2021 QCCQ 7806, 2021 QCCQ 7806

Mahmet c. Bernatchez-Drolet 2021 QCCQ 7806 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL « Civil Division » N° : 500-22-263333-208 DATE : August 24, 2021 ________________________________________________________________ PRESIDED BY THE HONORABLE DAVID L. CAMERON, J.C.Q. ________________________________________________________________ Robert MAHMET Plaintiff c.

Geneviève BERNATCHEZ-DROLET Defendant ________________________________________________________________ JUGEMENT ________________________________________________________________ [ 1 ] The Plaintiff, a purchaser, alleges defects in the immovable purchased, based on the seller’s warranty of quality.

There are two claims: one concerning the building envelope, the other the functioning of an air conditioner. [ 2 ] The present matter is a motion to dismiss based on prescription and tardiness of the prior notice. [ 3 ] At the hearing, the Court heard cogent and serious arguments on the Defendant’s position concerning prescription.

The attorney for the Plaintiff presented a sworn declaration of his client (item # 12 in the plumitif) explaining the circumstances of the discovery of the defects and of their provenance. [ 4 ] These facts were not specifically alleged in the originating application to institute proceedings, leaving the Plaintiff open to a defense of prescription. [ 5 ] At this stage, however, the facts as alleged in the sworn declaration, which can be considered as tantamount to modifications to the introductory motion, give contextual material and explanations, which, if found to be credible by a judge, could, depending on all the proof, overcome the defense of prescription of one or both of the claims. [ 6 ] It would not be appropriate at this stage for the Court to decide the issue of prescription which depends upon an analysis of the proof as a whole, which can be done only by a judge seized of the merits. [ 7 ] The issue of the tardiness of the notice of the discovery of defects of quality is, to an even greater degree than prescription, a matter for the merits and, although the Defendant makes the argument coherently, it is better reserved for trial.

BY THESE REASONS, THE COURT: DISMISSES the Defendant’s Demande en irrecevabilité pour absence de fondement juridique et demande en rejet au motif de prescription . COSTS to follow the outcome. __________________________________ David L. Cameron, J.C.Q. Me Michael Schacter Kaufman Avocats Plaintiff’s lawyer Me Jérôme KARA-GODIN La boîte juridique Defendant’s lawyer Date of hearing: July 13, 2021