Small Claims Sunday #2

A truckload of decisions this weeks, from which I’ve picked a few.

First, two decisions on latent defects on houses. Latent defects, or “vices cachés” are defects that were hidden and unknown by the buyer, until something breaks and people find out about them.

Tremblay c. Pilote (latent defects/vices cachés in house)
Plaintiffs bought a house from Defendant in 2001. In 2011, after water damage, they found out required drains were not installed in the foundations, as would’ve been mandatory from regulations. The house was built in 1989. Defendant himself bought the house in 1995 and did not know it was missing drains.
Result: The legal warranty in CCQ 1726 applies, and Defendant is liable for the damages since Plaintiffs were able to prove the latent defect, their ignorance of the defect, and that the defect was severe. Defendant was held liable for $7000 (maximum allowed in small claims).
Note that whether Defendant knew about the defects has no impact on his liability. He does potentially have a recourse against the people from whom he bought the house, and the builder, if he can find them.

Avenel c. Gauthier (latent defects in house)
Plaintiff bought house in 2010. 4 months later, sewer backup as they flush the toilet, due to the evacuation drain connecting the house to the city sewers having caved in.
Result: The judge rejected the claim, as Plaintiff’s proof did not establish that the damage existed before the sale, even though it has only been 4 months since they bought the house.

Next, 2 decisions involving cities. Suing a city is pretty hard in general due to many immunities different laws grant them, but not impossible.

Roberge c. Saguenay (Ville de) (water damage to property due to river)
Plaintiff is suing the city of Saguenay for water damage to basement caused by overflowing river.
Result: Claim rejected. The law making cities responsible for waterways on their territory (Loi sur les compétences municipales) states at §105 that municipalities must re-establish normal flow of a waterway when informed of an obstruction. In this case, the city has been regularly checking on the river, which is more than what the law requires, and has not detected any anomaly. Moreover, the city was never informed of any obstruction. Therefore, no fault has been committed by the city.
Note that in this case, the judge was still generous and did not condemn Plaintiff to costs, as she was unaware of the Loi sur les compétences municipales. The judge would probably not be as lenient if she were represented by a lawyer, at the Cour du Quebec.

Deschesnes c. Saguenay (Ville de) (car damage due to pothole)
Plaintiff is suing the city for damages to his car tire & rim after driving over a pothole.
Result: Court condemned the City to partial damages. §604.1 of the Loi sur les Cités et Villes states the City is not “responsable des dommages causés par l’état de la chaussée ou de la voie cyclable aux pneus ou au système de suspension d’un véhicule“. However, because of §1474 CCQ, the city “may not exclude or limit his liability for material injury caused to another through an intentional or gross fault”. It has been proven that the City knew about the pothole on May 30th, 2 days before the accident on June 1st, and had not taken measures to fix it or block it off. The pothole was still not fixed 2 days after the accident. The court considered this to be wanton or reckless negligence = gross fault.
However, the court only allowed part of the claim, as Plaintiff did not prove the rim (scratched) needed to be replaced. The court still allowed a certain amount, as it had indeed been damaged.
Note: The Court’s conclusion of wanton or reckless negligence was partly based on the City’s behaviour after the fact. The city official testified it takes about 2 days to fix a pothole, meaning it should’ve been fixed July 1st in the afternoon, or, considering the request to fix had been put out May 31, July 2nd, after the accident. On could argue that at the time of the accident, there hasn’t been wanton or reckless negligence yet, and the only fault was not putting signalling around the hole.

Finally, 2 cases about warranties.

Bois c. Gagnon Frères Immeubles inc. (Magasin d’Alma) (warranty on washing machine)
Plaintiff is suing for cost of repairs on a washer bought in 2005, invoking legal warranty. The timer on the washer had been fixed 3 times by the owner since the purchase, without having notified the seller. In 2011, the rince cycle stops working.
Result: Court rejected claim. Plaintiff needed to notify the seller when the timer broke.

Sukherman c. BMW Canada inc. (warranty on vehicle)
Plaintiff is suing for repairs on the motor of his BMW (bought in 2003, now shows 121,078 km).
Result: Plaintiff is a consumer and benefits from the Loi sur la protection du consommateur, whereby goods must be able to serve normal use for a reasonable amount of time. This warranty applies even if the contractual one expired. A normal motor should last hundreds of thousands of kilometers. Plaintiff was awarded $7000 (upper limit for small claims, price for fixing motor: $9,251.46).

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