2016 QCCQ 14381, 2016 QCCQ 14381

Kaminer c. Arriola 2016 QCCQ 14381 COUR DU QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Civil Division N° : 500-32-146319-159 DATE : October 11, 2016 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ BARBARA KAMINER Plaintiff v.

JEFFREY ARRIOLA -and- 9108-5068 QUÉBEC INC., doing business under the name of ROYAL LEPAGE GLOBAL Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $7,523.63 [1] from Jeffrey Arriola, from whom she purchased a property in 2014, as well as from 9108-5068 Québec inc., doing business under the name of Royal LePage Global (“ Royal LePage ”), the real estate brokers involved in the transaction. [ 2 ] Although the property listing and Declaration of the Seller indicated that the Property was equipped with a dual-energy heating system, she discovered after purchasing the Property that it was not.

She claims that this constitutes a hidden defect for which Mr. Arriola is responsible and, also, that Royal LePage is liable for failing to verify the information appearing in the property listing. [ 3 ] Defendants contest the claim. Mr. Arriola admits that he mistakenly stated that the property was equipped with a dual-energy heating system, but contests the amount claimed. As for Royal LePage, it submits that it was entitled to rely on the information provided by Mr.

Arriola and is therefore not liable towards Plaintiff. questions in issue [ 4 ] Given the position of the parties, the case calls for the resolution of the following questions:

a) Does Mr. Arriola’s inaccurate statement regarding the heating system entitle Plaintiff to the relief sought?

b) Is Royal LePage also liable given the inaccurate statement contained in the property listing? FACTUAL CONTEXT [ 5 ] In the spring of 2014, Plaintiff became interested in purchasing Mr. Arriola’s property located in Pierrefonds (the “ Property ”), which was listed with Royal LePage. [ 6 ] The property listing that she consulted, which was prepared by Royal LePage, contained the following statement: [2] “ Energy/Heating Dual energy, Electricity, Natural gaz” [ 7 ] Plaintiff was also provided with Mr.

Arriola’s Declaration of the Seller, which also indicated that the main heating system of the Property used both electricity and gas. [3] This was important to Plaintiff, who was looking to purchase a property that was equipped with a dual-energy heating system. [ 8 ] In June 2014, Plaintiff submitted an offer to purchase the Property (the “ Offer to Purchase ”) that was eventually accepted by Mr. Arriola, with an agreed purchase price of $281,000. [4] [ 9 ] The Offer to Purchase was conditional upon Plaintiff having the Property inspected by a building inspector.

After the inspection, Plaintiff was provided with a report indicating that the primary fuel of the heating system was natural gas, confirming in her mind that it was a dual-energy system. [5] Satisfied with the inspection, Plaintiff purchased the Property in July, 2014. [ 10 ] When she used the heating system for the first time in October 2014, she discovered that the Property was not equipped with a dual-energy heating system as she thought, but with a furnace fuelled only by natural gas.

The unit outside the Property that she understood to provide both heat and air conditioning, was in fact just a central air conditioning unit.

[ 11 ] Plaintiff immediately communicated with Mr. Arriola, who admitted that he believed that the Property was indeed equipped with a dual-energy heating system and apologized for any inconvenience resulting from his mistake. [6] [ 12 ] Upgrading the Property’s heating system to a dual-energy system involves replacing the existing central air-conditioning unit with a heat pump, at a cost of $6,323.63. [7] [ 13 ] Plaintiff formally demanded payment of this amount from Mr.

Arriola on October 28, 2014 [8] and from Royal LePage on February 3, 2015. [9] [ 14 ] When she filed her claim in March 2015, Plaintiff claimed an additional amount of $1,200.00 representing the estimated cost of heating for 2014-2015. ANALYSIS

a) Does Mr. Arriola’s inaccurate statement regarding the heating system entitle Plaintiff to the relief sought? [ 15 ] Plaintiff invokes the legal warranty of quality incumbent on sellers (or warranty against latent defects) as the basis of her claim. [ 16 ] The Court does not believe that the legal warranty of quality is of any help to Plaintiff.

Indeed, the warranty of quality concerns defects that render the property sold unfit for the use for which it was intended or significantly diminish its usefulness. [10] Here, the usefulness of the Property is in no way diminished because its heating system is fuelled by natural gas only, irrespective of Plaintiff’s preference for such a system. It cannot be said that the Property is defective within the meaning of the law. [ 17 ] That is not to say that Plaintiff’s claim is unfounded. [ 18 ] As a seller, Mr.

Arriola was bound by law to deliver to Plaintiff a property that complied in all respects with the previously agreed description and characteristics. [11] By his own admission, Mr. Arriola breached this obligation, as he undertook to deliver a property equipped with a dual-energy heating system and did not do so. [ 19 ] This breach of Mr. Ariolla’s obligation of deliverance entitles Plaintiff to different recourses, including a reduction in the purchase price and compensatory damages. This is so irrespective of Mr.

Arriola’s good faith belief that the heating system was dual- energy. [ 20 ] Plaintiff seeks the cost of replacing the existing central air conditioning unit with a new heat pump which she has proven to be of $6,323.63. The Court must take into account, however, that a new air-conditioning unit was installed by Mr.

Arriola in 2013 at a cost of $4,541.51. [12] The Court is of the opinion that the amount to which Plaintiff is entitled is the difference between the two, namely $1,782.12. [ 21 ] As to the additional amount of $1,200.00 claimed for estimated heating costs in 2014-2015, Plaintiff has not proven that these costs were incurred, nor that they would have been avoided if the Property had been equipped with a dual-energy heating system as represented. No amount can therefore be granted in this regard. [ 22 ] The Court will therefore grant Plaintiff’s claim against Mr. Arriola for an amount of $1,782.12.

b) Is Royal LePage also liable given the inaccurate statement contained in the property listing? [ 23 ] To succeed against Royal LePage, Plaintiff must prove, on a balance of probabilities, [13] that Royal LePage violated an obligation imposed by law and that she suffered the damages claimed as a direct consequence of that fault. [14] [ 24 ] Plaintiff claims that Royal LePage violated

Article 5 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising [15] (the “ Regulation ”), which reads as follows: “5. A licence holder must verify, in accordance with generally accepted practice, all information provided to the public or to another holder, and be able at all times to prove the accuracy of the information.” [ 25 ] Royal LePage admits that it relied entirely on the information obtained from Mr. Arriola and that it did not verify whether the heating system of the Property was in fact a dual-energy system. The Court is of the opinion that by doing so, Royal LePage violated its obligations under

article 5 of the Regulation . Royal LePage is therefore liable towards Plaintiff for the amount of $1,782.12. [ 26 ] As between Defendants, however, the evidence allows the Court to conclude that Mr. Arriola is 100% responsible, given that he provided the erroneous information to Royal LePage. FOR THESE REASONS, THE COURT: GRANTS the action in part; CONDEMNS Jeffrey Arriola and 9108-5068 Québec inc. to pay to Barbara Kaminer an amount of $1,782.12, together with interest at the annual rate of 5%, plus the additional indemnity stipulated in

Article 1619 of the Civil Code of Québec , from February 3, 2015; DECLARES that Defendants’ share in the condemnation, as between them only, is of 100% for Jeffrey Arriola and 0% for 9108-5068 Québec inc. WITH JUDICIAL COSTS in favour of Plaintiff in the amount of $200, representing the judicial stamp on the Application.

__________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing : June 1, 2016