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Chahrouri c. Gazaille

2011 QCCS 3911

SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

 

 

 

No:

500-17-036116-070

 

 

 

DATE:

AUGUST 3, 2011

______________________________________________________________________

 

BY

THE HONOURABLE

MR. JUSTICE MARK G. PEACOCK, J.S.C.

 

 

 

______________________________________________________________________

 

 

ANTOINE CHAHROURI,

Plaintiff

v.

SUZANNE GAZAILLE,

Defendant

 

______________________________________________________________________

 

JUDGMENT

______________________________________________________________________

 

Introduction

 

[1]           The Plaintiff claims a reduction in the house purchase price of $1,500,000.00 as a result of alleged latent defects in the 14-year old architect-designed house he bought from the Defendant in December 2004.

 

[2]           The Defendant lived in a 4,500 square foot lakefront home that was built specifically for her by her father (a well-established West Island contractor now deceased). She had been trying to sell the house since 2003 because she had acquired her parent's home close by, had torn it down and was in the process of constructing a new house valued in the order of $2 million. She could not upkeep two houses and wished to sell her own.

 

[3]           The Plaintiff, a successful fruit and vegetable importer, had dreamed of owning a waterfront home and had been looking for some time before being made aware of this particular house.

 

[4]           After he purchased the house, he spent approximately $700,000.00 in renovations before discovering that alleged defective masonry work and an allegedly defective French drain were causing water infiltration. Not only was the entire frame structure rotten and requiring replacement, water infiltration was also allegedly causing rot in all of the many windows of this house as well, amongst others, there being rot and mould under the basement floor and in the basement walls.

 

[5]           The Defendant defends on numerous fronts, the principal of which include that:

 

a)          the Plaintiff inspector's report disclosed, or should have disclosed, the defects. These defects were therefore apparent and not latent;

 

b)          the Plaintiff failed to give proper notice of the defects: the property was purchased in December 2005 but a demand letter was not received until June 27, 2006;

 

c)          the price reduction claimed is totally out of proportion to the purchase price since the Defendant would have annulled the sale if she had been advised on a timely basis of the alleged defects and if the Plaintiff had not in the interim completed $700,000.00 worth of renovations; and

 

d)          the damages in the basement were not caused by any alleged defects with the French drain.

 

[6]           Unless otherwise indicated, the facts stated in this judgment are findings of fact by the Court based upon its appreciation of the evidence.

 

[7]           The Court will present this judgment under the following headings:

 

A-         Factual Context

B-        Was the Defendant Properly Notified of the Defects in Accordance with Art. 1595 and 1739 C.C.Q.?

            a.         Reasonable Notice: Legal Principles

            b.         Analysis

i.          French Drain and Water Infiltration Causing Rotting and Mould Under the Basement Floor

ii.         Water Infiltration and Rot and Mould Found in the Basement

iii.         Masonry and Windows

C-        Are There Any Defects That Are Both Latent and Serious?

a.         Latent or Apparent Hidden Defects: Applicable Legal Principles

i.          Does the National Building Code Create a Norm of Construction that Must Be Followed?

·             Obligations of the Pre-Purchase Inspector

ii.         Whether the Court Can Take Judicial Notice of Practice Norms for Associations of Building Inspectors

iii.        Principles of Law to Evaluate Contradictory Expert Testimony

iv.        Do the Renovations Constitute an Intervening Act That Breaks the Chain of Causality With the Defendant?

v.         Should the Settlement in the Jadco Action Reduce Any Damages in this Proceeding?

D-        What Are the Remedies?

                         a.         Reduction of Purchase Price - Costs of Repair

i.          Governing Law

                                    ·          Evaluating Price Reduction

-           What Are the Parameters To Be Applied by the Court in Reducing the Price Pursuant to Art. 1604 C.C.Q.?

                                    ii.         Analysis

-           Masonry repairs

-           Presence of Water in the Basement

-           The Cause of the Water Infiltration in the Basement

-           Presence of Mould in Basement

-           Windows

-           Landscaping Resulting From Corrective Work

-           Experts' Fees

                         b.         Damages

·               Defendant Speaking With Her Expert and Counsel During Her Cross-Examination: What Are the Sanctions?

·               Did the Defendant Have Any Real or Presumed Knowledge of the Alleged Defects?

 

A-        Factual Context

 

[8]           Unbeknownst to the Plaintiff, the house was not built under ideal circumstances. The Defendant's father was a well-known contractor who was building a very large waterfront house for his son in Dorval. His relationship with the Defendant, his daughter, was strained. At the time, the Defendant was living with her husband and children in a modest West Island Montreal home that had been built and given to her by her father.

 

[9]           The Defendant's mother was aware of this favouritism and told the Defendant that the father should build the Defendant an equally substantial waterfront house as her "héritage". According to the Defendant, her mother required the father to build a similar home for the daughter, which the father ultimately did on a lot adjacent to his son's house on a "cul-de-sac" in Dorval.

 

[10]        The Defendant was given the property as a gift by her father on November 19, 1990.[1]

 

[11]        Although a family law practitioner and mediator by profession, the Defendant was involved with the architect's office in preparing the plans and in the choice of a stone exterior. The plans had originally called for brick but stone was the material used in most of the houses on the street.

 

[12]        The house was constructed in 1990-1991 and was lived in continuously by the Defendant up until its sale to the Plaintiff in December 2004.

 

[13]        The house is an impressive two-story structure with approximately 4,500 square feet of living space including an indoor pool and large backyard on the St-Lawrence River.

 

[14]        When the property was first put on the market in 2003, it was offered at $1,975,000.00. The original advertising brochure for the house noted: "… it was built by one of the best entrepreneurs in 1990" and "the perfect condition of the property reflects the excellent care it has had and the close personal involvement of the owner in the property. Lakeshore Manor [Ed. Note: the realtor's name for the house] offers a rare opportunity to own one of the greatest waterfront treasures."

 

[15]        The property did not sell with the original listing agent. The sole offer that was received at $1,600,000.00 fell through because the potential purchaser failed to sell their house: no building inspection was done as a result.

 

[16]        The Defendant changed listing agents and put the house on offer at $1,850,000.00.[2]

 

[17]        The Plaintiff lived in the area and was contemplating building a house when he found out this house was on the market, now for a second time.

 

[18]        He visited the house on three occasions:

 

            a)         firstly, with the agent and the Plaintiff's wife;

 

b)         secondly, with his project manager whose mandate was to advise regarding potential renovations; and

 

c)         thirdly, with a building inspector, Mr. Elie Chakieh.

 

[19]        Mr. Bilodeau, a retired police officer, who cohabited with the Defendant for a period of years, was present at the time of the third visit. According to both Mr. Chakieh and the Plaintiff, Mr. Bilodeau confirmed to them (according to the Plaintiff, on several occasions) that there had never been any water infiltrations. Although the Plaintiff testified that Mr. Bilodeau did not have authority to speak on her behalf, her evidence is to the same effect: there were never any water infiltrations during the course of her 14-year ownership.

 

[20]        The building inspector, Mr. Chakieh, was a professional engineer. He had also been hired by the Plaintiff as a building inspector regarding the potential acquisition of warehouses for the Plaintiff's fruit and vegetable business.

 

[21]        Mr. Chakieh testified that the Plaintiff was in a rush to make an offer and that Mr. Chakieh was pressed by the Plaintiff to complete his inspection report in only five days when normally it took him two weeks.

 

[22]        The written inspection report as filed into evidence by the Plaintiff had only one photo.[3] Even though the full transcript of the Plaintiff's examination on discovery had been filed, it was only at trial that it came to light that Mr. Chakieh had in fact provided the report to the Plaintiff with black and white copies of 49 of the 50 colour photographs he had taken during the inspection.[4]

 

[23]        The photographs[5] in the actual report received by the Plaintiff were four to a page, were not referred to in the text of the report, and were in black and white. The Court determines these particular photos are of little use in illustrating any of the observations made in the written report.

 

[24]        On the other hand, the Plaintiff filed at trial, 8.5 x 11-inch colour copies of these photographs which because of their size and colour were extremely helpful. In addition, Mr. Chakieh filed photograph #50 which he testified he did not give to the Plaintiff through administrative inadvertence. This photograph showed the front of the house with an automatic garden sprinkler right up beside the masonry. The automatic garden sprinkler sprayed in a 360-degree radius, which sprayed water directly against the stone facing and the masonry joints. The photograph showed cracks in the masonry joints, orange rust colour on many of the stones, and extensive growth of moss on those joints.

 

[25]        The inspection took approximately 3 hours, about one half of which was spent on the outside of the building. Mr. Chakieh testified that since the Plaintiff was in a rush to make an offer, Mr. Chakieh also orally gave him information regarding the building, during the actual inspection. Although contradicted on this point by the Plaintiff, the Court accepts Mr. Chakieh's evidence since it is consistent with the Plaintiff being in a hurry to make an offer.

 

[26]        The written report dated October 25, 2004 notes: "A number of deficient elements or problematic areas were noted during the inspection which are discussed below in more detail." Mr Chakieh also indicated that his findings "… were based on visual inspection without any destructive testing or laboratory assessments and premised on our experience with similar structures." For the purposes of this case, the following problematic areas, amongst others, were noted by Mr. Chakieh:

 

            a)         it was noted that "there were no weepholes at the rear walls";

 

b)         "the stones on the rear walls, at the location of the pool, have signs of water infiltration";

 

c)         "window lintels, in most areas, have rusted and require painting"; and

 

d)         "the front window sills show signs of water infiltration and build up of moss".

 

[27]        Under the heading "Basement", it is noted: "The owner advised that there were never any apparent water or flooding problems."

 

[28]        Attached as an annex to the report is a "BUDGETARY COSTS ESTIMATE" which shows "Total Estimated Budget Costs": $57,000.00-$81,000.00. Under the heading "Stone Joints and Weepholes", the budget is $10,000.00-$15,000.00. No amount is noted for windows.

 

[29]        On September 13, 2004, the Defendant refused the Plaintiff's first offer of $1,450,000.00.

 

[30]        Following the rejection of the first offer, the Plaintiff asked to have another visit of the premises. This was refused by the Defendant. In her evidence at trial, she intimated that the Plaintiff was negotiating in a "nit-picking" manner.

 

[31]        On October 19, 2004, she accepted his second offer of $1,500,000.00, subject to a building inspection to the Plaintiff's satisfaction.[6]

 

[32]        On November 8, 2004, the Defendant's own listing agent sent a two-page fax to the Defendant which attached a proposed amendment to the offer by the Plaintiff which requested "based on results of building inspection (report attached), buyer requests a reduction of $40,000.00 from the purchase price". This was refused by the Defendant on the same date.

 

[33]        The Defendant testified that she never received a copy of the alleged inspection report. This is confirmed by the fax cover which notes that it contains only two pages. It was clearly the Plaintiff's intention to provide this report. However, from the evidence provided (Exhibit D-9C), the Defendant's realtors failed to carry out the Plaintiff's instructions. While the said realtors were on the Plaintiff's witness list, at trial, the Plaintiff indicated that he would not be calling this realtor.

 

[34]        The Defendant testified that she did provide certain very small price concessions to the Plaintiff, which ultimately lead to the Deed of Sale, dated September 15, 2004.[7]

 

[35]        Soon after taking possession of the house, the Plaintiff encountered two infiltrations of water in the basement storage room on January 2 and January 5, 2005 respectively. The Defendant was advised of this through her real estate agents[8] to whom she reiterated she had never had any water infiltrations.

 

[36]        The Plaintiff chose to complete extensive renovations to the house and so did not actually move in until October 2005, approximately 10 months after closing.

 

[37]        In early January 2005, the Defendant alleges that she happened to be in front of the house and saw that there was approximately three feet of snow around the front of the house and the garage driveway had not been shovelled. She filed an affidavit at trial which was accepted by the Plaintiff as evidence to the effect that she advised the realtor to tell the owner to shovel off the back patio so that he would not have problems with the tiles lifting on that patio (as she had in the past).

 

[38]        The Plaintiff testified that at no time was the property left abandoned or snowed-in as the Defendant indicated. The Plaintiff also said that at no time was the property left to have the elements enter therein during renovation.

 

[39]        The Court prefers the testimony of the Plaintiff in this regard because:

 

a)         firstly, the Defendant never really showed herself to be forthcoming with help or information during the sale process, why should she be more helpful after the sale was concluded? and

 

b)         secondly, the Plaintiff showed himself in his evidence to be someone of a meticulous and "house-proud" nature. He also lived close by. It is not consistent with this that he would have let his newly purchased home to the peril of the elements while it was unlived in during renovations.

 

[40]        The Plaintiff began renovations to the inside of the house in January 2005 with Jadco, his project manager. In all, the Plaintiff alleges that approximately $700,000.00 worth of renovations were completed, including the removal of all interior walls which were covered with wallpaper.

 

[41]        During this period, a new garage was added to the north-end of the house. This required the removal of the outside stone finishing, including two windows. None of the persons doing this renovation work were called as witnesses. The Court has no evidence that the Plaintiff was told by the contractor, Jadco, of any problem either with the stone facing or with the two windows.

 

[42]        However, the Plaintiff himself testified that he looked at the two windows thrown in garbage bins, and noted that they were completely rotten. No claim was made against the Defendant at this time.

 

[43]        During this period, Jadco sought to repair the patio doors leading on to the south-west facing veranda since the Plaintiff continued to suffer water infiltration in the basement directly under these patio doors.

 

[44]        At this time, the Plaintiff would deliver mail addressed to the Defendant at her new house, which was walking distance away. There was no evidence of any discussions between them.

 

[45]        How did the Defendant come to move from the house?

 

[46]        The Defendant had acquired her parents' house which was located a short distance away from the houses owned by she and her brother. In fact, there was a right of way over neighbouring property which permitted direct access from the Plaintiff's house to this second house acquired by the Defendant.

 

[47]        In September 2005, at a chance meeting, the Plaintiff indicated to the Defendant he was continuing to have these water infiltration problems but the Defendant continued to maintain that she never had such problems herself. The Plaintiff did not put the Defendant on notice of any other issues.

 

[48]        The Plaintiff and his family (his wife and two school-aged children) moved into the renovated house in October 2005.

 

[49]        In the spring of 2006, the Plaintiff suffered more incidents of water infiltration in the basement. Early attention focussed on the leaking below the patio doors. Jadco engaged an expert from the APCHQ, Mr. Gagné, to do an expert's report for it.

 

[50]        For reasons unclear to the Court, the APCHQ ultimately was hired also by the Plaintiff to do an expert's report for him. Two reports were prepared by Ms. Mylène St-Louis, professional architect, employed by the APCHQ. Following the visits of May 18 and 24, 2006 and June 2 and 14, 2006, she prepared a report dated June 19, 2006.[9] Based on visits of June 2 and 14, 2006 and of August 16, 18, 23 and 30, 2006, September 21, 2006 and October 17, 2006, Ms. St-Louis then prepared another report dated December 20, 2006 (a comprehensive report).[10]

 

[51]        Ms. St-Louis found traces of water infiltration in several areas of the basement:

 

            a)         in the floor of the storage room;

 

b)         at the bottom of the walls in the cedar closet located in a corner of the storage room;

 

c)         in the cold room, she saw water at the connection between the foundation wall and the concrete slab floor and she noticed water staining high on the walls of the cold room; and

 

d)         she found traces of mould in the cracks of the wood in the flooring in the family room in the basement.

 

[52]        In her June report, Ms. St-Louis ascertained that deficiencies in Jadco's work regarding the patio doors caused certain water infiltration. However, one of the areas for which the Plaintiff now claims also against the Defendant was ascertained as a result of water seen by Ms. St-Louis on the basement floor in the storage room near where the south chimney was located. After removing the interior wall in the basement as well as the stones on the exterior, Ms. St-Louis made the following findings:

 

a)         the air space that was supposed to have been left between the outside stone facing wall and the inside wood joists (as required by the National Building Code) was filled with mortar. In her December report,[11] Ms. St-Louis indicated that this excess of mortar retained water in the masonry which probably lead to infiltration of water at the level of the foundation walls either because of capillary action through the TYVEK weather-resistant barrier or because of holes in the TYVEK. She attributed the water that she found at the base of the foundation walls on the inside of the house to a defective French drain or the lack of waterproofing of the foundation walls.

 

[53]        She found also that the French drain located at the foot of the chimney did not drain away water that she sprayed on the outside chimney wall as part of a test. Although her measurements were rough, it appeared that water staining on the inside plywood wall compared with approximately the level of water retained on the outside of the house around the French drain. She noted as well that metal ties that were used in the wooden forming structure to pour the concrete foundation had not been properly caulked and accordingly, these also might be an avenue of water infiltration. The photographs attached to her report confirm all of these observations. The opposing expert, Mr. Benmussa, accepted these observations.

 

[54]        Ms. St-Louis was originally engaged to deal with the water infiltration concerning the patio doors. However, through her investigations, she subsequently discovered these other issues:

 

a)         the air cavity behind the stone facing was full of mortar instead of containing only air which would allow any moisture to evaporate;

 

b)         the French drain was defective since in certain areas it had been crushed and in others, it was blocked;

 

c)         the infiltration of water into the basement either from the French drain and/or through the foundation walls had caused rotting and mould build up requiring both disinfecting and a thorough replacement of certain contaminated elements; and

 

d)         the rotting of window frames as a result of the improper installation of flashing and the combined effects of no weepholes and no air cavity.

 

[55]        Written notice and a first demand letter were sent on June 27, 2006 by the Plaintiff's legal counsel,[12] which required the Defendant to complete repairs to the following defects within 7 days:

 

            a)         blocked and crushed French drain;

 

            b)         rot and moss in the basement;

 

c)         fixing the French drain would necessitate heavy equipment that would tear up the Plaintiff's backyard and require repair; and

 

d)         interior rot would require replacement of all the rotten elements.

 

[56]        A further notice by the Plaintiff's counsel was sent to the Defendant's counsel (who are not the same as trial counsel) dated October 25, 2006. This notice advises that the frames of several windows are rotten and cannot be fixed but need to be changed. An estimate of $500,000.00 in repairs is advanced.

 

[57]        An expert hired by the Defendant, Mr. Vincent, made two visits to the house: on August 23, 2006 and on September 21, 2006, both in the presence of Ms. St-Louis. Despite the written offer from the Plaintiff's attorneys in an October 25, 2006 letter to have Mr. Vincent return to do a further inspection, there is no evidence that Mr. Vincent ever returned. No expert report was filed for Mr. Vincent and he did not testify for the Defendant. No explanation was provided.

 

[58]        In fact, the only evidence of any other expert on behalf of the Defendant inspecting the premises was that of Mr. Jacques Benmussa, a professional architect, who visited the premises on May 22, 2007 for a period of about 3 hours.

 

[59]        Approximately one year later, Mr. Benmussa then prepared a report which is filed into Court as an expert's report, dated April 24, 2008. He testified at trial.

 

[60]        In the meantime, Jadco had instituted an action in the Court of Québec against the Plaintiff (the Jadco litigation).[13] It appears from the partial series of pleadings filed into the record that Jadco was claiming in the order of $45,402.71 in unpaid fees.

 

[61]        Certain of the counterclaims made by the Plaintiff resemble claims made by the Plaintiff in the present proceeding against the Plaintiff.

 

[62]        However, the Court is left in the dark as to how the overlapping claims were settled since the "plumitif" shows only that the Jadco case was settled out of court and nothing more.

 

[63]        On April 3, 2007, the Plaintiff undertook the present legal proceedings claiming $1,085,570.62 by way of reduction of the purchase price and damages. At trial, this amount was amended to $554,500.65.

 

[64]        The Defendant made no offer to repair any of the alleged defects. As a result, the Plaintiff undertook the following extensive project to correct the defects:

 

a)         the stone facing on the house was removed. The air cavity was cleaned of all mortar. In view of the rotting of the wood joists, wood bracing had to be added throughout the frame. As needed, everything that was between the stone facing and the inner plasterboard wall was replaced and constructed to norm. The bill for the carpentry work and masonry was $361,564.37;

 

b)         as a result of an inspection using a camera that was fed through the French drain, the specific areas where the drain was either crushed, blocked, or impeded by roots were pinpointed as needing correction. In this ingenious way, only approximately 25% of the French drain had to be fixed. Also, heavy construction equipment was required to traverse the Plaintiff's extensive back lawn which resulted in major landscaping repairs;

 

c)         as a result of the alleged water infiltration coming both from the defective French drain and from the problems with the masonry and flashings, rotten and mould-damaged elements in the basement had to be removed, the entire area disinfected and then reconstructed at a cost of $44,657.05; and

 

d)         the Plaintiff replaced all of the windows in the house. Ms. St-Louis had requested that the Plaintiff's contractors prepare a report on the state of rot in all the other windows. No such report was filed into evidence. The Plaintiff claimed at trial $76,540.41.

 

[65]        With this factual context, the Court must now determine whether:

 

            a)         there were any serious defects;

 

            b)         how many of them were hidden?

 

c)         did the Defendant know or could she be presumed to know of any of the defects? and

 

d)         is the reduction in the price requested by the Plaintiff - based on the alleged costs of doing the corrective work and accounting for any depreciation - reasonable? If so, what should that amount be?

 

[66]        The parties have provided the Court with extensive jurisprudence and written argument on the subject of hidden defects and the relevant related issues. In particular, the Court has reviewed the decision of Béique v. Rodier.[14] This Court adopts as a precise statement of the applicable Québec law on latent defects paragraphs 28 through 54 of that judgment of Mr. Justice Jean-Yves Lalonde. To the extent that additional legal references are required to meet specific issues arising in this case, they will be provided in the text of the judgment.

 

B-        Was the Defendant Properly Notified of the Defects in Accordance with Art. 1595 and 1739 C.C.Q.?

 

            a.         Reasonable Notice: Legal Principles

 

[67]        The legal guarantee under the Civil Code of Québec creates an important responsibility for the vendor which lasts as long as the purchaser owns that which was purchased. The purpose of the notice is to create "a certain equilibrium within the guarantee".[15]

 

[68]        The Civil Code of Québec requires two notices:

 

a)         to advise of the defect and give the vendor a right to do a non-destructive visual examination[16]; and

 

b)         to demand repair within a certain delay as required by art. 1594, 1595 and 1596 C.C.Q.

 

[69]        Both notices may be given in the same document but the requirements for both are legally independent.[17]

 

[70]        Art. 1739 C.C.Q. requires that the purchaser gives reasonable notice to the vendor of the alleged defects.

 

[71]        The Court understands the Legislator's objectives for such notice to be:

 

            a)         that the notice be given within a reasonable delay of the defect being discovered to ensure that the issue is dealt with promptly;

 

            b)         that the notice must be sufficiently precise regarding the defect to allow the vendor to identify the defect and ascertain the appropriate corrective work;

 

            c)         to allow the vendor to determine that the defect existed at the time of the sale; and

 

            d)         to permit the vendor to undertake the corrective work at the most reasonable cost.[18]

 

[72]        In effect, the Legislator wants to ensure that the vendor has an opportunity "to put the situation right". The purchaser who undertakes repairs without giving proper notice risks losing his right to claim even if he can prove the defects were hidden.[19]

 

[73]        However, this drastic sanction has limits. The absence of timely notice only leads to the rejection of an action based on hidden defect where the omission to give the notice deprived the vendor of the possibility of verifying both the existence and the gravity of the alleged hidden defect as well as the opportunity to repair it. Also, default in providing notice in matters involving hidden defect is not fatal where one of the following exceptions apply: urgency; if the vendor has already repudiated any responsibility with regard to the alleged hidden defect; or if the vendor has renounced passively or expressly to avail themselves of this defect and notice.[20]

 

            b.         Analysis

 

                        i.           French Drain and Water Infiltration Causing Rotting and Mould Under the Basement Floor

 

[74]        The Plaintiff had advised the Defendant through her real estate agent of the flooding he had seen in the early part of January 2005, to which she had responded she had never had any such flooding.

 

[75]        The Plaintiff and the Defendant had met coincidentally face-to-face in September 2005 and she had reiterated the same thing.[21]

 

[76]        Ms. St-Louis had undertaken certain destructive testing of interior walls in the basement and certain excavation to find that the foundations were not waterproof.

 

[77]        In late June, 2006, the drain specialists Drainamar found the French drain was blocked and crushed which, according to Ms. St-Louis, partly explained the infiltrations of water and the mould and rot present in the basement on the interior walls and under the wood floor.

 

[78]        On Monday June 27, 2006, the Plaintiff's attorneys sent a letter by fax notifying the Defendant of this issue. The letter noted that on Thursday of that week the Plaintiff would proceed to unblock part of the French drain in the front of the house to permit a camera to be inserted which would determine the final corrective work to be undertaken for the French drain. In addition, the attorneys gave the Defendant a delay of seven days from receipt of that letter to undertake the necessary corrections i.e. Monday, July 4, 2005.[22]

 

[79]        In her examination on discovery, the Defendant testified that she immediately gave this letter to her attorneys for response.

 

[80]        That response did not come until two weeks later.

 

[81]        However, contrary to its own seven day delay, the Plaintiff had the work undertaken on July 3 and 4, 2006.[23] Since the Plaintiff has not respected its own deadlines to the Defendant, he cannot now claim for these costs incurred before the deadline expired. The Defendant was deprived of her right to inspect and repair, if required. Accordingly, the claim for repairs to the French drain is disallowed.

 

ii.          Water Infiltration and Rot and Mould Found in the Basement

 

[82]        As indicated, the original notice and demand in this regard came in a letter dated June 27, 2006, from the Plaintiff's attorneys.

 

[83]        No corrective work was done during the seven-day notice period for these matters.

 

[84]        The Court determines that proper notice was provided concerning this defect because:

 

a)         despite the fact that the Defendant immediately provided the letter to her attorneys, the Defendant's attorneys did not respond to the Plaintiff's attorneys until July 12, 2006, some eight days beyond the deadline;[24]

 

b)         instead of availing themselves of the opportunity to carry out an inspection by their expert which they were entitled to do by law, the Defendant's attorneys made a blanket denial saying that their client had no obligations whatsoever. Those attorneys then went on in the same letter to require:

 

            i)           a copy of the pre-inspection report referred to in the June 27, 2006 letter; and

           

            ii)          a demand that the Defendant's expert would arrange a date after the construction holidays (more than one month after the original June 27, 2006 demand letter) to visit the premises, and not only were they going to look at the issue of the French drain, but they wanted "access to all parts of the property" and at the same time demanded that no other work be done in the interim. Such a demand was unreasonable in the circumstances and in the context of that letter, constituted an effective denial of any and all responsibility.

                        

[85]        The Court determines the Defendant was notified on a timely basis and had a reasonable opportunity to undertake the corrections. Accordingly, the Plaintiff has met its obligation to provide notice of these alleged defects.

 

iii.        Masonry and Windows

 

[86]        The Defendant argues that inadequate notice given for these alleged hidden defects bars the Plaintiff’s claim for them:

 

a)         that if the Plaintiff had advised the Defendant at the beginning of 2005 (when he saw the infiltration of water in the basement) of the alleged hidden defects, she would have cancelled the sale and given the Plaintiff his money back before he undertook the extensive renovations;

 

b)         the Plaintiff did not advise the Defendant before the demand letter of June, 2006 (Exhibit P-6) of any alleged hidden defects although she saw him on a regular basis because he delivered her re-addressed mail; and

 

c)         the Plaintiff knew or should have known that the windows were rotten in the summer of 2005 since he saw two rotten windows when he was constructing his new garage.[25] The Defendant asserts that in or around the same time, Jadco would have seen that the air cavity was completely filled with mortar since Jadco went through the masonry wall to build a door from the garage into the house.

 

[87]        For the reasons that follow, the Court determines that the actual notice given by the Defendant in the October 25, 2006email[26] from the Plaintiff’s attorneys to the Defendant’s attorneys did in fact constitute sufficient notice for both the windows and masonry. In that email, mention is made for the first time of the rotten windows and the requirement for their replacement. The same letter refers to anomalies in the installation of the flashing which contributed to the infiltration of water underneath the stone facing and the rotting of the structure and the windows. The letter concludes that the causes of the problem are determined and result from faulty construction.

 

[88]        In fact, Ms. St-Louis in her report in June 2006, which was filed by the Defendant as Exhibit D-19, makes reference therein to the problems with the masonry including inadequately installed flashing.

 

[89]        The original demand letter of June 2006, had required the Defendant’s expert to attend at the premises within seven days of June 27, 2006. In fact, that expert, Mr. Vincent, first attended in late August 2006 when he undertook a visit in the presence of Ms. St-Louis which lasted approximately three hours.

 

[90]        Through the visits of the Defendant's first expert, Mr. Vincent and his discussions with Ms. St-Louis who had discovered these problems with the masonry (i.e. inadequate flashing, mortar filling the air cavity), the Defendant would in all likelihood have been made aware of the masonry problems in the summer of 2006.

 

[91]        As for any real or presumed knowledge by the Plaintiff of the masonry problems because they would have been seen by Jadco in the summer of 2005, the Defendant did not prove this. Jadco is the Plaintiff’s project manager.[27] There was no evidence that Jadco ever mentioned this to the Plaintiff. Jadco had the same attorneys in the Jadco litigation that the Defendant had in this litigation (but not the same as trial counsel).

 

[92]        As for the windows, the Plaintiff’s attorneys’ letter of October 25, 2006 notes that the rotting of the windows was only just discovered by Ms. St-Louis in the previous week. The early sign of rotting of two windows only was seen by the Plaintiff himself in the summer of 2005, and this only on the two windows on the garage side of the house (there is no evidence that Jadco mentioned anything to the Plaintiff about rotting windows anywhere).[28] From this, the Plaintiff cannot be legally presumed to understand that all of the windows in the house were rotten. 

 

[93]        In point of fact, the Defendant’s attorneys’ letter of July 12, 2006 (not same attorneys as trial counsel) did not take the position that their expert would investigate the claims made by the Plaintiff before taking a position but rather staked the position right up front that the Defendant was not responsible for anything.[29]

 

[94]        Moreover, Mr. Dionne of the Nocra firm, a window contractor who provided the Plaintiff with a quote to repair and replace the windows, himself first noted only in September 2006 that the bottom of a wooden window frame was rotten, at which point he did tell the Plaintiff of this problem of infiltration of water.

 

[95]        Mr. Vincent only made two visits both in the presence of Ms. St-Louis: August 23 and September 21, 2006. In fact, in the October 25, 2006 letter, he was invited by the Plaintiff’s attorneys to re-inspect the premises but never did so. The next visit was by Mr. Benmussa on May 22, 2007 (his report was dated April 24, 2008).

 

[96]        The Defendant filed all of the correspondence between Jadco and the Plaintiff.[30] While there is reference therein to the Plaintiff wanting weepholes installed, there is no evidence of finding mortar in the air cavity nor Jadco advising the Plaintiff of this fact.

 

[97]        Finally, there is no evidence that Clorifila, a company which undertook certain of the patio door repairs, ever told the Plaintiff of any mortar in the air cavity.

 

[98]        The Court takes no negative legal inference from the fact that the Plaintiff never discussed any of these issues directly with the Defendant, even though he delivered her re-addressed mail on a regular basis. On the one hand, the Defendant chose to have no relationship whatsoever with the Plaintiff in the course of the events leading up to his purchase of her house. In fact, her own evidence was that she did not want to be involved at all. This lack of any communication is confirmed when she alleges that she saw snow building up on the back patio and wanted to advise the Plaintiff that it should be removed. One would normally have thought that between good neighbours (she lived only one street over), she would have picked up the phone and spoken to the Plaintiff. In fact, she says she called the real estate agent to advise him of this.

 

[99]        For these reasons, the Court is satisfied that there was no undue delay nor failure to provide the notice required by law for these particular elements.

 

C-        Are There Any Defects That Are Both Latent and Serious?

 

            a.         Latent or Apparent Hidden Defects: Applicable Legal Principles

 

[100]     The Supreme Court of Canada has decided that to be a hidden defect under art. 1726, Q.C.C., four characteristics must be met: the defect must be hidden, sufficiently important, existing at the time of the sale and unknown to the Plaintiff.[31]

 

[101]     Whether the defect is hidden or apparent is a question of law.[32]

 

[102]     In discussing art. 1726, the Court of Appeal states[33]:

 

"[49]            La norme édictée au Code civil est celle d'un acheteur prudent et diligent « sans avoir besoin de recourir à un expert » suivant l'article 1726 in fine C.c.Q. Comme le rappelle notre Cour dans St-Louis c. Morin, 2006 QCCA 1643 (CanLII), 2006 QCCA 1643  :

 

[28]    […] il existe une seule norme applicable, celle qui examine la conduite de l'acheteur prudent et diligent. Le juge de première instance a écarté cette règle en appréciant la conduite de l'inspecteur et en imputant aux appelants les conséquences de ce qu'il a considéré être un manque de prudence et un manquement aux règles de l'art de la part de l'inspecteur;

 

[29]    En ce qui concerne les appelants, l'appréciation de leur comportement à partir de leurs caractéristiques personnelles démontre qu'ils ont eu une conduite prudente et diligente en recourant aux services d'un expert. Ils n'avaient aucune connaissance particulière dans le domaine et donc, ils ne pouvaient pas savoir que ce genre de toiture comporte des risques d'infiltration d'eau."

 

                        i.           Does the National Building Code Create a Norm of Construction that Must Be Followed?

 

[103]     The National Building Code creates a norm - accepted by the courts - that ensures a construction is exempt from defects. Contracting parties are presumed to know the contents of the National Building Code and to have incorporated it as an implicit norm of quality into their construction contracts.[34]

 

[104]     The requirement for a contractor to follow the rules of art (such as those in the National Building Code) have been codified in art. 2100 C.C.Q. Before that, the jurisprudence produced the same effect under the Civil Code of Lower Canada which did not have such a specific article.[35] The operative rules of art are those in existence at the time of the actual construction and not at the subsequent time the matter comes before the court.[36]

 

[105]     The Blanchard[37] decision of the Court of Appeal provides some technical guidance as to what constitutes a "signe annonciateur d'un vice potentiel", wording used by the Court of Appeal in the St-Louis v. Morin case.[38]

 

[106]     At the time of the inspection in that case, there was a very long crack in a basement wall and smaller cracks in a brick wall. The Court found on the evidence that these were apparent signs of the weak load bearing capacity of the soil.

 

[107]     In finding the inspector liable where he failed to direct his mind to the real causes of the cracks, the Court of Appeal had this to say at paragraph 43:

 

"Constatant ces défauts, un inspecteur compétent aurait dû informer les demandeurs que cette situation requiert un examen plus détaillé ou à tout le moins, les aviser de la possibilité de se retrouver avec un problème majeur".[39]

 

[108]     The Court of Appeal in Blanchard[40] specifically said that the use of hydrographic and thermographic tests (both of which are non-destructive) would have helped confirm the state of whether there were suitable conditions for the development and progression of rot in the 1920's building in issue:

 

"[18] Par ailleurs, selon l'ingénieur Pomminville, un témoin assigné par les vendeurs, il aurait été prudent au regard de l'âge et de l'état des parements du bâtiment de faire appel à l'hydrographie et à la thermographie. Ces deux tests, non destructifs, auraient fourni le degré d'humidité à l'intérieur des murs et le niveau de chaleur des matériaux. Ces informations n'auraient pas permis de certifier la décomposition du bois de la structure de la tourelle, une certitude qui ne pouvait être acquise que par l'ouverture du mur intérieur ou extérieur, mais de, néanmoins, confirmer un état ou une condition propice au développement et à la progression de la corruption du matériau. En somme, un examen un tant soit peu attentif de la surface des parements aurait mis en évidence une abondante et sévère fissuration qui, compte tenu de l'âge du bâtiment, laissait présager un problème plus sérieux, ce qui ouvrait la porte à une investigation plus poussée. Or, sans par ailleurs être intrusif, des tests permettaient de renforcer la conviction d'une situation déjà considérée problématique.

 

[…]

 

[20]  Certes, les appelants n'auraient pas eu la certitude de l'existence de la structure pourrie de la tourelle, mais suffisamment d'indices pour demander au vendeur une expertise plus poussée ou une garantie explicite de bon état, ou renoncer à l'achat ou, enfin, acquérir malgré tout en acceptant d'assumer le risque d'un défaut sérieux et sa conséquence, les coûts afférents à la réparation. La juge a conclu que le couple Sauriol a opté pour cette toute dernière solution d'acceptation du risque non pas en raison d'un examen minutieux des différentes hypothèses mais à cause du véritable coup de cœur des appelants pour cette résidence, propriété d'un vendeur peu enclin à vendre."

(This Court's emphasis)

 

 

·             Obligations of the Pre-Purchase Inspector

 

[109]     The Quebec Civil Code does not oblige an inspection by an expert: it requires the buyer to act prudent and diligently.[41]

 

[110]     Some circumstances may require that a prudent and diligent purchaser must hire an expert since to do so is "prudent and diligent" in the circumstances. For example, this might be where an issue arises that is "inhabituel et préoccupant".

 

[111]     Here, the Plaintiff had no disclosed knowledge of construction and no way himself of properly inspecting the house in any informed manner. Hence, his hiring an inspector was a necessary step to meet his direct obligation of prudence and diligence.

 

[112]     The Court of Appeal has placed certain limitations on the extent of inspection required by either the Plaintiff or his expert:

 

"[82]  … Comme le mentionnait le juge LeBel, alors de cette Cour, dans le cadre de l'obligation d'obtenir une expertise pour un acheteur, dans l'arrêt Placement Jacpar Inc. c. Benzakour, 1989 CanLII 976 (QC C.A.), [1989] R.J.Q. 2309 , à la page 2316 :

 

Dans le cas d'un édifice comme celui de l'appelante, l'acheteur prudent ou son expert, s'il en engageait un, satisferait à l'obligation d'inspection en procédant à un examen visuel des principaux éléments constitutifs de l'extérieur et de l'intérieur, des principaux systèmes mécaniques accessibles de la toiture et en vérifiant l'état  de  quelques-uns  des appartements. Il ne serait pas obligé de tout vérifier dans le détail et, encore moins, de commencer à ouvrir ou à souder [sic] les planchers, les murs, les plafonds ou les fondations. Même en appliquant la jurisprudence qui semblait exiger la présence de l'expert, il faut comprendre les limites du rôle de celui-ci avant l'achat, ainsi que celles des exigences de l'article 1522 C.C., pour que joue la garantie contre les vices cachés. Cet examen n'est pas un examen approfondi. S'il doit être attentif, il peut demeurer sommaire.

[Je souligne.]."[42]

 

[113]     On some occasions, a purchaser may have specific indications, which leads them to suspect the existence of a hidden defect. In other cases the purchaser - as here - has no specific indication but simply wishes to "make sure".

 

[114]     Where there are "evident signs of a potential defect", the expert must undertake a fuller inspection to find the cause, and if he does not, and a defect later manifests itself, the conclusion of a court will be that the defect was apparent.[43]

 

[115]     For example, in the present case, the Defendant argues that the clear visual absence of weepholes should have caused the Plaintiff's inspector to doubt the competence of the original builder and, as a result, the inspector should have recommended additional inspection, including destructive testing, to ensure:

 

a)            that the flashing behind the stone facing was properly installed; and

 

b)            that there was a proper air cavity between the stone facing and the joists.[44]

 

[116]     The Defendant argues that a higher standard of inspection must be required of the Plaintiff's inspector since he was a professional engineer. This argument was rejected by the Court of Appeal who determined that the intensity of the required inspection is based on the degree to which the defects manifest themselves and not the qualifications of the person undertaking the inspection.[45]

 

[117]     In the Blanchard[46] case, the Court of Appeal cited with approval Mr. Justice André Rochon (then of the Superior Court) in Lavoie v. Comtois[47], that a hidden defect must be one that cannot be seen by visual inspection of the inspector without an exhaustive exam or partial destruction.[48]

 

[118]     To a similar effect in the St-Louis case, the Court of Appeal cited with approval the doctrine of Professor Pierre-Gabriel Jobin that above all, the inspection must be reasonable in the circumstances:

 

"… Les tribunaux se réservent manifestement un large pouvoir d'appréciation et la jurisprudence n'est pas très précise sur ce qu'elle entend par un examen raisonnable. Il doit, en principe, être attentif et sérieux quoique plutôt rapide et non approfondi."[49]

 

ii.         Whether the Court Can Take Judicial Notice of Practice Norms for Associations of Building Inspectors

 

[119]     The Defendant has asked the Court to take judicial notice of the Normes de pratique professionnelle pour l’inspection de bâtiments résidentiels (in force for the Québec Association of Building Inspectors) and The Standards of Practice of the Canadian Association of Home and Property Inspectors.

 

[120]     Neither set of standards was put into evidence in court. While art. 2808 C.C.Q. does allow the court to take judicial notice, this does not extend to such norms - if that is indeed what they are - absent the norms being proven in open court.[50] Normally, such evidence should be introduced by an expert, at which point both the court and the parties would have the opportunity to test whether such practice standards had reached the level of rules of art or not.[51]

 

[121]     All three experts are experienced professionals. Mr. Benmussa, a professional architect since 1987, has testified in defense for building inspectors, three of who were architects and one was an engineer. He has taught a program on The Problems of Flashing to the APCHQ. He has been part of "due diligence teams" for high rises and has extensive experience in large commercial buildings. He has extensive experience in expert reports involving water infiltration.

 

[122]     Mr. Benmussa was candid with the Court and indicated that he had never done any pre-purchase building inspections for residential properties. 

 

[123]     Before becoming an in-house architect for the APCHQ in approximately 1996, Ms. St-Louis had spent 15 years in the private practice of architecture with her own firm. This was amongst the first expert’s reports she had ever done and since that time has done approximately 20 expert reports per year. She has taught courses at the École Polytechnique in Montréal in building envelope and the National Building Code

 

[124]     As a result of four visits she made on May 18 and 24 and June 2 and 24, 2006, Ms. St-Louis prepared a report for the Plaintiff that was not filed by the Plaintiff - but rather by the Defendant - as Exhibit D-19. The reason for this report was the Plaintiff’s mandate to her to determine the cause of water infiltration in the basement. Ms. St-Louis herself found traces of water infiltration in at least five different areas of the basement.[52] Ms. St-Louis stated the causes of the water infiltration to be:

 

a)            a deficiency in the flashing to the left of the patio door in the first floor family room;

 

b)            the lack of air cavity behind the stone facing;

 

c)             the presence of water at the base of the foundation walls caused either by improper functioning of the French drain or a lack of water proofing of the foundation wall; and

 

d)            concrete form attachments that had been improperly sealed and that may have let water infiltrate.

 

[125]     She initially concludes in her June 2006 report based upon what she saw and the information she obtained that the causes of the water infiltration are related to inadequate corrective work undertaken by Jadco at the level of the patio doorsill in the family room.

 

[126]     Some six months and six additional visits later, she filed another report to the Plaintiff, this one dated December 20, 2006.[53]

 

[127]     The June report was filed by the Plaintiff in the Jadco litigation while the December report was filed in the present litigation.

 

[128]     In the latter report, Ms. St-Louis makes no reference either to the June report or to Jadco being the cause of the water infiltration. The Court will reproduce her December conclusion in full because of its importance:

 

"6.   CONCLUSION

 

À la lumière de nos constatations et des informations recueillies, nous sommes d'avis que les causes d'infiltrations d'eau sont reliées à l'absence d'espace d'air derrière le parement de maçonnerie, à l'installation inadéquate du pare-air ainsi qu'au dysfonctionnement du drain français. Ces déficiences de construction ne pouvaient être détectées lors d'une inspection visuelle et ont nécessité plusieurs examens destructifs des composantes. En effet, des investigations plus poussées telles qu'un test de camera, des essais d'arrosage, le démantèlement de sections de maçonnerie et l'ouverture de certaines cloisons ont été nécessaires afin de cerner les causes des infiltrations.

 

L'état de pourriture des éléments structuraux et de plusieurs fenêtres est anormal compte tenu de l'âge du bâtiment et permet de conclure que la détérioration s'est produite graduellement depuis la construction du bâtiment. De plus, la présence de moisissures au niveau des murs de fondation est un signe que les infiltrations sont récurrentes depuis plusieurs années."

 

[129]     The Court accepts the December report as the final opinion of Ms. St-Louis regarding the causes for which she reached an ultimate conclusion after substantial additional testing was done, including testing on the French drain.

 

[130]     As a result, she was entitled to change her opinion. However, she should have mentioned her June report in her final report with a specific indication as to how and why her opinion had changed.

 

[131]     The Defendant inferred that this omission was a sign of bad faith and that Ms. St-Louis was seeking to hide something from the Court. The Court does not agree. The Court attributes this oversight -relevant as it is - to inexperience:

 

a)            this was amongst her first expert reports; and

 

b)            since both Jadco and the Defendant had the same attorneys at the time, and since Ms. St-Louis’ reports were filed into the public record of the courts, it makes no sense that she intended on misleading the Court.

 

[132]     Furthermore, the December report is double the number of pages of the June report and the December report contains extensive indexes outlining the information she had in the preparation of this report additional to that which she had in the preparation of her June report.

 

[133]     Mr. Chakieh’s greatest experience as a professional engineer is in structures. He has been a member of the Order since 1987. Fifteen to twenty percent of his practice is as an expert in residential matters. Seventy percent of his work is structural. He is not a regular building inspector and did this inspection for less than $1,000.00 having already done two industrial building inspections for the Plaintiff.

 

[134]     As noted, none of the parties produced into evidence any rules of art for residential building inspection. Accordingly, the Court must determine - looking at all of the circumstances of this case - what was prudent and diligent in the specific and timely context of this house.

 

[135]     According to Mr. Benmussa's report, there were four signs which he terms alarming and which should have been "red flags" that required further inspection (including destructive testing):

 

a)            the inexistence of weepholes;

 

b)            blocked weepholes being covered by a new finish at the stone wall and on the terrace;

 

c)             the presence of rust and efflorescence on the stone; and

 

d)            rusted lintels above the windows being a sign of deficient flashing.[54]

 

[136]     According to Mr. Benmussa's testimony, the context of all of these factors should have caused Mr. Chakieh in his building inspection to do the following:

 

a)            use a key or small tool to scrape the mortar and determine if the flashing (a trademark type of flashing is known as a blueskin because of its royal blue colour). According to Mr. Benmussa, by scraping back the mortar, Mr. Chakieh could have determined whether the blueskin (flashing)[55] had been installed up to the exterior edge of the stone surface as required by the National Building Code.[56] While Mr. Benmussa gave much importance to this issue at trial, it was not in his report although he had occasion himself to inspect some original stone facing at the house. This perplexes the Court; and

 

b)            that a couple of bottom stones on any of the walls should have been removed to inspect whether the air cavity was properly free from mortar.

 

[137]     While the issues raised by Mr. Benmussa are relevant, the Court ultimately agrees with Mr. Chakieh and Ms. St-Louis. Quebec law does not require these additional steps given all the circumstances of this case. There was no visible reason to question the installation of the flashing. Accordingly, based on the reasonable presumption of a proper air cavity and flashing, there would have been no problem with water infiltration. The reasons for this determination by the Court are as follows.

 

[138]     Firstly, the context. All that Mr. Chakieh could visibly see was that there were no weepholes. The visual indications of humidity on the exterior walls could all be accounted for without destructive testing due to:

 

a)            the presence of moss on the stones at the back of the house is consistent with the humid conditions due to the house facing the lake;

 

b)            the presence of moss on the stones at the front of the house can be accounted for by the in-ground garden sprinklers spraying directly against the stone; and

 

c)             the presence of rust marks on the stone and on the lintels to the windows may result from both the humid location i.e. the presence of wind bringing water off the lake onto the house, and the lack of any gutters on the house thus allowing the water to drain straight down the walls.

 

[139]     Simply because the construction did not have weepholes over most of its exterior or that some of the weepholes were blocked does not mean that the flashing ("blueskin") was negligently installed. The scraping of the mortar is destructive testing which is not required.

 

[140]     The key circumstance is that there were no visual signs to alert Mr. Chakieh that the air cavity was as filled with mortar as it was.

 

[141]     Mr. Hardy, the president of the masonry firm that did the corrective work and a highly qualified mason in his own right (he was on a provincial committee recommending standards for masonry) testified as to the proper way of carefully applying the mortar to avoid any excess.

 

[142]     The context here is also important: this was not just any house being built by any contractor. Both the Plaintiff and Mr. Chakieh knew that the house was built by a well-known West Island contractor for his daughter. In this context and without any visual signs, there was nothing to alert Mr. Chakieh that he should use destructive testing to determine the status of the air cavity.

 

[143]     Mr. Benmussa noted a certain number of presentation deficiencies in Mr. Chakieh's report as given to the Plaintiff:

 

a)            photographs were not numbered nor in colour;

 

b)            four photographs per page were put on 8 ½ by 11 pages in black and white; and

 

c)             through clerical error a photo showing a garden sprinkler against the stone facing (photograph # 50 of Exhibit P-3C) was not provided to the Plaintiff.

 

            While such deficiencies pointed out Mr. Chakieh's lack of experience in preparing pre-inspection reports, no legal consequences ultimately turned on these deficiencies.

 

[144]     Finally, a critical factor is that the Defendant herself saw no interior signs of water infiltration in the fourteen years that she lived in the house. The Defendant made a point to indicate that she used the basement regularly with the inference being that if water had infiltrated into the house, she would have seen it. Furthermore, her confidence in the dryness of the basement is inferred by her leaving her cardboard mover's boxes with her goods in the basement.

 

[145]     Mr. Chakieh testified that the signs of humidity that he saw were on the outside of the stone facing and in particular, the rust on the lintels was caused by the ambient conditions. Some confirmation of this came from Mr. Hardy who made specific reference to the moisture in the air being blown off of the lake. For Mr. Chakieh, none of the external signs were "signes annonciateurs" of problems inside the house.

 

[146]     The Defendant argues that Mr. Chakieh is contradicted by Messrs. Thorpe and Benmussa and Ms. St-Louis who all said they saw signs of water infiltration inside the basement. This conclusion and comparison is not appropriate: their physical observations were a year and more after the original inspection done by Mr. Chakieh in 2004. Also, the Court believes Mr. Chakieh when he says that the presence of boxes in the basement prevented complete observations of all quarters. In all events, the Defendant herself saw no internal signs of water infiltration.

 

[147]     Mr. Chakieh did admit that with water spraying up against a wall - by a garden sprinkler, for example - water can go through joints in the mortar, particularly where there are cracks and if there is no place for the water to escape, this could cause damage to a structural wall. He also admitted that he did see garden sprinklers in at least five places such as shown in photo # 50 (Exhibit P-3).

 

[148]     However, for this scenario to constitute an apparent defect, it would mean that there was no visible functional flashing. As has been already explained, this is not the case here. Moreover, there is no convincing evidence that the rotten interior elements were caused by this sprinkler water.

 

[149]     In the Blanchard case[57], one of the vendor’s experts indicated that it would have been prudent to use non-destructive testing in the nature of hydrography and thermography to determine the humidity inside the walls and the level of heat of these materials. However, in that case, the building in question had been built in the 1920’s i.e. almost 80 years prior. In that case, the Court focused on the age of the building as a factor indicating the need for this non-destructive technical testing. No such factor is present in this case.

 

[150]     Furthermore, under cross-examination, Mr. Benmussa retracted his criticism concerning the methodology used by Ms. St-Louis. In his report, he candidly says as well: "Le rapport [Ed. note: of Ms. St-Louis] est bien fait, rédigé par une professionnelle, il est crédible et nous n’avons pas de raison de mettre en cause ses observations".[58]

 

[151]     The Court believes that the standard of inspection proposed by the Defendant is more appropriate for that of an expert’s report in litigation than of a pre-inspection report. The Legislator has chosen not to provide any additional guidance to the courts save for the words "prudent and diligent".

 

[152]     In the present circumstances, the Court cannot rely on a higher standard which has the benefit of hindsight. The Court determines that the pre-inspection report was adequate.

 

[153]     For these reasons, the Court is satisfied that the defects alleged regarding water infiltration were latent and were the responsibility of the Defendant.

 

iii.        Principles of Law to Evaluate Contradictory Expert Testimony

 

[154]     The Court must evaluate the conflicting expert evidence provided by the opposing expert architects: Ms. St-Louis and Mr. Benmussa.

 

[155]     On at least two occasions, the Court of Appeal has confirmed the relevant principles for the Superior Court to follow in such matters.

 

[156]     In a recent 2010 judgment, the Court of Appeal cited with approval a reference from Prof. Royer's text[59]:

 

"[29]  La doctrine elle aussi souligne l’importance de la marge d’appréciation laissée au juge. Je me contenterai de citer à ce sujet deux courts extraits de l’ouvrage du Professeur Royer, sans faire mention de l’abondante jurisprudence qu’il cite pour appuyer les propositions qui suivent[60]:

 

D. Valeur probante

 

        484 - Devoir du tribunal - La valeur probante du témoignage d’un expert relève de l’appréciation du juge. Celui-ci n’est pas lié par l’opinion d’un expert. Il doit évaluer et peser sa déposition de la même manière que celle des témoins ordinaires.

 

[…]

 

            485 - Critères - Le tribunal doit apprécier la crédibilité des témoins experts, ainsi que la valeur scientifique ou technique des faits qu’ils relatent ou des opinions qu’ils émettent. Les critères généraux relatifs à l’évaluation d’une preuve ordinaire s’appliquent à l’expertise. Le juge tient compte, de plus, de la nature et de l’objet de l’expertise, de la qualification et de l’impartialité de l’expert, de l’ampleur et du sérieux de ses recherches, ainsi que du lien entre les opinions proposées et la preuve. Certaines expertises présentent une valeur probante supérieure parce qu’elles laissent moins de place à l’appréciation subjective."

 

[157]     In a 2001 judgment of the Court of Appeal, that Court cited with approval several references, including from a text written by Mr. Justice Pierre Tessier[61]:

 

"[59] Pierre Tessier écrit, au sujet de la valeur probante de la preuve d'expert:

 

La preuve par expert se présente généralement dans le cadre d'une preuve par présomption de faits laissée à l'appréciation du tribunal, qui ne doit prendre en considération que les présomptions qui sont graves, précises et concordantes (art. 2849 C.c.Q.).

 

()

 

La valeur probante de la preuve d'expert dépend de la crédibilité de ce dernier, de sa compétence, de la manière dont l'évaluation a été menée et de la validité des tests utilisés. La crédibilité de l'expert relève de l'appréciation du tribunal, qui doit non seulement considérer sa compétence, mais aussi la fiabilité des instruments d'évaluation et des techniques auxquels il a recours, en regard de leur degré d'acceptabilité par la communauté scientifique et l'application de cette technique selon les règles de la science.

 

La valeur du témoignage de l'expert est affaiblie par les lacunes qu'il contient, et les divergences et contradictions avec l'ensemble de la preuve. Il y a donc lieu de juger si la déposition de l'expert est conforme au poids de la preuve et si elle s'inscrit dans le cadre de faits positifs et probants.  (…)

 

L'expert doit faire preuve d'objectivité et de désintéressement. Le tribunal peut n'attacher aucune valeur probante au témoignage empreint de partialité.

 

[Références omises]

 

3.  Pierre Tessier, La preuve devant le tribunal civil, Collection de droit, Barreau du Québec, 1996-1997, vol. 2, Les Éditions Yvon Blais Inc., 209 et 210."

 

[158]     Finally, in 2005, the Superior Court[62] cited with approval several references, including Mr. Justice Rochon (then a member of that court) who had this to say about evaluating competing experts[63]:

 

"Le présent dossier présente des difficultés techniques importantes. Le Tribunal doit départager les thèses présentées par les cinq ingénieurs. Il y a lieu de rappeler les principes applicables en pareille matière.

 

Dans un arrêt de principe, Lord Summer exposait la règle du fardeau de la preuve dans des domaines où une preuve hautement technique avait été reçue:

 

S'il advient qu'un juge ne peut décider en lui-même si, oui ou non, l'opinion qui lui est donnée est valable, il conclut simplement que le point n'est pas prouvé, aux dépens de la partie à qui incombe le fardeau de la preuve sur cette question. C'est tout comme si la preuve nécessaire n'avait pas été établie.

 

Ce principe devait être repris par la Cour suprême où, sous la plume de l'honorable juge Pigeon, la Cour ajoutait:

 

Aux prises, comme c'est habituellement le cas dans les affaires de ce genre, avec des opinions scientifiques contradictoires, le juge de première instance s'est dit incapable d'éliminer la confusion créée par les témoignages divergents des experts. Dans ces circonstances, la justice demande qu'on s'efforce d'éliminer la confusion.

 

    (soulignements ajoutés)

 

En 1985, le juge Monet, s'exprimant au nom de la Cour d'appel, suggérait avec encore plus de précisions le cheminement à suivre par un juge de première instance en pareille matière:

 

Lorsque la preuve offerte de part et d'autre est contradictoire, le juge ne doit pas s'empresser de faire succomber celui sur qui reposait la charge de la preuve mais il doit chercher d'abord à découvrir où se situe la vérité en passant au crible tous les éléments de conviction qui lui ont été fournis et c'est seulement lorsque cet examen s'avère infructueux qu'il doit décider en fonction de la charge de la preuve.

 

Pour guider le juge dans cette recherche, les tribunaux ont élaboré deux types de critères: ceux reliés à l'expertise même et ceux reliés à l'expert.

 

La valeur probante d'une expertise sera d'autant plus élevée que les faits sur lesquels elle repose sont prouvés. L'honorable juge Gilles Hébert expose ces principes à partir de deux décisions de la Cour suprême et d'un arrêt de la Cour d'appel.

 

Les connaissances, l'attitude et les méthodes de l'expert doivent être analysées. Le Tribunal se penchera sur le ou les moyens par lesquels l'expert a acquis son expertise. La formation théorique est importante. Les tribunaux accordent toutefois une préférence à l'expérience pratique.

 

Le Tribunal observera également l'attitude de l'expert. Ce dernier fait-il preuve de subjectivité ou d'objectivité? A-t-il un intérêt dans l'affaire? Quelle est son approche face aux théories apportées par les autres experts? Y apporte-t-il des éléments? En tient-il compte? De façon secondaire, le Tribunal examinera la réputation de l'expert auprès de ses pairs."

 

iv.        Do the Renovations Constitute an Intervening Act That Breaks the Chain of Causality With the Defendant?

 

[159]     While this argument is raised by the Defendant, she provides no convincing proof of causality that goes beyond speculation. 

 

[160]     Mr. Benmussa posits that the installation of the weepholes in the manner recommended by Mr. Chakieh (and approved by Ms. St-Louis) would necessarily have lead to the piercing of the flashing and the subsequent infiltration of water. Even if this corrective technique was more difficult to execute, there is no evidence that it was not done properly.

 

[161]     Most importantly, the expert that had the most direct experience in seeing the actual building structure and the effects of the water infiltration was Ms. St-Louis. Accordingly, the Court places considerable weight on her assessment that the state of rot of several of the structural elements and several windows showed a deterioration that was produced gradually from he time of the construction of the building and furthermore, that the presence of mould on the foundation walls was a sign of water infiltration recurring over several years.[64]

 

v.         Should the Settlement in the Jadco Action Reduce Any Damages in this Proceeding?

 

[162]     Jadco was the project manager hired by the Plaintiff to undertake the corrective work to the house suggested by Mr. Chakieh in his initial report. 

 

[163]     Ultimately, the relationship between Jadco and the Plaintiff deteriorated to the point where Jadco sued the Plaintiff for fees for their services while the Plaintiff counterclaimed alleging various problems in Jadco's work.

 

[164]     One of the problems alleged by the Plaintiff in the counterclaim dated May 28, 2007[65] is infiltration of water in the basement. This was one of the problems that Jadco was contracted to repair. The Plaintiff's allegation was that, on the contrary, Jadco aggravated the problem by improperly gluing pieces of membrane which should have waterproofed the wall completely down to the level of the cement basement floor.

 

[165]     The Plaintiff supports its counterclaim with two experts' reports from the APCHQ, one dated March 14, 2005 and the second dated June 19, 2006. The author's name is not indicated.

 

[166]     The Plaintiff alleges damages for these corrective repairs in the amount of $22,560.26 paid to Clorofila and an additional $3,600.00 paid to "Joey".

 

[167]     In its Response, Jadco alleges that this exact claim was also being made against the Defendant. The same firm of attorneys represented the Defendant and Jadco. These attorneys were not trial counsel at the time.

 

[168]     In fact, Jadco filed into the Jadco litigation another expert's report of Ms. St-Louis (for which no specific date is given) but which is different from the two reports from Ms. St-Louis that the Plaintiff had filed in the present case. According to Jadco, Ms. St-Louis in this report specifically said that that the alleged water infiltration was in no way linked to the work executed by Jadco in the undertaking of its services.

 

[169]     Accordingly, the problem in the Jadco litigation sets up as follows: the Plaintiff alleges that the water infiltration was caused by Jadco as shown in the St-Louis report of June 19, 2006 while Jadco responds that a December 2006 report of Ms. St-Louis in fact exculpates Jadco.

 

[170]     On February 7, 2008, a declaration of settlement is filed into court in the Jadco litigation. No evidence was provided to this Court of:

 

a)            whether any part of that settlement was attributed to the water infiltration problems allegedly caused by Jadco; and

 

b)            if so, what that amount was.

 

[171]     In the Jadco litigation, Jadco argues in its response that the Plaintiff is acting illegally by making exactly the same claim for water infiltration first against Jadco and then against the Defendant in the present litigation. 

 

[172]     At trial in the present case, the Defendant alleges that this settlement should be taken into account to reduce any liability that the Court finds against it for water infiltration. 

 

[173]     The Plaintiff may not be compensated twice for the same damages.

 

[174]     However, there is no evidence that the Plaintiff received any compensation from Jadco.

 

[175]     Under art. 2803, C.C.Q., the burden is on the Defendant to prove that the right to damages that the Plaintiff is alleging has been extinguished or modified. To do this, it would have had to prove the contents of the out-of-court settlement and specifically whether any monies were collected by the Plaintiff for the same claim for water infiltration that was being presently made against the Defendant or an admission that there were no such damages. The jurisprudence makes it clear that such proof is both relevant and compellable.

 

[176]     Since no such evidence was submitted by the Defendant, the Jadco settlement has no legal effect on reducing the claim related to water infiltration in the present litigation.

 

D-        What Are the Remedies?

 

            a.         Reduction of Purchase Price - Costs of Repair

 

i.              Governing Law

 

·            Evaluating Price Reduction

 

-           What Are the Parameters To Be Applied by the Court in Reducing the Price Pursuant to Art. 1604 C.C.Q.?

 

[177]     In the case of Verville v. 9146-7308 Québec inc.[66], the Court of Appeal established the following principles. Where the Plaintiff opts under art. 1604(3) Q.C.C. to seek a reduction of the purchase price instead of getting his money back, the reduction must be reasonable and be possible:

 

a)         reasonable means that the Plaintiff must not be provided with complete restitution since this would mean they would retain the property without having paid for it;

 

b)         when the Plaintiff opts for this particular recourse, a legal presumption applies that the property retains a sale value that is other than symbolic;

 

c)         trial courts must show a certain flexibility in evaluating the purchaser's prejudice while at the same time ensuring that there is no unjust enrichment of the purchaser;

 

d)            any reduction in the purchase price must consider all of the circumstances (per art. 1604(3) Q.C.C.) and not simply the cost of repair which may seem excessive in any one particular case; and

 

e)            in such cases, the court is effectively making "a new bargain" for the parties by considering "all the appropriate circumstances" to come to a legal determination of what the Plaintiff would have paid the Defendant if they had been aware of the hidden defects.

 

[178]     In the 2009 decision of the Court of Appeal in Lahaie[67], the Court provided a non-exhaustive list of circumstances to be considered by the court to reduce the price: the price paid for the house, whether the hidden defects rendered the house uninhabitable, the cost of necessary repairs to correct the hidden defects, and any value added by these repairs.

 

[179]     Where building elements (replaced through corrective work) had depreciated over the years, the purchaser is not entitled to benefit from brand new replacement elements without any deduction.

 

[180]     Depreciation is an appropriate circumstance that must be accounted for per art. 1604 C.C.Q.[68] In the 2006 case of Cloutier  v. Boisvert[69], the Superior Court took a 30 % depreciation factor on the cost of repairs for a house that was approximately 34 years old at the time of trial.

 

ii.             Analysis

 

-           Masonry repairs

 

[181]     Essentially, the corrective work required for the hidden defects affecting the masonry involved taking off the stone facing for the house, removing excess mortar, replacing or strengthening the rotted joists and then re-laying the stone facing with properly installed weepholes and flashing.

 

[182]     This was an extensive project, which lasted from October 3, 2006 through to November 20, 2006 and from Spring 2007 to June 2007.

 

[183]     The work was done by Mr. Hardy's firm and by Clorofila. The respective bills were $345,812.46 for Mr. Hardy[70] and for Clorofila: $15,751.91[71] number 2844. The total of these two amounts is $361,564.34. The two firms are experienced and professional. The evidence confirms their charges were reasonable for the quality work they performed, and the Defendant produced no contractors to question their bills. In this area of their experience, the Court prefers their evidence to that of Mr. Benmussa.

 

[184]     Mr. Benmussa testified that the normal life of the mortar joints of such a wall was in the order of 40 years while the life of the stone facing itself was 110 years.

 

[185]     Ms. St-Louis said that there should be no depreciation on the stone since it was virtually indestructible and gave the examples of centuries old buildings in Old Montreal that were built of stone and that are still in fine condition.

 

[186]     In final argument, the Plaintiff took the position there should be no depreciation.

 

[187]     Mr. Benmussa has substantial experience with building envelopes and was qualified by the Court as an expert in this area. The Court accepts there should be a depreciation factor taken. Not only is this thinner facing stone and not structural stone blocks but there are environmental degradation factors at work. That said, the American text in evidence (Exhibit P-12) gave stone a 100 year life expectancy for building in the U.S.

 

[188]     The stone facing has been in place 14 years and that is 14% of 100 years. The Court is not satisfied it has a real figure for the cost of re-pointing the stone facing: no particular science was applied to this issue by Mr. Benmussa.

 

[189]     The Court will arbitrate on this and determine that an overall 12% depreciation factor is appropriate for all masonry related work or $43,387.72, being 12% of $361,564.34.

 

[190]     Therefore, the Court determines the real cost of this particular repair to be: $361,564.34 - $43,387.72, equals $318,176.62.

 

                                     -           Presence of Water in the Basement

 

[191]     The Defendant's main evidence in chief came through an affidavit, a procedure accepted by the opposing party.

 

[192]     Her evidence was to the effect that she had never seen any water infiltration and that the French drain had always worked since 1990. At the same time, she indicated that she had never inspected the outside of the house and had never been told about the absence of weepholes.

 

[193]     She said she painted the floor in the basement on one to two occasions. To support her position that she had no concern about water infiltration in the basement, she testified that she left certain of her possessions stored in cardboard boxes on the basement floor.

 

[194]     Ms. St-Louis indicated that a short time after the Plaintiff had the basement floors painted in the storage room, the paint began to chip off and efflorescence was seen: both factors consistent with excess humidity in and under the basement floor. While Mr. Benmussa denies that this could have been caused by water under the floor, there appears to be signs of water infiltration in certain photographs[72], as well as black mould showing on the parquet flooring.[73]

 

 

[195]     The Defendant’s testimony was not as candid as it could have been. Two examples of this are:

 

a)            paragraph 10 of her Affidavit leaves the impression that she was living in her parents’ house. In fact, under cross-examination, it was confirmed that she had demolished this house and had built a replacement for $2 million; and

 

b)            in paragraph 39 of her Affidavit, she indicates that her real estate agent had only told her that the Plaintiff was looking for minor reductions in the purchase price. In fact, the evidence was that he was looking for $40,000.00 in reduction.

 

[196]     What of the Plaintiff's evidence on this subject?

 

[197]     The Plaintiff testified that when the basement flooring was lifted, he saw signs of water stains on the plywood and at the bottom of the plasterboard wall. In August of 2006, the Plaintiff’s photos[74] show water coming down the walls but also show humidity at the joint where the foundation wall meets the cement floor, thus confirming two sources of water infiltration.

 

[198]     Furthermore, Mr. Sauvageau of Drainamar, with much experience with French drains, testified that a French drain should last somewhere between 30 and 40 years. In the plan filed as Exhibit P-5A2, he pointed out three areas where the French drain was blocked by roots, three areas where the drain was crushed, and five areas where the drain was under water.

 

[199]     His investigation by camera was undertaken in June and July 2006. He confirmed that water could still come out of the end of the French drain into the lake even though it had been blocked elsewhere. The Court prefers this evidence from a specialist which contradicts the Defendant’s claim that the French drain was working since she saw water was draining out the pipe at the water's edge. Also, there is no evidence that she had ever done her own excavation or camera inspection of the system.

 

[200]     While the Court will accept, on the balance of probabilities, that the Defendant did not herself know of the water infiltration, the Court is not prepared to take her evidence as proof that water infiltration was not present at the time of sale. In fact, the Court determines that the preponderance of evidence is that water infiltration was present.

 

 

 

-           The Cause of the Water Infiltration in the Basement

 

[201]     Mr. Benmussa testified that he believed the water in the basement was coming in from dripping down the basement wall. According to him this was 85% of the cause.  He also testified that other sources might be badly installed flashing and holes in the weather-resistant barrier.

 

[202]     Furthermore, Mr. Benmussa said that it is very difficult to properly retrofit weepholes since stone facing is of uneven width and it is difficult to know how far to drill the weephole into the mortar without piercing the membrane on the back, unlike with bricks which are of uniform depth. In this, he was supported by Mr. Hardy's testimony.

 

[203]     According to Mr. Benmussa, possible piercing of the membrane could have allowed water to enter. If so, this would be the fault of the Plaintiff and would have nothing to do with a hidden defect.

 

[204]     The Court notes that Mr. Benmussa undertook one visit to the house. The rest of his opinion evidence is developed from photos and evidence he has heard from others.

 

[205]     Ms. St-Louis made many on-site visits with her own personal observations. In particular, reference is made to ExhibitsD-19, photos 27 and 28 which she took.

 

[206]     Her evidence is to the effect that the water level outside of the exterior wall, near the south chimney, is consistent with the water level inside the exterior wall. 

 

[207]     This very rough match in the physical evidence satisfies the Court that because the French drain was not properly draining off the water, it was infiltrating into the basement through the masonry wall.

 

[208]     Ms. St-Louis saw black traces - signs of humidity - in her photos 6, 7 and 11 both on and behind the interior wall and also in the cedar closet, both in the basement.

 

[209]     Moreover, the basement cement floor was not fitted with a waterproof membrane contrary to the National Building Code[75]. The relevant version of the National Building Code requires the cement basement floor to have a protective barrier against humidity either underneath it or over it. The evidence is to the effect that no such barrier existed in this house. 

 

[210]     The evidence shows the presence of moisture both under the cement floor and behind the plasterboard walls in the basement. Mr. Bechard of Optiservice found in the basement that inside the wall, on the exterior side of the weather-resistant barrier, there was mould and traces of humidity. This meant that water was infiltrating from outside in. This is further confirmation that the failure of the French drain was a cause of water infiltration into the house.

 

[211]     Moreover, black tar paper was stuck to the bottom of the cement floor because of the presence of moisture underneath that cement floor.

 

[212]     In his testimony, Mr. Benmussa attributed 85% certainty to the water infiltration being caused by water coming down the basement wall.

 

[213]     Ms. St-Louis did not provide clear objective evidence to link the water infiltration in the basement on some percentage basis to different causes.

 

[214]     By process of elimination, Mr. Benmussa puts the French drain as only a possible 15 % of the cause. However, as a result of Ms. St-Louis' physical matching and by way of arbitration, the Court determines that the French drain caused 25 % of the infiltration (for which the Defendant is not liable for the reasons given)[76] but that the other 75 % was caused by the following hidden defects for which the Defendant is liable:

 

            a)         defective flashing;

 

            b)         inadequate air cavity;

 

            c)         improperly sealed concrete form attachments;

 

            d)         holes in the TYVEK weather-resistant barrier on the walls; and

 

            e)         absence of membrane under the cement floor.

 

[215]     Accordingly, the cost of those repairs must be reduced by 25%.

 

-           Presence of Mould in Basement

 

[216]     The Plaintiff and his wife have two young children both with allergies. 

 

[217]     The Plaintiff engaged two different microbiological experts to determine whether there was the presence of mould in the basement.

 

[218]     The first such expert who testified at trial was Mr. Roderick Thorpe of the firm EnviroPerfect, a highly qualified biologist. His report was dated November 5, 2006.[77]

 

[219]     Mr. Thorpe took samples from two areas:

 

a)            he cut a hole in the floor in the cedar closet in the basement. He noted evident water damage and a musty odour. He found mould in a highly concentrated form of Aspergillus; and

 

b)            he cut a hole in the wall of the basement storage room and uncovered a sample of blackened mineral wool which confirmed the presence of excess humidity. He also detected a musty odour consistent with mould. Aspergillus and other moulds were also found here.

 

[220]     Mr. Thorpe noted that mould can occur on porous surfaces within 48 hours. His recommendation was to open all exterior walls to determine the limits of water infiltration. He also recommended the removal of all plasterboard in the cedar closet and in the storage room and to do this in the other two rooms in the basement if "testing shows that water damage and mould have affected other areas".

 

[221]     A second microbiologist, Mr. Guy McSween, a very qualified microbiologist with the firm Microbiologie du Batiment GAMS also submitted an expert’s report.[78]

 

[222]     Mr. McSween took samples from a plywood surface inside the basement near the library. He found a high quantity of mould spores. Secondly, he took a sample from the plywood surface inside the same bedroom. He found a non-conforming percentage of mould, the same species of spore as that found under the floor.

 

[223]     He made recommendations to deal with the spores in both areas. In the first area, he recommended removal of the floor completely and disinfecting the affected area and for the second area, since contamination had propagated into the walls, he recommended that all walls be removed along with the insulation and a complete disinfecting be done by a specialized firm.

 

[224]     Both microbiologists noted that such mould was a source of particular problems for persons with allergies and asthma.

 

[225]     Based on the recommendations he received, the Plaintiff undertook the work to first of all remove the contaminated building elements in the basement, decontaminate the affected areas, and replace the removed materials with new materials of a similar quality.

 

[226]     The cost for this decontamination process was a total of $41,824.89[79]. However, since the Plaintiff is not entitled to the damages caused by the French drain, a 25% deduction must be taken, or $10,456.22.

 

[227]     Based on its review of the evidence, the Court determines that the corrective cost of the work required is $41,824.89 - $10,456.22, which equals $31,368.66.

 

[228]     There was no added value through this work. The final adjusted cost for these repairs is$31,368.66.

 

-           Windows

 

[229]     The Plaintiff originally claimed for the full replacement cost of the new Marvin windows he installed of $127,567.35[80]. The Plaintiff reduced that claim to $76,540.41 in final argument.

 

[230]     The Plaintiff had all windows in the house replaced although he had been told that only 6 needed to be replaced by Mr. Chakieh, the original building inspector, as a result of his on-site inspection.

 

[231]     At the same time, the Plaintiff had received an estimate from the NORCA firm for comparable windows[81] in the amount of $84,421.00. The Plaintiff provided no evidence that the superior quality Marvin windows (or equivalent) were what was in the house originally.[82] The Court accepts the NORCA estimate as the mitigating amount if it was necessary to replace all windows.

 

[232]     There is evidence that the two windows that were taken out in the garage were actually rotten and were replaced by a door. Ms. St-Louis noted rotting on the horizontal wood elements of the window frames, without indicating the number of windows so affected.

 

[233]     The Court understood Ms. St-Louis to testify that she had asked that a record be kept of the state of all the windows as a means of proving the extent of the damage to each of them. This was never done and this burden of proof rests on the Plaintiff. Given the number of variables, the Court cannot speculate on which windows and where needed replacing.

 

[234]     The sole evidence before the Court discloses that only 6 windows needed to be replaced or approximately 17.6 % of the total windows.

 

[235]     A total cost to replace all windows according to NORCA would be $84,421.00 plus the cost of repainting of $8,546.25[83] for a total of $92,967.25. This total times 17.6 % provides an amount of $16,362.23 for the total replacement cost of the 6 windows required to be replaced because of the premature rotting.

 

[236]     In final argument, the Plaintiff took the position that 40% was the proper depreciation for the windows.

 

[237]     Mr. Benmussa said that the life of such wood frame windows was somewhere between 15 years and 25 years. He accepted an amount of $16,899.00 as a reasonable cost for the replacement windows.[84]

 

[238]     Since Mr. Dionne of Norca, an experienced and independent window retailer testified that 25 years was the life of such windows, the Court determines that 14/25[85] should be deducted for depreciation, or conversely 11/25 (44% of the total) is the adjusted cost of replacing the six windows.

 

[239]     The Court determines the adjusted cost of replacement is $16,362.23 x 11/25 or$7,199.38.

 

-           Landscaping Resulting From Corrective Work

 

[240]                  The Plaintiff claims for $44,807.76 based on two Clorofila bills.[86]

 

[241]                  The Court cannot accept the first bill for $27,306.21. It is composed of three amounts one of which, for demolition and re-doing of the masonry has already been included in the price reduction accorded for masonry repairs and the other two relate to work to repair the French drain and work on the outside terrace and are respectively not claimable because of the delay in notice and because it was not affected by any hidden defect alleged in this case.

 

[242]     On the other hand, Exhibit P-8F is a legitimate cost. It is for work to repair and clean up following the masonry. As per bill number 3052, the total cost of this work which was paid was $33,365.00.

 

 

[243]     No counterproof to this was made in any way by the Defendant, nor any evidence of value being added.

 

[244]     Accordingly, the final cost of repairs for this item is $33,365.00.

 

[245]     After considering the relevant factors, the Court determines that the adjusted repair costs should be the basis for the price reduction. The Defendant was in a difficult situation owning two very expensive houses. This one had to be sold. It could not be lived in without these repairs. The adjusted cost of those repairs is a fair price reduction to both parties and will be used by the Court.

 

[246]     The total adjusted costs for necessary repairs is: $318,176.82 plus $31,368.66 plus $7,199.38 plus $33,365.00, which equals $390,109.86.

 

-           Experts' Fees

 

[247]     The Plaintiff claims as experts' fees for the following witnesses:

 

a)           Mr. Thorpe: $705.47 (Exhibit P-8O);

 

b)           Ms. St-Louis: $4,240.19 (Exhibit P-8P);

 

c)            Inspecsol: $1,025.55 (Exhibit P-8Q)[87]; and

 

d)           Mr. McSween: $1,416.05 + $853.48 equals $2,269.53 total (Exhibit P-8R).

 

[248]     Except for the charge for Inspecsol which has nothing to do with this case, the other three charges were legitimately incurred for this proceeding and the Court awards the amount of $7,215.19 to the Plaintiff for these charges.

 

            b.         Damages

 

·               Defendant Speaking With Expert During Her Cross-Examination: What Are the Sanctions?

 

[249]     During her cross-examination and before the evening break, the Defendant was given the standard warning by the Court that she should not speak to anyone about her testimony since her cross-examination had to be continued the following day.

 

[250]     On the next morning, opposing counsel advised the Court that the Defendant attended a meeting the previous evening between her counsel and her expert architect, Mr. Benmussa. The meeting lasted about 30 minutes.

 

[251]     The Court has no information as to what was discussed in this meeting or why it was necessary that the Defendant be in attendance. In view of the Defendant's professional status, her actions are perplexing. 

 

[252]     Based on the Court's direction to the Defendant, the Defendant should have waited to have such a meeting until after her cross-examination had been completed. For reasons not understood by the Court, she chose not to do so.

 

[253]     In such circumstances, the Court may consider the witness, in this case the Defendant, "less creditworthy".[88]

 

·              Did the Defendant Have Any Real or Presumed Knowledge of the Alleged Defects?

 

[254]     The Plaintiff claims $50,000 for the inconvenience caused to him and his family for having to suffer through all of the correcting work required.

 

[255]     Under art. 1728 C.C.Q., the Plaintiff must show that the Defendant "was aware or could not have been unaware of the latent defects".

 

[256]     The Plaintiff has not met his burden of proof. It is clear that the Defendant disclosed very little information about the house during the pre-contractual negotiations. It is equally clear that without being a "professional seller" as that term is used in art. 1729 C.C.Q., the Defendant had a level of sophistication in construction matters since she had been in charge of her father’s construction company following his death.

 

[257]     Even if the Court discounts the creditworthiness of the Defendant, there is still no preponderance of evidence (and no circumstantial evidence that is serious, precise and concordant) to show that the Defendant was or should have been aware of any of the latent defects alleged. There were no evident interior signs. Moreover, such signs of water accumulation that existed had other possible explanations.

 

[258]      The Plaintiff's counsel candidly admitted the difficulty in making such a case.

 

[259]     While the Court has empathy for the substantial inconvenience that the Plaintiff and his family have been required to undergo, art. 1726 and 1728 C.C.Q. only allow the Plaintiff to recover a reduction in the purchase price and not these other damages since it has not been proven that the vendor had real or presumed knowledge of the hidden defects.

 

[260]     Finally, interest and indemnity are to be applied from the date of service of the proceedings, April 10, 2007, when all claims were disclosed and consolidated.[89]

 

Conclusions

 

FOR THESE REASONS, THE COURT:

 

[261]     GRANTS the Plaintiff’s claim in part;

 

[262]     ORDERS the Defendant to pay to the Plaintiff forthwith the amount of $390,109.66 in reduction of the purchase price of the house due to the proven hidden defects, with interest and indemnity from the date of service of the proceedings, April 10, 2007;

 

[263]     ALL WITH COSTS, including $7,215.19 in expert fees.

______________________________________________________________________

 


 




 

 

(s) Mark G. Peacock, J.S.C.

__________________________________

MARK G. PEACOCK, J.S.C.

 

Me Natacha Boivin

Me Martin Legault

BOIVIN & ASSOCIÉS

Attorneys for Plaintiff

 

Me Ricardo Hrtschan

RICARDO HRTSCHAN AVOCAT

Attorney for Defendant

 

Date of hearing:

January 24, 25, 26, 27, 28 and 31, 2011

and February 1 and 2, 2011

 



[1]     See Exhibit P-2.

[2]     Exhibit D-9.

[3]     Exhibit P-3.

[4]     The full report as provided by Groupe Geni-E-tude inc. (Mr. Chakieh's company) dated October 25, 2004 (including 49 of the 50 photographs taken by Mr. Chakieh) was filed as Exhibit P-3C at trial.

[5]     Exhibit P-3A.

[6]     Exhibit D-9, en liasse.

[7]     Exhibit P-1.

[8]     Exhibit P-4.

[9]     Exhibit D-19.

[10]    Exhibit P-5A.

[11]    Ibid.

[12]    Exhibit P-6.

[13]    Exhibit D-1 contained the Defence and Counterclaim and the Response but curiously, the Defendant did not file the Motion to Institute.

[14]    EYB 2009-157651 (S.C.). See also Thivierge v. Bouchard, 2006 QCCS 5254 .

[15]    Jeffrey Edwards, La garantie de qualité du vendeur en droit québécois  2e édition, (Montréal, Qc: Wilson & Lafleur, 2008) at p. 196, para. 406.

[16]    Ibid. at p.204.

[17]    Ibid. at p. 205.

[18]    Béique, supra, note 14 at para. 39, 40.

[19]    Ibid. at para. 42.

[20]    Weiss v. Raschella, J.E. 2009-2186 (C.A.) at para. 6-8.

[21]    Exhibit P-6.

[22]    Ibid.

[23]    Exhibit P-8N.

[24]    Exhibit D-7.

[25]    See the examination on discovery of the Plaintiff dated May 25, 2007 at p. 64, line 16.

[26]    Exhibit P-7, en liasse.

[27]    Exhibit D-4.

[28]    Supra, note 30 at p.64, line 20.

[29]    Exhibit D-7.

[30]    Exhibit D-3.

[31]    ABB Inc. v. Domtar Inc., [2007] 3 S.C.R. 461 at para. 50, as cited in Lahaie v. Laperriere, 2009 QCCA 1285 at para. 33.

[32]    Lahaie, ibid. at para. 41, citing with approval Placement Jacpar Inc. v. Benzakour, (1989) R.J.Q. 2309 , 2318 (C.A.).

[33]    Lahaie, ibid. at para. 49.

[34]    Groulx v. Habitation unique Pilacan inc., J.E. 2007-1880 (C.A.) at para. 79.

[35]    Jean-Louis Baudouin, Patrice Deslauriers, La responsabilite civile, 7e édition - Volume 2: Responsaiblité professionnelle (Cowansville, Qc: Éditions Yvon Blais, 2007) at p. 232.

[36]    Ibid.

[37]    Blanchard v. Guertin, 2004 Can LII 29542 (QC CA).

[38]    St-Louis v. Morin, 2006 QCCA 1643 .

[39]    Blanchard, supra, note 42 at para. 43.

[40]    Ibid. at para. 18 and 20.

[41]    St-Louis, supra, note 43 at par. 32, citing with approval Savoie v. Lirette, [2003] J.Q. 18600 (S.C.) at para. 28 and 48.

[42]    Lahaie, supra, note 36 at para. 82, citing with approval: Placement Jacpar Inc., supra at note 37.

[43]    St-Louis, supra, note 43 at para. 39.

[44]    The requirement for weepholes, properly installed flashing and an air cavity are recognized construction norms per Exhibits D-17 and D-23.

[45]    Blanchard, supra, note 42 at para. 19.

[46]    Ibid.

[47]    [2000] R.D.I. 38 at p. 2.

[48]    Blanchard, supra, note 42 at para. 20.

[49]    St-Louis, supra, note 43 at para. 30.

[50]    Léo Ducharme, Précis de la preuve, 6e édition, (Montréal, Qc: Wilson & Lafleur, 2005) at p. 34 and following.

[51]    Melanie Hébert, Développements récents en droit de l'immobilier 2007, volume 280, Retour sur la responsabilité de l’inspecteur préachat : les développements récents, (Cowansville, Qc: Éditions Yvon Blais, 2007) at pp. 167, 178.

[52]    Exhibit D-19 at p.3.

[53]    Exhibit P-5A.

[54]    Exhibit D-15 para. 4.

[55]    The flashing may also be black in colour (Exhibit D-22).

[56]    Exhibit D-17.

[57]    Blanchard, supra, note 42.

[58]    Exhibit D-5 at p. 5.

[59]    P.L. v. Benchetrit, 2010 QCCA 1505 at para. 29.

[60]    Jean-Claude Royer, Sophie Lavallée, La preuve civile, 4e édition (Cowansville, Qc: Éditions Yvon Blais, 2008) at p. 346-8 (notes omises).

[61]    Chouinard v. Robbins, [2002] AZ-50107787 (C.A.) at para. 59.

[62]    Tremblay v. Les Systèmes Techno-Pompes inc., [2005] AZ-50289786 (C.S.) at para. 111.

[63]    Mr. Justice André Rochon in 2842-1733 Québec inc. v. Allstate du Canada, compagnie d'assurances, J.E. 98-678 (S.C.) at p. 6.

[64]    Exhibit P-5A at p.14.

[65]    Exhibit D-1.

[66]    [2008] R.J.Q. 2025 , see in particular paragraph 56, 59, 60, 61 and 62 cited with approval in Lahaie, note 36 at para. 91, 95.

[67]    Lahaie, supra, note 36 at para. 100.

[68]    Chevalier v. Gariepy, 1987 CanLII 726 (QC CA) at 7.

[69]    EYB 2006-111427 (S.C.).

[70]    Exhibit P-8B.1

[71]    Exhibit P-8A, Invoice no. 2844.

[72]    Exhibit P-5A photos 3, 4 and 5.

[73]    Ibid., photo 10.

[74]    Exhibit P-9C, photos 15, 16 and 23.

[75]    Exhibit P-5-A. 3, National Building Code, 1985 at art. 9.13.6.

[76]    The Court has found that the Plaintiff failed to give proper notice for the French drain which prevented the Defendant from inspecting and repairing all damages related to and with the French drain. Therefore, the consequential damages caused by the French drain are also barred from the Plaintiff's claim.

[77]    Exhibit P-5A (contained as an Annex to expertise of Ms. St-Louis).

[78]    Exhibit P-5C.

[79]    This amount of $41,824.89 includes the following: $10,401.33 paid for decontamination by Optiservice (Exhibits P-8K and P-8K.1); $5,163.30 paid to Melancon Inc. for the reinstallation of plasterboard walls, insulation and related drywall work in the basement (Exhibit P-5A.5); $24,071.60 to Araucaria Floors Inc. for replacement of basement hardwood floors (Exhibit P-8K.3) and $2,188.66 to Mr. Geoffré for painting of cement floors (Exhibit P-8K4).

[80]    Exhibit P-8G.

[81]    Exhibit P-8H.

[82]    In fact, the Defendant testified the windows were of standard quality.

[83]    Exhibit P-8-G3.

[84]    Exhibit D-25.

[85]    Up to the time of purchase, the windows were 14 years old.

[86]    Exhibits P-8A and P-8F.

[87]   The bill says the bill is for two holes that were for testing for pyrite. These experts never testified at trial and the Court assumes this amount is included by mistake.

[88]    By analogy: Alan W. Bryant et al., Sopinka, The Law of Evidence in Canada, Third Edition, (Toronto, ON: Lexis Nexus, 2009) at pp. 1100 and 1142.

[89]    See Exhibit P-7, en liasse: email from Plaintiff's attorneys to Defendant's attorneys and Liberté T. M. inc. v. Fortin, J.E. 2009-573 (C.A.) at para. 58, 59.

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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