2015 QCCQ 6504, 2015 QCCQ 6504

Evans c. Depaola 2015 QCCQ 6504 JP 2262 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CIVIL DIVISION No: 500-32-140754-138 DATE: July 15, 2015 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ LESLIE EVANS Plaintiff v. KAREN DEPAOLA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On August 22, 2012, Mrs.

Evans purchases a property from Ms. Depaola. The sale is made with legal warranty [1] . [ 2 ] Before purchasing the house, Mrs. Evans hires a building inspector, who carries out an inspection and produces a report of his inspection [2] . [ 3 ] The report outlines that the HVAC system servicing the house was manufactured in 1998 and has a life expectancy of 10 to 15 years. An unrepaired stain caused by a prior moisture leak is also noted on the ceiling in the master bedroom. It appears to come from the air conditioner. [ 4 ] Further to this inspection, Mrs.

Evans fills out a form [3] prescribed by the Association des courtiers et agents immobiliers du Québec , entitled “Amendments and Notice of Fulfilment of Conditions”, which contains the following handwritten mentions: As a result of the building inspection, the following items of concern have been noted: (…) 6. Air conditioner leakage & gyprock damage in the master bedroom ceiling Due to the unexpected added costs & repairs the Buyer requests a price adjustment of $3000. 00 from the sale price to offset part of the repairs. Acceptance of this will waive the inspection clause [ 5 ] This amendment to Mrs.

Evans’ original offer is accepted by Ms. Depaola on May 28, 2012. [ 6 ] On or about August 6, 2012, another leakage coming from the air conditioner occurs in the master bedroom. Nor-Can, an air conditioning service company, is called in by Ms. Depaola’s spouse, Brian Bringolf. Nor-Can’s technician verifies and cleans a drain, replaces an air filter and checks the pressure in the air conditioning system. He concludes his notes by indicating that everything is fine [4] . Ms.

Depaola also hires an independent contractor, Alvaro Martinez, to plaster, sand and repaint a 3-foot strip in the ceiling which had been damaged by the leakage. [ 7 ] This leakage is not specifically disclosed to Mrs. Evans prior to the closing of the sale on August 22. [ 8 ] Mrs. Evans and her husband, Randy Ruff, take possession of their new home on August 29, 2012. A few days before, as they were bringing furniture into the house in view of their upcoming move, they saw Mr. Martinez finishing up the painting of the ceiling in the master bedroom. They say that Ms.

Depaola concealed the incident of early August and said that the repainting was done out of the goodness of her heart, to cover the stain mentioned in Mrs. Evans’ inspection report. [ 9 ] One hot September night, only three days after moving in, Mrs. Evans and her husband notice dripping from the ceiling of their bedroom. The air conditioning, although set at the coldest temperature, no longer blows any cold air. [ 10 ] Mr. Ruff immediately suspects a serious problem with the air conditioning system.

He runs outside and sees that the exterior portion of the unit is frozen up into what he describes as a “giant ball of ice”. He rushes back in and climbs into the attic to see that the interior portion of the system, located right above the master bedroom, also is frozen up and covered with a thick layer of ice.

[ 11 ] The system is turned off forthwith. Mr. Ruff, with the help of his wife, uses buckets and rags in an attempt to collect as much dripping water as possible from the melting ice in the attic. Unfortunately, the insulating mineral wool and the drywall in the attic, the master bedroom and the adjacent bathroom are severely soaked. [ 12 ] Informed of this shortly thereafter, Ms. Depaola and Mr. Bringolf refer Mrs. Evans and Mr. Ruff to Nor-Can and provide a copy of the invoice from August showing that the system was fine then.

Unfortunately, it turns out that the necessary spare parts are unavailable such that Nor-Can advises that the air conditioning system cannot be repaired. Mrs. Evans purchases a new system and has it installed in her home. [ 13 ] In April 2013, the mineral wool and sections of drywall which had been damaged in September 2012 due to the air conditioning system failure are replaced. The insulating wool shows important traces of mould [5] . [ 14 ] Mrs. Evans claims $7,000.00 from Ms.

Depaola, in partial reimbursement of the expenses she incurred to replace the air conditioning system, fix the damages to the drywall and replace the insulation in the attic, as well as professional fees she paid for an engineer’s opinion [6] . ANALYSIS AND DISCUSSION [ 15 ] Mrs. Evans’ action is based on the legal warranty provided for by

article 1726 of the Civil Code of Quebec , which reads as follows: 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale , free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect ; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. (Emphasis added by the Court.) [ 16 ] In ABB Inc. v. Domtar Inc. [7] , the Supreme Court of Canada reiterates the four essential characteristics which a defect must present to be covered by this warranty: it must be latent, must be sufficiently serious, must have existed at the time of the sale and must have been unknown to the buyer. [ 17 ] To succeed herein, Mrs.

Evans must prove these four characteristics on a balance of probabilities [8] . Unfortunately for her, the Court cannot conclude that she successfully discharged this burden of proof. [ 18 ] As regards the existence of the defect at the time of the sale, Nor-Can’s invoice establishes that the air conditioning system was serviced by a professional on August 6, 2012, who found nothing abnormal and concluded that it was working properly. [ 19 ] Yet, Mrs.

Evans asks this Court to infer from the untimely failure of the system, only days after her taking possession of the house, and a few weeks after another leakage incident, that this system was necessarily defective at the time of the sale. The Court finds instead that it is at least as probable that the system failed because it had reached the end of its normal lifetime, which is estimated to an average 10 to 15 years by Mrs. Evans’ building inspector.

It is trite law that deterioration caused by normal wear and tear is not a defect against which a buyer is protected by the legal warranty of the Civil Code [9] . [ 20 ] Mrs. Evans presents these two incidents as clearly being connected. Mr. Martinez, however, depicts the work he performed in August 2012 as being somewhat minor. He describes the seam he repaired in the ceiling as being “a little damp” [10] .

This is not consistent with the unit in the attic freezing up completely as it did in early September. [ 21 ] In fact, the Court finds, from the evidence adduced at trial, that the closeness in time of the August and September incidents could very well only be coincidental. Their mere occurrence in a short period of time, in and of itself, is not sufficiently serious, precise and concordant to give rise to a presumption that the system broke due to a latent defect [11] . [ 22 ] The Court also finds that even if Mrs.

Evans had established that the air conditioning system was affected by a defect, her recourse would still fail, as this defect could not be considered latent. [ 23 ] With the exception of the August leakage, Mrs. Evans was well aware that the air conditioning system had leaked and damaged the ceiling in the past. She also knew that it was reaching the end of its service life. This was specifically mentioned in the inspection report and it is one of the reasons for the $3,000.00 price reduction Mrs. Evans obtained from Ms. Depaola. [ 24 ] Mrs. Evans pleads that the non-disclosure by Ms.

Depaola of the August incident has somehow induced her into a false sense of security, preventing her from further investigating the situation. The Court disagrees. There was already ample reason to suspect that the system could break down on a short term basis. Mrs. Evans still chose to purchase the house without deeper verifications. [ 25 ] There are indeed instances where a defect which would otherwise be considered apparent becomes “legally” latent [12] . Such is the case when a vendor fraudulently lulls a purchaser into underestimating an existing problem. This is not one of those cases.

Good faith is always presumed [13] . [ 26 ] Mr. Bringolf was forthright in providing Nor-Can’s invoice. Mrs. Evans and Mr. Ruff were given open access to the house while Mr. Martinez was finishing the repairs in the master bedroom. Nothing indicates that Ms. Depaola voluntarily concealed the August incident. Rather, the Court is of the view that she honestly considered this incident humdrum and unimportant. Furthermore, had Ms. Depaola disclosed the incident specifically, the Court believes that Mrs.

Evans would not have acted differently and would most likely have accepted Nor-Can’s work and conclusions and the repairs by Mr. Martinez as sufficient.

[ 27 ] Finally, Mr. Bringolf, who represented Ms. Depaola at the hearing, did not insist on the latter’s cross-demand, where she claims $3,500.00 from Mrs. Evans for abusive proceedings. Had he done so, the Court would still have dismissed said cross-demand. There is no indication whatsoever that Mrs. Evans introduced her claim in bad faith or that she abused the judicial system in any way. FOR THE FOREGOING REASONS, THE COURT: DISMISSES the action; DISMISSES the cross-demand; CONDEMNS Leslie Evans to pay the Court fees of $229.75 to Karen Depaola. __________________________________ VINCENZO PIAZZA, J.C.Q. Hearing date: July 13, 2015