2017 QCCQ 8312, 2017 QCCQ 8312

Ebrahimi c. Forest Village Condominium 2017 QCCQ 8312 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-152787-166 DATE: July 25, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ AFSON EBRAHIMI, Plaintiff v.

FOREST VILLAGE CONDOMINIUM, Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Afson Ebrahimi, owner of 237 Andras, Dollard-des-Ormeaux, Québec, a condominium unit, sues the Syndicate, the Defendant Forest Village Condominium, for the sum of $3,453.18, alleging damages to the carpet in the basement and the cost of replacing a broken television table, as well as moral damages. [ 2 ] She alleges that in March 2016, on a day that she was not present at her residence, a plumber was given entry in order to work on the main drain which passes under the basement floor. [ 3 ] She alleges that the plumber was careless, spreading dirt on the floors from his boots, and more importantly, that he broke a television table and ripped the basement carpeting in several places throughout the basement in an attempt to have access to the main drain. [ 4 ] For the replacement of the carpet, she claims $2,816.89 based on an estimate (P-2) and for the television table she claims $236.29, tax included, based on the catalogue price of an item from Léon.

She alleges moral damages of $400. [ 5 ] The Court was informed by the manager of the condominium, Mr. José Lopez, that the sewer conduits from the row of condominiums, of which Mrs. Ebrahimi’s unit is the last, flow in series so that, from Mrs. Ebrahimi’s dwelling, the water is evacuated to the city system. [ 6 ] When a backup occurs in a property upstream from Mrs. Ebrahimi, it is necessary to start the process of investigation and to unblock any obstruction from her unit first.

It has been necessary on other occasions to enter into her apartment and to lift the carpet to have access to the main drain to unblock it, sometimes with the use of machinery. [ 7 ] Forest Village Condominium takes the position that each owner is required to give access to the main drain when required without obstruction by floor coverings or furniture. It also alleges that on an earlier occasion, in January 2013, Mrs.

Ebrahimi made a similar claim and, after litigation, the Syndicate indemnified her for the estimated cost of replacing the carpet, which was allegedly damaged. [ 8 ] The Syndicate does not believe that Mrs. Ebrahimi in fact changed the carpet in 2013 so that it would have been already damaged when the plumber had entry in March 2016. [ 9 ] As well, the Court heard from a witness, the plumber who had attended on September 11, 2015 for a similar incident. This plumber told the Court that the carpet already had cuts so that a flap could be lifted up to have access to the main drain.

When the work was done, it was possible to simply place the flap back without any damage to the carpet. ISSUES [ 10 ] To resolve this dispute, the Court must determine whether damage occurred to Mrs. Ebrahimi’s carpet and television table during the incident of March 2016 and, if so, determine the value of the damages and, finally, in the circumstances of this case,

determine whether the Syndicate is responsible to repair this prejudice. ANALYSIS [ 11 ] This is the type of situation where the owner must give access to her property in the event that there is a need for repair or maintenance to the drains that service her neighbor’s property.

If by placing a carpet, she makes it inevitable that the carpet will be damaged in order to have access to the drain, then this is a risk she must assume. [ 12 ] In the present case, however, the Court accepts the testimony of the individual who serviced the property in September 2015 to the effect that the carpet had already been cut providing a seam where it could be lifted up to have access. [ 13 ] It may occur that a plumber, not familiar with the premises entering in an emergency situation, would not readily find the means to lift up the flap and, in searching for the location of the main drain, has to make a few cuts in the carpet of an exploratory nature. [ 14 ] The way to avoid this would be for the owner to provide an indication making it obvious where the drain can be accessed. [ 15 ] Mrs.

Ebrahimi admits that, after the events of 2016, she did place an arrow indicating the exact spot where the drain can be accessed. [ 16 ] As well, neither the testimony of Mrs. Ebrahimi nor her photographs convince the Court that there was any damage that occurred on the occasion of the visit of the plumber in March 2016. [ 17 ] The only concrete evidence she produced is an estimate (P-2) which is approximately double the amount she was awarded in 2013.

It is obvious that the carpet she is now claiming is of a higher value than the one she was to replace earlier. [ 18 ] The photos that she shows of the carpet laid over plywood show that the carpet is not particularly new and that it has been lifted up cleanly with what resembles a seam. [ 19 ] The television table that she claims she ought to replace is by no means new and the panel that seems to have been broken off may well have been caused despite a lack of negligence on the part of the person who was moving it. [ 20 ] The circumstances are altogether too unclear to permit Mrs.

Ebrahimi to establish a significant loss on the balance of the probabilities. [ 21 ] Given that the need to have access to the main drain in Mrs. Ebrahimi’s apartment is a reoccurring circumstance that has to do with an inherent condition of the building, it would be up to her to provide easy access to this main drain if required on an emergency basis, without it being in any way obstructed by furniture and if she chooses to carpet the floor, it must be easy to take off and put back down the piece of carpet that covers the opening to the area where the drain is located.

She should not fail to indicate clearly where the drain may be accessed. [ 22 ] If Mrs. Ebrahimi suffered any harm as a result of the plumber’s work done in March 2016, which is not proved to the Court’s satisfaction, then such damage would be the result of her failure to give this easy and simple access to the drain should the need arise. [ 23 ] But, because this is a stressful circumstance, the Court will not award costs against Mrs. Ebrahimi. FOR THESE REASONS, THE COURT: DISMISSES the demand, without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: June 28, 2017