2020 QCCQ 1595, 2020 QCCQ 1595

Duong c. Ville de Montréal 2020 QCCQ 1595 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-158431-181 DATE: January 31, 2020 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ LE THUY DUONG Plaintiff v.

VILLE DE MONTRÉAL -and- VINCENTE VALENCIA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On December 22, 2017, the water service pipe that conveys drinkable water from the City of Montréal’s aqueduct to a residential building owned by Ms. Le Thuy Duong burst and caused water to leak into the property. [ 2 ] Ms. Thuy Duong claims $5,000 from the City of Montréal on the grounds that it is liable for the damages she suffered following the leak of the water service pipe.

The damages she claims include $4,000 for the cost of replacing the private

section of the water service pipe and $1,000 for the cost of supplies she purchased to repair damages caused to her property. [ 3 ] In the same lawsuit, Ms. Duong also claims the same amount from Mr. Vincente Valencia, from whom she purchased the Property in June 2012. [1] She argues that he is also liable for the damages caused by the leak on the grounds that he breached his obligations under the warranty of quality (warranty against latent defects).

She asserts that the leak of the pipe was caused by a latent defect, specifically in that it was made of galvanized steel whereas the municipal By-law mandates that it be made of copper or type K cast iron. [ 4 ] The City argues that it bears no liability because the leak of the water service pipe occurred on the private

section of the pipe, and not the public section, and therefore, under the By-Law concerning the Piping of Drinking Water, Waste Water and Storm-Water (R.B.C.M., C-1.1, “ By-Law ”) it is not liable for the cost of replacing the pipe and any ensuing damages. [ 5 ] Mr. Valencia also denies all liability and argues that the building he sold to Ms. Duong was built in 1960 and thus, the leak of the water service pipe did not result from a latent defect but rather from usual wear and tear.

He asserts that the pipe had reached the end of its useful life as a building component and thus the leak does not qualify as a latent defect for the purpose of the warranty of quality. Issues [ 6 ] Ms. Duong’s claim against the City of Montréal raises the following issues:

a) Did the leak of the water service pipe supplying water to Ms. Duong’s property occur on the public

section or the private

section of the pipe? [ 7 ] Her claim against Mr. Valencia raises the following issues:

b) Does the leak of the water service pipe result from a latent defect? [ 8 ] Finally, if one of the defendants is liable towards Ms. Duong, the Court must determine what damages were caused by the leak. Analysis and Decision

Preliminary Comments [ 9 ] Ms. Duong’s claim was initially filed in June 2018, solely against the City. [ 10 ] The matter came to trial before the undersigned on October 15, 2019. Other than her own testimony and two exhibits, Ms. Duong did not intend to call any witnesses or adduce any other evidence at the trial. [2] [ 11 ] After hearing her testimony, the undersigned judge, pursuant to sections 268 and 560 of the Code of Civil Procedure [RLRQ, ch. C-25.01 , ( C.C.P. )], informed Ms.

Duong that there was a deficiency in her proof in that she had no admissible evidence concerning where the leak of the water service pipe occurred. [ 12 ] Ms. Duong then asked the Court to postpone the trial so that she could call as a witness Mr. Elankkovan Ponnambalam, the plumber who attended the Property after the leak was discovered and the author of the Inspection Report (P-2). [ 13 ] The Court agreed with this request and postponed the trial to January 27, 2020, to allow Ms. Duong to call Mr. Ponnambalam as a witness. [ 14 ] On November 13, 2019, Ms.

Duong filed with the court clerk an Amended Application to add Mr. Valencia as a co-defendant. [ 15 ] On December 4, 2019, the parties were sent a notice of hearing scheduling the continuation of the trial for January 27, 2020. [ 16 ] The addition of Mr. Valencia as a co-defendant based on the warranty of quality is perplexing. Indeed, the two causes of action raised by Ms. Duong’s in her Amended Application are irreconcilable and mutually exclusive. As will be explained below [3] , to prevail against the City, she must prove that the leak of the water service pipe occurred on the public

section of the pipe, whereas to prevail against Mr. Valencia, she must prove that the breakage occurred on the private

section of the pipe.

a) Did the leak of the water service pipe supplying water to Ms. Duong’s property occur on the public

section or the private

section of the pipe? [ 17 ] The City can only be found liable if Ms. Duong proves that the rupture of the water service pipe occurred on the public

section of the service pipe. [ 18 ] This rule stems from the legislation governing the supply of drinking water to residences within the territory of the City of Montréal, specifically its By-Law Concerning the Piping of Drinking Water, Wastewater and Storm Water . The relevant provisions of the By-Law are reproduced below:

Chapter I

INTERPRETATION AND APPLICATION 1. In this by-law, the following words mean: […] "centreline": a median line between 2 street lines; "exterior shut-off valve": a device installed on the public

section of a service pipe, used to shut off the water supply; "local water pipe": a water pipe that directly supplies a service pipe; "private

section of a service pipe": the

section of a service pipe that extends beyond the street line, on private property; "public

section of a service pipe": the

section of a service pipe between a water pipe and the street line; "street line": a dividing line between the street right of way and private property; "water main": a water pipe that directly supplies a local water pipe; "water pipe": a local water pipe or water main; "water service pipe" or "service pipe": a pipe that conveys water from the aqueduct to the inside of a building; […]

Chapter II -WATER SUPPLY […]

SECTION III – SERVICE PIPE 13. As soon as a local water pipe is laid under a public thoroughfare and the director has given notice to owners of buildings on that public thoroughfare, every owner must submit an application to the director to have the required public

section of a service pipe laid in order to supply water to his building, and every owner must lay the private

section of that service pipe .

[…] 14.1 A service pipe must be made of type K cast iron or copper, in accordance with Code requirements. The joints of a copper service pipe must be made with a silver solder. The size of a service pipe must be established in relation to the design drainage load, but may not be less than 19 mm. Every service pipe must be tested for tightness, as specified in the Code. […] EXCAVATION, BACKFILLING AND FINISHING 46. The director may affix a mark on a building supplied by a service pipe in order to determine where the exterior shut-off valve is located. 47.

The city may not be held liable for any leak of a service pipe at the street line or on the private property side, or for any ensuing damage . (Underlining added) [ 19 ] Ms. Duong owns a duplex located at [...] in Montréal (“ Property ”). Drinking water is supplied to the Property through a water service pipe connected to the City’s water main. [ 20 ] The water service pipe is comprised of two sections. A first

section called the “public

section of a service pipe” runs from the City water main located in the middle of [...] up to the property limit between the City street/sidewalk and the Property. [4] [ 21 ] The second portion, which is referred to as the "private

section of a service pipe" in the By-Law , runs from the City property line and connects with the plumbing system of private buildings, including the Property. [ 22 ] An exterior shut-off valve [5] is located on the surface of the ground, at the property limit between City land and private property, and is connected by a pipe which runs from the surface of the land to the water service pipe below ground at the junction of the private

section and the public

section of the water service pipe. [6] [ 23 ] On December 21, 2017, the water service pipe burst and caused water to leak into the Property. The water leak was reported to the City on the same day. [ 24 ] On that day, Mr. Daniel Malette, a City of Montreal water leakage locator ( dépisteur de fuite d’eau ), attended the Property. Based on the City’s records, he identified the property limit between the City’s land and the Property [7] and the location of the exterior shut-off valve. [ 25 ] Mr. Malette carried out a test using a sound recording device and determined that the leak of the water service pipe occurred on the private

section of the pipe. He then closed the exterior shut-off valve and the water stopped flowing in the private

section of the water service pipe. This corroborates his finding that the leak occurred on the private

section of the service pipe. He completed a report on December 21, 2017, attesting to this. [8] [ 26 ] On the same day, Mr. Malette remitted to the occupants of the Property a notice ( Avis au propriétaire ) informing them that the leak from the water service pipe occurred on the private

section of the pipe. [9] [ 27 ] Ms. Duong called a plumber to fix the leak. On December 22, Mr. Elankkovan Ponnambalam attended the Property to inspect the burst water pipe. [ 28 ] Based on his inspection, he ascertained that the water service pipe that burst was made of galvanized steel and that it leaked because of a hole caused by corrosion. [ 29 ] On January 9, 2018, Mr. Ponnambalam completed an inspection report detailing the observations he made at the Property on December 22, 2017 (“ Inspection Report ”). [10] His Report, and specifically the sketch he drew in the report, indicates that the leak occurred on the private

section of the water service pipe, a few inches from the junction of the private

section and the public

section of the service pipe. [11] [ 30 ] Mr. Ponnambalam reiterated at trial that the leak in the water service pipe occurred on the private

section of the pipe. [12] He corroborates Mr. Malette’s finding that no water was running in the private

section of the service pipe. He adds that the private

section of the service pipe was comprised of a longer copper

section and a short (8 inches) galvanized steel extension

section which connected to the City’s public

section of the service pipe. [13] The leak was found in this galvanized steel segment of the private

section of the service pipe. [ 31 ] This evidence as to where the leak occurred is corroborated by the pictures of the water service pipe entered into evidence by Ms. Duong, which show a hole in the pipe as described by the plumber in his Inspection Report and his testimony. [14] [ 32 ] The unrefuted evidence establishes that the leak of the water service pipe servicing Ms. Duong’s Property which occurred on December 21, 2017 originated in the private

section of the water service pipe, on Ms. Duong’s property. [ 33 ]

Section 47 of the By-Law states:

47. The city may not be held liable for any leak of a service pipe at the street line or on the private property side, or for any ensuing damage. [ 34 ] Therefore, pursuant to

section 47 of the By-Law , the City cannot be held liable for the cost of replacing the water service pipe of the Property or for any damages caused by the leak. [15] [ 35 ] Ms. Duong’s claim against the City will be dismissed. The Claim against Mr. Valencia [ 36 ] On June 26, 2012, Ms. Duong purchased the Property from Mr. Valencia. The sale was made with legal warranty. [16] The legal warranty includes the warranty of quality. [ 37 ] Ms. Duong’s claim against Mr. Valencia is based on a breach of the warranty of quality which is codified in

article 1726 of the Civil Code of Québec ( C.C.Q . ). and which reads as follows: III. Warranty of quality 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale , free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound , however, to warrant against any latent defect known to the buyer or any apparent defect ; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. (Underlining added) [ 38 ] To succeed on a claim based on this warranty, the buyer(s), Ms. Duong, must prove the following four conditions: • The defect must be sufficiently serious.

A defect is serious where it seriously undermines normal usage of the good or which so diminishes its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of it; • The defect must have existed at the time of the sale; • The defect was hidden ( i.e. , latent) or not apparent. An apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert; and • The defect was unknown to the buyer.

Since good faith is presumed, it is incumbent on the seller to prove the buyer’s knowledge. [17] [ 39 ] Moreover, the Civil Code requires that the buyer must give notice in writing of the defect(

s) to the seller within a reasonable time after discovering it. [18] [ 40 ] Finally, the Civil Code also requires that the buyer(

s) put in default its vendor prior to carrying out any repairs, except where the debtor is in default by the sole operation of the law or exceptional circumstances dispense the buyer from sending a demand letter. [19] [ 41 ] Mr. Valencia argues that he should not be held liable because the leak of the water service pipe does not constitute a latent defect and does not trigger the warranty of quality as the pipe burst because it had reached the end of its useful life. [ 42 ] He does not argue the Ms. Duong did not validly give him notice of the alleged defect or that he was not put in default.

b) Does the leak of the water service pipe result from a latent defect? [ 43 ] Ms.

Duong argues that the water service pipe burst because it was defective, notably in that it was made of galvanized steel rather than type K cast iron or copper as mandated by the By-Law (section 14.1). [ 44 ] The Property was built in 1960. [20] There is no evidence that water service pipe conveying water to the Property was changed between the construction of the building and December 2017. [ 45 ] To determine whether a building or building component is defective, one must assess this according to the building standards that existed at the time the building was built. [21] [ 46 ] Ms.

Duong has not proven that in 1960, the applicable building code or legislation required home owners or builders to install water service pipes made of type K cast iron or copper, instead of galvanized steel. [ 47 ] According to Mr. Fiore, a foreman in the City’s aqueduct department, the City stopped using galvanized steel roughly 25 years ago (i.e., mid 1990s).

Section 14.1 of the By-Law appears to have been adopted in 2001. [ 48 ] The proof does not establish that galvanized steel water service pipes were not allowed in 1960 when the Property was built. Hence, Ms. Duong has not proven that there was non-compliance with building codes or guideline when the Property was built. [ 49 ] Moreover, the failure to abide by a building code or a by-law regulating the components that go into the construction of a building does not necessarily mean the component was defective. [22] The buyer must prove a loss of use ( deficit d’usage ) to establish

that the good was defective within the meaning of

article 1726 C.C.Q. [ 50 ] Not all defects constitute latent defects for the purposes of

article 1726 C.C.Q . The warranty of quality does not guarantee the usefulness of a property or good for an unlimited period of time. At some point in time, the warranty expires. [ 51 ] This explains why the courts have consistently held that time worn or outdated building supplies or components, normal wear and tear, and the end of the useful life of a building component, do not constitute latent defects covered by the legal warranty of quality. [23] [ 52 ] According to Mr.

Ponnambalam, the useful life of a copper water service pipe is between 20 and 30 years whereas a galvanized steel pipe reaches the end of its useful life after 35 years. This testimony was unrefuted. [ 53 ] In the instant case, the Property was built in 1960. It was sold by Mr. Valencia to Ms. Duong in June 2012.

The water service pipe was 57 years old when it burst. [ 54 ] The leak that occurred in the water service pipe of the Property on December 21, 2017, was caused by normal wear and tear of the pipe and because it had aged beyond its useful life, and not because it was afflicted with a latent defect or that it was built using the wrong type of steel. [ 55 ] After the case was taken under advisement on January 27, 2020, Ms. Duong filed on January 29, two new exhibits with the court clerk, without filing an application requesting that the trial be reopened. [ 56 ] These “new” exhibits are: • P-10:

article printed from the website www.americanvintagehome.com , dated April 4, 2017, entitled “Tips & Advice: Why You Need to Swap Out Your Galvanized Steel Pipes” (6 pages); and • P-11:

article from the website www.industrialmetalsupply.com dated October October 3, 2108 entitled “4 Types of Metal That Are Corrosion Resistant or Don’t Rust” (4 pages). [ 57 ] This is irregular and inappropriate. [ 58 ] Notwithstanding this irregularity, the Court has considered exhibits P-10 and P-11 for the purpose of this judgment. [ 59 ] Exhibit P-10 purports to establish that galvanized steel water supply pipes will corrode and rust with the passage of time and will cause damage to a home. [ 60 ] Exhibit P-11 purports to establish that pipes made of copper, bronze or brass do not rust whereas galvanized steel pipes take a long time to rust, but will eventually rust. [ 61 ] Even if these exhibits were legally admissible and had been properly adduced at trial with the appropriate witness, the Court’s decision would not be any different.

As indicated above, there is no proof that when the Property was built, the building or plumbing code in force at the time mandated that water supply pipes had to be made of copper or other rust-proof metals. [ 62 ] Moreover, the plumber’s testimony establishes that even if the water service pipe had been made of copper, it would have reached the end of its useful life when the leak occurred in December 2017. [ 63 ] Accordingly, Ms. Duong’s claim against Mr. Valencia must be dismissed because she has failed to prove that the warranty of quality was breached.

c) What damages were caused to Ms. Duong by the leak of the pipe? [ 64 ] Ms. Duong claims $5,000 in damages in her Application. This includes $4,000 paid to Mr. Ponnambalam for installing a new water service pipe, plus $1,000 for supplies purchased to repair damages caused to the basement of her property. [ 65 ] Since the Court has concluded above that neither the City nor Mr. Valencia are liable for the damages Ms. Duong claims in her Application, the Court does not need to adjudicate damages.

That said, the Court will nonetheless formulate the following comments. [ 66 ] If the court had concluded that the City or Mr. Valencia was liable towards Ms. Duong, it would have assessed damages of $4,000 for replacing the water service pipe of the Property. This expense was supported by an invoice and Mr. Ponnambalam confirms his company’s invoice was paid. [24] [ 67 ] As for the damages caused to the interior of the Property, the pictures entered into evidence by Ms.

Duong illustrate that the water leak damaged the interior of the building. [25] She seeks $1,000 in damages, but claims she suffered more than this. [26] [ 68 ] She filed a series of purchase receipts, but some of these were not legible. [27] Moreover, she was unable to explain how these receipts represent supplies purchased to repair damages caused by the water leak. [ 69 ] Despite the weakness of the evidence, it is clear from the photos that the Property suffered damages as a result of the leak.

For example, flooring and drywall was damaged by the water and had to be replaced. [ 70 ] The Court would have awarded $500 for this head of damages if it had found the Defendants liable. FOR THESE REASONS, THE COURT:

[ 71 ] DISMISSES Ms. Duong’s Application against the City of Montréal and Vincente Valencia; [ 72 ] WITH COSTS of $151 payable by Ms. Duong to the City of Montréal and $103 payable by Ms. Duong to Vincente Valencia. __________________________________ ENRICO FORLINI, J.C.Q. Dates of hearing: October 15, 2019 and January 27, 2020