2018 QCCQ 1989, 2018 QCCQ 1989

JF 1075 Eyre c. Galloway 2018 QCCQ 1989 COURT OF QUEBEC (Small Claim Division) CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU N° : 550-32-022683-152 DATE : April 4, 2018 ______________________________________________________________________ PRESENT : THE HONOURABLE JEAN FAULLEM, J.C.Q. ______________________________________________________________________ GAELYN EYRE -and- MICHAEL SHAIKIN Plaintiffs v.

JAMES GALLOWAY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] After having taken possession of their new residence acquired from the Defendant on February 26, 2015, Plaintiffs discovered that the chimney to the fireplace had been removed and sealed shut, rendering the fireplace unusable. [ 2 ] Alleging the presence of a latent defect, Plaintiffs are claiming from Defendant $12,000 representing the cost to return the fireplace to working conditions and $575 in legal fees incurred for the preparation of a letter of demands sent to Defendant. [ 3 ] By his contestation, Defendant is primarily claiming that the alleged defect does not constitute a latent defect since there was sufficient evidence of it at the time of the sale, as it had been confirmed by the inspector hired prior to the purchase of the house.

I— QUESTIONS IN DISPUTE [ 4 ] The questions of facts and the questions of law to which the Court must respond in the case under review are the following:

A) Does the defect alleged by Plaintiffs constitute a latent defect, within the meaning of

article 1726 of the Civil Code of Québec ?

B) If so, to what amount of compensation is Plaintiffs entitled? II— CONTEXT AND ANALYSIS

A) The latent defect [ 5 ] On February 26, 2015, Plaintiffs purchased from Defendant a house located on Chemin De La Rivière in Chelsey. [ 6 ] The sale included the legal warranty which includes the warranty against latent defects provided for in articles 1726 and following of the Civil Code of Québec ( CCQ ). [ 7 ] In their amended application, Plaintiffs are alleging that a chimney inspection by an expert was not required at the time of sale, since Defendant would have declared that the chimney needed only a liner replacement to be functional.

[ 8 ] Prior to purchasing the house, Plaintiffs had the property inspected by Parent Inspection Inc. At the first hearing of the trial, which took placed on August 15, 2017, Plaintiffs chose not to file the inspection’s report.

The Court therefore ordered the production of said report and a new hearing was fixed on February 12, 2018. [ 9 ] In his written report, Inspector Éric Parent wrote the following as to the condition of the fireplace and chimney: “FIREPLACE AND CHIMNEY: the high-efficiency wood-burning metal fireplace insert, located in the living-room, is mostly in good visual condition, however some distortion of the metal housing, within the combustion chamber, was noted.

A complete inspection of the fireplace and chimney, by a WETT-certified contractor, is therefore recommended to determine any necessary repairs required for this fireplace. Due to the high-efficiency configuration of the fireplace, the bottom part of the metal chimney could not be visually inspected. A chimney inspection by a WETT certified technician is therefore recommended to determine any cleaning or repair replacement requirement to the chimney liner. It cannot be determined whether the fireplace and chimney meet present regulation requirement. The WETT technician should authenticate their conformity.

Only one insulated, stainless steel chimney was noted during the inspection, however two wood-burning appliances are present. The WETT-certified contractor should therefore ensure that the chimney is properly designed and installed for venting two independent wood-burning appliances. Else, back-drafting and or spillage could occur due to a ‘stack effect’.” [ 10 ] Moreover, in his vendor’s declaration, Defendant declared not having used the fireplace and chimney since 2012 and that the chimney liner needs to be replaced. [ 11 ] At trial, Mr.

Renny Lambton, a chimney’s expert, confirmed that the declaration of the Defendant regarding the need to replace the liner should have convince anyone that the chimney was not operational. [ 12 ] Within the meaning of

article 1726 CCQ, to qualify as a latent defect, the defect must be prior to the sale, serious and must not have been known to the buyer. [ 13 ] In the case at hand, all parties admitted that the defect regarding the fireplace and chimney existed prior to the sale and constituted a serious situation. [ 14 ] However, it is not the same with regard to the question of the apparent defect. According to

article 1726 CCQ, “an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert”. As recognized by the jurisprudence, when signs suggest that there is a defect, the buyer should consult an expert [1] . [ 15 ] Mr. Parent’s report is clear about the necessity of having a WITT-certified inspection done prior to using the fireplace and chimney. [ 16 ] It should be noted that Plaintiffs appointed a WITT-certified technician in April 2015 to have the fireplace and chimney inspected. This inspection confirmed Mr. Parent’s concern.

Had Plaintiffs followed the inspector’s recommendation, they would have avoided their losses. [ 17 ] For all of those reasons, the Court concludes that the alleged defect regarding the fireplace and chimney does not constitute a latent defect since there was sufficient evidence present at the time of the sale to invite Plaintiffs to proceed with a thorough examination of the chimney prior to purchasing the property. [ 18 ] Accordingly, there is no merits for the Court to examine the second question. [ 19 ] Per sections 339 and 340 of the Code of Civil Procedure ( CCP ), the Court grants Defendant reimbursement of the court’s costs and fees of $190 paid for the filing of the contestation. [ 20 ] Finally, as already determined at the end of the hearing and in conformity with

article 560 CCP, Plaintiffs are condemned to pay to Mr. Renny Lambton the witness’s indemnities payable under the tariffs in force, for both his presence in court. [ 21 ] FOR THOSE REASONS, THE COURT: [ 22 ] DISMISES the Plaintiffs judicial application; [ 23 ] CONDEMNS Plaintiffs to pay Defendant the legal costs of the contestation, fixed at $190. [ 24 ] CONDEMNS Plaintiffs to pay Renny Lambton the witness’s indemnities payable under the tariffs in force, for both his presence in court. __________________________________ JEAN FAULLEM J.C.Q.

Dates of the hearings: August 15, 2017 and February 12, 2018