2021 QCCQ 5596, 2021 QCCQ 5596

Capitale General Insurance Inc. c. D. Medford & Associates 2021 QCCQ 5596 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-158575-185 DATE: June 15, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ LA CAPITALE GENERAL INSURANCE INC. Plaintiff v. D.

MEDFORD & ASSOCIATES Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Because one of its insureds suffered water damage in their basement, La Capitale General Insurance Inc. (“ La Capitale ”) has brought an action in subrogation claiming $7,608.51 from D. Medford & Associates (” Medford ”), a residential plumbing and irrigation company. [ 2 ] According to the plaintiff, the water damage was caused by a broken pipe from the irrigation system in the building owned by its insureds.

More specifically, the plaintiff alleges that the defendant improperly or insufficiently blew out the water in the irrigation system pipes when closing it, thereby allowing water to freeze and burst the pipe. [ 3 ] The defendant contests the claim and denies any causal connection between the supposed fault and the damage alleged. It argues that the water damage resulted from the facts and acts of the insured’s spouse who opened the irrigation system without knowing how do to so. ISSUES [ 4 ] The Court must answer the following questions: 1.

Has La Capitale proved the improper performance of the work to close the irrigation system by Medford or the absence of the promised result? 2. Has Medford proved the subsequent faulty act by the insured’s spouse such that it is entirely relieved from any liability? 3. If not, to what damages is La Capitale entitled?

BACKGROUND [ 5 ] On April 30, 2014, the plaintiff’s insureds gave Medford the contract to open and close their irrigation system (P-2). [ 6 ] It is admitted that the services were rendered in the spring and fall of 2014 and that Medford’s contract was renewed for the 2015 season. [ 7 ] On or about May 3, 2015, Keyvan Nassiry, the insured’s spouse, decided to open the irrigation system by himself. [ 8 ] After opening the main valve located in the building’s basement and waiting for the water to flow, he went outside.

Once there, he noticed that the water pressure was low because the sprinklers were not operating at full force. He went back to the building’s basement and could hear the water running in the pipes. He followed the sound and realized that something was wrong. He shut off the main valve, but the damage had been done and water had leaked into the building’s walls. [ 9 ] Mr. Nassiry filed a claim with La Capitale, who took care of the emergency work (P-4). The damages amounted to $9,608.51.

From this amount, the insureds paid a $2,000 deductible. [ 10 ] The expert plumber Wojciech Widrych was hired by Mr. Nassiry to identify the cause of the loss. [ 11 ] In his written report (P-3) and at the hearing, the expert Wydrych attributed the water damage to a broken water pipe of the irrigation system located near the building’s foundation. Looking at the photographs of the pipe (P-7, at 2 and 3), he added that only freezing could explain this type of break.

He explained that the cold causes the water to expand and the pipe to burst. [ 12 ] On July 15, 2015, La Capitale put Medford on formal notice to reimburse the amount of $7,608.51, which corresponded to the indemnity paid to its insureds (P-5). [ 13 ] On April 6, 2018, La Capitale brought its legal action.

ANALYSIS AND JUDGMENT Applicable law [ 14 ] First, the Court will reiterate the rules governing evidence in civil law. [ 15 ] A person seeking to assert a right must prove the facts on which his or her claim is based through evidence that renders the existence of the facts underlying the claim more probable than their non-existence. [1] [ 16 ] While the evidence adduced need not lead to absolute, scientific or mathematical certainty of the facts alleged, it must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test to render the fact in dispute probable. [ 17 ] If the evidence is not sufficiently convincing or if it is contradictory and the judge cannot determine where the truth lies, the party that has the obligation of convincing the Court of the merits of his or her claim will lose, in full or in part. [ 18 ] On the merits, the case must be analyzed from the perspective of the contractual relationship binding the insureds and Medford, specifically, the rules concerning the contract for services. [ 19 ] Articles 2098 and 2100 of the Civil Code of Québec (“ C.C.Q. ”) are at the heart of this dispute.

They provide that: 2098 . A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. 2100 . The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence.

Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract. Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. [ 20 ] Let us discuss the issues. 1. Has La Capitale proved the improper performance of the work to close the irrigation system by Medford or the absence of the promised result? [ 21 ] According to

article 2100 C.C.Q. above, the provider of services, in this case Medford, is bound to provide the client with a service in conformity with the contract, that is, opening and closing the client’s irrigation system (P-2). [ 22 ] Considering the nature of this contract, the experience of the provider of services, the methods available to the provider to perform the service, and the relative simplicity of the activity to be performed, the Court finds that Medford was bound by an obligation of result. [ 23 ] The obligation of result means that the provider of services must not only accomplish that which was undertaken, but also provide a specific result.

The absence of this result creates a presumption of fault. [ 24 ] This means that La Capitale need not prove the improper performance of Medford or its employees in carrying out the closing work.

To incur Medford’s liability, it is enough to show that Medford did not provide the agreed upon and expected result. [ 25 ] In this case, La Capitale convincingly demonstrated that the main line, which is used exclusively by the irrigation system, broke. [ 26 ] Then, its expert claimed, without being contradicted, that water was necessarily in the irrigation system pipes because only a freeze could explain the pipe’s bursting.

[ 27 ] Finally, the expert rejected Medford’s hypothesis that water could have filtered into the pipe through the building’s indoor valve because he did not see anything unusual when he did his repairs. [ 28 ] Faced with these findings, the Court accepts that the most logical explanation for the burst pipe is that the irrigation system was not sufficiently blown out or drained when it was closed in the fall of 2014. That being so, some water remained in the supply pipes, which is contrary to the specific result that Medford had to provide.

Fault has therefore been proved. [ 29 ] Because Medford is bound to an obligation of result, its only argument to relieve its civil liability is to prove superior force [2] or that its client was the source of the fault. [ 30 ] In this case, this evidence has not been adduced to explain the broken pipe. Medford is therefore liable. [ 31 ] It should be added that Medford’s representative admitted at the hearing that he would have easily and without any hesitation assumed the cost of repairing the pipe had he been asked. [ 32 ] This leads us to the next question. 2.

Has Medford proved the subsequent faulty act by the insured’s spouse such that it is entirely relieved from any liability? [ 33 ] As we have seen, La Capitale does not claim damages related to repairing the supply pipe from Medford, but those that are a consequence of that broken pipe. [ 34 ] According to Medford, these damages are not a direct consequence of its facts and actions, but arise from the inexperience and haste of Mr.

Nassiry who took the initiative of personally opening his irrigation system without recognizing in time that there was a leak. [ 35 ] The evidence adduced by the defence clearly shows that Mr. Nassiry is a neophyte when it comes to irrigation systems. [ 36 ] Although he has some basic notions, having seen Medford work in the past, this knowledge does not make him an expert on the subject. In fact, Mr.

Medford stated that had he been there for the opening, he would have immediately closed the system in less than five seconds as he would have recognized the problem just by the sound of the water. [ 37 ] The defendant claims that damages would therefore have been non-existent or, in the alternative, that Mr. Nassiry is the author of his own misfortune. [ 38 ] While it is true that Mr.

Nassiry lost precious seconds recognizing the water leak, by climbing upstairs and going outside, looking at the pressure in the sprinklers before returning to the basement, the Court cannot conclude that there is a break in the direct causal connection, as Medford suggests. [ 39 ] To accept that theory, the Court would have to be convinced that the initial fault, being the broken pipe, and the water damage in the basement, had completely disappeared. [ 40 ] Such is not the case.

The Court is instead of the view that there is a continuous thread that leads, in this case, to shared liability. [ 41 ] Accordingly, the Court must now apportion liability between Medford and Mr. Nassiry to answer the last question and establish the amount of damages. 3.

To what damages is La Capitale entitled? [ 42 ] After reviewing the evidence, the Court deems that the faults carry the same weight. [ 43 ] The broken pipe attributable to Medford’s fault created a potentially damaging situation where the harm was suspended until the irrigation system was started. [ 44 ] The seed of danger was planted and damage was inevitable. Only its scope remained to be determined. [ 45 ] As for Mr. Nassiry, he should shoulder part of the liability given his inability to react quickly to short-circuit the damages. [ 46 ] Without saying that Mr.

Nassiry accepted all the risks of the company by deciding to open his system, because overall there was nothing that would have allowed him to anticipate any issue, he nevertheless knew that he did not have Medford’s knowledge should an issue arise. [ 47 ] Here, Mr.

Nassiry’s testimony indicates that he was unable to recognize the sound of water leaking into the wall and not through the pipes. [ 48 ] The liability being thus shared 50/50, the value of the claim remains to be determined. [ 49 ] La Capitale proves the payment of an insurance indemnity to its insured in the amount of $7,608.51. [ 50 ] Without questioning this amount, the Court considers that it should be adjusted downwards because Medford, not being the insured’s insurer, is not liable for replacement value but for depreciated value.

Similarly, the Court is of the opinion that Medford is not liable for the “supplément” and “qualité supérieure” construction elements that appear in the construction specifications (P-4), nor for the fact that the reconstruction had to follow a rigorous protocol given the health condition of the insureds’ son.

[ 51 ] Accordingly, using its judicial discretion, the Court set the amount of damages payable by Medfort at $1,500. [ 52 ] Finally, given the mixed outcome of the claim, the court will use its discretion to rule on the dispute without costs. FOR THESE REASONS, THE COURT: GRANTS the plaintiff’s action in part; CONDEMNS the defendant to pay to the plaintiff the amount of $1,500, with interest at the legal rate of 5% per year, and the additional indemnity under art. 1619 of the Civil Code of Québec , as of April 10, 2018, date of the summons; THE WHOLE without costs; _________________ Jo Ann ZAOR, J.C.Q. Date of hearing: April 20, 2021