2018 QCCA 876, 2018 QCCA 876

Garand c. Fiducie Elena Tchouprounova 2018 QCCA 876 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-026149-161 (500-17-076449-134) PROCÈS-VERBAL D'AUDIENCE DATE : Le 29 mai 2018 CORAM : LES HONORABLES MARK SCHRAGER, J.C.A. PATRICK HEALY, J.C.A. CLAUDINE ROY, J.C.A. APPELANT AVOCAT ERNEST GARAND m e RICHARD THIVIERGE (Thivierge Lapointe Bachaalani ) INTIMÉES AVOCATE FIDUCIE ELENA TCHOUPROUNOVA ELENA TCHOUPROUNOVA Me MANON DAGENAIS (Marceau Soucy Boudreau) En appel d'un jugement rendu le 5 mai 2016 par l'honorable Kirkland Casgrain de la Cour supérieure, district de Montréal.

NATURE DE L'APPEL : Vente – Obligations du vendeur – Garantie de qualité – Vices cachés – Infiltration d’eau – Prescription Greffière d’audience : Ermioni Tomaras Salle : Antonio-Lamer AUDITION 9 h 35 Début de l’audience. Identification de l’avocate des intimées. Me Thivierge est absent. Suspension de l’audience. 11 h 26 Reprise de l’audience. Identification de l’avocat de l’appelant. Argumentation de Me Thivierge. 12 h 28 Suspension de l’audience. 12 h 32 Reprise de l’audience. PAR LA COUR : Il n’est pas nécessaire d’entendre l’avocate des intimées. La Cour unanimement rejette l’appel avec les frais de justice – voir page 3. Fin de l’audience. (

s) Ermioni Tomaras Greffière d’audience PAR LA COUR ARRÊT [ 1 ] This is an appeal from a judgment of the Superior Court [1] that granted in part the respondent’s action for hidden defects relating to a house bought from the appellant in June 2007. The trial judge concluded first that by virtue of articles 1739 and 2926 C.C.Q. the action was not prescribed and, second, awarded damages for the costs of repair in the amount of $203,782, with interest at the legal rate and the additional indemnity, and legal costs (including the costs of experts in the amount of $4,827).

The two questions before the Court are whether the judge correctly determined the issue of prescription and whether the respondent had satisfactorily proved the damages incurred.

Context [ 2 ] The chronology of events can be summarised as follows: Respondent acquired the house on 27 June 2007; A small infiltration of water was observed in the basement; A second infiltration in February or March 2009, followed by a demand letter alleging an “important hidden defect;” Following expert advice given to the respondent, the parties agreed in October 2009 to undertake corrective measures to put the membrane covering the back wall in place. There is another infiltration in November 2009 and the appellant proposes to dig a trench

along the interior wall at the height of the cedar room where the infiltrations have occurred. On 7 December 2009 the appellant signed an agreement prepared by the respondent and assumed the cost of repairs due to the infiltrations; In March 2010 there was a major infiltration in the same location that flooded the entire cedar room.

The respondent engaged another expert, Stéphane Bossus, who delivered his report on 8 April 2010; On 12 April 2010 the appellant was served with a new demand letter; On 20 March 2013 the respondent filed its action for damages caused by hidden defect. [ 3 ] The relevant period for prescription of an action arising from a legal warranty is three years. [2] In short, the position of the respondent is that the action was not prescribed by 20 March 2013 because it was filed within three years of its knowledge of the defect. The appellant submits that the action was prescribed before 20 March 2013.

Both cannot be right and the resolution of this question turns on the application of articles 1739 and 2926 C.C.Q. Prescription [ 4 ] The defect in this matter appeared gradually. The resolution of the issue therefore requires a determination whether, or when, the buyer could suspect the seriousness and extent of the defect.

Article 2926 is found in Book Eight, Title 3 C.C.Q., among provisions concerned with extinctive prescription: 2926. Lorsque le droit d’action résulte d’un préjudice moral, corporel ou matériel qui se manifeste graduellement ou tardivement, le délai court à compter du jour où il se manifeste pour la première fois. 2926. Where the right of action arises from moral, bodily or material injury appearing progressively or tardily, the period runs from the day the injury appears for the first time. [ 5 ]

Article 1739 is found in Book Five, Title 2 C.C.Q., among provisions concerned specifically with a vendor’s obligations in relation to latent defects: 1739. L’acheteur qui constate que le bien est atteint d’un vice doit, par écrit, le dénoncer au vendeur dans un délai raisonnable depuis sa découverte. Ce délai commence à courir, lorsque le vice apparaît graduellement, du jour où l’acheteur a pu en soupçonner la gravité et l’étendue. Le vendeur ne peut se prévaloir d’une dénonciation tardive de l’acheteur s’il connaissait ou ne pouvait ignorer le vice. 1739.

A buyer who ascertains that the property is defective shall give notice in writing of the defect to the seller within a reasonable time after discovering it. Where the defect appears gradually, the time begins to run on the day that the buyer could suspect the seriousness and extent of the defect.

The seller may not invoke the tardiness of a notice from the buyer if he was aware of the defect or could not have been unaware of it. [ 6 ] At first blush the text of these articles might appear to suggest an inconsistency to the extent that Art. 2926 states that time runs from when a progressing injury or damage first appears while Art. 1739 states that time runs from the time when the buyer could first suspect the seriousness and extent of a defect that appears gradually.

The jurisprudence concerned with these articles reconciles any apparent inconsistency by insisting that the right of action runs from the moment when a prospective plaintiff is in a position to appreciate the nature and extent of the damage or defect. [3] The jurisprudence is thus sensitive to a distinction between a person’s first apprehension of damage or defects and a person’s appreciation of their nature and extent. In this sense there is a meaningful distinction between perception of a tip and knowledge that it is the tip of an iceberg.

This is consistent with the view that prescription runs from the time when all of the elements of an action exist and from the moment when a prospective plaintiff is aware of those elements. For this reason the jurisprudence affirms that prescription runs from the moment that a prospective plaintiff is aware of the nature of the damage or defect and its relative order of magnitude. [ 7 ] In the present case the respondent was aware that there was a problem of water infiltration from its first occurrence and it was reminded of this problem with successive infiltrations.

But it was only with the receipt of the second expert report in April 2010 that the respondent was made aware of the nature and extent of the problem and of the undertakings that would be required to correct the problem. The trial judge gave effect to the applicable principles of law and concluded as a matter of fact that the respondent was aware of the nature and extent of the problem upon receipt of the second expert report and that, accordingly, prescription ran from that date.

He further concluded that the respondent’s right of action was not extinguished when proceedings were filed on 20 March 2013. [ 8 ] The conclusion of the trial judge with regard to prescription of a legal warranty under the Civil Code of Quebec discloses no error that could justify the Court’s intervention. It is therefore not necessary to consider any issue concerning a contractual warranty. Damages [ 9 ] The second ground of appeal concerns the award of damages to the respondent. The appellant claims that the amounts awarded were not proved before the trial judge. This claim has two aspects.

The appellant claims first that the judge denied him the opportunity to have his expert testify. This person’s report had been filed but the witness was unable to testify on the date scheduled due to medical concerns; and the judge refused an adjournment. Second, the appellant claims that the evidence tendered by the respondent is insufficient to substantiate its claim for damages.

[ 10 ] As for the first point, the decision to grant or refuse an adjournment lies within the discretion of the trial judge and will not give rise to appellate intervention unless the decision is abusive or otherwise improper. The standard for such intervention is high. [4] [ 11 ] In this case the decision of the judge to refuse an adjournment was the second such decision for the same reason.

The second request for an adjournment was made in the course of the trial, apparently some time after the appellant became aware of his expert’s medical situation, and he was unable to explain why the court was not informed of this before the trial started; nor was the judge furnished with an adequate medical note to support the request for an adjournment. As the expert reports were filed before the hearing, the judge was familiar with their content and, obviously aware that under

Article 293 C.C.P. these reports stand in lieu of the testimony of their authors. The trial judge noted that the expert reports of each party were in substantial agreement concerning the nature and extent of the damage and necessary repairs. He also noted that the appellant’s expert had recommended that the repairs be limited to the rear wall but that this limitation was not explained or justified in her report.

In short, the judge cannot be reproached for refusing to grant an adjournment in these circumstances. [ 12 ] The judge was therefore well placed to evaluate the question of damages on the basis of the information before him and, as already noted, he accepted that the evidence produced by the respondent actually reflected the nature and extent of the work done, or to be done, to correct the proven damage. There is no basis to the claim that the judge failed to assess all of the relevant evidence [5] on these issues and his conclusions of fact afford no basis to claim overriding and palpable error.

FOR THESE REASONS the Court: [ 13 ] DISMISSES the appeal with legal costs to the respondent. MARK SCHRAGER, J.C .A. PATRICK HEALY, J.C .A. CLAUDINE ROY, J.C .A.