2014 QCCQ 12513, 2014 QCCQ 12513

Derrig c. 9267-8879 Québec inc. 2014 QCCQ 12513 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-015964-135 DATE: November 13, 2014 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ CHRISTOPHER DERRIG Plaintiff v. 9267-8879 QUÉBEC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Derrig claims $ 7000 as damages for the delays incurred in the delivery of his new condo, built by 9267-8879 Quebec inc. (Quorum).

THE FACTS: [ 2 ] On January 19, 2013, Christopher Derrig signs with Quorum a Preliminary contract and warranty contract for the purchase of a condominium located on De la Gare Street in Vaudreuil-Dorion, for an amount of $ 205 900. [ 3 ] The contract mentions that the property sold shall be essentially completed and ready for occupancy on June 28, 2013. After a visit on site at the end of May 2013, Mr. Derrig is worried, as it does not appear that the work will be finished on time. In answering an email he sent her on May 27, 2013, Mrs.

Gisèle Wehbé, from Quorum, indicates that she spoke to the chief of construction who assured her that Mr. Derrig would be able to move at the end of June. She informs him that the outside will not be finished, but the inside of the condo will be done. [ 4 ] On June 18, 2013, a strike of construction workers happens. At that date, Mrs. Wehbé sends an email to Mr. Derrig informing him that due to the strike, Quorum won't be able to deliver the condo at due date. As she knows that Mr.

Derrig was moving on July 1 st , Quorum offers him to put his belongings in storage in one of the condo of tower number two that is not sold yet. The keys for the storage unit are available for Mr. Derrig on June 26, 2013. [ 5 ] The strike lasts two weeks, and ends on July 2, 2013. At that date, Quorum informs Mr. Derrig by email that the new date of delivery of his condo will be July 19, 2013. [ 6 ] The balcony of the condo will be finished on October 9, 2013. At the hearing, Mr.

Derrig has filed many pictures showing that the surroundings of his condo, the hallway, stairs, etc., were not finished until the end of November 2013. [ 7 ] On November 9, 2013, Mr. Derrig needs to access his belongings in the storage unit, and realizes that they have been moved from unit 103 to unit 106 without him being advised. It was explained at the hearing that some workers had painting to do in that condo, and to avoid damaging Mr. Derrig's belongings, they moved the winter tires to another unit, and put his golf club in a closet.

They forgot to inform Quorum's representatives of the change of location. [ 8 ] In his Demand, Mr. Derrig makes a list of the reasons he is suing Quorum: - Late delivery of condo; - Delivery of condo with lack of Internet service impacting his work;

- Transportation gas to and from temporary location for work; - Moving fees for two moves (one into storage, one into condo); - Food, transport and rent for the three weeks he was without his condo or former apartment; - Breach of trust in storage agreement; - Stress and time; [ 9 ] His exhibit P-8 is the breakdown of his claim, as follows: Transportation for 15 working days before the condo was delivered: 28km/day x 15 days x 0.31$/km = $130.20 Transportation during the time when the Internet was not available at the condo: 40km/day x 60 days x 0.31$/km = $744.00 U-haul rental for moving twice = $325.00 Meals during the 3 weeks of the late delivery of the condo = $450.00 Contribution he will pay to his mother's utilities when staying with her = $500.00 Trouble and inconvenience = $2000.00 Loss of joy and ruining first time home buying experience = $2000.00 Stress and time coordinating between Bell & builder (24hr of telephone conversation x $35/hr = $840.00 [ 10 ] In her contestation, Quorum alleges that under the preliminary contract, they could not be held responsible for the late delivery if it was due to a strike.

They also contest the quantum of Mr. Derrig's claim. [ 11 ] They also plead that they have done everything they could to give Mr. Derrig his condo as soon as possible, and that they gave him access to a storage unit, without any costs. As for the utilities, they say that they have no control over Hydro-Quebec, Bell or Videotron. [ 12 ] Quorum also plead that they have paid electricity fees for all the owners until November 20, 2013.

ANALYSIS AND DECISION: [ 13 ] The first question to be decided is to know if the strike that happened in the construction industry constitute a superior force (force majeure) that could make Quorum not liable for Mr. Derrig's damages. [ 14 ] It is important to read clause number 6 of the preliminary contract: "DELAY IN DELIVERY 6.

The vendor shall not be held responsible for the delay in delivery of the property if such delay is caused either by the promissory purchaser's failure to fulfill his obligations under this preliminary contract or by superior force (force majeure) or by the occurrence of any other cause beyond the vendor's control, including but not restricted to: unavoidable accident, war, revolution, flood, fire, strike or other labour dispute, default by any supplier of materials or services, impossibility of obtaining materials under reasonable conditions under the terms of clause 4 herein, impossibility of obtaining services under reasonable conditions, lack of public utility services, delayed inspections by the lending institution or any regulation, legislation or ordinance of any level of government." [ 15 ] Authors Didier Lluelles and Benoit Moore say that a strike has been considered many times in case law as constituting

an Act of God. [1] They also say that it is possible in a contract to stipulate a definition of what constitutes such

an Act of God or superior force. [2] [ 16 ] The Court concludes that the happening of a strike of the construction workers constitutes a superior force, with the result that Quorum was not liable for some of the damages suffered by Mr. Derrig. [ 17 ] The strike lasted two weeks, and Mr. Derrig had his condo three weeks later than the date it was promised. Quorum pleads that a two weeks strike does not necessarily equal to a two weeks delay, and that it can be longer because of all the consequences of such a strike. The Court will not consider this argument, and concludes that, finally, Quorum delivered Mr.

Derrig's condo with a delay of seven days. [ 18 ] According to exhibit P-8, Mr. Derrig claims for this late delivery an amount of $ 1405 as expenses. [ 19 ] The question of the damages suffered by the buyer in case of late delivery is settled in the preliminary contract, which constitutes the law of the parties. Sections 2.3

b) and 5.2

a) and

b) read as follows:

"2. WHERE THE CONTRACTOR FAILS TO MEET HIS LEGAL OR CONTRACTUAL OBLIGATIONS PRIOR TO THE ACCEPTANCE OF THE BUILDING AND SUBJECT TO CLAUSE 5 WITH RESPECT TO THE LIMITS OF THE GUARANTEE, THE MANAGER WARRANTS THE FOLLOWING: 2.3 Reimbursement to the beneficiary of his relocation, moving and storage expenses: (…)

b) where the beneficiary is unable to take delivery of the building at the date agreed to with the contractor owing to the need to allow the manager to complete the work on the building. (…) 5.2 Relocation of beneficiary and moving and storage of his property: The guarantee provided with respect to the relocation or for the moving or storage of the beneficiary's property, upon presentation of receipts and subject to the condition that there not be unjust enrichment on the part of the beneficiary, is Iimited to $5,500.00 per fraction mentioned in the declaration of co-ownership, representing:

a) the reimbursement of the reasonable actual costs incurred for moving and storage;

b) the reimbursement of reasonable actual costs incurred for relocation, including meals and accommodation, without exceeding, on a daily basis: - for one (1) person: $85.00 (…)" [ 20 ] Therefore, under clause 5.2 a), Mr. Derrig can claim his moving expense of $325 (U-Haul). For the other expenses, an amount of $85 is granted per day, for a total of $595 . [ 21 ] Mr. Derrig also claims an amount of $1594 due to the fact that Internet services were not available in the condo. The Court does not doubt that Mr. Derrig has made many phone calls to try to settle the situation.

In order to be compensated for all the time he put in this situation and the trouble it caused him, he has to prove that the Internet was not available as the result of a fault committed by Quorum. [ 22 ] All of Quorum's witnesses, Mr. Daniel Fortier, Mrs. Gisèle Wehbé, and Mr. Thierry Van Poucke have explained to the Court that the fault was on Bell's side, or due to their contractor Expertech, which the Court believes. Quorum cannot be liable for the time spent by Mr. Derrig to find a new place to work and to discuss the situation with Quorum and Bell. [ 23 ] Mr.

Derrig also claims $4000 for trouble and inconvenience. The Court understands the testimony of Quorum about the fact that, being the owner of a brand new condo in a new development, Mr. Derrig could not expect that everything would be clean and neat all around as soon as he moved in. The Court also understands that, for example, hallways could not be completed before other owners had moved. The pictures showed, though, that Mr.

Derrig's balcony was not completed until the month of October, and that his immediate environment was not suitable until the end of November. [ 24 ] In evaluating the amount of damages, the Court considers that the electricity bills were paid by Quorum until November 20 th , that Mr. Derrig has started paying condo fees from November 2013, and that Quorum will assume part of the condo fees regarding the horizontal syndicate, until the outdoor pool is delivered. [ 25 ] The Court will grant Mr. Derrig, for all the trouble and inconvenience suffered, an amount of $500 .

FOR ALL THESE MOTIVES, THE COURT: GRANTS partially Plaintiff's claim; ORDERS Defendant, 9267-8879 QUEBEC INC., to pay to Plaintiff, Christopher DERRIG, the amount of $1420 plus the legal interest calculated from the date of the letter of demand (September 6, 2013) and the additional indemnity payable in virtue of

article 1619 Q.C.C., and the judicial costs of $167. __________________________________ CÉLINE GERVAIS, J.Q.C.