2012 QCCQ 5852, 2012 QCCQ 5852

Schechtman c. Lakeshore Roofing 2012 QCCQ 5852 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-119412-098 DATE: April 30, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ BRAHM SCHECHTMAN -and- JOELLE SOUSSANA [...], Dollard-des-Ormeaux, Qc. [...] Plaintiffs v. LAKESHORE ROOFING 2306 Chemin St-François, Doval, Qc.

H9P 2R6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs, Brahm Shechtman and Joelle Soussana, are suing Defendant, Lakeshore Roofing, for $4,856.88. They allege that Defendant's roofing job was not properly done and resulted in water infiltration. Defendant denies the claim. The evidence: [ 2 ] Plaintiffs hired Defendant to redo their roof on April 18, 2007.

The following winter, Plaintiffs' roof leaked and damaged their newly renovated kitchen. [ 3 ] Defendant sent a representative to inspect the premises but no repairs were carried out. Its representative advised Plaintiffs that one of their pot lights, close to the leak, had caused the problem; Plaintiffs then had the light removed. [ 4 ] The following winter, the problem re-occurred. Defendant, after inspecting the house, blamed the leakage on ice damming and denied all responsibility. Plaintiffs' insurance company refused to cover these damages. [ 5 ] Plaintiffs hired Toitures Joël to do the repairs.

Toitures Joël concluded that Defendant's installation was inadequate; there was a hole in the plywood, which retained water and the installation was not sufficiently sealed. [ 6 ] Defendant claims the problem stems from the number of pot lights in the low roof area, which create too much heat. The heat loss, through the attic, melts the snow, which runs down the roof's lower back slope, over the kitchen, and freezes.

The ice builds up and when more snow melts, from the heat loss radiating through the roof, it has nowhere to go and leaks through the nail holes. [ 7 ] Defendant says it advised Plaintiffs to check the insulation of the pot lights and have them sealed, a fact Plaintiffs deny. Defendant suggests that the roof would have leaked when it rained, if its work was inadequate, as Plaintiffs claim. The leakage, however, occurred in the winter and a roofer never warrants a roof against leakage in the winter. Analysis:

[ 8 ] Plaintiffs seek damages, alleging that Defendant failed to properly carry out its roof job. They maintain they had no leakage problems prior to Defendant's work or following the repair work done by Toitures Joël, another roofer. [ 9 ]

Article 2100 of the Civil Code of Quebec (C.C.Q.) stipulates that a contractor must act in the best interests of its client with prudence and diligence. The contractor must act in accordance with usual practice and the rules of the trade. [ 10 ] Defendant blames the problem on ice damming caused by the existing number of pot lights in the kitchen.

It submits its warranty does not cover various situations including “improper ventilation, ice damming… conditions caused by insulation and condensation, whether such conditions existed before or after the roof was installed…” . [ 11 ] However, despite Defendant's claim that the problem was caused by the phenomenon of ice damming, stemming from the number of pot lights, Plaintiffs did not remove their remaining seven pot lights and after Toitures Joël repaired the roof in August 2009, they have not suffered any further leakage problems. [ 12 ] The preponderant evidence leads the Court to conclude that Defendant's work on Plaintiff’s roof was not adequately carried out.

Plaintiffs paid $931.22 for the repair of their roof and the expert report. They are entitled to be reimbursed this sum. [ 13 ] Defendant invokes the fact that it was not notified in writing of the defect. However, Defendant was well aware of the problem and had told Plaintiffs it did not accept responsibility. In such circumstances, there would be no purpose for Plaintiffs to send Defendant a written demand letter (article 1597 C.C.Q.) [ 14 ] Plaintiffs are entitled to the cost of the roof repair carried out by Toitures Joël. They are claiming $3,500 to replace their display unit.

However, they had it removed and provided no invoice of this cost. The estimate for the kitchen repair provided by Mr. Purnell came to $1,335.00. Another person did the work but Plaintiffs did not present the bill. Given the photographs showing the state of the kitchen, the Court, in its discretion, evaluates this aspect of the damages at $600.

The total amount of damages therefore comes to $1,531.22 FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiffs' action; CONDEMNS Defendant, Lakeshore Roofing (170921 Canada inc.), to pay Plaintiffs, Brahm Shechtman and Joelle Soussana, the sum of $1,531.22 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec since the institution of the action as well as judicial fees of $127. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: April 16, 2012