2017 QCCQ 3569, 2017 QCCQ 3569

Gunter c. Richardson 2017 QCCQ 3569 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148082-151 DATE: March 6, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ TERRY GUNTER Plaintiff v.

CHERYL RICHARDSON, and ROBERT ARGENTO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is a claim for reduction of price in connection with the warranty of quality.

In particular, the Plaintiff alleges that the home that he purchased from the Defendants in the summer of 2001 was affected with a latent defect that resulted in flooding appearing in the basement in the spring thaw of 2002, despite fully functioning sump pumps. [ 2 ] He alleges that the vendor knew of the propensity of the basement to flood and did not disclose this fact prior to the sale.

In response to the Plaintiff’s timely notification of the problem, the Defendants sent a specialized contractor to the house in the summer of 2002 asking him to do what was required to solve the problem. [ 3 ] The contractor installed an additional sump to remedy the problem and he also advised the Plaintiff that the problem was due to “iron ochre” which he referred to as a common problem in that part of town (Baie d’Urfé, Quebec). [ 4 ] The Plaintiff and his wife are immigrants from South Africa.

They told the Court that they had never before lived in a home with a basement and were therefore unaware of the nature of french drains, sump pumps and of “iron ochre”. [ 5 ] It was only in 2012 when the couple decided to sell the home that the exact nature of the problem was discovered through attempts to flush the drain system of the so-called “iron ochre” soil that apparently was clogging it. At that point, excavations revealed that the french-drain system, as installed, was not properly connected, that it did not therefore adequately drain water in the soil around the house into the sump pump system.

It was also very badly obstructed and in some places flattened. [ 6 ] In order to sell the house at the agreed price, it became necessary to solve this problem through the installation of a proper french drain. The cost of this operation together with investigation was over $ 20,000. Even a very

summary examination of the technical file and of contracts and invoices is sufficient to convince even a skeptical reader that the value of the reduction in price should be considered to be, at least, the amount of the Small Claims maximum jurisdiction of $ 15,000. [ 7 ] While liability was essentially acknowledged by the Defendants in 2002 when they ordered corrective work in response to the notification, and though the quantum is patently established in the evidence relating to the steps taken by the Plaintiff in 2012, the case presents the singular problem that ten years went by between the initial ineffective corrective work and the revival of the dispute against the vendor that came about as a result of the purchaser’s decision to put the property on the market. [ 8 ] Another singularity is that Defendant Argento collaborated to a certain instant in the remedial work of 2012 by providing landscaping services carried out by the landscaping enterprise that he owns, at no charge.

Nevertheless, the Defendants subsequently raised prescription as a formal defense in the proceedings. ISSUES [ 9 ] In order to resolve this case, the Court must decide issues that can be expressed in the form of the following questions : 1. Did the three years extinctive prescription period begin to run anew when it was first interrupted by the Defendants’ partial performance of their obligation in the summer of 2002 ?

2. If so, was this prescription suspended by virtue of the inaccurate information given by the contractor sent to resolve the problem on behalf of the Defendants ? 3. If not, and the prescription was nevertheless running and resulted in the claim being prescribed after three years, was this acquired prescription renounced by the Defendants in 2012 when Mr. Argento contributed to the costs of the remedial work ? ANALYSIS [ 10 ] The Court is of the view that once the Defendants intervened in 2002 sending someone to investigate and to carry out corrective work, this was an acknowledgement of the Plaintiff's right.

Prescription was interrupted and began running again for a period of three years. [ 11 ] The Civil Code of Québec (“ C.C.Q.”) provides : 2904. Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others. [ 12 ] Initially the Plaintiff could have thought that the problem had been solved given the appearances of an expert contractor carrying out significant work.

The flooding problem resumed the next year and occurred every year to a greater or lesser extent for a period of approximately ten years. [ 13 ] The Plaintiff attributes his inaction to the belief, based on the opinion the Defendants’ contractor had given, that this was a fairly common occurrence, i.e. the presence of “red ochre” that was normal, and simply had to be contended with from time to time, rather like a maintenance issue. [ 14 ] These statements, which now, in retrospect, appear to be quite lacking in any credibility, were taken at face value by the Plaintiff and his wife and they did not consult an expert of their own who would have, most probably, encouraged them to carry out investigative work beginning with either insertion of a camera into the french drain conduits or even some small exploratory excavations to uncover the status of the french drain system. [ 15 ] In the Court’s judgment, the misrepresentations of the Defendants’ so-called specialist justified the suspension of prescription until such time as, when taking steps to ready his property for sale, the Plaintiff learned that the condition that was the source of the problem was in the drain system and its connection to the sumps, not in the soil itself nor having to do with the types or condition of the sumps and their pumps. [ 16 ] The Plaintiff's misunderstanding is summarized by him in correspondence with Defendant Argento […] “ replace the sump pits in the furnace room with professional sumps instead of the misshapen garbage cans that had been installed by Mike White.

I also undertook to have the french drain flushed which meant having inspection chimneys installed. ” (P-9). [ 17 ] Though the Court finds that the claim was not prescribed because of the misrepresentations made on the Defendants’ behalf, the question arises whether the Defendants, assuming they had the benefit of the acquired prescription in 2012, renounced this prescription through the actions of Mr. Argento on his own behalf, and on behalf of the other Defendant, in response to the Plaintiff’s claim, when he contributed to the remedial work. The C.C.Q. states : 2883.

Prescription may not be renounced in advance, but prescription acquired or the benefit of the time elapsed in the case of prescription that has begun to run may be renounced . 2885. Renunciation of prescription is either express or tacit; tacit renunciation results from

an act or omission which implies the abandonment of the acquired right . However, renunciation of acquired prescription with respect to immovable real rights shall be published at the registry office. [ 18 ] Obviously this is not a case where publication is required, the warranty of quality gives rise to a personal right not an immovable real right. [ 19 ] In his testimony, Mr. Argento refers to his involvement in the restorative work of 2012, indeed the work provided in 2002 as well, as attempts to be helpful, as a question of respect and consideration for the Gunter family.

The Court reads into his testimony the implication that he would have wanted to settle the matter if he could and that it is his position that this was not a renunciation of his rights, just an attempt to be fair. [ 20 ] Mr. Argento did attempt to settle on 50/50 basis. He had been put in default through a lawyer’s letter to pay $ 15,000; presumably the lawyer was limiting his claim to the monetary limit of the small claims division. [ 21 ] While it may be that Mr.

Argento, for his benefit and that of his co-seller, would have wanted to try to settle the case, this stated intention does not, in and of itself, prove a renunciation of their rights. He carried out the contribution to the corrective work, in the form of landscaping services, after he had failed in his attempts to settle, without seeking a formal release and discharge, nor even an informal agreement to settle the matter. [ 22 ] The Court does not consider the contribution made by Mr.

Argento on behalf of the sellers as being purely gratuitous and without any effect in terms of the legal situation between the parties. [ 23 ] Rather, it was a tacit renunciation to a possible defense of prescription resulting from the partial performance of the obligation and a reduction of the Defendants’ ultimate liability.

[ 24 ] According to Mr. Argento’s testimony, the landscaping work he carried out had a value of $ 11,000. [ 25 ] This work, provided through his own company, at a cost lower than its retail value, amounted nevertheless to a significant contribution by Mr.

Argento to the overall cost of repairs. [ 26 ] It cannot be interpreted as anything other than a renunciation of prescription, assuming it had been acquired. [ 27 ] If the ten years that had gone by had truly given rise to a decision on the Defendants’ part to invoke the benefit of prescription there would not have been such a substantial contribution. [ 28 ] If this had been the intention, Mr.

Argento would have insisted upon a release for himself and the other Defendant as a condition of offering the assistance and, at the very least, he would have stated clearly that this partial performance of the sellers’ obligation should not be interpreted as a tacit renunciation of prescription. The implication required at

article 2885 is demonstrated through this conduct and the lack of any statement to the contrary. BY THESE REASONS, THE COURT : CONDEMNS the Defendants to pay to the Plaintiff the amount of $ 15,000, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Quebec , calculated from the date of default, March 21, 2014; THE WHOLE with judicial costs consisting in the cost of the judicial stamp in the amount of $ 200. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: November 28, 2016