2019 QCCQ 4554, 2019 QCCQ 4554

Nemes c. Pelletier 2019 QCCQ 4554 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-700785-188 DATE: June 26, 2019 ______________________________________________________________________ BY THE HONOURABLE PATSY BOUTHILLETTE, J.C.Q. ______________________________________________________________________ TRAIAN NEMES [...] Gatineau (Québec) [...] Plaintiff v.

BENOIT PELLETIER [...] Gatineau (Québec) [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTROBACKGROUND [ 1 ] The plaintiff claim the sum of $7 128.45 from the defendant as a reduction in the sale price following the purchase of a property. [ 2 ] The defendant denies that the property had a latent defect and furthermore alleged that he was never advise of the presume problem before the repairs. [ 3 ] On July 9, 2016, the plaintiff purchased the property from the defendant. [ 4 ] In July, 2017, the plaintiff found water leaking by the patio doors. [ 5 ] The plaintiff requested information from the defendant to proceed with a claim with his own insurance. [ 6 ] The insurance denied responsibility and the plaintiff went on with the repairs. [ 7 ] The defendant was never notified of the situation and never had a chance to make an inspection or the repairs, if so.

ISSUES [ 8 ] The claim raises the following issues :

a) Did the plaintiff respect the rule to pursue for a latent defect to the property?

b) If so, did the property have a latent defect?

c) If so, to what reduction in the sale price are the plaintiff entitled? ANALYSIS

a) Did the plaintiff respect the rule to pursue for a latent defect to the property? [ 9 ] To be successful in his action, the plaintiff must prove by preponderant evidence the facts supporting his claim, in compliance with Civil Code of Québec articles 2803 and 2804 : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 10 ] The plaintiff recourse is based on Civil Code of Québec articles 1729 and 1739 :

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. 1739.

A buyer who ascertains that the property is defective shall give notice in writing of the defect to the seller within a reasonable time after discovering it. Where the defect appears gradually, the time begins to run on the day that the buyer could suspect the seriousness and extent of the defect. The seller may not invoke the tardiness of a notice from the buyer if he was aware of the defect or could not have been unaware of it. [ 11 ] The onus is on the plaintiff to establish that there was a defect.

A defect is a loss of use that makes the property unfit for the use for which it is intended or reduces the usefulness to such a degree that the purchaser would not have paid so high a price. [1] [ 12 ] The plaintiff must establish that the conditions have been met for the defect to be considered a latent defect . [ 13 ] But before that, the plaintiff has to prove that he properly advise or notice the seller of the defect, and gave him the opportunity to inspect the property or make the repairs. [ 14 ] The proof is to the effect that the defendant was never notify before doing the repairs. [ 15 ] For that reason, the claim have to be dismiss.

FOR THESE REASONS, THE COURT : [ 16 ] DISMISSES the claim; [ 17 ] EACH PARTY paying their respective costs. __________________________________ PATSY BOUTHILLETTE, J.C.Q. Date of hearing: June 25, 2019