2016 QCCQ 1480, 2016 QCCQ 1480

Bowser c. Li 2016 QCCQ 1480 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No. 500-32-145833-150 DATE: March 10, 2016 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD ______________________________________________________________________ OLIVER BOWSER and PIERRE-LUC TURGEON Plaintiffs v.

YAN LING LI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] At all times relevant to this case, the parties are bound by an indivision agreement wherein each is entitled to an exclusive right of use of an apartment within a triplex. [ 2 ] Pierre-Luc Turgeon occupies the main-floor apartment, while Oliver Bowser's apartment is on the first floor and Yan Ling Li's on the second floor. [ 3 ] Messrs Turgeon and Bowser allege that Ms Li is responsible for damage to the building and to their apartments caused by water damage from her toilet and related plumbing.

They are therefore claiming $8,739.37 for the cost of the necessary repair work. [ 4 ] In defence, Ms Li acknowledges owing sums, but alleges that she has not received any invoice or proof of payment from Messrs Turgeon and Bowser enabling her to pay the portion for which she is liable. [ 5 ] Also, Ms Li is filing a cross demand and is claiming $1,213.29 from Messrs Turgeon and Bowser for the repair costs that she claims are shared and that she has paid in full. [ 6 ] In order to resolve this dispute, the Court is examining each item of the claims of Messrs Turgeon and Bowser and Ms Li's cross demand so as to decide on their merits. 1.

Emergency repairs – $563.93 [ 7 ] In support of this item of the claim, Messrs Turgeon and Bowser have produced an invoice from the company Refexio and a cheque that constitutes proof of payment of the invoice for $563.93. [ 8 ] The work described on the invoice stems from the water damage resulting from water infiltration from Ms Li's bathroom. [ 9 ] Articles 8.1 and 8.2 of the indivision agreement read: 8.1 Maintenance.

Each undivided co-owner shall be responsible for the maintenance, preservation and small repairs of the unit of which he has the exclusive use and enjoyment, of the doors and windows of such unit as well as, where applicable, the balcony adjoining his unit, the separate staircase leading thereto and any other space of which he may have the exclusive use.

Maintenance of the other portions of the immovable shall be the responsibility of all the undivided co-owners, in accordance with their respective shares, save and except for those portions of the immovable servicing more than one unit but not the entire immovable, in such a case, the maintenance, preservation and repairs of such portions of the immovable shall be the responsibility of the owners of those units, in equal share between the units. 8.2 Repairs. Repairs to the immovable, other than those contemplated in

Article 8.1 and for which each undivided co-owner is personally responsible, and major repairs shall be at the expense of all the undivided co-owners, in accordance with their respective shares, notably even if such repairs may only benefit one (1) unit, unless such repairs result from the failure of an undivided co-owner to make the repairs that he is bound to make hereunder , or from misuse by an undivided co-owner or those to whom he grants access to the immovable, in which case such repairs shall be borne by the undivided co-owner concerned.

Major repairs means those affecting an important portion of the immovable and requiring an extraordinary expense, and without limiting the generality of the foregoing, include those concerning beams, main walls, retaining walls, replacement of the roof, and as the case may be, of the common heating, electric or electronic systems etc. [emphasis added by the Court] [ 10 ] Based on the evidence presented, it appears that the repairs at a cost of $563.93 result from Ms Li's failure to carry out adequate maintenance of her toilet and related plumbing. [ 11 ] The evidence shows that similar problems were observed in 2010 and were not resolved in a satisfactory manner, such that they reappeared in the summer of 2014. [ 12 ] Consequently, Ms Li must assume full payment of this invoice, according to the above-mentioned terms of the indivision agreement. 2.

Labour and material for structural damage – $6,293.31 [ 13 ] According to the testimonies of Messrs Turgeon and Bowser, they retained the services of a contractor to carry out repairs to the building, in particular, the stairwell walls and Mr Bowser's bathroom. [ 14 ] As indicated, Ms Li alleges that she never received an invoice and proof of payment for this work, such that she refuses to share the costs. [ 15 ] In civil law, the burden of proof is on the plaintiff’s shoulders in accordance with the principle provided for in

article 2803 of the Civil Code of Québec ( C.C.Q. ) which states “a person seeking to assert a right shall prove the facts on which his claim is based”. [ 16 ] The Court must weigh the probabilities pursuant to

article 2804 C.C.Q . which states “evidence is sufficient if it renders the existence of a fact more probable than its non-existence”.

In other words, the Court must establish what is more probable and likely. [ 17 ] That said, Messrs Turgeon and Bowser must produce invoices in support of this item of the claim and the proof of payment, which they have neglected to do. [ 18 ] The Court understands that this item of the claim is tied to work carried out in the underground economy, that is, without an invoice or payment of the applicable taxes. [ 19 ] Should that be the case, the Court cannot sanction such a practice, which is contrary to tax laws. [ 20 ] Consequently, in the absence of proof of invoices in support of this item of the claim and proof of payment, the Court cannot allow it. 3.

Material to redo interior of bathroom of 227 Beaudoin – $1,147.73 [ 21 ] Again, the Court finds no proof of payment for materials needed to redo the interior of Mr Bowser's bathroom. [ 22 ] However, Messrs Turgeon and Bowser produced a quote from Rénovation Côté inc. in the amount of $2,471.96.

At the hearing, Ms Li acknowledges having agreed to this amount for the corrective work to Mr Bowser's bathroom. [ 23 ] Given Ms Li's acknowledgment and the Court's finding that the damages to the building are related to the improper maintenance of Ms Li's toilet and plumbing, the Court finds that Messrs Turgeon and Bowser are entitled to claim $2,471.96 from Ms Li representing the amount for the work that she acknowledged as being reasonable and that covers the second and third items of the claim. 4. Lost enjoyment of property and displacement cost for 227 – $509.40 5.

Loss of rental revenue – $225 [ 24 ] For these last two items of the claim, Messrs Turgeon and Bowser presented no supporting evidence, such that the Court cannot allow them. Cross demand of Ms Li

[ 25 ] As noted, Ms Li is claiming from Messrs Turgeon and Bowser $1,213.29 for the work paid in full by her, with respect to her toilet and plumbing. [ 26 ] In support of this cross demand, Ms Li produced three invoices that refer to work for her toilet (wax seal) and a video test. [ 27 ] On the one hand, Ms Li voluntarily paid these three invoices as she knew that they were directly tied to the condition of her toilet. [ 28 ] On the other hand, given the above terms of the indivision agreement, the Court finds that this work is the responsibility of Ms Li since they constitute maintenance work, the total cost of which must be assumed by her. [ 29 ] Exercising its judicial discretion, the Court does not impose any costs, given its findings relative to the principal demand and the cross demand.

THEREFORE, THE COURT: GRANTS in part the claim of Oliver Bowser and Pierre-Luc Turgeon against Yan Ling Li; CONDEMNS Yan Ling Li to pay Oliver Bowser and Pierre-Luc Turgeon $3,035.89, plus interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec from February 28, 2015; DISMISSES the cross demand of Yan Ling Li against Oliver Bowser and Pierre-Luc Turgeon; THE WHOLE , with each party paying its own costs. __________________________________ Henri Richard J.C.Q. Date of hearing: February 15, 2016