2015 QCCQ 9563, 2015 QCCQ 9563

Shewchuk c.

Syndicat des copropriétaires de l'Atlantis sur le lac 2015 QCCQ 9563 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal TOWN OF montreal Civil Division No: 500-32-138358-132 DATE: September 25 , 2015 ______________________________________________________________________ presided BY THE HONOURABLE david l. cameron, j.c.q. ______________________________________________________________________ terry shewchuk -and- linda shewchuk […] Pointe-Claire (Quebec) […] PLAINTIFFS v. syndicat des copropriétaires de l’atlantis sur le lac 4137, Mackenzie Montréal (Quebec) H3S 1E7 -and- Aviva insurance company 630, boul.

René-Lévesque Ouest, suite 900 Montréal (Quebec) H3B 1S6 DEFENDANT ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Terry Shewchuk and Linda Shewchuk, owners of a unit in the Atlantis sur le lac condominium on Lakeshore Road in Pointe-Claire, sue the condominium Syndicate as well as the property insurers of the condominium, Aviva Insurance Company, for $ 1,164.91 in connection with a water-damage claim made because of an incident of August 16, 2008 when a sprinkler head burst causing damage to the finishes of the inside of the unit. [ 2 ] The amount consists of the replacement of the damaged sprinkler head, $ 695.32 that the Syndicate paid for, billed to the Plaintiffs and that the Plaintiffs paid, as well as $ 469.59 for time spent by Mr.

Shewchuk and material purchased by him to install replacement flooring in a area that was damaged by the water. [ 3 ] The Syndicate contests the Plaintiffs’ claim on two grounds. Firstly, that the claim initiated in the Small Claims Division on May 14, 2013, more than three years since the day of the incident, in August 2008, is prescribed. [ 4 ] Secondly, the Syndicate asserts that a settlement agreement had already been reached between the parties on October 24, 2012, when the parties signed a full and final settlement in a related small-claims matter. [ 5 ] The Syndicate denied Mr.

Shewchuk’s claim, when it was presented to them, as being prescribed. The two elements that are raised in the Plaintiffs’ case were only brought to the insurer’s attention by the Syndicate circa November 2012, clearly beyond the three-year prescription for a claim that was first opened in August 2008 and settled in 2009. [ 6 ] The Plaintiffs responded to the Syndicate’s defence by asserting that the Syndicate ought to have informed him of the three- year deadline or that they ought to have made his claim to the insurer for his benefit in a timely manner.

Their failure to do so, he asserts, deprived him of his recourses. Issues [ 7 ] The insurance settlement made by the Syndicate, under its damage-insurance policy with Aviva, resulted in a contractor being hired to perform most of the work required to settle the loss. That contractor was present, according to Mr. Shewchuk, when he was, himself, engaged in doing certain repairs to an area of the flooring in the corridor of his condo. The loss occurred just before August 16, 2008, and was reported to Aviva promptly. Mr.

Shewchuk felt that too much time had gone by when he started to do the work himself in October 2008. [ 8 ] He feels that since the contractor that was hired on behalf of the Syndicate by the insurer was present, the Syndicate should have been aware that he had a claim to make, advised him of the deadline for making such a claim or pass it on themselves to the insurer promptly. [ 9 ] The issue in the case then becomes whether, in the circumstances of this case, the Syndicate owed a duty to the Plaintiffs to see

that any claim he may have was reported to the insurer promptly or, alternatively, to advise him of his duty to do so. Facts [ 10 ] The Court was informed by the representative of the Syndicate, anecdotally, that the loss apparently occurred because Mr. Shewchuk’s tenant, who was moving out, damaged the sprinkler head protruding from the ceiling of the interior of the unit, causing it to rupture. [ 11 ] Happily, the concierge turned off the water supply and water damage was, therefore, limited.

The Syndicate proceeded to replace the sprinkler head incurring a cost of $ 695.32 (P-1). [ 12 ] This work was done very quickly. The bill is dated August 17, 2008. [ 13 ] Taking the position that the sprinkler head was part of the private portion owned by the Plaintiffs, the Syndicate submitted the bill to Mr. Shewchuk who issued a cheque and sent it to the contractor who had already been paid by the Syndicate. [ 14 ] The Syndicate, then, asked Mr.

Shewchuk for reimbursement of the amount and he complied with this request. [ 15 ] When the entire claim was settled, the Syndicate incurred the deductible of $ 5,000 applicable under the policy and looked to the Plaintiffs for reimbursement. [ 16 ] Upon their refusal, the Syndicate instituted a demand in the Small Claims Division in case number 500-32-122598-107. [ 17 ] It did not become necessary for the Court to determine whether the Plaintiffs, in fact, owed this deductible because the matter was settled before trial on October 24, 2012 (D-3).

This settlement agreement mentions an amount of $ 4,005 in full and final settlement of the claim which is referred to in the agreement as being “for amounts owing for the insurance deductable in the amount of $ 5,000 plus interests”. [ 18 ] The witnesses called by the Syndicate informed the Court that they believed they were also settling any other claim that may exist between the parties, but Mr.

Shewchuk insists that the settlement related only to the insurance deductible. [ 19 ] Shortly after the settlement, he submitted his claim for the amount he had paid for the sprinkler head and his direct costs and loss of time in repairing the floor. [ 20 ] The Syndicate turned this claim over to Aviva who denied it on the basis of prescription. Analysis [ 21 ] The claim made by the Plaintiffs, directly against Aviva, is obviously prescribed.

When the proof of loss was settled between the Syndicate and the insurer, back in 2009, and the file closed, any subsequent claim would have had to be made within three years of that settlement. [ 22 ] The question of the liability of the Syndicate towards Mr. Shewchuk requires more discussion. [ 23 ] While it is arguable that the sprinkler head was in fact part of the private portion of the unit, it is not really necessary for the Court to decide this point. [ 24 ] When Mr. Shewchuk was presented with the account by the Syndicate, he agreed to pay it.

From that point, if he wished to have that juridical act annulled because of a mistake or for any other reason, his prescription of three years began to run and he obviously failed to act within the appropriate time. [ 25 ] As far as the duty of the Syndicate to make the claim to Aviva, the Plaintiffs’ case also fails. The Syndicate had no way of knowing that the Plaintiffs intended to be reimbursed for the amount that he himself had agreed to pay.

In the circumstance where the Plaintiffs’ tenant allegedly caused the damage to the sprinkler head, it was reasonable for the Syndicate to assume that the Plaintiffs had assumed the liability for this cost and did not expect the Syndicate to include it in the insurance claim. [ 26 ] When the settlement of the deductible came about in October 2012, nothing indicated in the document that was prepared that this was also a settlement of any other claims Mr. Shewchuk may have had.

Even if the witnesses who appeared on behalf of the Syndicate believed this to be the case, there is no ambiguity in the document that was prepared. This document clearly limits the settlement to the deductible. [ 27 ] That having been said, the fact that the Syndicate turned around and submitted Mr. Shewchuk’s claim for the replacement of the sprinkler head and for the work he did on the floor did not signify an acceptance on their part that they owed an obligation to Mr.

Shewchuk. [ 28 ] His claim against the Syndicate for these two matters is clearly prescribed and the discussions they had after the settlement occurred did not change that. [ 29 ] In terms of the claim presented for the repairs to the floor, the Syndicate would have been hard-pressed to make this claim to the insurer, since it was carried out without the insurer’s consent. [ 30 ] Mr. Shewchuk deplores the fact that the Syndicate did not inform him that there was a three-year prescription attaching claims under an insurance policy.

In the Court’s view, the question of the applicability of a prescription is a legal matter and the Syndicate was under no obligation nor did it have the professional capacity to give Mr. Shewchuk any advice in that regard.

[ 31 ] The duty of the Syndicate to administer the property does not include an obligation to give legal advice to the co-owners about their legal rights and obligations vis-à-vis third parties such as insurers. [ 32 ] It is unfortunate that Mr.

Shewchuk did not know that this matter had to be brought forward promptly, but the fact that he was unaware of a legal rule, such as prescription, is not attributable to any shortcoming on the part of the Syndicate. for these reasons, the court : Dismisses the Plaintiffs’ action; Condemns the Plaintiffs to pay the Syndicat des copropriétaires de l’Atlantis sur le lac the judicial fees of $143; Without cost with respect to Aviva Insurance Company. __________________________________ david l. cameron, j.c.q. Date of hearing: September 15, 2015