2018 QCCQ 7981, 2018 QCCQ 7981

Amato c. Basili Construction Inc. 2018 QCCQ 7981 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-154062-162 DATE: October 19, 2018 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ ANTONIO AMATO Plaintiff v. BASILI CONSTRUCTION INC. Defendant/Plaintiff in Warranty PLANCHER 2000 and PLANCHERS KOSTA and MERCIER WOOD FLOORING INC.

Defendants in Warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence, including the testimony of Antonio Amato, Felice Basili, Riccardo Basili, expert Scott Vitus, expert Emmanuel DeBlois, Konstantinos Striglogiannis, Julio Menjivar, Lucie Martin-Laval, Johanne Lepage and Adamo Di Lembo, as well as exhibits P-1 to P-13, DB-1 to DB-9, DGK-1 and DGPlancher-1 to DGPlancher-2; [ 2 ] WHEREAS a contract of enterprise (“the contract”, exhibit P-1) intervened between plaintiff and defendant Basili Construction Inc. (“Basili”), for the renovation of plaintiff’s home; [ 3 ] WHEREAS part of Basili’s mandate included the installation of a hardwood floor in the basement; [ 4 ] WHEREAS Basili sub-contracted the flooring work to Planchers Kosta (“Kosta”); [ 5 ] WHEREAS the evidence clearly indicates that the floor buckled heavily throughout the entire area, shortly after installation (expert reports P-9 and DB-1); [ 6 ] WHEREAS the floor continued to buckle thereafter (testimony of Di Lembo); [ 7 ] GIVEN

section 2100 of the Civil Code of Québec ; [ 8 ] Furthermore, GIVEN sections 6, 37, 38 and 40 of the Consumer Protection Act ; [1] [ 9 ] WHEREAS Basili had a legal and contractual obligation of result towards plaintiff, which it clearly did not fulfill, and is therefore liable for breaching its obligations vis-à-vis plaintiff; [ 10 ] WHEREAS , as a general contractor dealing with a consumer, Basili had an obligation to fully inform plaintiff of the consequences of proceeding as it did (art. 228 of the Act ); [ 11 ] WHEREAS Basili could have and should have refused to proceed with a faulty installation, rather than pushing it through, based on its own time constraints and financial interests; this was negligent and careless on Basili’s part; [ 12 ] WHEREAS , with regards to quantum , expert Vitus describes the remedial action required as follows: “ Remedial Action

The homeowner has requested suggested corrective measures to address the issues with the floor in question. The flooring and underlayment needs to be completely removed, any deficiencies with the concrete subfloor should be addressed and corrected and a new engineered hardwood floor installed, per the flooring manufacturers recommended guidelines. It is recommended to use a vapor barrier underlay or a 3-in-1 adhesive that provides a vapor barrier component for the replacement installation.

Under the correct conditions and using the proper installation components and techniques, engineered hardwood flooring is perfectly suited to installation in a below grade application, such as this.” (sic) (page 10 of report, exhibit P-9) [ 13 ] WHEREAS , with regards to Basili’s warranty proceeding against Plancher 2000 (“2000”), Kosta and Mercier Wood Flooring Inc. (“Mercier”), the Court finds as follows; [ 14 ] WHEREAS Basili discontinued its warranty suit against Mercier, effectively ending this part of the claim (Mercier did not appear at trial to present any evidence in support of its counter suit); [ 15 ] WHEREAS , with regards to 2000, Basili did not prove, according to a preponderance of evidence, that it committed a fault in this matter, by selling the products sold; [ 16 ] WHEREAS , in fact, in Vitus’ expert opinion, as seen above: “Under the correct conditions and using the proper installation components and techniques, engineered hardwood flooring is perfectly suited to installation in a below grade application, such as this.” (report P-9, page 10); as well, “Mercier’s engineered ½” (13 mm) floors can be glued directly onto a subfloor that is either made of: concrete or wooden, ceramic tile, linoleum on the ground floor, upstairs and even in the basement” (idem, P-9); [ 17 ] WHEREAS Basili’s own expert DeBlois also confirmed, at trial, that engineered wood is appropriate for installation in a basement; [ 18 ] WHEREAS , in a perfect world, 2000 would have supplied a glue with vapor barrier properties; however, it was not hired to install the floor, and was not informed of the condition of the concrete slab, and, therefore, it had no way of knowing what the ambient conditions were; [ 19 ] WHEREAS , therefore, Basili’s recourse against 2000 is unfounded; [ 20 ] WHEREAS Basili’s warranty recourse against Kosta is only partially founded, as Basili specifically instructed Kosta to proceed with the installation, despite Kosta’s misgivings and hesitation; [ 21 ] WHEREAS , at trial, Felice Basili admitted that Kosta had advised Basili that “he didn’t like the cement – it was granular and had hairline fractures, and there were spots where there were voids”; [ 22 ] WHEREAS Basili tried to remedy the situation by, inter alia , “pouring self-levelling cement”; [ 23 ] WHEREAS , however, ultimately, as Kosta’s principal Striglogiannis stated, the premises “were not ready to receive the floor”; [ 24 ] WHEREAS , however, given Basili’s instructions to proceed, Kosta proceeded to do the work; [ 25 ] WHEREAS , despite Basili’s instructions, Kosta is nonetheless partially liable, because it did not take moisture readings, and because it proceeded with the installation, even though it basically knew that the conditions were not ideal (no moisture readings were taken, although there was excessive moisture in the subfloor; the wood was not acclimatized; the wood was stored and installed in the cold; the acoustic membrane had no vapor-barrier properties; and the wood was installed with inadequate expansion space); [ 26 ] WHEREAS , however, the Court attributes liability as follows: 25% to Kosta and 75% to Basili, as Basili instructed Kosta to proceed with the installation, notwithstanding its misgivings, as above stated; [ 27 ] WHEREAS , in fact, Kosta advised Basili that the pre-installation conditions of the premises were not ideal, but Basili insisted that it proceed with the installation, as Basili was “late on delivery”; [ 28 ] WHEREAS , according to flooring expert Di Lembo, remedial costs (demolition and reinstallation) amount to $15,758.47 (report, exhibit P-13); WHEREFORE THE COURT HEREBY: GRANTS plaintiff’s claim; CONDEMNS Basili Construction Inc. to pay plaintiff the sum of $15,000.00 plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , from July 30, 2015 and legal costs in the amount of $200.00; DISMISSES Basili Construction Inc.’s recourse in warranty against Plancher 2000, with legal costs of $300.00; GRANTS Basili Construction Inc.’s recourse in warranty against Planchers Kosta, in part; CONDEMNS Planchers Kosta to pay Basili Construction Inc. $3,750.00 plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , from October 24, 2016.

__________________________________ ELIANA MARENGO, J.C.Q. Dates of hearings: February 20 and October 1, 2018