2019 QCCQ 662, 2019 QCCQ 662

Azizian c. Masood 2019 QCCQ 662 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-156573-174 DATE: February 4, 2019 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ SOHAILA AZIZIAN Plaintiff v.

SYED HASAN MASOOD -and- AYESHA JAMIL AHMAD Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Further to the purchase of a residential property, Sohaila Azizian is suing Defendants Mr. Syed Hassan Masood and Ms. Ayesha Jamil Ahmad for an alleged latent defect in the air conditioning unit of the property. The claimed amount of $901.25 corresponds to the repair cost to fix the unit. [ 2 ] Ms. Azizian purchased the property from Defendants on March 24, 2017.

The sale was made with legal warranty [1] . [ 3 ] The Judicial Application was served on Mr. Masood and Ms. Ahmad. Mr. Massoud filed a contestation but did not attend the Court hearing. The Court Clerk called Mr. Massoud’s name on the Courthouse public announcement speakers on four (4) separate occasions, but he did not appear. Given Mr. Massoud’s absence, the trial proceeded against him by default. [ 4 ] Ms. Ahmad did not file a contestation of the suit. The Application against her therefore also proceeded by default. [ 5 ] According to the evidence provided by Ms.

Azizian, before the sale, the property was inspected by a professional pre-purchase inspector. The inspection took place on February 5, 2017 [2] . At the time, the exterior temperature was cold and below 0 o Celsius (between -6 and -8 o C) [3] . The interior of the property was heated at the time. The inspector stated and wrote in his report that in the circumstances, he was not able to verify the functionality of the air conditioning unit integrated into the heat pump [4] .

[ 6 ] According to Ms. Azizian’s testimony, Mr. Masood later assured her that the various appliances were all in good working order. [ 7 ] In May 2017, Ms. Azizian turned on the air conditioning unit. However, it did not work. She then called a heating and air conditioning specialist, namely Thermocyr, to examine the unit and determine the problem. Upon examination of the heat pump, the technician from Thermocyr discovered that the cool function of the unit was defective.

Instead of cooling the air in “cool mode”, the unit continued to heat the premises. [ 8 ] The two (2) reports from Thermocyr are filed in evidence [5] . One report refers to a defect in the TXV (Thermostatic Expansion Valve) component. Upon examination of the unit, the technician concluded that the defect existed for at least one (1) year [6] . Therefore, the defect existed before the sale to Ms. Azizian, which had occurred only two (2) months earlier. [ 9 ]

Article 1726 of the Civil Code of Quebec ( C.C.Q. ) establishes the warranty of quality given by the seller. The

article reads as follows: 1726. 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. The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. [ 10 ] According to the evidence, the conditions of a latent defect stipulated at

Article 1726 C.C.Q. are met. The defect: (1) existed at the time of the sale; (2) was serious as it prevented the normal use of the property; (3) was unknown to the buyer at the time of the sale; and (4) was hidden or unapparent at the time of the inspection. [ 11 ] Regarding the fourth condition, Quebec jurisprudence is well established that a Court can take into account the climatic conditions existing during the inspection to evaluate whether a defect is apparent [7] .

In the present case, a professional pre-inspector was unable to ascertain the existence of the defect since the cold temperature at the time was such that only the proper operation of the heating functionality of the unit could be verified. It was not possible to verify the cooling performance or functionality of the heat pump since it would have been required to increase the exterior temperature to resemble summer conditions and to cool down the interior rooms.

In the middle of the winter, according to the evidence, at the time of the inspection that was not possible or feasible from a practical point of view. [ 12 ] The repair charge of Thermocyr was $990.52 ($846.13, plus taxes). [ 13 ] However, part of that amount, namely $140, before taxes, related to annual maintenance. That portion of the charge cannot be claimed, as it does not relate to the existence of a defect but rather normal wear and tear, which is not covered by the warranty of quality [8] . [ 14 ] The Court therefore reduces the amount claimed by $140, before taxes.

The allowable amount of the claim is therefore $811.88 ($706.13 + Goods and Services Tax (GST) $35.51 + Quebec Sales Tax (QST) $70.44).

[ 15 ] Ms Azizian also verbally claimed the repair costs for various cracks in the plaster walls and ceilings of the sold property [9] . The Court was unable to proceed on that claim since an amendment to include charges in respect to such cracks was never made in the original Judicial Application filed into Court and served on Defendants. The Court will therefore not rule on that verbal claim and will instead reserve Ms. Azizian’s rights, if any, in that regard, as they do not appear to be prescribed at the time of the present hearing.

FOR THESE REASONS, THE COURT: CONDEMNS Syed Hassan Masood and Ayesha Jamil Ahmad indivisibly to pay to Sohaila Azizian the amount of $811.88, plus legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , since the Demand Letter of June 28, 2017 [10] ; CONDEMNS Syed Hassan Masood and Ayesha Jamil Ahmad indivisibly to pay to Sohaila Azizian judicial costs in the amount of $110.82 (Court Stamp Fee: $100; Registered mail: $10.82 [11] ); RESERVES Ms. Sohaila Azizian’s rights, if any, to any claim regarding alleged cracks in the plaster ceilings and walls of the property. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: February 4, 2019