2014 QCCQ 11624, 2014 QCCQ 11624

Avecedo c. Besozzi 2014 QCCQ 11624 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-021610-131 DATE: November 27, 2014 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN, J.C.Q. ______________________________________________________________________ Fernando Avecedo and Lina Maria Londono […]Cantley, Qc, […] Applicants v.

Claudio Besozzi and Monique Pilon […]Gatineau, Qc, […] Defendants ______________________________________________________________________ JUDGMENT Rendered orally at the hearing and edited ______________________________________________________________________ INTRODUCTION [ 1 ] The plaintiffs are suing the defendants for the difference in costs between the funds kept in trust by the notary and the actual costs of the installation of a new septic system.

QUESTION IN DISPUTE [ 2 ] The Court has to decide if the plaintiffs are entitled to recover the difference between the cost of the installation for the new septic system and the funds kept in the notary’s trust account for that specific purpose. THE FACTS [ 3 ] On July 10 2012, the parties sign an offer to purchase for a house situated on Pontiac Street in Cantley. Septic D & D is asked to do an inspection of the septic system and discovers it is saturated in the septic field and has an accumulation of organic wastes in the septic field piping.

Following Septic D & D’s recommendation to replace the septic system, the parties prepare and sign an amendment on the offer to purchase on July 13, 2012. [ 4 ] Clause 8.1 of the amendment of the offer to purchase mentions : « The seller will replace the septic system at his cost. A proof of an engineer letter will be required with a report indicating the type of septic system that can be installed. The installation of the septic system will need to be completed before the act of sale with a copy of

invoices indicating the work performed, if not the notary will retain fifteen thousand dollars ($15,000.00) and release the funds once the work is completed. » (The underlined are added by the undersigned.) [ 5 ] On July 15 2013, at the defendants request Septic D & D prepares a quotation for the installation of a Bionest septic system in the amount of 16 841 $ (19 362,94 $ with taxes). [ 6 ] The applicants are claiming the difference in costs between the money kept in trust and the actual costs for the new septic system. [ 7 ] According to clause 8.1 of the amendment of the offer to purchase, the defendants will defray the expenses for the replacement of the septic system (not just the septic field).

The quotation submitted is written out in their names. [ 8 ] The plaintiff’s evidence shows that the septic tank was cracked and leaking. This was discovered while digging in preparation of the new system. The septic tank needed to be replaced as well as the septic field. [ 9 ] The applicants are asking for the difference in costs of 4 362,94 $. They are also asking the reimbursement of 300 $ relating to the cutting of trees in order to access the septic system and the sum of 150 $ for the city’s building licence.

Total sum claimed is 4 812,94 $. [ 10 ] The Court concludes that the evidence proves, on the balance of probabilities, that the plaintiffs met their burden of proof. FOR THOSE GROUNDS, THE COURT: [ 11 ] GRANT the present application; [ 12 ] ORDER the defendants jointly, to pay to the plaintiffs the sum of 4 812,94 $ plus interests at the yearly rate of 5% and the additional indemnity provided by

section 1619 of the Civil code of Québec starting December 10, 2013 and the judicial fees of 136 $; __________________________________ Serge Laurin, J.c.Q. Date of hearing: October 21, 2014