2013 QCCQ 6064, 2013 QCCQ 6064

Thomas c. Sunny Li and Safeguard Inspection 2013 QCCQ 6064 COURT OF QUEBEC "Small Claims Division" CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-124773-104 DATE : June 7, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ NISSA P. Thomas […] Montréal, Québec […] Plaintiff v.

SUNNY Li and Safeguard Inspection […] Brossard, […], Québec Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Mrs. Nissa P.

Thomas, purchaser of a home on […], Montreal sues the defendant Sunny Li and his firm Safeguard Inspection alleging prejudice because of the defendants' failure to detect a structural defect in the building during a pre-purchase inspection conducted at her request. [ 2 ] She alleges that the full cost of repairs necessary to make the building structurally sound plus additional damages amount to a claim of $ 8,500.00. She voluntarily reduces this amount to the $ 7,000.00 limit available in the Small Claims Division. [ 3 ] Safeguard Inspection is simply the name under which Mr. Li does business. Mr.

Li contests the action alleging that it is prescribed because Mrs. Thomas failed to bring her application within three years from the inspection of the property that led to the discovery of the defect. He also denies liability by asserting that the defect was a hidden defect and that it was not his duty to discover it during the pre- purchase inspection. [ 4 ] Finally, he defends the claim on the basis that the amount is exaggerated. ISSUES [ 5 ] To resolve this conflict the Court must decide: 1) the date from which the three-year prescription began to run; 2) if the case is not prescribed, is Mr.

Li at fault in connection with the pre-purchase inspection he carried out? 3) in the event that he is found to be at fault, what is the proper measure of the damages? FACTS [ 6 ] Mr. Li carried out his inspection on July 23, 2006. That day, an agreement was signed between him and Mrs. Thomas.

The contract document describes the type of inspection to be made as: a visual, non-technically exhaustive review of the easily accessible components of the structure and mechanical systems as well as a test of the operation of the mechanical systems used in the normal operating controls, without the use of mathematical or applied science. Latent and concealed defects and deficiencies are excluded from the inspection; equipment items and systems will not be dismantled.

The inspector will not make openings in walls and ceilings and will not remove furniture. [ 7 ] At the end of the agreement is found a reference to a published standard: It is agreed that standard and scope of this inspection will be [sic] accorded with standard of practice by Quebec Building Inspection Association. [ 8 ] This standard of practice (the "Standard") is also mentioned in the

preamble to the report issued after the inspection (P-2). The document, entitled "AIBQ Quebec Association of Building Inspectors Standards of Practice" is scheduled to the report.

[ 9 ] Several passages in the Standard help to understand the scope and purpose of the inspection and the intensity of the application of the inspector: 2. PURPOSE AND SCOPE 2.1 An inspection performed in accordance with these guidelines is intended to provide the client with the necessary information required for a better understanding of the condition if the property , as observed at the time of the inspection. 2.2 The Inspector shall: A. Visually observe the readily accessible installed systems and components that are listed in these Standards; B. Submit a written report to the client that shall: 1.

Describe those systems and components that are specified in sections 4 to 12 of these Standards; 2. State which systems and components designated for inspection in these Standards have been inspected and identify those systems and components that have not been inspected and indicate the reasons why they have not been inspected; 3. State any systems and components so inspected that were found to be in need of immediate repair or of major repair , including safety items; 4.

Inform his client of major repairs and may refer to an annexed table of life cycles and costs for these respective repairs. [ 10 ] More particularly and under the

part concerning structure one reads: 4. SYSTEM: STRUCTURAL COMPONENTS 4.1 The inspector shall observe : A. Structural components including: 1. Foundations 2. Floors 3. Columns 4. Ceilings 5. Roofs 4.2 The inspector shall A. Describe the type of: 1. Foundations 2. Floor structure 3. Wall structure 4. Columns 5. Ceiling structure 6. Roof structure B. Probe structural components where deterioration is suspected. However, probling is NOT required when probing would damage any finished surface. [ 11 ] Specifically, with respect to insulation, the document reads:

12. SYSTEM: INSULATION & VENTILATION 12.1 The inspector shall observe : A. Insulation in unfinished attic spaces and foundation areas; B. Ventilation of attics, crawl spaces and basements; C. Devices of the main ventilation system ; D. Kichen, bathroom, and laundry venting systems . 12.2 The inspector shall describe : A. Insulation and vapor retarders observed in the unfinished spaces. 12.3 The inspector is NOT required to report on: A. Concealed insulation and vapour retarders; B. Venting equipment which is integral to household appliances . [ 12 ] MontRoyal Consultants (Jimmy Vathis Eng.) filed a report on behalf of Mr. Sunny Li (D-3). In the

section titled "Building Description" one reads: The floor structure is composed of 3x10 joists observed to span the depth of the building. The main beam spans across the width of the building and the joists are perpendicular to the main beam. [ 13 ] Essentially this floor structure, which is a major structural component of the building, can be observed by going into the crawl space which does not unduly restrict the movement of an average-sized adult. [ 14 ] Mr.

Li’s report includes pictures that show the crawl space where he indicated, for example at page 15 (in reference to photo n° 6), "Upper central column has no direct support in the basement." [ 15 ] At photo no. 9 on page 16 he makes reference to “Support reinforcement” indicating with an arrow a simple wooden structure. In his conclusion at page 17 under "Structure" is found "Recommend some direct support in the basement to the upper column" (pic. 6). [ 16 ] The report recommends some minor repairs and improvements under this section.

It points out some areas where defects should be corrected and in other cases recommends that a specialist be consulted. [ 17 ] The offer of purchase was made conditional upon the inspection. As a result of her understanding of certain deficiencies affecting the building derived from Mr. Li’s report, the plaintiff negotiated a reduction of price of $ 1,200.00. [ 18 ] Mrs.

Thomas took possession of the property in September 2006. [ 19 ] Before taking possession she obtained from a contractor, Rénovation Jubinville Inc. an estimate for some minor repairs to one of the bedrooms for a price of $ 2,400.00 plus taxes. [ 20 ] After taking possession and as some minor works were being carried out, the contractors informed Mrs. Thomas of a number of defects in the building which were only apparent once some demolition works were carried out.

This led her to hire a Professional Engineer, Mr Claude Guertin of the firm Prospecplus Ingénieur Conseil. [ 21 ] Mr Guertin visited the property with Mrs Thomas on August 1, 2007.

One of the defects Mr Guertin refers to in his report is the deterioration of the floor joists at the point where they are supported by the foundation walls. [ 22 ] The contractor that Mrs Thomas had hired found signs of rot at their extremities, where the load is transfered to the foundation walls [ 23 ] Mr Guertin's role was to check the condition of these joists, determine whether there was a serious problem, and, if so, clarify whether the defect was hidden or apparent.

Mrs Thomas needed answers to these questions before deciding whether to sue the seller in an action to reduce the price. [ 24 ] On October 12, 2007, Mrs Thomas took possession of a copy of the report dated October 8, 2007. The relevant part reads : 6.2 Solives de plancher À propos des solives de plancher qui apparaissent dans le vide sanitaire, il semble qu’à première vue, elles ont une apparence saine. Par contre, lorsque nous avons introduit un tournevis dans l’appui des solives, nous avons constaté qu’elles étaient très détériorées et inadéquates (mur façade avant et arrière du bâtiment).

Ainsi, nous présumons qu’à la suite des infiltrations d’eau ou du problème de condensation, l’eau, qui descend vers le bas à cause de la

gravité, aurait détérioré la solive de rive ainsi que l’appui des solives de plancher. [ La solive de rive est par définition la solive perpendiculaire aux solives (éléments structuraux de planchers) qui forme un caisson à ses extrémités]. Dans le cas sous étude, les fondations furent isolées à l’aide d’un isolant giclé (uréthane).

Sachant, comme professionnel, que ce type de fondation est souvent non étanche, à cause de son âge et des techniques de constructions de l’époque (pierres cimentées), il est donc impératif pour un professionnel, notamment dans le cadre d’une inspection préachat, de s’assurer du bon état des solives à leur appui. Ceci peut facilement être réalisé à l’aide d’un objet contondant, tel qu’il fut fait lors de notre inspection.

Puisque les solives inspectées sont putréfiées à leur appui, nous recommandons que ces dernières soient renforcées de part et d’autre des murs de fondation afin de maintenir une stabilité structurale permanente au bâtiment. [ 25 ] Mrs Thomas then sued her seller for this and other defects mentioned in the report. Her seller called in warranty the previous seller, who called in sub-warranty his seller. Mr Li was not brought into that case. [ 26 ] The file was settled in a settlement conference in the Court of Quebec. The Court homologated the decision.

The document homologated, dated May 5, 2009, discloses that the action was taken for the amount of $ 43,713.28 and settled for the amount of $ 30,000 $ divided equally between the three levels of sellers. [ 27 ] Not having received fully the amounts of her alleged loss, Mrs Thomas brought the present claim against Mr Li on August 24, 2010. [ 28 ] The works recommended by Mr Guertin to reinforce the floor joists were carried out, along with a number of other works relating to the report, by BOA Construction Inc. for a global price of $ 67,565.06 tax included (P-5). [ 29 ] The payments established by bills marked "paid" total $ 66,565.06, $ 1,000.00 less. [ 30 ] The price, as broken by BOA Construction in its contract, provides for $ 15,846.00 for all of the work being done in the basement.

The document does not establish of the exact cost of the corrective work in relation to the floor joists. Other works carried out in the basement included excavation to lower the floor level by ten inches, installing a French drain and a sump as well as the installation of a floor slab. [ 31 ] A competing estimate from RAM Entrepreneur général gave a specific price for the particular work relating to the floor joists at $ 4,236.00 plus taxes. In round numbers, this would be approximately $ 5,000.00 or one third of the overall work done in the basement. [ 32 ] Prospecplus Ingénieur Conseil charged Mr.

Thomas a total of $ 1,766.23 (P-8) for its investigation and report. Analysis Prescription [ 33 ] It is true that Mrs. Thomas had some inclination there was rot in the floor joists. She did not know if this constituted a serious defect and whether the defect was hidden or apparent until she obtained a report from Mr. Guertin on October 12, 2007. The report set out a text from which Mrs. Thomas could infer that Mr. Li should have discovered the condition when he did his inspection.

There is no evidence in the file that she had such an indication from anyone prior to reading the report. [ 34 ] Therefore, as far that the evidence shows, Mrs. Thomas did bring her action within three years of being informed that Mr. Li may have committed a fault. Therefore, Mr. Li has not established the defence of prescription. The role of the pre-purchase inspector [ 35 ] Mr. Li bases his defence on the notion that, as a professional inspector, he did not have the obligation of detecting hidden defects. Some elements of the documentation, notably the contract document he had Mrs.

Thomas sign would suggest that it is in fact the case. As well, some jurisprudence suggests that the pre-purchase inspector has the same role as a purchaser in detecting only those defects that are apparent or signs that would lead a reasonable person to perform a further inquiry. [ 36 ] The professional Standard to which Mr. Li adheres as a member of the AIBQ establishes otherwise. Relevant passages from that Standard reveal that the issue is not whether that the defect to be identified falls within the legal definition of a latent defect as that term is used in connection with the obligations of the seller.

Irrespective of that definition, the Standard contains specific duties that the expert must carry out. In this case these duties included probing the extremities of the lower joists that were covered in an insulating material. [ 37 ] It would have been quite simple for Mr. Li to put a pointed tool into the wood to detect its quality in the areas were it was covered with the insulating material. [ 38 ] The Court accepts the analysis of Mr.

Guertin when he states that it would have been normal for a professional to discover the state of deterioration without removing any materials. [ 39 ] The Standard states quite clearly that the inspector shall probe the construction components were deterioration is suspected. However, probing is not required when probing would damage any finished surface.

[ 40 ] While it is correct to say that an inspector may not have the same duty of knowledge and understanding as an engineer or architect or even a building contractor, as the case may be, the Standard imposes on him the obligation to probe structural components and to describe them.

If they do not appear to be normal, as would obviously be the case when structural wooden elements are rotten, he should point it out to the customer and advise her that further studies are required to determine whether the rot is benign, or of structural significance such that it could represent a present or future danger to the property. [ 41 ] Mr. Vathis’ report sets out very clearly that the works recommended by Mr. Guertin should be carried out as a long-term preventative measure even if they are not yet considered to be urgent. [ 42 ] In the Court’s view, therefore Mr.

Li failed in his contractual obligations because of the specific requirements of the Standard to which he adheres as a member of his organization and as part of the contract entered into with Mrs. Thomas. The Quantum of damages [ 43 ] The price given to Mrs. Thomas for the works carried out is not broken down in such a way to as establish an exact price for the repairs to the floor joists.

The overall price for works in the basement amounts to approximately $ 15,000.00 but it includes other items such as the pouring of a floor slab and the installation of a French drain and sump pit. [ 44 ] By performing these works as part of a larger global contract, Mrs. Thomas probably got a better price than if she had asked a contractor to perform the corrective works to the floor joists only. [ 45 ] The quote of the competitor is broken down to show the floor-joists work at approximately $ 5,000.00. As well, Mrs.

Thomas could consider at least part of the expert costs associated with the work to the consequence of Mr. Li’s failure to detect the problem with the floor joists. [ 46 ] The particular problem we are concerned with is part of a much bigger problem that caused significant stress, loss of time and inconvenience. Part of it can be attributed to the floor-joists issue. [ 47 ] The Court is required to arbitrate a quantum of damages since it is impossible to determine it with scientific exactitude.

The amount of $ 7,000.00 claimed is not unreasonable as an estimate of the value of the reparation of the material and moral prejudice caused by Mr. Li’s fault in failing to live up to the professional standard he committed to in his contract. FOR ALL THESE REASONS THE COURT: CONDEMNS Defendant to pay Plaintiff the amount of $ 7,000.00 with interest at the rate of 5% per annum and the additional indemnity pursuant to the provisions of

article C.C.Q. 1619 from August 24, 2010. THE WHOLE with costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing : April 12, 2013