2016 QCCQ 1927, 2016 QCCQ 1927

Wiseberg c. Waché 2016 QCCQ 1927 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145641-157 DATE: March 17, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MICHAEL WISEBERG […] Boucherville, Qc […] -and- PATRICK SAYERS […] Montréal, Qc […] -and- LIV LUNDE […] Montréal, Qc […] -and- VALLIER LAPIERRE […] Montréal, Qc […] Plaintiffs v. CHRISTIAN WACHÉ […] Roxboro, Qc […] Defendant -and-

GF MAÇONNERIE 378, rue Galt Ouest Sherbrooke, Qc J1H 1Y4 Impleaded Party ________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Michael Wiseberg, Patrick Sayers, Liv Lunde and Vallier Lapierre, co-owners of a fourplex residential building at 2793 and following Ontario Street East, sue their neighbour Christian Waché, the owner of the adjacent building, another fourplex at 2787 to 2791 Ontario East, in connection with renovations carried out on Mr Waché’s building, in the summer of 2014. [ 2 ] The damages complained of affected the common wall, a light fixture, flashing, bricks, siding and cables comprising parts of the Plaintiff’s building. [ 3 ] It is clear that the problems arose because of the manner in which certain contractors carried out the work, among others, the Impleaded Party GF Maçonnerie. [ 4 ] The Defendant estates in his written Contestation that he is not responsible for all of the damages that the Plaintiffs had repaired. [ 5 ] At the hearing, he confirmed that he accepts, in principal, some of the repairs, but he finds the costs to be excessive. [ 6 ] In normal circumstances an owner who engages a contractor under a contract of enterprise is not responsible for fault committed by the contractor unless he has exercised control over the manner in which the contractor carries out his work.

This is usually not the case, because, according to the contract of enterprise, the contractor has the choice of the means by which he carries out his work, and is not supervised by the client. [ 7 ] The general rules in the Civil Code of Quebec (“C.c.Q.”) concerning the responsibility for the fault of others, establishes that the principal is liable to reparation for injury caused by the fault of its agents and servants in the performance of their duties. [ 8 ] A contractor under a contract of enterprise is not usually considered to be and agent or a servant, a concept that translates the notion of “préposé” in the French version of

article 1463. [ 9 ] There may be other reasons why an owner is responsible to his neighbour.

In the present case, it is alleged that the Defendant did not properly manage the construction process and that he did not insist upon his contractors repairing any damage caused to their building, and that he tolerated a situation where they took liberties with the Defendant’s property, failing to clean messy materials that were left at the end of the work and failing to clean up dust caused by the cutting of bricks. [ 10 ] In the present case, there is a respect in which the Defendant badly managed the process: at the end of the work, he did not give the contractors lists of deficiencies nor did he hold back part of the price of the work. [ 11 ] By paying them in full, he failed to insure that the contractors would come back and complete the part of their work that had caused damage to the neighbours. [ 12 ] As well, the Plaintiffs had lost confidence both in the owner and in his contractors, because of certain incidents that had occurred during the construction process.

For example, a light fixture on the Plaintiffs’ building was broken and used as a place to affix ribbons that were used to warn pedestrians to take caution.

They complained that bricks were cut with a drysaw rather than a wetsaw, thereby causing volatile particles to cause a nuisance in the form of build-up on the building and windows. [ 13 ] Very significantly, the contractor failed to complete the work by caulking the joint between the two buildings, and the Plaintiffs had this work carried out as one of the most important parts of the remedial work that they gave to their contractor, known as Dash Construction. [ 14 ] The process by which the Defendant was put in default to have the works corrected, is somewhat ambiguous because, once the complaints were made, the Defendant mentioned in an email that the two contractors would come back and correct the work. [ 15 ] But there was no specificity to this assertion and no date, time frame or anything concrete mentioned about what the contractors would do.

As was stated before, the contractors did not come back, most probably because they had been paid in full. [ 16 ] The corrective works were fairly minor in nature. [ 17 ] Part of the work that had to be done involved common walls.

Under the principals of “mitoyenneté” as defined in the C.c.Q. , an owner would be directly responsible if works he has carried out affect the common wall in a way that it is prejudicial to the tenant. [ 18 ] There is also the principle of nuisance by which the owners is liable for prejudice caused by a condition or works carried out on his property, notwithstanding an absence of fault on his part.

[ 19 ] In terms of the quantification of the loss, the Plaintiffs obtained several quotes and accepted the lowest of them, a total of $ 5,173.88 (tax included). The work involved several disciplines and the use of some significant equipment, most notably a sky-jack, which is a hydraulically suspended cage in which a workman can have access to the entire elevation of the building. In this case, a joint had to be made with flexible material between the two buildings at the juncture of the brick walls.

This was necessary to preserve the integrity of both buildings and it would be considered as part of the “mitoyenneté”, being attached to both properties. [ 20 ] On the whole, given the number of things that had to be done, including flashings, and miscellaneous repairs to various bricks, removal of cables, and a cleaning of windows, the Court accepts that the price charged is reasonable. [ 21 ] Only one of the contractors involved was impleaded as a third party by the Defendant that is the masonry contractor who was responsible for most of the work that was poorly carried out, incomplete or that caused damages.

A certain amount, however, should be excluded from the liability of GF Maçonnerie for the flashing work that Dash Construction repaired and replaced. The Court arbitrates an amount of $ 500 as the amount that should be excluded from the liability of GF Maçonnerie. [ 22 ] In conclusion, by a combination of nuisance, liability for common works (mitoyenneté) and for the negligent management of the end of the construction process, the Defendant is liable towards the Plaintiffs.

The Defendant is entitled however to be indemnified by GF Maçonnerie for the cost of the works incurred by the Plaintiffs less $ 500 plus taxes on that amount. [ 23 ] GF Maçonnerie will be considered a direct Defendant as well as a Defendant in warranty and this is reflected in the conclusions. BY THESE REASONS, THE COURT: CONDEMNS the Defendant Christian Waché and the Impleaded party GF Maçonnerie to pay the Plaintiffs solidarily the amount of $ 5,173.88, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from December 14, 2014; CONDEMNS the Defendant Christian Waché to pay the judicial fees in the amount of $ 171 to the Plaintiffs solidarily; As between the Co-Defendants: CONDEMNS GF Maçonnerie to indemnify Christian Waché for the amount of the condemnation to the extent of $ 4,673.88, with interest at the legal rate on that amount and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from December 14, 2014 __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: February 8, 2016