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ARBITRATION Under the Regulation Respecting the Guarantee Plan for New Residential Buildings (O.C. 841-98 June 17, 1998, c. B-1.1, r.0.2, Building Act, Revised Statutes of Quebec(R.S.Q.), c. B-1.1, Canada) |
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_______________________________________________________________________________ |
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Between |
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Shannon Williams |
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Beneficiary |
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And |
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Samcon R.B. Inc. |
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Builder |
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And |
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La Garantie des bâtiments résidentiels neufs de l’apchq inc. |
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Plan Manager |
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No. Ref. Guarantee Plan: |
144465-1 |
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No. Ref. GAMM: |
2011-12-008 |
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No. Ref. Arbitrator: |
13 185-76 |
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_______________________________________________________________________________ |
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ARBITRATION DECISION |
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_______________________________________________________________________________ |
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Arbitrator: |
Mtre. Jeffrey Edwards, C.Med., C.Arb. |
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For the Beneficiary: |
Ms. Shannon Williams |
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For the Builder: |
Mtre. Giuseppe (Joe) Morrone Morrone Avocats Inc. |
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For the Plan Manager: |
Mtre. Patrick Marcoux Savoie Fournier |
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Date of hearing: |
October 13, 2011 |
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Hearing location: |
Domicile of the Beneficiary |
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Date of decision: |
November 8, 2011 |
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After EXAMINING THE EXHIBITS, HEARING THE PARTIES AND their respective PROOF, VISITING THE PROPERTY, EXAMINING THE ALLEDGED PROBLEMS AND DELiBERATING ON THE WHOLE, THE ARBITRATION TRIBUNAL renders its decision AS FOLLOWS:
1. FACTS AND PROCEeDings
[1] The Beneficiary is requesting the review of 6 points of the Decision of the Plan Manager (decided by Frederick Garcia, B.Arch.) dated March 29, 2011 (Exhibit M-11).
[2] The Exhibits produced by the Plan Manager are as follows:
M-1 Declaration of co-ownership, dated September 3, 2008;
M-2 Preliminary contract and guarantee contract, dated November 5, 2008;
M-3 Acceptance of Building, dated June 26, 2009;
M-4 Deed of Sale (2nd purchaser), dated February 17, 2010;
M-5 Letter of demand (1), dated May 12, 2010, received by Plan Manager on May 18, 2010;
M-6 Letter of demand (2), dated July 16, 2010, received by Plan Manager on August 3, 2010;
M-7 Letter of demand (3), dated September 15, 2010, received by Plan Manager on November 10, 2010;
M-8 Letter of demand (4), dated February 2, 2011, received by Plan Manager on February 4, 2011;
M-9 Letter of demand (5), dated February 7, 2011, received same day by Plan Manager;
M-10 15-day Notice from Plan Manager to Builder, dated November 24, 2011;
M-11 Plan Manager’s Decision, dated March 29, 2011;
M-12 Arbitration Notice, dated May 5, 2011.
[3] The Beneficiary, at the hearing, added two additional documents:
B-1 Report of RMS (Albert Arduini, T.P.) dated June 9, 2010. This document was already in the possession of the Builder and the Plan Manager but was not part of the Plan Manager’s Exhibits;
B-2 Invoice of RMS dated June 7, 2010.
[4] The Beneficiary stated at the hearing that she was not comfortable in French and requested that the proceedings take place in English. All the parties present accommodated her request. Further to such request, the present Arbitration Decision is written in English.
[5] The points in issue, as declared in the Arbitration application (Exhibit M-12), are as follows:
Point 4: Improper installation of shower stall;
Point 5: Blocking of door of laundry closet;
Point 6: Cracks in ceiling of laundry closet;
Point 7: Screw heads coming out of ceiling of corridor and bedroom;
Point 8: Cracks in ceiling of corridor in front of kitchen;
Point 9: Openings in floor lattes of hard wood floor in living room and looseness of wood flooring pieces at the edge of bathroom and front entrance.
According to the Plan Manager’s Decision (Exhibit M-11), the residential unit of the Beneficiaries was received on June 26, 2009. It should be noted that the Beneficiary is not the first owner. According to the Deed of Sale of the Beneficiary (Exhibit M-4), the first owner of the unit purchased it on August 6, 2009. On February 17, 2010, the Beneficiary acquired the unit (Exhibit M-4). The Plan Manager states that the 6 points in issue are governed by the second year of the Warranty Plan on the basis that the unit was received on June 26, 2009.
Point 4: Improper Installation of Shower Stall
[6] The Beneficiary states that the base of the shower stall moves and creaks with normal body weight applied. The Beneficiary states that the situation has evolved in that there appears to be movement and slight warping of the left side (when facing stall) of the shower stall.
[7] The Beneficiary fears that over time the improper installation will cause water leaks which will affect the dwelling unit below. She says that other units have had water leakage problems from the shower to lower floors but she was unable to provide the cause of the leaks.
[8] The Inspector of the Plan Manager, Mr. Frederick Garcia was not able to determine the cause of the problem of the unusual creaking and movement. He offered several possibilities: the shower stall was improperly installed; the shower stall is of such low quality design that it moves. The attorney of the Plan Manager did acknowledge that the problem may constitute a “malfaçon” or improper construction practice. However, the principal defence of the Plan Manager was that since the problem was disclosed in the second year of the Warranty Plan, it did not meet the conditions of a latent defect within the meaning of Article 1726 of the Civil Code of Quebec.
[9] Assuming the Beneficiary can only avail herself of the 2 year coverage against latent defects, the undersigned is of the opinion that the problem examined constitutes a latent defect. The constant moving and leaking upon simple ordinary use gives rise to a reduction in normal use and is an abnormal impairment of the reasonable expectations of the buyer. The Beneficiary testified that had she known of the problem she would not have bought the unit or not paid so high a price. The Beneficiary filed without objection of the attorneys of the Builder and the Plan Manager, a report (Exhibit B-1) of a building expert who had examined after the sale this and other issues.
[10] Mr. Albert Arduini, T.P. in Exhibit B-1 described this problem at p. 3 as follows:
“However, within a few years of servicing, we are concerned that the springing will increase and create a gap around the drain to allow seepage of water which would cause extensive damage to the floor and possibly the apartment below. Consequently, we recommend improvements to solidify the shower stall floor.”
[11] The Arbitration Tribunal agrees that there is presently a problem that requires an immediate intervention.
[12] Therefore, the Arbitration Tribunal will order the Builder to effect the necessary repairs in accordance with rules of the trade to solidify the shower stall walls and floor so that there will be no further abnormal movement or buckling, eliminate any existing gap and ensure that the stall remains stable and is durable.
Point 5: Blocking of door of laundry closet
[13] The Beneficiary withdrew this point at the hearing.
Point 6: Crack in ceiling of laundry closet
Point 7: Screw heads coming out of ceiling of corridor and
bedroom
Point 8: Crack in ceiling of corridor in front of kitchen
[14] The undersigned examined on site these complaints of the Beneficiary. The problems appear so minor that the Arbitration Tribunal agrees that they do not have the level of seriousness or gravity required for a latent defect within the meaning of Article 1726 of the Civil Code of Quebec.
Point 9: Openings in floor lattes of hard wood floor in living
room and looseness of wood flooring pieces at the edge of
bathroom and front entrance
[15] The undersigned examined on site the various complaints regarding this point. The only problem in the living room appears to be in front of the sofa. We do not believe that there was a problem of installation of wood floors or the problem would be more generalized. It appears that the problem in front of the sofa is caused by wear and tear and possibly a localized incident of water being dropped or coming into contact with the floor at this point. The problems elsewhere of minor creaking appear to the undersigned as being within acceptable norms.
[16] In fact, the report of Mr. Arduini (B-1) appears to support that no intervention is required regarding the minor flex of the floor in the corridor. Mr. Arduini, T.P. expressed himself as follows at p. 3:
“Consequently, it is our opinion that the minor flex in this floor does not justify major corrections. However, an attempt should be made to improve the loose flooring from bending at the edges in the bathroom and in the front entrance. Neither removal, nor replacement is recommended. Only an adjustment is recommended.”
[17] We also agree with Mr. Arduini, T.P. that the loose flooring piece between the ceramic entrance of the front entrance and the corridor needs adjustments and solidification. The present looseness is to such a degree that it is dangerous and meets the condition for a latent defect within the meaning of Article 1726 C.c.Q. However, the wood flooring piece at the edge of the bathroom and the corridor appeared satisfactory to the undersigned.
[18] We do therefore order that the Builder make the necessary adjustments and work, in accordance with the rules of the trade, to solidify the wood piece between the ceramic and the wood floor of the corridor.
EXPERT FEES and costs of arbitration
[19] The Beneficiary produced Exhibit B-2 being the invoice of RMS for the preparation of the report of June 9, 2010 (B-1) in the amount of $ 457.14. The Beneficiary wanted to also file another invoice but this was rejected by the Arbitrator since it principally concerns issues not covered in the present matter. The undersigned concludes that the report B-1 on points 4 and 9 was useful and relevant to the hearing. It was referred to by the Arbitration Court in the paragraphs above. The report B-1 however also deals with some points that were not useful and were not pleaded. The Plan Manager’s attorney contests the right of the Beneficiary for the refund of B-2. The said attorney sent, with the permission of the Arbitration Tribunal, various authorities concerning the right of the Beneficiary to claim reimbursement of invoice B-1. Although the Plan Manager’s attorney raises some valid points, the undersigned is of the opinion that the Plan Manager’s submission that no amount at all should be given is unduly harsh in the context of the present case and the hearing that took place. Some points of the report of RMS were truly useful and clarified the issues and the facts. The report was admitted as proof without objection. After due consideration and in fairness to all parties (Article 116 of the Regulation Respecting the Guarantee Plan for New Residential Buildings[1](“Regulation”)), the court concludes that the Beneficiary should obtain a refund of 30 % of the costs of Exhibit B-1, namely $ 125, in accordance with Article 124 of the Regulation[2]. On the basis that the Beneficiary was successful on 2 points, the Administrator should pay the costs of the present arbitration (Article 123 of the Regulation).
For these reasons, the Arbitration Tribunal:
ORDERS the Builder to effect the necessary repairs, as specified in the present Decision for points 4 and 9, in accordance with the rules of the trade within 30 days of receipt of the present Decision. In the event that the Builder fails to carry out the necessary work within the specified period, ORDERS the Plan Manager, La Garantie des bâtiments résidentiels neufs de l’APCHQ Inc. to undertake the specified work within the following 30 days.
ORDERS the Plan Manager to pay the Beneficiary the amount of $ 125.
orders the Plan Manager to pay the
costs of the present arbitration.
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Mtre. Jeffrey Edwards, arbitrator, C.Med., C.Arb. |
[1] Regulation Respecting the Guarantee Plan for New Residential Buildings, R.S.Q., c. B-1.1, r. 0.2.
Article 116 of the Regulation: “An arbitrator shall decide in accordance with the rules of law; he shall also appeal to fairness where circumstances warrant.”
[2] Article 124 of the Regulation: “The arbitrator shall, where applicable, decide on the amount of reasonable fees for a relevant expert's opinion to be reimbursed by the manager to the plaintiff where the latter wins the case in whole or in part.”