal responsibility of Ms. Lefebvre under the warranty of quality to repair a latent plumbing defect located in the private area of the unit. [ 31 ] There was no exclusion of the warranty of quality in the contractual documents regarding such a defect. [ 32 ] According to the evidence, the defect in issue satisfies the conditions for a latent defect specified at

Article 1726 C.C.Q.: 1) it existed before the sale since the problem manifested itself immediately upon taking possession. It should be noted that the unit was empty for at least 6 months before the sale so the problem in all likelyhood existed before the sale but remained unnoticed as a result of the vacancy or lack of occupation; 2) the defect was unapparent. It is not reasonable to have expected Ms. Cai to notice this problem during her inspection since the water source affected was limited to the shower.

The other faucets worked in this respect. 3) The problem is sufficiently serious that it prevents the normal use of the premises. 4) It was unknown to the buyer at the time of the purchase. [ 33 ] Ms. Cai repaired the problem and files two paid invoices [9] in that regard. The total cost of the corrective work was $696.76. [ 34 ] As this problem satisfies the conditions of a latent defect, the Court will condemn Ms. Lefebvre to pay Ms. Cai that amount. [ 35 ] However, as Ms. Cai’s use of unfortunate and abusive language led to the lack of cooperation of Ms.

Lefebvre, there will be no order regarding legal costs against Ms. Lefebvre.

Recourse Against Real Estate Broker and Real Estate Agency [ 36 ] Regarding the claim against the broker Ms. Bernier and the real estate agency Proprio Direct, there is no proof that Ms. Bernier knew about the alleged problems affecting the property and failed to disclose them. [ 37 ] Regarding the allegation that Ms. Bernier was negligent in not recommending to Ms. Cai to have a pre-purchase inspection, Ms. Cai has no proof in that regard. [ 38 ] Instead, the evidence on that point favours Ms. Bernier. The latter specifically inserted into the promise to purchase a clause providing for a right of inspection. Ms.

Bernier advised in writing Ms. Cai that it was the responsibility of the buyer to inspect [10] . According to Ms. Bernier’s testimony, she even suggested names of possible professional pre-purchase inspectors, but Ms. Cai declined to use any. [ 39 ] Ms. Cai states that, as a person who was a new arrival to Canada, she did not know how to proceed. But the test of a prudent and diligent buyer is universal and if she did not know how to proceed, she should have been more careful, sought out advice from a professional or at least taken time to do a thorough inspection herself of the premises. Ms.

Cai was negligent in all these respects. Accordingly, the claim against the broker and agency will be dismissed. [ 40 ] However, since Ms. Cai is a recent arrival and had difficulties with English and French, it would have been desirable that Ms. Bernier recommend in writing to Ms. Cai that she obtain a pre-purchase inspection and thereafter confirm in writing her refusal to do so. There would then have been no ambiguity with respect to Ms. Cai’s decision in that regard. As that was not done, the claims against the broker Ms.

Bernier and the real estate agency Proprio Direct will be dismissed, but without legal costs. FOR THESE REASONS, THE COURT: CONDEMNS Bernadette Lefebvre to pay Jian Cai the amount of $696.76 with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the date of the last invoice (Exhibit P-8), namely June 10, 2016; WITHOUT LEGAL COSTS; DISMISSES the Judicial Demand against Proprio Direct Inc. and Ms. Line Bernier; WITHOUT LEGAL COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: May 19, 2017