2013 QCCQ 1478, 2013 QCCQ 1478

Krukowski c. Mellos 2013 QCCQ 1478 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-125245-102 DATE: February 18, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JASON KRUKOWSKI represented by his proxy Jerry Krukowski […] , Val-David (Québec) […] Plaintiff v.

GREGORY MELLOS […] , Kirkland (Québec) […] -and- RODHANTHI MANOUSAKIS […] , Beaconsfield (Québec) […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Jason Kruskowski, represented by Jerry Kruskowski, is claiming $4,090.81 from Defendants Mr. Mellos and Ms. Manousakis. Mr. Krukowski alleges that his furnace broke down, after he purchased his home from Defendants. Defendants deny the claim. The evidence: [ 2 ] Plaintiff purchased his home from Defendants on March 28, 2006.

He then rented it to tenants. The home was equipped with an oil burning/forced hot air system. According to Plaintiff, Defendants said it was purchased 5 years before Defendants bought the property. Since they had lived in the house for 10 years, Plaintiff considered the furnace to be 15 years old. [ 3 ] Defendants deny having said they bought a new furnace. They changed the motor (not the furnace itself) 5 years before they sold their home. The furnace was the original one, installed when the house was built in 1961, and had never been changed.

They declared it was working when they sold their home to Plaintiff in 2006. [ 4 ] On February 13, 2007, a year after purchasing their home, Plaintiff’s tenants advised him that the furnace was not working. Plaintiff called Ultramar. A repairman concluded the heat exchanger was cracked and a brick blocked the neck of the flu pipe. He also noted that the furnace was more than 30 years old. [ 5 ] Plaintiff claims he tried to reach Defendants by phone and left a message. In the absence of any reply, he ordered a new furnace the following day, which cost $4,090.80. It was installed on February 18, 2007.

[ 6 ] Plaintiff reproaches Defendants for their lack of maintenance. He submits that Defendants did not renew their service contract with the company Turner for their furnace, after it ended in September 2005, a fact Defendants deny. [ 7 ] Defendants submit they never received any message from Plaintiff and were not told the furnace was defective. Legal Principles: [ 8 ] A vendor is responsible for hidden defects in the property that he or she has sold. The principles governing such defects are set out by the Civil code of Quebec . [ 9 ]

Section 1726 of the Code stipulates that the vendor must guarantee that, at the time of sale, the property and its accessories are free from 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 the defects. [ 10 ] The defect must have certain gravity and must exist at the time of sale. The legal guarantee does not extend to defects that are known to the buyer nor does it extend to apparent defects.

The same applies when a defect can be discovered by a prudent and diligent buyer. The purchaser must therefore carry out a serious inspection since the possibility of discovering a defect is sufficient for it to lose its hidden character [1] and the defect is no longer considered to be hidden. Analysis: [ 11 ] Plaintiff is seeking the cost of a new furnace. He alleges the existence of a hidden defect for which a vendor is liable.

Defendants invoke the lack of notice, while Plaintiff claims there was urgency. [ 12 ] While a lack of notice and an emergency are both valid contentions, what is more important is whether the furnace was affected by a hidden defect for which vendors are responsible. Therefore, it must first be determined whether the problem concerns a hidden defect or whether the problem stems from the age of the furnace. [ 13 ] In this case, the Defendants claim the service contract for the furnace expired in 2005 and was not in effect during the year preceding the purchase.

Turner, the company which serviced the furnace, established that its contracts remain in effect on an annual basis unless cancelled in writing by the client. In this case, there is no evidence of a cancellation notice. Therefore, the contract was still in effect until Defendants cancelled it at the time of sale. [ 14 ] The parties dispute the age of the furnace. Plaintiff claims he was led to believe the furnace was only 15 years old when he bought the house. Defendants deny having made such a claim.

They said they changed the motor but not the furnace itself and to their knowledge, the furnace was the original furnace, installed in the 1960’s. Defendants also claim they had no problem with the furnace when they lived in the house. [ 15 ] With respect to the age of the furnace, Plaintiff has the burden of proof. He has not established to the satisfaction of the Court that Defendants misled him or induced him into error. [ 16 ] The furnace had been inspected prior to the sale. Plaintiff claims that the inspector indicated that the probability of system replacement within 5 years was low.

However, the inspector noted that the heating system was “older” and a number of elements were not visible. He recommended that a heating contractor be consulted to inspect the system and determine the extent of repairs, since he considered that the motor for the fan needed to be replaced. As well, a new insulator was required and the combustion chamber and heat exchanger were corroded and dirty. [ 17 ] To establish the existence of a hidden defect for which the vendor is responsible, the purchasers must show that the defect existed at the time of sale.

While the defect does not necessarily have to manifest itself prior to the sale and the manifestation can take place after the sale, it must have existed, albeit in a latent state before the sale [2] . [ 18 ] In addition, a defect is evaluated in relation to the use of the object at the time of sale. A vendor is not required to guarantee that an object will not suffer any decrease in use in the future [3] .

Furthermore, the wear of a property is not necessarily a hidden defect [4] . [ 19 ] Therefore, the loss of normal use is not a defect in the case where it results from wear, use and the age of the property [5] . In principle, the buyer bears the burden of proving that the defect existed at the time of the sale [6] . [ 20 ] In applying these principles to the present case, the evidence shows that the furnace in question is over 30 years old. An inspection was carried out on an annual basis and Defendants used the furnace without any problem. However, the furnace was old.

According to the evidence, the usual lifespan of a furnace is 20 to 25 years. The furnace in question was used well beyond its usual life span. [ 21 ] In light of the proof, the Court concludes that the furnace did not suffer from a hidden defect. It was simply old and had been in use well beyond its usual life span. It needed to be replaced.

Moreover, a more thorough inspection of the furnace, by a heating specialist, would have established the true age of this appliance. [ 22 ] Defendants, as vendors, are not required to guarantee that a good it sold will not suffer any deterioration or will not function in the future, particularly when it is well past the number of expected years of use. [ 23 ] Accordingly, the Court concludes that Defendants are not liable for the breakdown of the furnace or for the cost of its replacement.

FOR THESE REASONS, THE COURT: DISMISSES the motion to institute proceedings, THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: January 29, 2013 [2] Rioux c. Doré , (2001), AZ-01036391 (C.Q.) ; Gendron c. Cartier , 2006 QCCQ 5793 et Beaudet c. Bastien , 2007 QCCQ 13454 . [3] Provost c. Roy , 2009 QCCQ 13444 , par. 27 et 29 et Bédard c. Couture-Ferland , 2011 QCCQ 4667 . [4] Jeffrey EDWARDS, La garantie de qualité du vendeur en droit québécois , 2 e éd., Montréal, Wilson & Lafleur, 2008, p. 154, par. 334; Langlois c.

Dumont , 2011 QCCS 452 , par. 69 et 79 ; Currie c. Mayette , 2011 QCCQ 4565 et Prak c. Mongeau , 2011 QCCS 6332 . [5] Noguet c. Charest , 2011 QCCQ 4070 et Chapleau c. Royaume Chrysler Dodge Jeep inc. , 2011 QCCQ 4758 . [6] Faucher v. Ringuette, [1994] R.D.I. 450 (C.S.) ; St-Gelais v. Desfossés, J.E. 97-1249 (C.A.) . Côté v. Gadbois , [1994] R.D.I. 200 (C.S.) ; Compagnie Trust Royal v. Gestion Jean-Pierre Bertrand inc , J.E. 94-919 (C.A. ; Ranger v. Daigle , J.E, 94-1423 (C.S.) ; Christopoulos v. Abdalla,

(1995) R.D.I. 61 (C.S.) .