2022 QCCA 162, 2022 QCCA 162

Moshin c. Shugart 2022 QCCA 162 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029796-216 ( 500-17-103896-182 ) MINUTES OF HEARING DATE: January 31, 2022 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A. APPELLANTS COUNSEL MD MOSHIN ARA HOSNE Mtre ANDY LOUIS ( Allali Brault ) RESPONDENTS COUNSEL RACHEL SHUGART DAVID BARSAM Mtre ANAÏS KADIAN ( LCM Avocats ) On appeal from a judgment rendered on October 12, 2021 by the Honourable Louis Charette of the Superior Court , District of Montreal .

DESCRIPTION: Application to dismiss an appeal and, subsidiarily, for the provision of a suretyship (Articles 364 and 365 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 1:51 Commencement of the hearing. Identification of counsel. 1:52 Mtre Kadian has nothing to add to her motion. 1:52 Submissions by Mtre Louis. 1:57 Reply by Mtre Kandian on the motion to dismiss the appeal. 2:08 Reply by Mtre Louis on the motion to dismiss the appeal. 2:08 Submissions by Mtre Louis on the motion for suretyship. 2:14 Recess of the hearing. 2:18 Resumption of the hearing.

2:18 By the Court: judgment – see page 3.

Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] The respondents seek the dismissal of the appeal on the ground that it has no reasonable chance of success and, as a subsidiary conclusion, the provision of a suretyship. [ 2 ] The judgment in appeal ordered the appellants to pay to the respondents $125,989.96, with interest and the additional indemnity, in connection with hidden defects in a property which the appellants sold to the respondents and which caused a flood in its basement. [ 3 ] In their notice of appeal, the appellants submit that the judge erred in finding that the defects of the property were hidden since their pre-purchase property inspector had recommended further investigations which would have revealed the defects, notably with respect to repairs to a foundation crack, the probability of water infiltration in the basement and structural limitations. [ 4 ] With respect to a crack in the foundation, the trial judge concluded (at para. 84 of the judgment), as a matter of fact, that the inspector’s recommendation as drafted and the explanations he gave the respondents were sufficient to allow them to reasonably understand that though an immediate repair was required—which repair was in fact carried out after consulting a foundation expert—no hidden foundation problem loomed. [ 5 ] The trial judge further concluded, as matters of fact, that the issues raised in the inspector’s report with respect to water infiltration in the basement “were explained to the [respondents] as items needing attention and suggestions, not as items indicative of concerns with respect to the foundation” (para. 86).

The judge added that “[u]nder the circumstances, the Court cannot conclude that [the respondents] were aware of existing water infiltrations requiring further investigation” (para. 88). [ 6 ] Finally, with respect to structural limitations, the inspector reported some structural issues related to the settlement of the building and some humped floors, while adding in his report that “[n]o visual indications outside the norm for a building of this age and the type of construction in this geographical area were seen that would indicate a problem at the time of inspection” (Purchase Inspection Report, as cited in para. 89 of the judgment).

Though the report also indicated that the settlement of the building was noticeable, it further indicated that this “is typical of this era and area”. [ 7 ] The inspector added that to be sure there were no structural problems, an engineering investigation was required. However, the judge noted that “[w]hen explained to the [respondents], they understood the movement to be normal and not a cause for concern and that in this context, [the pre-purchase inspector] did not recommend obtaining an engineering report” (para. 90).

The judge thus concluded that though the “report indicates an engineering report is ‘required’, [the respondents] understood this to be a limitation of the visual inspection” (para. 90). He therefore found that “given the information provided to them, [the respondents] acted prudently and diligently” (para. 95). [ 8 ] The issues raised in appeal by the appellants thus all concern the appreciation of the facts and of the testimony of the witnesses.

Given that an appeal is not a retrial of the case, it was therefore incumbent on the respondents to clearly identify the palpable and overriding errors they claim the judge committed in reaching his conclusions. They have failed to do this and are therefore essentially attempting to have this Court review the evidence anew so as to reach other factual conclusions which would be more favourable to their position.

This, however, is not the function of an appeals court. [ 9 ] In these circumstances, we are unanimously of the view that the appeal has no reasonable chance of success and should therefore be dismissed with legal costs. As a result, the provision of a suretyship is a moot issue. FOR THESE REASONS, THE COURT: [ 10 ] GRANTS the respondent’s Application to Dismiss the Appeal; [ 11 ] DISMISSES the appeal; [ 12 ] DECLARES moot the respondent’s Application for the Provision of a Suretyship ; [ 13 ] THE WHOLE , with legal costs.

MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A.