2014 QCCQ 6531, 2014 QCCQ 6531

Duerksen c. Gilliaux 2014 QCCQ 6531 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-127493-114 DATE: June 3, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ RON DUERKSEN […], Montreal, Quebec, […] Plaintiff v.

PIERRE GILLIAUX […], Montreal, Quebec, […] And GENEVIÈVE BLOUIN […], Montreal, Quebec, […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Ron Duerksen, who purchased a residence on 1662 Sherbrooke Street, Montreal in 2009 sues the vendors, the Defendants Pierre Gilliaux and Geneviève Blouin alleging, as a latent defect, that a support beam was missing along the length of the dinning room and this beam had to be replaced during a minor renovation project he was caring out shortly after the sale. [ 2 ] He alleges costs associated with corrections to the support beam at $7,938.23 and reduces his claim to $7,000.00, the maximum permitted in the Small Claims Division. [ 3 ] The Defendants contest, denying that there is any latent defect and they further take the position that the claim is ill founded because they did not receive a notice within a reasonable time of the defect being discovered.

Finally, they claim that the damages are indirect, therefore not caused by the fault alleged and that they are exaggerated. Issues [ 4 ] To resolve this conflict, the Court must determine: 1. Has the Plaintiff established that the building is affected by a defect of quality serious enough to affect the price he would have paid,

that he was not aware of the defect when he purchased the building, that the vendors had the benefit of a notice of the defect within a reasonable time of its discovery and that they failed to correct it having been given a notice? 2. If the answer to the above is in the affirmative, what is the appropriate amount of reduction in price? [ 5 ] Is important to note that the Plaintiff did not allege that the vendors were in bad faith in that they knew of the existence of the defect and failed to disclose it at the time of the sale. [ 6 ] Therefore this is an action for a reduction in price, not for damages.

Facts [ 7 ] At the time of the sale, Mr Duerksen made it clear to Mr Gilliaux and Mrs Blouin that he intended to open up a division in the ground floor by removing a wall between the kitchen and the dining room in which there was a built- in cupboard. [ 8 ] He hired a contractor, on the basis of an estimate, with the exact price to be determined by a quantification of time and materials. [ 9 ] The contractor did not know what to expect in terms of structure because no particular plans were made to change or reinforce the existing structure. [ 10 ] Part of a load-bearing wall still was in place between the kitchen and the dining room and it was this wall that was to be removed, Mr Duerksen states that when the contractors opened the wall, they realized that it was not a proper load-bearing wall and that it therefore required some reinforcement. [ 11 ] He states that the beam shown in his photograph (D-3 figure

C) is a temporary beam that was installed by his contractor. [ 12 ] This is, however not the case, as is established by Mr Gilliaux’s testimony that the beam that can be seen in this photograph is a beam that Mr Gilliaux himself installed when he opened the original wall to provide a partial opening of approximately eight feet. In the picture, it can be seen that vertical support of this beam in the center of the floor has been taken away, and that there is nothing supporting the beam. [ 13 ] Rather than send a written notice, Mr Duerksen contacted Mr Gilliaux and invited him to come to the premises.

Mr Gilliaux testifies that he was asked to come to the premises to speak to the contractor who required information and to pick up mail. He did not meet Duerksen, who was not present. The contractor did not ask him any questions but explained that he was replacing the existing beam so that it would span the entire width of the new opening, approximately 16 feet. [ 14 ] The beam Mr Gilliaux had installed was not visible before the renovation of the ceiling as Mr Gilliaux had placed a false ceiling below it.

After the contractor saw the state of the support in this area of the structure, he asked Mr Duerksen to provide an engineering plan for the structural reinforcement to be carried out because of the much wider span. [ 15 ] Mr Duerksen hired Mike Macchiagodena, a member of the Order of Engineers of Quebec. Mr Macchiagodena produced a drawing (D-5). It shows the installation of the new beam approximately 16 feet in length the entire distance between the wall of the building in the center of the 1 st floor all the way to a point at the end of the room where it would be supported by a steel column.

This is a laminated beam fabricated by a specialized company. Its procurement and installation cost $4,989.21 (P-6). Since the wall that was demolished was found not to have load-bearing properties, it was decided to remove it completely, which explains the exact length of the new beam. Because of the span of the new support, the previous beam that Mr Gilliaux had installed was of no use and it was removed.

In addition to the procurement and instalment of the new beam, Mr Duerksen also incurred an expense of $2,949.11 for the miscellaneous materials and labour pertaining to the work associated with the installation of this new beam.

Expert testimony [ 16 ] Mr Macchiagodena’s testimony established that, given the span of the new opening, the existing beam was of no value and the new beam was necessary to provide the proper support. [ 17 ] The Defendant’s expert Mr Pierre Brassard, also a member of the Order of the Engineers testified that the situation was not one that required emergency work. When the dismantling of the ceiling and wall finishes took place, the exposed beam and its vertical support did not show any sign of weakness.

It had held since its installation in 2005 without there being any fatigue cracking or any sign that there was a need to replace it immediately. He stated, however, that the removal of the lateral support of the beam did created an emergency situation but that this was the result of a decision of the contractor, not a condition existing the building prior to the work. [ 18 ] He was also of the view that the beam installed by Mr Gilliaux, consisting of a single joist, although effective, was probably not up to Building-Code standards. It should probably have been doubled.

His testimony establishes, however, that once it was decided to open the wall, creating a span of approximately 16 feet, this beam was no longer of any use and a new beam having the characteristics of the one installed by Mr Duerksen was essential. Analysis [ 19 ] To be successful in a claim for latent defects, also known as a claim based on the warranty of quality, a plaintiff must demonstrate that he has given the vendor an adequate notice of the defects within a reasonable time they are detected.

By sending such a notice to the vendor, the purchaser informs the vendor of the nature of the defect that has been found, invites the vendor to come himself or with an expert to see the problem in order to evaluate for himself whether he would agree to rectify the problem. The purpose is to give the vendor the opportunity to ascertain his responsibility and make the necessary repairs at the best possible price. A notice of this type in an essential prerequisite to an action in reduction of price. Among the exceptions to the rule that a notice is required within a short time is that pertaining to urgent works.

If works must be carried out on an urgent basis and there is no time to notify the vendor, the purchaser’s action will not be dismissed by reason only that the notification only comes later. [ 20 ] In the present case there was no written notification to Mr Gilliaux. He was invited to come to the premises but it was not made clear to him that any allegation was being made about a defect of quality. He was invited to attend to inform the contractor of certain details that the latter required.

Mr Duerksen was not told by the workmen that he met on the site that he was being held responsible for a defect of quality and no specific allegations were made to him about the sufficiency of the beam he had installed several years earlier. Therefore the Court comes to the conclusion that the Plaintiff’s action cannot be maintained because of the insufficiency of the notification given to the Defendants. It was only after Mr Gilliaux had completely finished his renovation works that he informed the Defendants of the nature of the work he carried out and of the details of his claim.

When the settlement he proposed was not agreed to by the Defendants, he brought a formal letter of demand which led to the present action. [ 21 ] At the time he invited Mr Gilliaux to the premises, he did mention that the contractor had questions about the electrical connections that had been discovered during the demolition. These were not included however in the action before the Court. Causality [ 22 ] The Court called upon the expert witnesses to explain in detail the nature of the support structure put in place as part of the renovation.

It became clear that once it was decided to open the wall, a new support beam would be necessary regardless of what support, adequate or inadequate, had been previously provided by the load-bearing wall still in place and the approximately eight foot beam that Mr Gilliaux had installed when he carried out renovations in 2005. [ 23 ] Therefore, it is irrelevant whether the work carried out by Mr Gilliaux was sufficient or not. Whether it had been up to Building- Code standards or not, it had to be removed and replaced by the new laminated beam with its new steel column that can be seen in the photograph, figure D.

This new support column with the laminated beam were a necessary part of the construction whether or not Mr Duerksen and his contractor had prior knowledge of it or not, and regardless of the conformity or nonconformity with code, of Mr Gilliaux’s improvisations.

[ 24 ] The Court concludes, therefore, that the action would have failed even if Mr Duerksen had given the Defendants adequate prior notice immediately upon learning of the need to install the new support beam. [ 25 ] Because the Defendants’s expert was useful in providing the Court with a technical understand of the file, the Defendants will be entitled to their expert’s costs of $667,00 based on 5 hours at $116,00 per hour plus taxes.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiffs’ Demand; CONDEMNS the Plaintiff to pay the Defendants judicial disbursements of $148.00 for the Court stamp and expert fees of $667.00. __________________________________ DAVID L. CAMERON J.C.Q. Date of hearing: April 14, 2014