|
ARBITRATION Under the Regulation respecting the guarantee plan for new residential buildings (O.C. 841-98 of June 17, 1998) |
||
|
Arbitration body authorized by the Quebec Building Board (Régie du bâtiment du Québec) |
||
|
Groupe d’arbitrage et de médiation sur mesure (GAMM) |
||
|
______________________________________________________________________ |
||
|
|
||
|
Between |
||
|
April Riddell |
||
|
Beneficiary |
||
|
And |
||
|
Les Industries Ste-Anne de la Rochelle Inc. |
||
|
Builder |
||
|
And |
||
|
La Garantie Qualité Habitation |
||
|
Plan Manager |
||
|
|
||
|
|
||
|
Ref. No. Guarantee Plan: |
15675-1 |
|
|
Ref. No. GAMM: |
2006-08-003 |
|
|
Ref. No. Arbitrator: |
13 185-20 |
|
|
|
||
|
______________________________________________________________________ |
||
|
|
||
|
ARBITRATION DECISION CONFIRMING A SETTLEMENT |
||
|
______________________________________________________________________ |
||
|
|
||
|
Arbitrator: |
Mtre. Jeffrey Edwards |
|
|
|
|
|
|
For the Beneficiary: |
Ms. April Riddell |
|
|
|
|
|
|
For the Builder: |
Mr. Bradley Berneche Les Industries Ste-Anne de la Rochelle Inc. |
|
|
|
|
|
|
For the Plan Manager: |
Mtre. Avelino De Andrade Leblanc, Lalonde et Associés |
|
|
|
||
|
Date of hearing:
|
December 5, 2007
|
|
|
|
|
|
|
Visit of the premises : |
31 Paramount Road West Bolton, Quebec
|
|
|
Hearing location: |
Cowansville Court House 400 Miner Street, Cowansville Room RC-03 |
|
|
|
|
|
|
Date of decision: |
December 17, 2007 |
|
|
______________________________________________________________________ |
||
|
After having read the proceedings, VISITED THE PREMISES, heard the PROOF and argumentS of all parties PRESENT AT THE HEARING, the Arbitration Tribunal renders its decision As follows:
|
||
1. FACTS AND PROCEeDings
[1] On February 22, 2003, the Beneficiary entered into an agreement with the Builder to purchase a house and/and situated at 31 Paramount Road, West Bolton, Quebec (“Property”) (Exhibit A-3). The Agreement was covered by the Warranty Program of the Plan Manager.
[2] The Beneficiary affirms that she took possession of the Property in approximately October 2003.
[3] On November 17, 2003, further to an inspection, the Plan Manager rendered a decision requiring the Builder to carry out various corrections and/or repairs to the Property (Points 1 to 15 of Exhibit A-2).
[4] The Builder apparently carried out part of the work ordered but various problems of communication occurred with the Beneficiary and the work was halted. Various exchanges of letters and faxes ensued between the parties but the required corrective work was apparently not completed.
[5] At least as late as March 16, 2005, the Builder wrote to the Beneficiary confirming that it was ready and willing to complete the work but that it needed the cooperation of the Beneficiary, including appropriate access to the Property (Exhibit E-2).
[6] There appears to have been perceptions of mutual suspicion and problems of trust between the Builder and the Beneficiary.
[7] The Beneficiary states that she is unable to properly comprehend written French and did not understand the delays involved. She received English documentation in November 2005 from the Régie du Bâtiment du Québec on the Warranty Plan but she also alleges that she had various existing medical problems that made her incapable of acting sooner.
[8] The Beneficiary made an application for arbitration on August 21, 2006 (Exhibit A-1). In her application, she specially requested that she “be heard in English and that the Decision be written in English”. Subsequently, she asked for various postponements in order to prepare her case for the Arbitration Tribunal.
[9] On December 5, 2007, the visit to the premises took place and the hearing was completed at the Cowansville Court House.
[10] At that time, a Motion to Dismiss regarding delays was made by the Plan Manager and after hearing the grounds of contestation of the Beneficiary explaining the delays, the Parties agreed to the following terms of settlement of this arbitration application.
2. Settlement agreement
[11] The Builder reiterates its willingness and readiness to carry out the original work ordered by the Plan Manager’s Decision (Exhibit A-2).
[12] The Beneficiary affirms that she will cooperate and provide full, appropriate and sufficient access to the Builder to allow for execution of the work, including responding promptly to verbal requests, telephone messages and written correspondence of the Builder and the Plan Manager. In particular, the Beneficiary commits herself to ensure that she has an answering machine or service installed and operating on her telephone line during normal business hours and that she will respond to messages promptly by return call, fax or mail, or by another means that she sees fit.
[13] The Plan Manager agrees to act as a facilitator to foster and promote the communication of each party’s concerns and to ensure, as much as reasonably possible, that the other parties comply with the terms of this Settlement Agreement.
[14] In particular, the Plan Manager will appoint a person to attend at the Property to perform a supplementary inspection in order to review, decide and compile a detailed Revised List of the remaining work with respect to points 1 to 15 of the Plan Manager’s Decision (Exhibit A-2).
[15] Both the Beneficiary and a Builder’s representative will be on site for that supplemental inspection. It is understood that any work specified in the Plan Manager’s Decision, that has already been completed by the Beneficiary, is not to appear on the Revised List. The Revised List will be sent promptly to the Beneficiary and the Builder.
[16] The Builder agrees to carry out the work, specified in the Revised List, in accordance with the rules of the trade, within thirty (30) days of receipt of the Revised List from the Plan Manager.
[17] The Beneficiary agrees to provide full, appropriate and sufficient access to the Property to allow the Builder and/or any subcontractors or employees to perform the work on the Revised List.
[18] In order to ensure that new communication problems not occur or at least be kept to a minimum, all further documentation or exchanges between the parties, including with the Plan Manager should be in English.
[19] Given that a settlement has occurred, the Arbitration Tribunal considers that the arbitration demand has not been dismissed in its entirety and has been accepted on at least one point and that according to the general rule (Article 123(2) of the Regulation respecting the guarantee plan for new residential buildings), the Plan Manager should therefore assume the costs of the arbitration.
FOR THESE REASONS, THE ARBITRATION TRIBUNAL:
TAKES ACT of the Settlement Agreement arrived at between the parties;
ORDERS the parties to
comply with the terms of the said Settlement Agreement as specified in the
present Arbitration Decision confirming a Settlement Agreement;
ORDERS that the costs of the present arbitration be borne by the Plan
Manager.
|
