2014 QCCQ 6621, 2014 QCCQ 6621

Romoff Kolofinsky c. Couvertures E. Poirier (9089-5012 Québec inc.) 2014 QCCQ 6621 COURT OF QUEBEC Small Claims Division CANADA PROVINCEOF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL « Civil Division» No : 500-32-134312-125 DATE : May 1, 2013 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MARILYN ROMOFF KOLOFINSKY […], Côte Saint-Luc, Québec, […] PLAINTIFF v. COUVERTURES E.

POIRIER (sous 9089-5012 Québec Inc.) 18, rue Industriel, bureau 401, Delson, Québec, J0B 1D8 DEFENDANT ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Marilyn Kolofinsky Romoff, sues the Defendant, Couvertures E.

Poirier (“Couvertures Poirier”) , for reimbursement of the price of roofing works carried out on the terrace of her home at 5807 David Louis, in Côte Saint-Luc, as well as damages for water infiltration. [ 2 ] She alleges that the works carried out, which had as their purpose the correction of a water-infiltration problem from the roof terrace, were faulty and have to be redone. She alleges that a pre-existing water infiltration worsened as a result of the inadequate work, causing additional damages.

The costs of repairs of the entire walls and ceilings beneath the roof deck when added to the costs of redoing the work obviously exceed the limit of the Small Claims Division.

The Plaintiff reduces her claim to this limit of $7,000. [ 3 ] Couvertures Poirier contests the action, alleging that the work was carried out according to the rules of the art, denies any liability for work done previous to its contract and alleges that there was no water infiltration following the work executed. [ 4 ] Couvertures Poirier alleges that water infiltrates through the patio door, for which it denies any responsibility. [ 5 ] The Plaintiff obtained a default judgment against the Defendant on January 10, 2013, [ 6 ] At the hearing, May 21, 2013, the Court granted Couvertures Poirier’s motion in revocation of judgment and proceeded to hear the case on the merits.

Issues [ 7 ] The Court must determine: 1. Is Couvertures Poirier at fault in the execution of its roofing contract? 2. If so, what are the financial consequences to the Plaintiff as a result of Couvertures Poirier’s contractual fault? 3. Is the claim for restitution of the contract price and damages sufficient to establish an award for $7,000? Facts [ 8 ] Mrs. Romoff lives in the upper two floors of the residential building she owns. The lower two floors are rented out. [ 9 ] In 2010, she had a problem with water leaking through the roof terrace situated on the second floor.

The roof terrace sits over living spaces of the building. In order to solve the problem, she called upon Couvertures Poirier, who agreed to check the balcony, remove the wood patio and keep it to put back after removing the existing roof membrane and replacing it. The contract clearly reads “a warranty of five years is given for water infiltration”.

[ 10 ] The price of material and labour with taxes is $6,490.31 (P-1). [ 11 ] The work was completed November 30, 2010, and Mrs. Romoff paid the price. Over the next year and a half, Mrs. Romoff complained to Couvertures Poirier for several incidences of water infiltration occurring during heavy rains, beginning in the spring of 2011. Mr. Émile Poirier, the principal of the Defendant, returned to the site several times, each time denying that there was any water infiltration. [ 12 ] Mrs. Romoff states in her letter of demand (P-2) in June 2013, and reiterates in her testimony that each time Mr.

Poirier came, it was after the rain had stopped and the patio roof had dried out so that he was unable to witness the actual infiltration of water that she perceived. She could hear the water “ticking” as it descended in the partitions of the apartment. [ 13 ] On one occasion, Mr. Poirier replaced caulking and, at trial, he surmised that the infiltration must have been coming through the patio door, which therefore must be defective. An independent witness, who was a neighbour of Mrs.

Romoff, testified that a few weeks before the trial, she visited the home and saw that interior walls were wet and crumbling. [ 14 ] The photos taken by Mrs. Romoff are also quite eloquent. They show obvious signs of water infiltration. She obtained an estimate in November 2012 for repairs to gyproc and plaster water damage in the TV room and the ceiling and walls of the bedroom. The estimate, including taxes, is $2,759.40. [ 15 ] She also obtained estimates for redoing the roofing work.

The lowest was approximately $10,000, taxes included, and the highest, close to $14,000. [ 16 ] Given Couvertures Poirier’s defence, the Court invited the parties to obtain expert opinions as to the cause of the water infiltration. The Court has no doubt as to the sincerity of Mrs. Romoff’s testimony, which is corroborated to the effect that water infiltration continued after Couvertures Poirier carried out its works and after the attempt to reseal areas with caulking. Mr.

Poirier may be sincere in his belief, but mistaken, when he asserts that there was no water infiltration due to the fact that he visited between rainy periods. He also states that he carried out tests to see if he could induce water infiltration but without success. [ 17 ] On the whole of the evidence, the Court is convinced that there was significant water infiltration after the repair work done by Couvertures Poirier that it did not rectify after being put in default. Couvertures Poirier did not obtain any independent experts opinion although the Court allowed a fairly long period of time to do so and Mrs.

Romoff made her house available should an expert wish to visit. [ 18 ] R.H. Edwards, an engineer hired by Mrs. Romoff, inspected the patio roof and the rooms below and observed that there was no water infiltration connected with the patio door. [ 19 ] This eliminates Couvertures Poirier’s defence to the effect that there is a cause for the water infiltration that is independent from his work.

The engineer also verified the rubber seal system that is the part of the door mechanism and found that it showed no sign of previous water infiltration though there had been heavy rains the night before. [ 20 ] In terms of the new membrane installed, Mr. Edwards writes that that the “new waterproof membrane is higher that the upper lip of the door frame base. Thus the last 3 inches of membrane slopes down to meet the top of the door frame base”.

He affirms that to have a sloping membrane downwards towards the door is “wrong and contrary to all good roofing practice”. [ 21 ] In verifying the places within the house where there is water infiltration, he formed the opinion that there is no water infiltration through the door itself. It can be inferred from this that water is infiltrating from the roof. Analysis [ 22 ] A contract such as this one for the rebuilding of a roof membrane carries with it an obligation of result.

The work was not prescribed by the client herself by means of an architectural plan and specifications; it was up to Couvertures Poirier, as an expert in roofing, to analyze the situation, check the current condition of the roof and make sure that the work it was offering would be effective to render the roof functional for its purpose. [ 23 ] The work did not result in a roof that performed properly; water infiltration continued and worsened and Couvertures Poirier failed to correct the problem when informed of it. [ 24 ] It is hard to know which aspect precisely of Couvertures Poirier’s work is the exact cause of the problem.

That would perhaps involve an expensive verification which is not warranted in a case where the contract price was approximately $6,500. Couvertures Poirier’s own explanation of why there would be water infiltration, a defective door, is not serious and does not stand up to a review by a qualified independent expert.

That expert also saw signs of poor workmanship, including one very fundamental flaw in that the roof membrane slopes down towards a junction with the door frame. [ 25 ] There is no evidence that would detract from the strong inference that can be drawn from the evidence that the water infiltration is the result of an inadequate execution of the contract by Couvertures Poirier. If, as Couvertures Poirier’s representative, Mr.

Poirier, suggested in some of his testimony, the design of the building or previous work carried out by other unqualified workman is the cause of the problem, this does not relieve the defendant from liability. The contract included a verification and recommendations to the client. If the work it was proposing was not feasible because of a pre-existing condition, it would have been up to Couvertures Poirier to advise the client /and refrain from performing the work unless these other problems could be corrected. [ 26 ] The Court concludes, then, that Couvertures Poirier is at fault. Quantum

[ 27 ] The contract is for a small amount. It is not feasible for a roofing contractor to mobilize, spend a significant amount of time, and give its own guarantee unless it redoes the roof membrane completely. [ 28 ] The prices quoted competitively are above $7,000 and this is to be expected because Couvertures Poirier’s contract was for approximately $6,500 and there has been, obviously, some inflation since. [ 29 ] The repairs to the interior are more difficult to assess because some of the damage was pre-existing and would have been repaired in any event.

How much of the interior damage is previous and how much occurred since the work done by Couvertures Poirier? The point is perhaps academic given the $7,000 limit. [ 30 ] Couvertures Poirier asked at trial that, should judgment be rendered against it, that it be allowed to pay the amount in instalments. The business had been idle for the winter and will only be in a positive cash flow position once work begins this spring. The winter of 2013-2014 has been colder and longer than expected and construction is getting off to a slow start.

In small-claims matters, it is possible for the Court to award the payment of an obligation in instalments. The Court accepts the payment of instalments of $2,000 monthly, beginning June 30 th . FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay Plaintiff the amount of $7,000, together with interest at the legal rate of 5% and the additional indemnity of

article 1619 C.C.Q., calculated from November 9, 2010; CONDEMNS the Plaintiff to judicial costs of $163 for the Court stamp, $399 for bailiffs’ costs and $550 for expert fees, for a total of $1,112. PERMITS the Defendant to satisfy the judgment through monthly instalments of $2,000, commencing June 30, 2014, but should the Defendant default on any payment and not correct the default within 10 days of receipt of a receipt of a written notice, the entire balance will become immediately due. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 1 st , 2014