2018 QCCQ 5819, 2018 QCCQ 5819

Pena c. Osborne 2018 QCCQ 5819 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152360-162 DATE: August 10, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ HEBE PENA Plaintiff v. WILLIAM OSBORNE And 9182-4912 QUÉBEC INC. Defendants/Plaintiffs in Warranty v. GILLES ST-GERMAIN d.b.a. TOITURE EXTRÊME And DLP RÉNOVATIONS INC.

Defendants in Warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Hebe Pena claims from 9182-4912 Québec Inc. (‘’9182’’), the owner of the neighboring property, as well as its director and majority shareholder William Osborne, $15,000 in damages on the grounds that the state of the roof of 9182’s property caused water and rodents to infiltrate her property. [ 2 ] 9182 and Mr. Osborne contest Mrs.

Pena’s claim and argue that the damages she is complaining of result from problems which originate from her own property and which she failed to address. They also argue that Mrs. Pena is claiming damages for which she already received compensation from the person from whom she purchased her property. Finally, 9182 and Mr. Osborne add that Mrs. Pena’s problems were caused by the fact that she hired an unqualified roofing contractor and that she has not proven any of the facts which she alleges in her claim. [ 3 ] Mr.

Osborne denies any personal liability and adds that there is no reason to lift the corporate veil. [ 4 ] 9182 and Mr. Osborne have filed a cross-demand seeking $4,750 in damages from Mrs. Pena on the grounds that they incurred unnecessary expenses because they were forced to carry out repairs to 9182’s property . [ 5 ] Finally, 9182 and Mr. Osborne have sought the forced intervention of DLP Rénovations Inc. (‘’DLP Rénovations’’) and Gilles St- Germain, doing business under the name of Toiture Extrême (‘’Toiture Extrême’’) so as to exercise a recourse in warranty against them. [ 6 ] Mr.

Osborne and 9182 argue that Toiture Extrême redid the roof of Mrs. Pena’s and 9182’s property in September 2009. They add that if Mrs. Pena did experience water infiltration, then this was caused by improper roofing work. [ 7 ] They also argue that DLP Rénovations, the contractor hired by Mrs. Pena to carry out repairs on her property, was negligent and is actually responsible for the damages that Mrs. Pena complains of. Questions in issue [ 8 ] Mrs. Pena’s claim raises the following questions:

a) Is the water and rodent infiltration in Mrs. Pena’s property caused by a fault committed by 9182 or Mr. Osborne?

b) Is Mrs. Pena barred from seeking damages against the defendants because of the Transaction Agreement she entered into with her vendor, Mrs. Pitre?

c) Is Mr. Osborne personally reliable for the acts committed by 9182?

d) What damages is Mrs. Pena entitled to?

[ 9 ] The cross-demand raises the following question:

e) Has Mrs. Pena committed a fault which caused 9182 or Mr. Osborne to suffer injury? [ 10 ] Finally, the recourse in warranty raises the following question:

f) Is 9182 and Mr. Osborne’s recourse in warranty against Toiture Extrême and DLP Rénovations justified? Context [ 11 ] Mrs. Pena is the owner of lot # 2 459 843 of the Cadastre du Québec, Montréal land register, on which a row house has been erected and which bears the address […] (‘’Pena Property’’). Mrs.

Pena purchased her property on July 8, 2014 from Diane Pitre. [1] [ 12 ] 9182 is the owner of lot # 2 459 842 of the Cadastre du Québec, Montréal land register, on which a row house has been erected and with address [address 1] (‘’9182 Property’’). 9182 purchased this Property in March 2012 from Joseph Rainone. [2] [ 13 ] During the time frame relevant to these proceedings, 9182 rented the Property to a tenant, namely Mr.

Joseph Rainone (the former owner). [ 14 ] The Pena Property and the 9182 Property are neighbouring properties and share a common wall. [3] The roof structures of both properties are sloping and covered in asphalt shingles. [ 15 ] The properties also have adjoining driveways which lead to adjacent garages. [ 16 ] A master bedroom is built over the garages of each property. A large window fronts each master bedroom and gives onto each driveway. [ 17 ] A dormer type roof structure is built above the master bedroom windows of each property.

The roof structures are covered in asphalt shingles with flashing and aluminum siding at the base and sides of the roof. [4] [ 18 ] Mrs. Pena alleges in her complaint that mice, rain water and melting snow which accumulates on the roof of the 9182 Property has infiltrated her residence and caused damages to the Pena Property. [ 19 ] As will be discussed in greater detail below, Mrs.

Pena alleges that the source of the water infiltration is located approximately along the sloped dormer roof of the 9182 Property at the intersection of the common wall and the roof edge of the property. [5] [ 20 ] By demand letter dated December 14, 2015, Mrs. Pena enjoined 9182 and Mr. Osborne to carry out repairs to the roof of the 9182 Property so as the remedy the infiltration problem. [6] [ 21 ] On December 15, 2015, Mr. Osborne confirmed by email that a roofing contractor would attend the 9182 Property. [7] Repairs were carried out on the 9182 Property Roof on December 16 at Mr.

Osborne’s instructions. [ 22 ] Since these repairs were carried out, the water infiltration in the Pena Property has ceased. [ 23 ] By demand letter dated March 4, 2016, Mrs. Pena enjoined 9182 and Mr. Osborne to pay for the cost of repairing the damages caused to the Pena Property by the water and mice infiltration. [8] Analysis and Decision

a) Is the water and rodent infiltration in Mrs. Pena’s property caused by a fault committed by 9182 or Mr. Osborne? [ 24 ] Mrs. Pena argues that 9182 and Mr. Osborne are liable for the water damages caused to her residence because the roof of the 9182 Property is not properly maintained and as such water accumulating on the roof falls on her property rather than on 9182’s land and that this constitutes a violation of

article 983 of the Civil Code of Québec (C.C.Q.). [ 25 ] 9182 and Mr. Osborne argue among other things that Mrs. Pena has not proved the cause of the water infiltration. They add that if water has penetrated into her property, she is solely to blame because she has not properly maintained her own roof and further she knew when she purchased the Pena Property that the property was in need of repairs. [ 26 ]

Article 983 C.C.Q. reads as follow: 983. Roofs are required to be built in such a manner that water, snow and ice fall on the owner’s land. [ 27 ]

Article 983 C.C.Q . applies when the natural flow of water is modified because of the sloop of a roof or its structure. [9] The obligation created by

article 983 C.C.Q. requires the owner of an immovable to direct the flow of the water coming from a roof to fall on his own land rather than on his neighbor’s land. [10] [ 28 ] In the Traité de droit civil du Québec , Montpetit and Taillefer write with respect to

article 539 of the Civil Code of Lower Canada , which was substantially reproduced in

article 983 C.C.Q.:

Il est basé sur les principes de la propriété. Chaque propriétaire a le droit de jouir de sa chose de la façon la plus absolue, avec cette limitation qu’il ne peut porter atteinte au droit égal de jouissance que son voisin a sur sa propre chose. S’il était permis à un propriétaire de déverser l’égout de son toit sur le terrain du voisin, ce dernier serait lésé dans son droit de jouissance. Si le toit de son bâtiment est en pente, il doit ménager entre son bâtiment et le fonds voisin un espace adéquat pour que l’eau provenant de la neige et de la pluie ne tombe pas sur l’autre terrain.

Il doit, au besoin munir son toit de gouttière ou de garde-neige. [11] [ 29 ] A property owner who does not build or maintain his roof so as to comply with

article 983 C.C.Q. commits a fault and is liable towards his neighbor for the damages caused to the neighbor’s property by the non-complying roof. [ 30 ] For the reasons that follow, Mrs. Pena has proven on the balance of probabilities that the structure of 9182’s roof, and specifically the inadequate flashing in the 9182 Dormer Valley, causes water and melting snow to fall and infiltrate on the Pena Property in violation of

article 983 C.C.Q. [ 31 ] The Court holds the following from the evidence adduced at trial. [ 32 ] In July 2015, Mrs. Pena’s son discovers fungus growing on the carpet of the master bedroom of the Pena Property in a corner located below the window of the master bedroom and the common wall with the 9182 Property. She also notices that the carpet in this area is wet. [ 33 ] She contacts DLP Rénovations (Mr. Dino Pettinicchi) and asks him to investigate the source of the wetness in the carpet. [ 34 ] Mr.

Pettinicchi removes a portion of the gypsum wall of the master bedroom along the common wall with 9182 Property and notices that the concrete structure of the common wall and the two by four wood studs of the wall are wet and show signs of water infiltration and rot. The photos taken by Mr. Pettinicchi while he carried out this work corroborate his testimony. [12] [ 35 ] To identify the source of the water infiltration in the master bedroom, Mr.

Pettinicchi climbs on the small roof above the garage door of the 9182 Property and using a garden hose, sprays water along the 9182 Dormer Valley. [13] [ 36 ] As noted above, a dormer roof is built above each of the master bedrooms of the Pena Property and 9182 Property. The dormer roof structures are both covered in asphalt shingles and are fronted with aluminum siding and flashing. Each dormer roofs are separated by a common wall which is approximately 30 centimeters high. The 9182 side of this common wall is covered with aluminum flashing and siding.

The junction of the bottom of the 9182 side of this common wall and the dormer roof structure above the master bedroom of the 9182 Property creates a valley where water accumulates (the “9182 Dormer Valley”). [14] [ 37 ] The rain water or snow melt which accumulates on the 9182 Property roof flows down towards the edge of the roof towards 9182 Dormer Valley and is collected in a short eavestrough. It then flows into a gutter which empties onto the shingle roof structure above the 9182 Property garage. [ 38 ] When Mr.

Pettinicchi sprayed water with the hose along the 9182 Dormer Valley, he noticed see that water from the hose penetrated the master bedroom of the Pena Property. [ 39 ] The water test carried out by Mr. Pettinicchi in August 2015 was filmed. A video of this event was entered into evidence and viewed by the Court. [15] This independent evidence offered through the video recording does not lie. [ 40 ] The video is persuasive and shows that as Mr. Pettinicchi sprays water from the garden hose along the 9182 Dormer Valley, water seeps through the common wall and into the master bedroom of the Pena Property.

Moreover, the pictures taken on that same day and also sent to Mr. Osborne show that the wood supporting the wall of the master bedroom have been exposed to water. [ 41 ] The water is allowed to penetrate from the 9182 Dormer Valley into the master bedroom because the flashing at the base of the dormer valley is deficient. The flow of water has caused the wood under the flashing to rot and created an opening through which rain or melting snow infiltrates and seeps into the master bedroom. [16] [ 42 ] On or about September 16, 2015, Mr. Pettinicchi met with Mr.

Osborne and showed him how the water was infiltrating into the Pena Property master bedroom. By email dated September 26, 2015, Mr. Osborne informed Mr. Pettinicchi that he would make arrangements ‘’to send a qualified RBQ licenced roofing’’ contractor to repair the roof and flashing. [17] [ 43 ] On October 8, 2015, Mr. Osborne informed Mrs. Pena and Mr. Pettinicchi by email that he had received confirmation from his roofing contractor that the 9182 Property roof would be repaired later on that same day. [18] [ 44 ] Finally by email dated October 13, 2015, Mr. Osborne informed Mrs.

Pena that the repair to the roof was completed in the previous week. [19] [ 45 ] On or about October 15, 2015, Mrs. Pena discovered that water was still infiltrating through the master bedroom wall as it had been previously, and this despite the assurances given by Mr. Osborne that he had repaired the roof. [ 46 ] Given this development, Mrs. Pena mandated her lawyer to send 9182 a demand letter dated December 14, 2015 where she stated that ‘’despite promises from Mr.

Osborne, nothing has been corrected’’ and enjoined 9182 to take the necessary steps to repair the roof to stop the water infiltration problem within 72 hours of receipt of the demand letter. [20] [ 47 ] Following receipt of the demand letter, 9182 mandated a roof repair person to attend the 9182 Property to correct the water infiltration problem. Mr. Pettinicchi was present while this repair work was carried out. According to Mr. Pettinicchi, the repair person installed temporary aluminum siding under the existing metal flashing which covered the hole which had been made in the wood

structure. [21] [ 48 ] Since these repair was carried out on December 16, 2015, the water infiltration problem has been resolved and no water has infiltrated into the Pena Property master bedroom through the common wall. [ 49 ] Based on the evidence summarized above, the Court concludes that the water infiltration in the master bedroom of the Pena Property was caused by 9182’s failure to respect its obligations under

article 983 C.C.Q. [ 50 ] Similarly, the evidence established that the defective flashing of the 9182 Dormer Valley also caused mice to infiltrate into the Pena Property. [ 51 ] Accordingly, 9182 is liable towards Mrs. Pena for the damages caused to her property by the non-complying roof of the 9182 Property. [ 52 ] Finally, 9182 and Mr. Osborne claim that 2 pre-purchase inspection reports concerning the Pena Property, namely a report dated May 31, 2014 (MD Inspect Plus Report) [22] and the Duey inspection report [23] raised red flags about the state of her property. [ 53 ] They further claim that had Mrs.

Pena carried out the repairs which the building inspectors recommended in these 2 reports, the water infiltration problem which she complains of would never have happened. [ 54 ] The MD Inspect Plus Report was prepared for Mrs. Pena prior to her purchase of the Pena Property. The report is not signed and its author did not testify. [ 55 ] The author of the MD Inspect Plus Report did not inspect the roof of the Pena Property, nor the 9182 Property.

His limited recommendations were based on his view from the ground and the roof edge. [24] [ 56 ] Moreover, nowhere is it stated in the MD Inspect Plus Report that the flashing in the 9182 Dormer Valley is inadequate and in need of repairs.

Page 3 of the Report mentions that there is a need to inspect and repair flashing “as needed”, but neither the photo accompanying the statement nor the vague statements of the inspector indicate that the flashing which he recommends be repaired is the defective flashing of the 9182 Dormer Valley. [ 57 ] The Court concludes that the MD Inspect Plus Report did not raise a red flag which alerted Mrs.

Pena of a potential problem with the flashing of the 9182 Dormer Valley, which, as the Court concludes above, is the root cause of the problem she complains of against the defendants. [ 58 ] The Duey Inspection Report was obtained by Mrs. Pitre in November 2014. She mandated the building inspector after receiving a demand letter dated October 31, 2014 from Mrs.

Pena. [ 59 ] The Duey Inspection Report notes that “The flashing on the common walls is also suspect.” [25] However, since the author of the report did not testify at trial [26] and the report is not signed, the Duey Inspection Report has little, if any, probative value. [ 60 ] But more importantly, there is no evidence that Mrs. Pena ever had in her possession the Duey Inspection Report. She denies ever seeing it before instituting her claim against the defendants and took cognizance of it for the first time at trial. This testimony is credible and there is no reason to set it aside. [ 61 ] In conclusion, Mrs.

Pena cannot be faulted for failing to carry out a recommendation to repair a problem which she did not know existed, since the MD Inspect Plus Report did not raise a red flag with respect to the 9182 Dormer Valley and because she had no knowledge of the Duey Inspection Report.

b) Is Mrs. Pena barred from seeking damages against the defendants because of the transaction agreement entered into with her vendor, Mrs. Pitre? [ 62 ] 9182 and Mr. Osborne argue that Mrs. Pena is seeking double recovery because she has already received compensation for the damages she is claiming in this lawsuit. They argue that the monies she received from her vendor, Mrs. Pitre, following a transaction agreement entered into in July 2015, covers the same damages she is complaining of in this lawsuit and thus bars her from any recovery against the defendants. [27] [ 63 ] Mrs.

Pena disputes this argument and argues that the claim she had against Mrs. Pitre and the compensation she received from her following the settlement agreement relates to a different cause of action than the one she is raising against the defendants in the present lawsuit. She adds that the damages she complained of to Mrs. Pitre are distinct from the ones for which she is claiming in the present case. [ 64 ] Mrs. Pena purchased her property in July 2014. [ 65 ] By demand letter dated October 31, 2014 [28] , Mrs. Pena wrote to Mrs. Pitre and disclosed the following 3 latent defects afflicting the Pena Property: 1.

Cracks in the foundation of the building cause water to infiltrate in the basement and cause damages to that area of the property; 2. Water infiltration into the master bedroom and garage is cause by a problem with the roof; 3. Water leaking out of the shower stall causes infiltration into the wall of the bathroom. [ 66 ] In early November 2014, Mrs. Pena obtained an estimate from DLP Rénovations to carry out the repairs for the damages caused as result of the 3 latent defects identified in her demand letter to Mrs. Pitre. [29]

[ 67 ] In late July 2015, Mrs. Pena and Mrs. Pitre entered into a Transaction Agreement with respect to the latent defects Mrs. Pena had raised in her demand letter. [30] [ 68 ] According to the Transaction Agreement, Mrs. Pitre agreed to pay Mrs. Pena $6,000 and in exchange Mrs.

Pena granted her a full and final release for all claims arising out of the facts raised in the October 31, 2014 demand letter and the work to be executed according to the DLP Rénovations estimate dated November 3, 2014. [31] [ 69 ] Does this Transaction Agreement relate to the same cause of action and the same damages as complained of against the defendants in the present lawsuit? For the reasons that follow, the Court concludes it does not. [ 70 ] Clearly, the defects alleged in the October 31, 2014 demand letter to Mrs.

Pitre relating to the cracks in the foundation of the basement and the bathroom have no relation to Mrs. Pena’s present claim against Mr. Osborne and 9182. There is no question of double recovery here. [ 71 ] As for the water infiltration defect alleged in the demand letter, Mrs. Pena explains that this defect is distinct and unrelated to the claim which she is making against 9182 and Mr. Osborne in the present law suit. [ 72 ] She and Mr. Pettinicchi explain that the source of the water infiltration which give rise to the claim against Mrs.

Pitre as framed in the demand letter originates from a different portion of the roof than the 9182 Dormer Valley issue which is the source of her present claim against 9182 and Mr. Osborne. [ 73 ] At the time of the claim against Mrs. Pitre, Mrs. Pena had not opened the wall of her master bedroom as she did on August 24, 2015 which allowed her to discover the source of the water infiltration which forms the basis of the present claim. [ 74 ] When Mrs. Pena asserted her claim against Mrs.

Pitre, she believed that the water infiltration into the master bedroom originated from the roof of Pena Property or through the bedroom window. [ 75 ] Moreover, Mr. Pettinicchi who carried out the work which was covered by the November 3, 2014 estimate (P-17), explains that this work is wholly unrelated to the work that is covered by DLP Rénovations invoice # 1187 of February 2016. [32] [ 76 ] The testimony offered by Mrs. Pena and Mr. Pettinicchi on this aspect of the claim is clear, direct and credible.

The Court believes them when they testify that the basis of the Pitre claim and the resulting settlement is unrelated to the basis of Mrs. Pena’s claim against 9182 and Mr. Osborne. The cause of action and damages claimed against the defendants are distinct from the Pitre claim and Transaction Agreement. [ 77 ] Accordingly, the Court concludes that the Transaction Agreement entered into between Mrs. Pitre and Mrs. Pena does not bar her from pursuing her claim against the defendants. There is no evidence of double recovery.

c) Is Mr. Osborne personally reliable for the acts committed by 9182? [ 78 ] It is a well-established principle of Québec corporate law that a corporation possesses a distinct legal personality from that of its shareholders or directors. This is expressly stated in

article 309 C.C.Q. as follows: 309. Legal persons are distinct from their members. Their acts bind none but themselves, except as provided by law. [ 79 ] Mrs. Pena argues that this principle should be set aside and that Mr. Osborne should be personally liable for 9182’s breach of

article 983 C.C.Q . [ 80 ] Mrs. Pena has the burden of proving the facts which justify setting aside 9182’s distinct legal personality. The rule governing a corporation’s distinct legal personality may only be set aside in limited circumstances, including: i. Lifting of the corporate veil under

article 317 C.C.Q . [33] ; ii. Where the director or shareholder has committed an extra contractual fault within the meaning of

article 1457 C.C.Q ., for example by making false representations or creating false documents. [ 81 ] The evidence adduced at trial does not support Mrs. Pena’s claim that Mr. Osborne used 9182 to dissembled fraud, abuse of right of the contravention of a rule of public order. Throughout, his communications with Mrs. Pena, he was acting in his capacity as a director and officer of 9182 and committed no conduct which would be tantamount to fraud. There is no basis in fact and law to lift the corporate veil and apply

article 317 C.C.Q. [ 82 ] Moreover, Mrs. Pena has not proven on a balance of probabilities that Mr. Osborne personally committed an extra contractual fault within the meaning of

article 1457 C.C.Q . She claims that he made a false representation in October 2015 when he promised that repairs had been carried out to the roof and that this turned out to be false. [ 83 ] However, Mr. Osborne testified that he did send someone to carry out repairs in October 2015 and that he was as surprised as anyone to discover that the repairs were not successful. [ 84 ] For the foregoing reasons, Mrs. Pena’s claim against Mr. Osborn personally will be dismissed.

d) What damages is Mrs. Pena entitled to?

[ 85 ] Mrs. Pena claims that she suffered damages totaling $15,025.23 as a result of 9182’s failure to honor its obligations under

article 983 C.C.Q. This includes : i. Extermination (rodent) expenses : $339.18; [34] ii. Repairs to the Pena Property caused by the water infiltration: $14,686.05. [35] [ 86 ] Neither 9182 nor Mr. Osborne offered convincing evidence to contradict Mrs. Pena’s evidence on damages. [ 87 ] Mrs. Pena has proven to the Court’s satisfaction that the repairs carried out to her residence by DLP Rénovations at a cost of $14,468.05 (P-12: invoice #1187) were required and resulted from the violation of

article 983 C.C.Q. by 9182. Mr. Pettinicchi confirms that DLP Rénovations’s invoice #1187 has been paid in full by Mrs. Pena. [ 88 ] Accordingly, the Court concludes that Mrs. Pena has proven on the balance of probabilities that she incurred expenses of $14,686.05 to repair the damages caused to the Pena Property as a result of the water infiltration. [ 89 ] Likewise, the breach of

article 983 C.C.Q. caused Mrs. Pena to have to incur expenses for the extermination of the mice in the attic of the Pena Property. [36] Accordingly, the Court will also award Mrs. Pena $339.18 for this expense. [ 90 ] Mrs. Pena suffered damages totalling $15,025.23. As she is entitled to, Mrs. Pena reduced the amount of her claim to $15,000 so as to bring her claim within the jurisdiction of the Court of Québec, Small Claims Division. Therefore, the Court will award her damages of $15,000. Cross-demand

e) Has Mrs. Pena committed a fault which caused 9182 or Mr. Osborne to suffer injury? [ 91 ] 9182 and Mr. Osborne allege in their cross-demand against Mrs. Pena that they have suffered $4,750 in damages because they incurred : (i) $2,500 in expenses to carry out repairs to 9182’s roof based “on instructions from Mrs. Pena’s unqualified RBQ licensed roofing contractor in Oct[ober] 2015” and to Mrs.

Pena’s roof in December 2015 and that these were wholly unnecessary and result from her fault; (ii) $750 to cover the cost of having to hire a professional home inspector to inspect 9182’s property; and (iii) $1,500 to cover the cost of having to hire a contractor to open the walls and floors in a few areas of the 9182 Property. [ 92 ] Firstly, for the reasons expressed above, if 9182 incurred expenses to carry out repairs in December 2015 to the roof of the 9182 Property, these were expenses that were required to comply with

article 983 C.C.Q. and do not result from a fault of Mrs. Pena. [ 93 ] In any event, Mr. Osborne and 9182 supplied no invoices to the Court to justify this expense although it was requested to do so. [37] [ 94 ] Finally, if the defendants incurred costs of $2,250 to hire a professional home inspector or to hire a contractor to open the walls, they have not proven that these expenses were incurred as a result of an extra contractual fault committed by Mrs. Pena. Moreover, they adduced no documentary evidence establishing that this work was carried out, nor that they paid for it. [ 95 ] Accordingly, 9182 and Mr.

Osborne’s cross-demand will be dismissed as they have not proven that Mrs. Pena committed a fault nor have they proven they suffered any prejudice. [ 96 ] The defendants also ask in their cross-demand that the Court cancel, resolve or resiliate “the contract”. There is no basis for this conclusion. 9182’s and Mr. Osborne’s relationship with Mrs. Pena is extra contractual in nature as there exists no contract between Mrs. Pena and either of the defendants. This aspect of the cross-demand is without merit. Recourse in Warranty against DLP Rénovations and Gilles St-Germain, d.b.a Toiture Extrême

f) Is 9182 and Mr. Osborne’s recourse in warranty against Toiture Extrême and DLP Rénovations justified? [ 97 ] 9182 and Mr. Osborne have made a recourse in warranty against DLP Rénovations and Toiture Extrême. The merits of these recourses will be analyzed below. Recourse in warranty against DLP Rénovations [ 98 ] The defendants 9182 and Mr. Osborne argue that DLP Rénovations was hired by Mrs. Pena to fix her leaking roof but that it was negligent in carrying out the repairs.

They further argue that DLP Rénovations lacked any professional qualifications nor was it licensed by the Régie du bâtiment du Québec ( RBQ ). [ 99 ] The defendants’ claim against DLP Rénovations is extra contractual as they have no contractual relationship with this general contractor. [ 100 ] To succeed in their recourse in warranty against DLP Rénovations, the defendants have the burden of proving on the balance of probabilities that DLP breached one of its obligations flowing from the contract it entered into with Mrs.

Pena, and that this breach constitutes an extra contractual fault which caused them to suffer prejudice. [38]

[ 101 ] The defendants adduced no expert evidence or any evidence whatsoever to substantiate their claim that DLP Rénovations was negligent in the work it performed on the Pena Property. The two witnesses heard on behalf of the defendants, Mr. Osborne and Mr. Rainone, are not qualified to to testify as to whether there was a breach by DLP Rénovations of the rules of art or that the general contractor did not act with prudence and diligence. [39] [ 102 ] Accordingly, the Court concludes that 9182 and Mr.

Osborne’s recourse in warranty fails because they have not established that DLP Rénovations committed an extra contractual fault. [ 103 ] Finally, the evidence reveals that DLP Rénovations did in fact hold, during the relevant time frame, a valid license issued by the RBQ . [40] It was licensed by the RBQ as a general contractor and was entitled to carry out work for which it was mandated by Mrs. Pena. Recourse in warranty against Toiture Extrême [ 104 ] 9182 and Mr. Osborne argue that if they should be condemned to pay damages to Mrs.

Pena because of a faulty roof of the 9182 Property, then Toiture Extrême should be ordered to indemnify them since this business redid the roof on the 9182 Property in September 2009. [ 105 ] The evidence reveals that on September 23, 2009, Joe Rainone, the former owner of the 9182 Property, entered into a contract with Toiture Extrême whereby the latter agreed to replace the asphalt shingles of the roof of the 9182 Property. [41] The contract further provides that Toiture Extrême agreed to the following scope of work: 1. Remove the existing roof shingles; 2.

Inspect the roof bridge (pontage de toit) and where necessary add nails; 3. Install a sealing membrane under the shingles within three feet from the edge of the slopping roof; 4. Replace the pluming events; 5. Apply sealing to the flashing. [ 106 ] Although 9182 is not a party to the Toiture Extrême contract, the rights and of Mr. Rainone flowing from this contract were passed on to 9182 when it acquired the 9182 Property in 2012. [42] That said, while these rights were passed on to 9182, they were not passed on to Mr. Osborne.

Accordingly, any breach of the Toiture Extrême contract may only benefit 9182. [ 107 ] Although Toiture Extrême was duly convened, it did not attend the trial. As such, the recourse in warranty proceeded by default against it. [ 108 ] According to Joseph Rainone, removing and replacing the flashing along the 9182 Dormer Valley was within the scope of work of Toiture Extrême. [ 109 ] The Court has decided above that the cause of the water infiltration in the master bedroom of the Pena Property was inadequate flashing along the 9182 Dormer Valley.

As this area was within the scope of work of Toiture Extrême’s contract, and considering that the contractor guaranteed its work for a 10 year period, the Court concludes that 9182’s recourse in warranty against Toiture Extrême is well founded. FOR THESE REASONS, THE COURT: [ 110 ] DISMISSES Hebe Pena’s claim against William Osborne; [ 111 ] GRANTS Hebe Pena’s claim against 9182-4912 Québec Inc.; [ 112 ] CONDEMNS 9182-4912 Québec Inc. to pay to Hebe Pena $15,000 with interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , calculated from March 14, 2016; [ 113 ] WITH LEGAL COSTS of $200 representing the court fees paid on the claim; [ 114 ] DISMISSES 9182-4912 Québec Inc. and William Osborne’s cross-demand against Hebe Pena; [ 115 ] DISMISSES 9182-4912 Québec Inc. and William Osborne’s recourse in warranty against DLP Rénovations inc.; [ 116 ] WITH LEGAL COSTS of $300 payable by 9182-4912 Québec Inc. and William Osborne to DLP Rénovations inc.; [ 117 ] GRANTS 9182-4912 Québec Inc.’s recourse in warranty against Gilles St-Germain doing business under the name of Toiture Extrême; [ 118 ] CONDEMNS Gilles St-Germain, doing business under the name of Toiture Extrême, to pay to 9182-4912 Québec Inc. all amounts in capital interest and the additional indemnity provided for by

article 1619 of the Civil Code of Québec that 9182-4912 Québec Inc will have paid to plaintiff Hebe Pena pursuant to the present judgment;

[ 119 ] WITH LEGAL COSTS on the recourse in warranty of $150. __________________________________ ENRICO FORLINI, J.C.Q. Dates of hearing: September 22, 2017, January 23, 2018 and April 16, 2018