2020 QCCQ 280, 2020 QCCQ 280

Gagliardi c. Garonce 2020 QCCQ 280 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-702959-174 DATE: January 23, 2020 ______________________________________________________________________ BY THE HONORABLE CAtherine Pilon, J.C.Q. ______________________________________________________________________ ADAM GAGLIARDI -and- 9360-2597 QUEBEC INC. Plaintiffs v.

ANDREW GARONCE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Adam Gagliardi and 9360-2597 Quebec Inc. (“Quebec Inc.”) claim 15 000 $ from Andrew Garonce following the sale of an immoveable property. According to Mr. Gagliardi, Mr.

Garonce omitted to disclose material elements in relation to the property prior to the sale, namely that he was aware of drainage and foundation issues. [ 2 ] A judgment by default was rendered against Andrew Garonce in favor of Adam Gagliardi on September 27, 2018. [ 3 ] Mr. Garonce applied for the revocation of this judgment. As the grounds to initially revocate appeared sufficient, the Court received the application for revocation, and referred this matter for a hearing of the evidence in support of the revocation and on the merits of the case. [ 4 ] Before this hearing, Mr.

Gagliardi amended his Application to add Quebec Inc. as a Plaintiff, because it was the party to the deed of sale as well as the party who suffered the alleged damages. [ 5 ] At the hearing, this Court decided that the evidence supported a sufficient cause justifying the absence of Mr. Garonce, and proceeded to hear the case on the merits of the claim of Mr. Gagliardi and Quebec Inc., and the grounds of contestation of Mr. Garonce. Context [ 6 ] Mr. Gagliardi is the sole shareholder and director of Quebec Inc. [ 7 ] On June 1 st 2017, Quebec Inc. purchased a residential property from Mr.

Garonce. [ 8 ] The mandatory form of Declarations by the Seller of the Property filled by Mr. Garonce prior to the sale answered negatively to all questions related to the existence of problems with the foundation, with drainage, or with periodical accumulations of water. This form also indicated that there were no expert or inspection reports available for the property. [ 9 ] The sale was made without the legal warranty and the property was not inspected by an expert retained by Mr. Gagliardi prior to purchase, except for a plumber and an electrician. [ 10 ] There was a heavy rain on June 15, 2017.

This rain led to significant water infiltrations in the basement of the property. Once Mr. Gagliardi had the basement walls torn out, he noticed that water had accumulated behind these walls, which he was not in a position to notice when he bought the house. [ 11 ] Mr. Gagliardi retained the services of Akton Injection (“Akton”) to determine the cause of these infiltrations. [ 12 ] When the Akton representative came to the house, he informed Mr. Gagliardi that he was in a conflict of interest to provide an opinion on the cause of the water damage, since he had already provided an inspection report to Mr.

Garonce about the general state of the house on March 30, 2017. The report disclosed issues with the french drain

[ 13 ] Mr. Garonce had not only failed to disclose this report, but also misrepresented the existence of this report prior to the sale. [ 14 ] The water infiltration was a direct result of the french drain’s deficiencies. [ 15 ] When this was discovered by Mr. Galiardi, he informed Mr. Garonce who essentially dismissed his call. [ 16 ] Mr. Gagliardi then had the proper repairs carried out. Analysis [ 17 ] Mr.

Garonce argues that the issues with the property, if any, were apparent, and that in any event, the property was sold without legal warranty. [ 18 ] The Court is not of this view. [ 19 ] The issue is not whether there were hidden defects affecting the property. The issue is whether Mr. Garonce failed to disclose material information in his declaration as a seller. [ 20 ] Mr. Garonce was well aware that he had obtained an inspection report barely two months prior to the sale of the property to Mr. Gagliardi. The Court cannot see how Mr.

Garonce could sincerely answer negatively to a very clear question in this regard in the seller’s declaration which was provided to Mr. Gagliardi before the sale. [ 21 ] Mr. Gagliardi was entitled to rely on this declaration as a basis to purchase the house. The need to redo a french drain, which Mr. Garonce knew but failed to disclose, is material information to the buyer of a house. The Court considers that Mr. Garonce was in bad faith by not disclosing it. [ 22 ] The fact that Mr. Gagliardi was knowledgeable about construction, does not justify Mr.

Garonce’s lack of transparency and does not alleviate his obligation to properly inform his co-contractor. [ 23 ] Mr. Gagliardi’s consent, for Quebec Inc., was vitiated by Mr. Garonce’s misrepresentation by omission. [ 24 ] As a consequence of the foregoing, Quebec Inc. has established to the satisfaction of the Court, that it has suffered a direct prejudice of over $15,000 [1] to redo the french drain as well as related damages caused by its deficiency. [ 25 ] The Application is granted with respect to Quebec Inc. and dismissed with respect to Mr. Gagliardi personally.

FOR THESE REASONS, THE COURT: DISMISSES the Defendant’s Application for revocation; GRANTS in part the Application of the Plaintiffs; CONDEMNS the Defendant to pay the Plaintiff 9360-2597 Quebec Inc. $15,000 with interest at the legal rate and the additional indemnity provided by

article 1619 of the Civil Code of Quebec since the demand letter of September 18, 2017; CONDEMNS the Defendant to pay the Plaintiff 9360-2597 Quebec Inc. the Court costs of $108; DISMISSES without costs the Application of the Plaintiff Adam Gagliardi. __________________________________ CATHERINE PILON, j.c.q. Date of hearing: December 10, 2019