2018 QCCQ 4258, 2018 QCCQ 4258

Laroche c. Miller 2018 QCCQ 4258 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-700320-171 DATE: June 19, 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Josh LAROCHE Plaintiff v.

Valerie MILLER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Josh Laroche claims from Valerie Miller the amount of $15,000, representing the damages suffered after the discovery of hidden defects in the house he bought from Mrs. Miller. Those defects are related to damages to a window edge by carpenter ants, and a water infiltration in the basement that led to the discovery of a rodent infestation within the basement walls. [ 2 ] Mr.

Laroche’s claim is as follows: $ 13,281.39 To remedy the basement walls, remove and replace rotten wood frames, insulation and rodent infestation, and to restore the state of the basement to how it was at the time of the purchase; $ 1,034.78 To remedy the exterior window well foundation drain which does not function correctly to drain water to the footing; $ 1,000.00 To remedy the bathroom wood frame top plate and replace insulation and gyproc; Punitive damages according to

Section 1728 of the Quebec civil Code; [ 3 ] In her contestation, Mrs. Miller states that Mr. Laroche had the house duly inspected before he bought it, that she declared previous water infiltration in her seller’s declaration, that there is no proof of a rodent infestation, that the damages claimed are exaggerated, and that Mr. Laroche interfered during her expert’s visit after the Letter of Demand was sent. QUESTIONS TO BE DECIDED: 1. Does the presence of carpenter ants in the bathroom constitute a hidden defect? 2. Does Mr. Laroche’s attitude during the expert’s visit has any consequence on his Demand? 3. Has Mr. Laroche proven damages by rodent infestation in the basement?

THE FACTS: [ 4 ] It is necessary to expose in detail the different correspondence between the parties to have an accurate picture of the relations between them before the institution of the procedures. [ 5 ] On October 17, 2016, Mr. Laroche buys Mrs. Miller’s house, which was built in 1953, for an amount of $ 270,000. The house was previously inspected by Excel Heron inc., who filed a written report, exhibit D-5. [ 6 ] Mrs. Miller has been living in that house since 2004. In her seller’s declaration, she answers, at

section D-3, that one water infiltration had occurred, and at

section D-5, that one liquid spill occurred in the basement. At

section D-11, she declares the presence of ants and bats, but says that no exterminator was needed. [ 7 ] She also adds the following information: “Water in basement – no damage – in 2006 in excessive rain storm – one time only – defective sump pump – was changed completely including pipe plus a check (stop) valve installed. [ 8 ] It appears that this information was not accurate, as two water infiltrations have occurred in 2010. As shown by exhibit D-4, a letter from Mrs. Miller’s insurer, a first claim was made on January 29, 2010 for water damage resulting from a defective sump pump, for a value of $ 3,918.73.

A second claim was made on September 30, 2010, involving damages of $ 5,858.71, where, under extreme weather conditions, water came through the north-east window well. It is the understanding of the Court that is from that same window that a water infiltration was discovered by Mr. Laroche on April 7, 2017. [ 9 ] Mr. Laroche indeed discovered some water on the floor in the middle of the basement. He decided to remove the nearest wall to find where the water was coming from, which was near the wall located in front of the house.

When he took the wall off, he found in the insulating material a big tunnel and two mice nests. Picture E-17 shows that the insulating wool is covered with feces. [ 10 ] He then continued his search removing the walls. When he arrived under the window well, which is on the wall located at the right of the house (looking at the house, standing on the street), he found the wall was black. The picture shows moldy wood. It seems that the water was coming from the base of the window. [ 11 ] At the hearing, Mr.

Laroche withdrew his claim for the repair of the window well ($ 1,035), which was a good decision, considering that the inspection report mentioned that it was necessary to make sure that the land be sloped away from the house. The report also noticed that the basement windows show some level of rot and should be replaced. [ 12 ] On that wall, Mr. Laroche noticed that on one of the gyproc sheet, the following information appeared: 12/06/01 CB LAF B 1120. Mr.

Laroche pretends that this means that the gyproc was fabricated on June 1, 2012; he is convinced that another water infiltration had occurred after 2010 and was not disclosed to him. As this inscription could also mean that the drywall was manufactured on June 12, 2001, or on December 6, 2001, the Court will not draw any inference from that picture. [ 13 ] Mr. Laroche continued opening walls; some pictures taken on the back wall show also the presence of mice feces in the insulating wool. [ 14 ] He phoned Mrs.

Miller on April 26, 2017, and she told him that she was actually living in Ontario and that what happened in the house she sold was not her problem anymore. On May 1, 2017, Mr. Laroche sent a letter to Mrs. Miller stating his findings. This letter, sent by registered mail, was refused by Mrs. Miller. Mr. Laroche then sent a bailiff to deliver a new Letter of Demand dated May 29, 2017, which was received by Mrs. Miller on June 2. In this letter, Mr.

Laroche claims $ 13,243 for the cost of demolition and rebuilding of the basement, as well as $1,035 for the window well, for a total of $ 14,278. [ 15 ] On June 5, 2017, Erika Sadler, Mrs. Miller’s daughter, sends an email to Mr. Laroche asking for the detail of the costs claimed, saying that her mother will want to examine the basement and asking for an extension of the ten-day delay. [ 16 ] On June 7, 2017, Mr. Laroche confirms that he has stopped all work in the basement and that he will accept as an inspector only a licenced contractor.

He says that he has already taken out the infested wool, but that he has many pictures. He extends the delay to July 1, 2017. He also asks to see a mandate or proxy to be sure that Mrs. Sadler is authorised to speak on behalf of her mother. He sends her pictures of the bathroom and says that the quote for the basement will follow. He also announces that he will claim some punitive damages, as he is convinced that Mrs. Miller was aware of the situation. [ 17 ] On the same day, Mrs. Sadler informs Mr. Laroche that Mrs. Miller will consult a lawyer. In the meantime, on June 6, 2017, Mrs.

Miller had already sent a letter denying her liability for the situation. [ 18 ] In his answer to Mrs. Sadler’s email saying that Mrs. Miller wanted to seek legal counsel, Mr. Laroche answers the following: “Alternatively, if she intends to refute this and that and wants to do inspection and get her own quotes etc. we aren’t going to be as flexible because it delays our recovery back to normal living condition.” [ 19 ] On June 13, 2017, Mrs. Miller’s attorney, Me Ghavitian, sends an email to Mr.

Laroche asking about the status of the work in the basement and demands that they be stopped. [ 20 ] On June 15, 2017, Me Ghavitian sends a formal letter asking for the invoices or quotes to justify the claim. He asks again that Mr. Laroche stops all work to allow an inspection, and asks for an answer before June 19, 2017, at 17:00. Mr. Laroche seems to have taken offence of this letter, as he disagrees with the delay of June 19 and declares not to agree with the fact that such an important

document was sent to him by email. He asks that all correspondence be sent to him by registered mail. He confirms that he has already taken out half of the basement walls because they were contaminated and that he will wait for a professional to take out the rest. He suggests three dates for an inspection and also adds that he is in the process of checking if Me Ghavitian is a real lawyer member of the Quebec Bar. He also sends him three quotes for the work. [ 21 ] On June 17, 2017, Mr. Laroche sends a Letter of Demand to Mrs.

Miller. [ 22 ] One June 29, 2017, Me Ghavitian confirms the date of July 8, 2017, for the inspection, saying: “Our client and expert will be coming for inspection.” [ 23 ] On July 8, 2017, the inspection did not go as well as it was planned. According to Mr. Laroche, the inspector was late and was sitting in his car, waiting for his associate to arrive. Mr. Laroche has filed a video of part of this visit, to which Mrs. Sadler, who represented her mother at the hearing, objected. The Court will allow the filing of the video, considering however that it does not gives complete information as Mr.

Laroche filmed only parts of the inspection. Some correspondence was exchanged with Me Ghavitian, as the inspector said that Mr. Laroche wanted Mrs. Miller to be present. As she could not come by, her daughter Mrs. Sadler was called and arrived around 10:50. We can see in the video that Mr. Laroche was following the first inspector, asking him constantly questions, and trying to have him give his opinion about the cause of the water infiltration in the basement. When the inspector leaved, he asked for a copy of the report, which was denied by the inspectors. [ 24 ] Mr.

Laroche sends an email to Me Ghavitian at 11:14 answering previous emails and saying that the inspectors were not coordinated, that Mrs. Miller was not there, and asking Me Ghavitian for a full copy of the report and pictures within ten days, announcing that he would deposit his court procedures within that delay. [ 25 ] At 13:49, Me Laroche sends another email to Me Ghavitian with a link to the video of the inspection that he had put on a Google site. He asks for every proof that was gathered by the inspectors in paper and by registered mail.

He also says that the communication on this matter is final and complete. [ 26 ] At the hearing, Mrs. Sadler said that her attorney asked for a second visit to be completed, which was denied by Mr. Laroche. The Court asked Mrs. Sadler to send her copy of Me Ghavitian’s email, which was done, and had also requested Mr. Laroche’s comments. [ 27 ] Mr. Laroche answered that he did not recall receiving that email, nor any other follow-up on that matter. [ 28 ] The Court procedures were filed on July 20, 2017.

ANALYSIS AND DECISION: [ 29 ] To conclude that there is a latent defect, the following four elements must be present: - The defect must be serious, i.e. it must have serious adverse effects on the use of the property and the buyer would not have paid so high a price had the buyer been aware of the defect; - The buyer must not be aware of the defect at the time of the sale; - The defect must be hidden, i.e. it could not have been perceived by a prudent and diligent buyer without any need of expert assistance; - The defect must have existed before the sale, since the warranty concerns the condition of the property at the time of the sale.

Does the presence of carpenter ants in the bathroom constitute a hidden defect? [ 30 ] To prove the presence of ants in the bathroom, Mr. Laroche filed three pictures and a declaration in lieu of testimony by Mr. Victor Lauzon, which states: “carpenter ants had eaten their way through the window header and to adjacent studs, leaving the cavity in the wall open to molding. The exterior wall had to be opened up; repair and replace the damaged wood and remove the mold. New insulation, vapor barrier and gypse were done (painting and plastering).

Appraisal was $ 1,000, cost was $4,775.” [ 31 ] Considering the fact that Mrs. Miller had declared the presence of ants in her seller’s declaration, we could wonder if the presence of carpenter ants damaging the bathroom is a hidden defect or if it was sufficiently disclosed by Mrs. Miller. [ 32 ] Mrs. Miller’s declaration is only an answer to the presence of insects. She adds that no need to an exterminator was required.

The Court is of the opinion that the declaration of the sole presence of ants does not compare to the damage those insects have done to the bathroom, and that this answer did not constitute an indication that there might be a major ant problem in the house. [ 33 ] In his testimony, Mr. Laroche said that half of the new bill of Mr. Lauzon was related to the carpenter ant problem. [ 34 ] The first quote by Mr.

Lauzon, exhibit P-9, is dated June 11, 2017, and describes the work that had to be done as follows: “Removal of gyproc, insulation, studs and disposal; Reinstall new studs, insulation, vapor barrier, gyproc, plaster and paint; Labor and materials.” [ 35 ] Mr. Laroche said in his testimony that the problem in the bathroom was worse than what he had expected. The estimate dated August 18, 2017, says otherwise.

It reads as follows: “Bathroom renovation: plumbing, heated floor, tiling, sink, tub, and toilet installed, gyproc installation and plastering, pocket door, window installation, bathroom vent, for a total of $ 4,775.”

[ 36 ] This estimate shows clearly that some renovation of the bathroom has been done, and the Court does not accept Mr. Laroche testimony that half of it was due to the ant problem. It will rely on the first estimate for $1,000 and will consider that the difference between the first and the second quotes was spent for other bathroom renovations, which are not Mrs. Miller’s responsibility. [ 37 ] Mr. Laroche is then entitled to an amount of $1,000 regarding the carpenter ants problem. Does Mr. Laroche’s attitude during the expert’s visit has any consequence on his Demand? [ 38 ] The Court can well understand Mr.

Laroche’s disappointment after he found about the situation in the basement, to which Mrs. Miller’s first answer could only add more stress. It was however Mrs. Miller’s absolute right to have the premises inspected and to seek legal counsel. Mr. Laroche clearly said in one answer to Mrs. Sadler that he would not be as flexible with Mrs. Miller if she chose to come and have an inspection, as he was pushing really hard to have a settlement as soon as possible. [ 39 ]

Section 1739 of the Quebec Civil Code reads as follows: 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. [ 40 ] The denunciation of a hidden defect is essential to a buyer’s recourse against his vendor.

It is not enough, though, to inform the seller of the existence of the problem. The Civil Code provides for such step to give the seller some information about the hidden defect for which he is being sued, to evaluate the problem, to have it seen by an expert in order to help him make an offer, deny the claim, or have it repaired at his own costs. [ 41 ] The Court does not understand why Mr. Laroche insisted so much on the presence of Mrs. Miller. It was not proven that Mrs.

Miller herself had any construction skills, and that she could form an opinion only by looking at the problem; this is the reason why she sent an expert, and her presence would have added nothing to her expert’s conclusions. [ 42 ] At the hearing, the Court asked Mr. Laroche why he told the inspectors that he had to leave and that the inspection would finish at 11:00. He said that he presumed that one hour was the length of an expertise. This aspect of the expertise was never discussed before and Mr.

Laroche did not have any right to fix the duration of the expertise, unless it was unreasonable, which was clearly not the case. [ 43 ] It was not pleasant for him to see that the inspectors were late, but this was not a reason to interfere in the expertise, follow the inspectors, ask questions, and try to have his own theory confirmed by the other party’s expert. It is to be noted also that Mr. Laroche had not filed any expertise on his own to support his claim. [ 44 ] Mr. Laroche had also no right to obtain immediately a copy of Mrs. Miller’s expertise, as she was the one paying for it.

It was her right to wait for the procedures to be taken to file them in support of her contestation. [ 45 ] This being said, a partial report was sent to Mrs. Miller by her experts. Their representative, Mr.

Jong, explained in Court that he wished he could have returned to complete a thermographic examination of the house. [ 46 ] It is not clear for the Court what such an expertise would have done to help regarding the water infiltration and the presence of mice, as pictures had been taken and the insulating wool removed. [ 47 ] As the inspectors could nevertheless have a look at the house and file a report, the interference by Mr. Laroche will be taken into account on the general evaluation of the damages only. Has Mr.

Laroche proven damages by rodent infestation in the basement? [ 48 ] As it was said earlier, no expert was heard for Mr. Laroche regarding the cause and the need to redo all the basement, not even a witness from the company who quoted, H.G. Works, which would have been useful to explain why it was necessary to redo all the basement. [ 49 ] Mr. Laroche explained that the work has not been done in the basement at the date of the hearing, and that only 40 % of the demolition has been done by himself, for which he incurred about $ 200 of disbursement to get rid of the debris.

It is to be noted that the quote P-7 states an amount of $ 3,100 for the demolition. [ 50 ] It should also be noted that in the inspection report, we read the following, regarding the basement: “The interior finishes are somewhat dated and rejuvenation could be due. It should however be noted that the purpose of a home inspection is not to comment on cosmetic issues (…) It is to note that the basement finishes date from close to the date of construction but there is no evidence of dampness (staining or odour).” [ 51 ] It seems clear that Mr.

Laroche will benefit from those new walls, as the old ones had been in place for over 50 years, except for the part that was renovated by the insurer in 2010. [ 52 ] It can be understood why Mr. Laroche had to remove all the gyproc to find where the water infiltration was coming from and to

see the extent of the damage by the mice. It is not clear however that all insulating wool has been contaminated. [ 53 ] The costs for removing and replacing the walls could be granted as damages, as well as the costs to put pest foam. This is difficult to evaluate, however, as it was also indicated in the property listing that the basement was partially finished. It is not clear from H. G.

Works’ quote if it includes the finishing of the part of the basement that was not completed previous to the discovery of the water infiltration. [ 54 ] The presence of mice may constitute a hidden defect, especially when they seem to be installed so much into the walls’ insulation. Mr. Laroche, though, has not proven that there was any problem with smell in the basement or that the air was contaminated or posing a health problem.

Considering the quantity of feces in the pictures and the fact it was discovered a few months after the purchase, it can be considered that the problem was existing at the time of the purchase. [ 55 ] For all the above reasons, the Court evaluates that Mr. Laroche is entitled to an amount of $ 3,000 for the repairs in the basement as constituting a fair rebate of the sale price. [ 56 ] Mr. Laroche’s total claim is established at $ 4,000 ($ 3,000 + $ 1 000).

FOR ALL THESE MOTIVES, THE COURT: GRANTS partially Plaintiff's claim; ORDERS Defendant, Valerie MILLER, to pay to Plaintiff, Josh LAROCHE, the amount of $ 4,000 plus interest at the legal rate and the additional indemnity provided for by

Section 1619 of the Quebec Civil Code as of July 28, 2017, the date of the assignment; THE WHOLE with legal costs in the amount of $200; __________________________________ CÉLINE GERVAIS, J.Q.C.