2023 QCCQ 9861, 2023 QCCQ 9861

Gray c. Outaouais Log Homes Inc. 2023 QCCQ 9861 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” No.: 550-32-702576-213 DATE: December 5 th, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE STEVE GUÉNARD, J.C.Q . ______________________________________________________________________ DARREN GRAY and ROBIN CARDAMORE Plaintiffs v.

OUTAOUAIS LOG HOMES INC. and 9366-9695 QUÉBEC INC Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Defendants are respectively the holding and the operating corporations doing business under the name Outaouais Log Homes. They are represented, at Trial, by their President, Mr. Jacques Patenaude. [ 2 ] The Defendants are suppliers and sellers, since 1989, of home kits including wood logs and beams. They sold through the years, as confirmed by Mr.

Patenaude, over 1 000 kits around Canada, the United States, Japan, Portugal and so forth. [ 3 ] The Plaintiffs enter into a Purchase agreement [1] with Outaouais Log Homes on September 29 th , 2014, for the Mountain View 34’ X 57’ model.

They agree to pay an amount of 106 670,36$ for a Home builder’s package duly described in the Agreement. [ 4 ] The sale of the logs and beams is subject to the Outaouais Log Homes 50-year limited warranty [2] , which notably details as follows: All log wall materials when used in conjunction with a residential structure are warranted to be free from defects in manufacturing for 50 years from the date of purchase. Under this warranty, Outaouais Log Homes will repair or replace the defective item at its discretion. This warranty does not cover the natural characteristics of some wood to check, warp or twist.

Outaouais Log Homes shall not be liable for labour, installation or shipping costs related to repair, replacement or damages resulting from improper handling or installation. To the extent permitted by law Outaouais Log Homes shall have no liability except as expressly stated herein. [ 5 ] Having received their home kit with the logs and beams in 2015, the Plaintiffs proceed to the inspection [3] of such upon reception. They then proceed to the construction of their new property, Mr. Gray acting as the general contractor.

Various subcontractors are mandated on the premises to complete their share of the work to be done. [ 6 ] Mr. Gray testifies to the effect that the interior beams are duly stained, in the recommended period, using a product specifically sold by Outaouais Log Homes. [ 7 ] The Plaintiffs state that they notice, in 2019, the existence of a warped and cracked beam [4] located on the first floor of their property. They inform Mr. Patenaude who reassures them about the situation. The Plaintiffs elect to replace said beam.

They disburse an amount of 2 069,55$ [5] to contractor David Lyman for such work. [ 8 ] The Plaintiffs then notice, in 2021, the presence of a rotting beam [6] on said first floor of their property. Mr. Gray testifies to the effect that he was able to “put his finger inside the beam”. Upon further verification, it is noted that the rot inside the beam spans on a length of approximately 5 feet.

[ 9 ] All parties concede that this particular beam is supporting the loft situated on the second floor. The parties disagree as to whether this beam also supports, indirectly, the roof trusses [7] . [ 10 ] The Defendants, and Mr. Patenaude in particular, are duly informed, in due time, of the situation [8] . Outaouais Log Homes, in those circumstances and upon a counter-verification on the premises, eventually accepts to provide a new beam [9] but refuses to provide the labor for its replacement and associated work therewith. The Plaintiffs consequently disburse an amount of 4 000$ for said labor to Mr.

Wayne Simpson [10] . [ 11 ] The Plaintiffs allege that the log beams suffered premature deterioration, submitting that the Defendants should be held liable under the Consumer Protection Act as well as under the Civil Code of Québec . [ 12 ] The Defendants reply that they are mere suppliers of wood logs/beams and that they respected their Limited Warranty by providing a new beam in 2021. ANALYSIS [ 13 ] The Plaintiff’s claim is civil by nature.

The burden to demonstrate that it is well-founded consequently rests upon their shoulders, as per sections 2803 and 2804 of the Civil Code of Québec . [ 14 ] To offer such demonstration, the Plaintiffs must submit evidence that can qualify as being preponderant . [ 15 ] Evidence, to qualify as being preponderant, must be clear and convincing [11] . [ 16 ] The Purchase Agreement concluded by the parties is subject to the Consumer protection Act [12] as it was entered into between a merchant and two consumers [13] . [ 17 ] The contract in question is for the sale of wood logs and beams and for the services associated therewith.

The Defendants, as stressed out by Mr. Patenaude, are not home builders. [ 18 ] The specific contract entered between the parties simply cannot qualify as being for the construction of an immovable [14] . [ 19 ] Consequently, the Consumer Protection Act (hereinafter the Act ) does apply, in the circumstances and as per the relevant jurisprudence [15] . [ 20 ] Said Act was qualified, on numerous occasions, as a public order legislation [16] . [ 21 ] Sections 37 , 38 and 53 of the Act are hereby relevant. They state: 37.

Goods forming the object of a contract must be fit for the purposes for which goods of that kind are ordinarily used. 38. Goods forming the object of a contract must be durable in normal use for a reasonable length of time, having regard to their price, the terms of the contract and the conditions of their use. 53. A consumer who has entered into a contract with a merchant is entitled to exercise directly against the merchant or the manufacturer a recourse based on a latent defect in the goods forming the object of the contract, unless the consumer could have discovered the defect by an ordinary examination.

The same rule applies where there is a lack of instructions necessary for the protection of the user against a risk or danger of which he would otherwise be unaware. The merchant or the manufacturer shall not plead that he was unaware of the defect or lack of instructions. The rights of action against the manufacturer may be exercised by any consumer who is a subsequent purchaser of the goods. [The Court’s emphasis] [ 22 ] In the current instance, the evidence clearly establishes that the Plaintiffs proceeded, upon reception of the wood logs and beams, to the proper inspection.

They were then accompanied, for the first 2.5 days of the construction, by a representative of Outaouais Log Homes, and nothing in the evidence suggests that the defect in such could have been noticed by an ordinary examination. [ 23 ] Furthermore, Mr.

Patenaude, at Trial, submits that one of the photos submitted by the Plaintiffs which illustrates the eventually rotting beam demonstrates that said beam showed, upon its installation in 2015 [17] , no apparent signs of any problem. [ 24 ] In other words, it was simply impossible for the Plaintiffs to notice any problem with those beams – in those circumstances – in 2015. [ 25 ] The preponderant evidence clearly demonstrates that those two beams did not provide a normal use for a reasonable length of time. [ 26 ] Indeed, a period of five and seven years, in the light of all the relevant circumstances, certainly cannot qualify as a reasonable length of time for wood logs and beams involved in the construction of such a property. [ 27 ] That observation is easily reinforced by the Contractual Warranty offered by the Defendants, which refers to a 50-year warranty associated with the log wall materials .

Such a long duration is certainly an important clue and indication as to the reasonable duration offered by the merchant in the scope of the execution of that contract.

[ 28 ] Furthermore, page 6 of the Purchase Agreement specifically provides the following: OUTAOUAIS LOG HOMES is responsible for the quality of the logs and other materials it delivers and the claims made concerning its products. It is not responsible for what a contractor, designer, or homeowner does with the material after it is delivered. [ 29 ] The evidence provided does not permit the Court to conclude that the defects clearly shown regarding those two beams would be the result of any conduct – false maneuver or otherwise - of the Plaintiffs. [ 30 ] The photos provided by the Plaintiffs are convincing.

It appears clearly from the evidence that those two logs did not stand the test of time, even though such test was particularly short in the circumstances (5 and 7 years respectively). [ 31 ] The evidence does demonstrate that the rotting beam was most likely delivered with rot inside of it [18] . [ 32 ] The Act does provide that a consumer cannot normally renounce, nor relinquish, a right established by its relevant sections. Sections 261 and 262 of the Act specifically states: 261. No person may derogate from this Act by private agreement. 262.

No consumer may waive the rights granted to him by this Act unless otherwise provided herein. [ 33 ] In other words, and at least in the Québec’s jurisdiction [19] , the sections of the Warranty limiting the Defendant’s potential liability cannot be applied to consumers like the Plaintiffs [20] . Indeed, as we have seen, sections 37 and 38 of the Act are qualified as being legal warranties.

Those legal warranties are automatically added to the contractual relationship as long as the Act applies, as in the current instance. [ 34 ] The Court would arrive at that exact same conclusion even if it would set aside any application of the Consumer Protection Act . Indeed, the same result can be obtained by reviewing the relevant sections of the Civil Code of Québec , which detail as follows: 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. 1728.

If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer. 1729.

In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer. [The Court’s emphasis] [ 35 ] The evidence clearly demonstrates that the Defendants easily qualify as being professional sellers [21] and that the logs deteriorated prematurely. Thus, the triple presumption established by said

section 1729 C.c.Q. and the relevant jurisprudence [22] does apply to the current situation. [ 36 ] Such “triple presumption” refers to the existence of the defect, to its existence prior to the sale and, finally, to the causal link between the deterioration and the malfunction. [ 37 ] In other words,

section 1729 of the Civil Code of Québec , because it does apply in the current instance, generates a presumption in favor of the Plaintiffs that the defect did exist at the time of the sale. [ 38 ] That presumption, and the evidence supporting the application of such, are not validly contradicted by the Defendants.

Indeed, there is no demonstration of any misuse of the logs/beams by the Plaintiffs, nor of any fault or negligence on their part, nor any evidence suggesting the existence of a superior force (force majeure) [23] . [ 39 ] It is indeed abnormal for quality wood beams – sold at such a price – to be in such a state only mere years after their delivery. [ 40 ] Of course, the Plaintiffs did not produce an engineer’s report in support of their Claim. However, the photos produced clearly demonstrate the problematic state in which the beams were in 2019 and 2021. Those photos leave very little to the imagination.

Those beams, in all likelihood, had to be replaced [24] . [ 41 ] That evidence, in the opinion of the Court, is sufficient and does qualify as being preponderant. [ 42 ] The Court cannot accept Mr. Patenaude’s assertion that the second log did not have to be replaced because the rotting portion was quite far from its

section supporting the second-floor loft. Again, the preponderant evidence does demonstrate that the log had rot on a 5 feet

section . [ 43 ] That defect certainly qualifies as being serious as per

section 1726 C.c.Q. It qualifies as being a latent defect as per such section. [ 44 ] Of course, and as per Mr. Patenaude’s testimony, wood is not a static product. It can crack sometimes without any impact on its solidity.

[ 45 ] The Plaintiffs do easily acknowledge such a situation. Mrs. Cardamore does concede, in all intellectual honesty, that she has seen other cracks in the wood around the property – cracks that are not worrying her at all. [ 46 ] However, the two specific beams in the current instance illustrate a different situation. The evidence is convincing on that subject. [ 47 ] Mr.

Patenaude also states and argues that the Plaintiffs would have mandated out-of-province contractors [25] , not validly accredited by the Régie du bâtiment du Québec . [ 48 ] The evidence is highly contradictory on such topic. [ 49 ] But even if that were the case, such a situation does not appear to have any bearing in the current instance considering that no evidence tends to even remotely demonstrate that the problem with the beams would be associated with the assembly and construction executed by the Plaintiffs and their various subcontractors. [ 50 ] In other words, no evidence demonstrates, nor implies, that the quality or resistance of the beams would have been influenced by the work done by any of the sub-contractors, licensed or not to do work in Québec. [ 51 ] Mr.

Patenaude also argues that the Plaintiff’s claim should be qualified as being ill-founded because no customers who buy wood products from any lumber yard could go back to said merchant “7 years after their purchase” to plead that said wood began to crack or warp. [ 52 ] The Court will not express any opinion as to the validity of such an argument other than by saying that the lumber yard in question, as per Mr.

Patenaude’s concession, does not offer a “50-year warranty” on the quality of its product. [ 53 ] Simply said, the defect in the current instance is one that is clearly associated with the intrinsic quality of those two beams. Nothing more, nothing less. [ 54 ] Consequently, the Defendant’s liability is clearly engaged in those circumstances. [ 55 ] The evidence provided also supports the quantitative portion of the claim, namely the amount of 6 069,55$. [ 56 ] The Court has no doubt that the work described by both Mr. Lyman and Mr.

Simpson was indeed done in 2019 and 2021. [ 57 ] The Plaintiff’s testimonies were credible and reliable. The costs incurred are directly linked [26] with the defects of the beams. [ 58 ] Mr. Patenaude pleads that the work done should not have cost the Plaintiffs such important amounts. He suggests that he could have redirected the Plaintiffs to other contractors who could have done the job for a lesser amount. [ 59 ] That being said, the Defendants do not produce any counter-estimates that could validly establish that the claim is inflated. [ 60 ] Mrs.

Cardamore furthermore establishes that she had a lot of difficulty finding a contractor who could get interested in such a “small job located in a rural community”. [ 61 ] The price was consequential of that situation. [ 62 ] The quantum claimed is therefore preponderantly demonstrated by the Plaintiffs. [ 63 ] The Plaintiff’s Claim will consequently be granted. [ 64 ] That does not mean that the Defendants do not normally provide quality products and services.

It simply demonstrates, in this specific instance, that the quality of the wood provided – for those two beams – was clearly not up to par. [ 65 ] Nothing more, nothing less. FOR THOSE REASONS, THE COURT: CONDEMNS solidarily [27] the Defendants to pay to the Plaintiffs the amount of 6 069,55$, with the interests at the legal rate as well as the additional indemnity provided by

section 1619 of the Civil Code of Québec , to accrue from August 19th, 2021 [28] ; THE WHOLE, with the legal costs in favor of the Plaintiffs [29] . __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: November 10 th , 2023