2019 QCCQ 4925, 2019 QCCQ 4925

Nasr-Esfahani c. 9184-4688 Québec inc. 2019 QCCQ 4925 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-701325-179 DATE: June 14, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ MAHMOUD NASR-ESFAHANI AND MASOUD NASR Plaintiffs v. 9184-4688 QUEBEC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs claim from the Defendant an amount of $5,464.78 for damages as a result of faulty masonry work. [ 2 ] The Defendant contests the claim arguing that the work was done according to the Plaintiffs' instructions.

It also raises the issue of prescription since the action was instituted more than three years after the date the Plaintiffs were made aware of the non- conformity of the work by the City of Montreal. [ 3 ] The Plaintiffs retained the services of the Defendant for masonry work to be carried out on their immovable situated at 3788- 3790 Sewell Street in Montreal. The work was completed in October 2012. [ 4 ] Apparently, the masonry work was not done properly since the City of Montreal sent a notice of non-compliance to the Plaintiffs on February 10, 2014.

The City raised an issue regarding the shape of the masonry above some of the windows which did not have the arch shape as required by the permit. [ 5 ] The Plaintiffs sent a letter of demand to The Defendant on May 25, 2016 and only filed the present claim before the Court on March 30, 2017. [ 6 ] A claim arising from a personal right must be taken within three (3) years from the date the facts on which it is based are known [1] . 2925.

An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 7 ] In the present case, The Plaintiffs knew since February 10, 2014 that they had a potential claim against The Defendant.

They had until February 13, 2017 [2] to file their claim before the Court. [ 8 ] Plaintiffs argue the fact that they did not act before February 13, 2017 since they had no news from the City of Montreal and thought that this issue had been abandoned by the City. [ 9 ] Although prescription does not run against persons if it is impossible in fact for them to act, The Plaintiffs' assumption that the City would not pursue this matter does not qualify as « impossible in fact to act ». [ 10 ] The Plaintiffs' claim is therefore prescribed. FOR THESE REASONS, THE COURT : DISMISSES Plaintiffs's claim. WITHOUT COSTS.

__________________________________ GILLES LAREAU, J.C.Q. Date of hearing: May 13, 2019