2017 QCCQ 13585, 2017 QCCQ 13585

Balmoral Investments Ltd. c. Freder 2017 QCCQ 13585 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148903-158 DATE: November 16, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ BALMORAL INVESTMENTS LTD. Plaintiff v.

MATTHEW FREDER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence, and more particularly, the testimony of Marcia Knutt, Matthew Freder, André Brissette, Jim Donaldson and Hyman Polansky, as well as exhibits P-1 to P-7 and D-1 to D-5; [ 2 ] WHEREAS plaintiff’s claim is unfounded for the following reasons; [ 3 ] WHEREAS the amount of $2,824.45, being claimed, is relative to repairs and/or improvements made to an exclusive portion (vs common portion) of the building (private air-conditioning unit and duct work, which services the penthouse apartment unit exclusively); [ 4 ] GIVEN By-law number 1994-2,

schedule A, “Exclusive Portions and Common Portions”, par. 5, exhibit P-7, which reads as follows: ¨ Plumbing. Heating and Ventilating Systems All pipes, ducts and their accessories situated in the interior or exterior of the Exclusive Portion of an Apartment Unit and servicing that Apartment Unit shall, from the point at which such pipe or duct join pipes or ducts servicing one (1) or more other Apartment Units or Common Portions of the Building, form part of the Exclusive Portions of such Apartment Unit.

All other pipes and ducts in the interior or exterior of Apartment Units shall form part of the Common Portions and shall be the responsibility of the Company, except where any problem resulting therefrom arises due to the fault or negligence of one (1) of the Lessees.” [ 5 ] WHEREAS defendant is therefore not liable for the payment of the amount claimed; [ 6 ] WHEREAS , however, defendant is not entitled to the reimbursement of any extra-judicial expenses; [1] [ 7 ] WHEREAS , lastly, defendant’s request that “plaintiff be ordered to reimburse its shareholders the amount of unused contingency for the roof repair”, does not constitute a small claim under Title II of Book VI of the Code of Civil Procedure , as it is injunctive in nature; WHEREFORE THE COURT HEREBY:

DISMISSES plaintiff's claim, with court fees in the amount of $95.00. __________________________________ ELIANA MARENGO, J.C.Q. Dates of hearings: June 5 and October 30, 2017