2015 QCCQ 5943, 2015 QCCQ 5943

Lubov c. Oakwood Construction Canada inc. 2015 QCCQ 5943 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139188-132 DATE: May 20, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ RONALD LUBOV -and- SHELLY SURKIS LUBOV Plaintiffs v.

OAKWOOD CONSTRUCTION CANADA INC. -and- IRWIN STERMER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN that Plaintiff Shelly Surkis Lubov purchased a house (“ House ”) from Defendant Oakwood Construction Canada Inc. (“ Oakwood ”) on October 29, 2012 (Exhibit P-3). It was a new construction for which Oakwood acted as the general contractor. Ms.

Lubov sues Oakwood and its owner, Irwin Stermer, personally; [ 2 ] GIVEN that Plaintiff Shelly Surkis Lubov is represented in the present case by her husband Plaintiff Ronald Lubov; [ 3 ] GIVEN that Oakwood purchased (Exhibit D-1) and installed (through a subcontractor, Exhibit D-2) shingles for the roof of the House and represented to Plaintiffs that the shingles were guaranteed for a duration of twenty-five (25) years as part of the contract of sale of Plaintiff’s House; [ 4 ] GIVEN that the shingles deteriorated prematurely and failed after only ten or eleven years; [ 5 ] GIVEN that the proof heard and filed at the trial, including the exhibits of photographs of the roof shingles, shows clearly and overwhelmingly that the shingles are defective, are turning up, are coming off and are no longer fit for their purpose.

They must be replaced.

This will involve the specialized labour cost of a roofer; [ 6 ] GIVEN that the proof also establishes that the defective shingles constitute a latent defect in that the defect existed before the sale, is serious, was unknown to the buyer at the time of sale and could not have been detected by a reasonable and prudent buyer before the sale in the circumstances; [ 7 ] GIVEN that Plaintiffs have established that the corrective work to replace the defective shingles would cost at least the maximum amount of the Small Claims Court’s jurisdiction at the time of institution of the proceedings on July 15, 2013, namely $7,000; [ 8 ] GIVEN that the majority of the jurisprudence on the question of whether a party can amend and increase its claim in the Small Claims Division of the Court of Quebec as a result of the increase of the applicable limit to $15,000 starting January 1, 2015 is to the effect that such change is not retroactive [1] ; the undersigned shares that view for the reasons expressed in the decisions mentioned;

[ 9 ] GIVEN that Oakwood argues that it is not responsible in that it only purchased and installed the defective shingles and that Plaintiffs should instead claim against the manufacturer of the shingles, namely the company BP; [ 10 ] GIVEN that Oakwood was the seller to Plaintiffs of the defective shingles, as part of the House, and has the legal responsibility as a general contractor to ensure that all work and materials used under the contract and incorporated into the House are free of latent defects in accordance with

Article 2103 of the Civil Code of Quebec (C.C.Q.) which states: “The contractor or the provider of services supplies the property necessary for the performance of the contract, unless the parties have stipulated that only his work is required. He shall supply only property of good quality; he is bound by the same warranties with respect to the property as a seller.” [ 11 ] GIVEN additionally that as a seller, Oakwood owes to Plaintiff Shelly Surkis Lubov a warranty of quality against latent defects,

Article 1726 C.C.Q. states: “The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of 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 them.” [ 12 ] GIVEN that there are no grounds or sufficient proof to condemn Defendant Irwin Stermer personally; [ 13 ] GIVEN that since Oakwood is a professional seller the existence of the latent defect at the time of the sale is presumed and has not been rebutted by Oakwood.

Article 1729 C.C.Q. reads as follows: “In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer.” [ 14 ] GIVEN that, on the request of Oakwood, the Court orders that payment of the condemnation in capital under this judgment be made by instalments over a period of six months in six equal payments; [ 15 ] GIVEN that Article 986 (2) of the Code of Civil Procedure (C.C.P.) reads as follows: “If the judgment orders payment of the debt by instalments or confirms a settlement between the creditor and the debtor and the latter fails to pay an instalment when due, the creditor may demand payment of the amount due in writing.

If the debtor fails to pay the instalment within 10 days of the demand, the entire amount of the debt becomes due and execution is proceeded with.” [ 16 ] GIVEN the date of start of legal interest and the additional indemnity provided under

Article 1619 C.C.Q. would have been the date of payment of the repair, namely June 5, 2013 (Exhibit P-7b). Plaintiff Ronald Lubov agreed at the hearing to waive, as a gesture of goodwill towards Oakwood, one month of interest and additional indemnity so that the date of start of calculation for these amounts will be July 5, 2013. FOR THESE REASONS, THE COURT: GRANTS Plaintiffs’ motion;

CONDEMNS in accordance with Article 986 (2) C.C.P., Defendant Oakwood Construction Canada Inc. to pay Shelly Surkis Lubov the amount of $7,000 by progressive payments of the following amounts at the following dates: June 20, 2015: $1,166.70; July 20, 2015: $1,166.70; August 20, 2015: $1,166.70; September 20, 2015: $1,166.70; October 20, 2015: $1,166.70; November 20, 2015: $1,166.70. CONDEMNS Defendant Oakwood Construction Canada Inc. to pay Plaintiff Shelly Surkis Lubov legal interest and the special indemnity on the amount of $7,000 as follows: The amount of $7000 bears legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , starting from July 5, 2013. This amount must be paid at the latest on November 20, 2015. Partial or total payment may be made earlier without penalty. DISMISSES Plaintiffs Ronald Lubov and Shelly Surkis Lubov’s motion against Irwin Stermer; [ 17 ] Plaintiffs and Defendant agreed to mutually waive judicial costs. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: May 20, 2015