2018 QCCQ 1977, 2018 QCCQ 1977

JF 1075 Charles c. Giovannoni 2018 QCCQ 1977 COURT OF QUEBEC (Small Claim Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL N° : 500-32-153387-164 DATE : April 3, 2018 ______________________________________________________________________ PRESENT : THE HONOURABLE JEAN FAULLEM, J.C.Q. ______________________________________________________________________ SARAH CHARLES Plaintiff v.

STEPHEN GIOVANNONI -and- SHELLY COOPER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] After having taken possession of her new residence acquired from the Defendants on July 18, 2015, Plaintiff discovered that the concrete slab located under the basement floor was damaged and needed to be replaced. [ 2 ] Alleging the presence of a latent defect, Plaintiff is initially claiming from Defendants $28,283.85 representing the cost of the work done to repair the defect and $2,069 for the expertise’s cost. [ 3 ] Plaintiff agreed to reduce her claim to $15,000 so that it falls within the jurisdiction of the Small Claims Division. [ 4 ] By their contestation, Defendants are primarily claiming that the alleged defect does not constitute a latent defect since there was sufficient evidence of it at the time of the sale, as it had been confirmed by the inspector hired prior to the purchase of the house. [ 5 ] Defendants are also claiming that the alleged defect did not render the residence unfit for the use for which it was destined and that the plaintiff’s claim is grossly exaggerated.

I— QUESTIONS IN DISPUTE [ 6 ] The questions of facts and the questions of law to which the Court must respond in the case under review are the following:

A) Does the defect alleged by Plaintiff constitute a latent defect, within the meaning of

article 1726 of the Civil Code of Québec ?

B) If so, to what amount of compensation is plaintiff entitled? II— CONTEXT AND ANALYSIS

A) The latent defect

[ 7 ] On July 15, 2015, Plaintiff purchased from Defendants a house located on York Street in Beaconsfield. [ 8 ] The sale included the legal warranty which includes the warranty against latent defects provided for in articles 1726 and following of the Civil Code of Québec ( CCQ ). [ 9 ] Prior to purchasing the house, Plaintiff had the property inspected by Excel Heron Inc. [ 10 ] The inspector Victor Heron noted four cracks in the basement foundation, which, according to him, did not constitute a major structural defect, but should be repaired to reduce risk of leakage. [ 11 ] In his written report, Mr.

Heron also noted that the basement floor was raised. Accordingly, it was not possible for him to confirm if there had been water infiltration under the basement floor. He also specifically noted that a home of the age of this one (55 years) typically has no French drains which increases risk of water infiltration. [ 12 ] However, since the intention of Plaintiff was to completely redo the basement, the inspector did not recommend any other verification prior to purchase.

He did, whatsoever recommended to “remove raised floor to expose floor surface” in order to fulfil the renovation of the basement. [ 13 ] In August 2015, Plaintiff started renovating the basement by first removing and disposing of the basement flooring. She then became aware of bumps and cracks in the concrete slab.

Upon discovery of those defects, she sent to Defendants a written denunciation and mandated two experts to conduct an evaluation. [ 14 ] Both experts confirmed the existence of serious defects affecting the concrete floor of the property and recommended proceeding with the refection of the concrete slab and the replacement of the pyritic backfill placed under the basement at time of construction of the house. [ 15 ] One of the experts, Mr. Stéphane Bossus, also noted that it is most likely that a previous owner was aware of those defects because of the way the basement floor had been installed.

The evidence does not suggest that the Defendants installed the flooring in the basement. [ 16 ] After receiving the denunciation, Defendants also mandated an expert to evaluate the alleged defects. The Engineer Louis R. Denoncourt proceeded to visit the property on January 26, 2016.

He arrived at the conclusion that the defects of the concrete slab results from the following: “D’un point de vue ingénierie, la détérioration de la chape de béton mise en œuvre en 1958 est le résultat de son vieillissement sous l’effet de son exposition à un milieu humide acidifié par la présence de pierre concassée légèrement pyriteuse et par l’absence d’un système de drainage efficace.” [ 17 ] Even if the experts of both parties arrived to different conclusions to explain the causes of the concrete slab defects, it is the presence either of pyritic backfill under the slab or the lack of efficient drainage that explains the necessity to replace the concrete floor. [ 18 ] For the following reasons, the Court concludes that the defects regarding the concrete slab does not constitute a latent defect since there was sufficient evidence present at the time of the sale to invite Plaintiff to proceed with a thorough examination of the basement prior to purchasing the property. [ 19 ] Within the meaning of

article 1726 CCQ, to qualify as a latent defect, the defect must be prior to the sale, serious and must not have been known to the buyer. [ 20 ] In the case at hand, all parties admitted that the defect regarding the concrete slab existed prior to the sale and constituted a serious situation. Both experts mandated by Plaintiff confirmed this situation. Even the defendants’ expert arrive to same conclusion. [ 21 ] However, it is not the same as with regard to the question of the apparent defect. According to

article 1726 CCQ, “an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert”. As recognized by the jurisprudence, when signs suggest that there is a defect, the buyer should consult an expert [1] . [ 22 ] As for the presence of humidity under the slab, Mr.

Heron report is clear about the presence of “dampness on the concrete floor under the raised floor” and some traces of “efflorescence at the base of the exposed walls”. [ 23 ] As for the presence of pyritic backfill, the evidence accepted by the Court at trial confirms that it had been discussed by Mr. Heron and Plaintiff prior to the sale. [ 24 ] Indeed, during the visit of Inspector Heron, Mr. Ryan Seniw, the Real Estate Broker for the Defendants, was present and he heard Plaintiff and the inspector talked about the potential presence of pyritic backfill. Mr.

Heron than advised Plaintiff that she could have a test done to confirm or not such a possibility. [ 25 ] Mr. Seniw also confirmed that it was possible to see part of the concrete slab, since only two third of it was recovered by the basement floor. He personally noticed cracks on the concrete floor in the furnace room, which were also noticed by Mr. Heron, according to his testimony. [ 26 ] Mr. Heron did not insert any pictures of the furnace floor in his report. No mention of any cracks in the concrete slab was also mentioned. [ 27 ] At trial, Mr.

Heron did not testify, but Plaintiff negated having discussed with him regarding the presence of pyritic backfill. [ 28 ] There is no reason for the Court not to rely on Mr. Seniw testimony. This witness has nothing to gain personally in reporting the

inspector comments regarding the presence of cracks in the concrete floor and the potential presence of pyritic backfill underneath. [ 29 ] Moreover, the drawing of the basement slab by Labo SM included in its report shows cracks in a

section of the basement where there was no covering floor. This confirms that the inspector Heron should have noticed their presence. [ 30 ] Furthermore, during her testimony, Plaintiff mentioned that she was aware of many defects present in the basement prior to purchase, but she opted not to go further with more examination, since she already had decided to entirely redo the basement. It was only when she became aware of the gravity of the concrete slab defect that she realized the gravity of the situation. It was unfortunately too late at that time to change her decision to buy the property. [ 31 ] Mr.

Seniw testimony also confirms that at the time of Plaintiff’s offer, there was pending propositions by other prospective buyers, which may explain her decision not to go further with a more thorough expertise. [ 32 ] Considering the apparent indications that could have suggested a structural defect of the concrete slab, the Court concludes that the damage suffered by Plaintiff does not constitute a latent defect. [ 33 ] Accordingly, there is no merits for the Court to examine the second question. [ 34 ] Finally, per sections 339 and 340 CCP, the Court grants Defendants reimbursement of the court’s costs and fees of $200 paid for the filing of the contestation. [ 35 ] FOR THOSE REASONS, THE COURT: [ 36 ] DISMISES the Plaintiff judicial; [ 37 ] CONDEMNS Plaintiff to pay Defendants the legal costs of the contestation, fixed at $200. __________________________________ JEAN FAULLEM J.C.Q.

Dates of the hearing: December 12, 2017