2021 QCCQ 7518, 2021 QCCQ 7518

Chen c. Argun 2021 QCCQ 7518 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Civil Division” No.: 550-32-024829-209 DATE : August 18, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE STÉPHANE D. TREMBLAY, J.C.Q. ______________________________________________________________________ YANLI CHEN Plaintiff v. MELIH ARGUN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1.

OVERVIEW [ 1 ] Yanli Chen (“ Ms. Chen ”) claims $9,775.02 from Melih Argun (“ Mr. Argun ”), the inspector mandated before the purchase of her residence in May 2019. [ 2 ] According to Ms. Chen, Mr. Argun breached his duty to inform, which prevented her from negotiating a lower sale price. More specifically, she submits that Mr.

Argun should have brought the following defects to her attention: • The balcony structure; • The thermal pane windows; • The protection tube for the electrical installation in the parking area; [ 3 ] The amount of her claim represents the estimated cost of correcting these defects. [ 4 ] Mr. Argun contests the claim. He states that he brought the relevant elements to his client’s attention and thus enabled her to make an informed decision regarding the offer to purchase to be presented. [ 5 ] To determine whether Mr.

Argun’s liability is incurred, the Court must determine whether he conducted himself as a prudent and diligent inspector would have in the same circumstances. [ 6 ] For reasons more fully developed below, the Court dismisses the claim because Ms. Chen has not established that Mr. Argun breached his duty to inform by failing to act as a prudent and diligent inspector would have in the same circumstances. 2. ANALYSIS 2.1 Applicable legal framework [ 7 ] Mr. Argun and Ms. Chen entered into a contract of enterprise within the meaning of

article 2098 C.C.Q. Under

article 2100 C.C.Q., Mr. Argun was bound to act in the best interests of his client, with prudence and diligence. Mr. Argun also had a duty to advise towards Ms. Chen. Under this duty to advise, Mr. Argun was bound to compensate for Ms. Chen’s lack of knowledge and experience, inform her of the potential consequences of an irregularity, and disclose the risks associated with defects identified during the inspection. In meeting these requirements, he was to protect Ms. Chen’s interests and enable her to make an informed decision about the planned purchase. [1] [ 8 ] To determine whether Mr.

Argun discharged his duty to advise, the Court must compare Mr. Argun’s conduct with the standard of a reasonably prudent and diligent inspector in the same circumstances. It is moreover up to Ms. Chen to establish on a balance of probabilities that Mr. Argun did not conduct himself as a prudent and diligent inspector would have in the performance of his mandate.

[ 9 ] Bearing these principles in mind, the Court will analyze each of the elements regarding which Ms. Chen alleges that Mr. Argun breached his duties to inform and to advise. 2.2 The balcony structure [ 10 ] Ms. Chen claims that the balcony structure is irremediably compromised by rot to such a point that it must be replaced. It would cost her $3,104 to do so. [2] In her view, Mr. Argun should have informed her that the balcony has to be replaced, not merely repaired. [ 11 ] With respect, the Court does not accept Ms. Chen’s claims. [ 12 ] First, Mr. Argun noted that the balcony was damaged.

He also took a photograph that illustrates the nature of the damage. The following specific recommendations appear on the photo: Deck edge craked, water entry visible. Recommend to repair as required and seal [3] [ 13 ] Moreover, the inspection report states the following in two places: Seal edges / Repair as required [4] Repair Deck / exposed at edged / seal as required [5] [ 14 ] Ms. Chen alleges, however, that Mr. Argun told her that repairing it with silicone alone would be sufficient. Mr.

Argun, for his part, vigorously argues that he clearly informed his client that sealing with silicone was a temporary solution to stop water infiltrations but that the balcony would have to be repaired in the relatively near future. This is also what he confirmed to his client in an email sent on May 25, 2019: It’s silicone for the exterior, and I want it to be very clear this is a temporary fix. [6] [ 15 ] On the basis of the evidence, the Court finds that the notes on the photo given to Ms. Chen and those in the inspection report establish that Ms.

Chen was informed of the problematic situation relating to the structure of the balconies. She therefore had a sufficient number of elements at her disposal to negotiate a reduction in the sale price with the seller. An inspector’s mandate does not extend so far as to obtain submissions to assess the costs of the repairs needed to correct the defects observed. [ 16 ] Second, the evidence is not sufficient to establish that the balcony must be replaced as opposed to merely repaired. Ms. Chen’s evidence is limited to the filing of an estimate of the cost to replace the balcony.

Nowhere is it stated that the balcony structure is so compromised that it must be replaced. 2.3 The thermal pane windows [ 17 ] According to Ms. Chen, the six windows in the residence must be replaced because the thermal panes are no longer watertight, which creates condensation in the windows. In her view, there were clear signs of humidity inside the windows during the inspection. She believed, however, that it was dirt. She does not understand why Mr. Argun did not point out this situation in his report. [ 18 ] Mr.

Argun stated that, during the inspection, there were no signs of humidity, no drops, and no indications that the thermal pane windows might be damaged. Observing the photos filed by Ms. Chen, he submits that the windows might have been covered by a film to ensure the privacy of the occupants and it is this film that appears to be becoming unglued or delaminated. [ 19 ] The Court accepts Mr. Argun’s testimony. Here is why. [ 20 ] If, as Ms. Chen affirms, the damage to the six windows was clearly visible during the inspection, it is highly unlikely that Mr. Argun would not note this fact in his report.

As he explains, the window inspection is an important aspect of the inspection, to which he pays particular attention. [ 21 ] The documentary evidence confirms his testimony. Indeed, the inspection report contains a photo of a window taken to document the existence of a defect, namely the absence of a screen. [7] Thus, in the view of the Court, this establishes that Mr. Argun paid particular attention to the windows.

This being the case, had a sign or an indication suggested any problem with the windows whatsoever, it would have been noted in his report. [ 22 ] What is more, the Court finds that the part of the window shown on the photo taken by Mr. Argun on the day of the inspection is perfectly clear, which is another element tending to confirm Mr. Argun’s testimony. [ 23 ] Finally, as is the case regarding the balconies, Ms. Chen has filed no probative evidence establishing that the windows must be replaced. 2.4 The protection tubes for the electrical installation in the parking area [ 24 ] Ms.

Chen alleges that the PVC tubing protecting the electrical wires to charge the cars in the parking area are broken. They must be replaced. These are clearly minor repairs costing approximately $150. [8] [ 25 ] In his written contestation, Mr. Argun alleges that inspection of the parking area is not part of his mandate. [ 26 ] Although the Court concludes that Mr. Argun should have taken note of this situation, it is highly unlikely that Ms. Chen would

have obtained a reduced sale price, given the minor importance of these defects. [ 27 ] That being the case, the Court dismisses the Application. FOR THESE REASONS, THE COURT: [ 28 ] DISMISSES the Application; [ 29 ] WITH LEGAL COSTS in favour of Melih Argun, namely court office fees of $193 related to the Contestation. __________________________________ STÉPHANE D. TREMBLAY, J.C.Q. Date of hearing: July 6, 2021