In a recent judgement of the Court of Quebec, Small Claims Division (1), the Court was asked to decide whether a syndicate of co-owners had to be ordered to pay damages with interest to one the building’s co-owners for unrest and inconvenience supposedly caused to two co-owners by the ventilation system of the building.
The facts found by the Court
The co-owners plaintiffs allege they found that the engines for sucking air from ventilation stacks on the roof of the building emitted an unusual noise.
The co-owners testify that they immediately notified the syndicate of co-ownership about this situation, but they consider that it had been negligent in the treatment of this problem which, they said, lasted for about six months.
The co-owners believe that the syndicate had been negligent, and they claim from it the sum of $5804.61, for:
• expert fees: $1122.16;
• registered mail: $9.99;
• attorney fees: $672.46;
• loss of enjoyment of their condo: $3,000;
• trouble and inconvenience: $1,000.
For its part, the syndicate disputes the claim of the co-owners, and in return it takes legal action against the co-owners plaintiffs for the amount of $6,463.45 for:
• expert fees $197.76;
• mailing fees: $20.36;
• attorney fees: $340.33;
• damages for harassment, intimidation, threats and stress of the members of the Board of Directors:
$3,000;
• reputational damage: $1,000;
• trouble and inconvenience: $1500;
• preparation of their defence: $405.
The analysis by the Court
The Court considered it important to remind the syndicate, as well as the co-owners, that under Sections 2803, 2804 of the Civil Code of Quebec, they have the burden of proving the facts they allege, and that this proof, in order to be considered sufficient, must make the existence of a fact more probable than its nonexistence.
One of the co-owners not only testifies at the hearing but he also files a licensed engineer’s expert report in which the engineer concludes that, after analysis, the noise level at night exceeds the limit established by the City of Montreal’s regulations by about 2-3 decibels.
However, the Court notes that the engineer who wrote this report is not present at the hearing to testify, and therefore the Court cannot obtain further details on this report.
As for the syndicate, the Court notes that the director representing it and who testifies at the hearing was neither a director nor a co-owner at the time of the facts. The syndicate also made another one of the building’s co-owners testify, but the Court found that his testimony was hearsay, that is to say, he recounted facts of which he had not himself personal knowledge.
The syndicate submitted the invoice of a company specialized in ventilation systems mentioning that urgent repairs had been carried out to the fan two days after the reception of the co-owners’ complaint. The syndicate testified that it was a temporary repair.
The syndicate’s representative testified at the hearing that the syndicate had decided that the final solution was to replace all of the fans, which was done in the spring, about six months after the receipt of the original complaint, but after a process of tenders and bids.
In light of the facts, the Court determined that the evidence brought forward by the co-owners was insufficient to prove negligence on the part of the syndicate. The Court stresses that the evidence supports the existence of a noise in the unit of the co-owners, but that this does not automatically imply the liability of the syndicate.
The Court finds that it is not the syndicate which would have caused the noise of the ventilation system engines. It also concludes that the syndicate could not have just turned off the engines, as this would have had the effect of stopping the ventilation of other condo units, and thus not only those of the co-owners plaintiffs.
According to the Court’s view, the syndicate has taken the steps required to take control of the situation on an urgent basis, and then find and implement a final solution to the problem.
The Court stipulated that the co-owners had actually suffered inconveniences due to this problem, but that the evidence did not support the idea that the syndicate and its administrators had been wrong and negligent in their response.
The Court also stresses that, because the administrators hold office for the benefit of the syndicate and its co-owners, without compensation, that this must be taken into account when assessing the seriousness of the alleged misconduct.
Consequently, it is for all of these reasons that the Court rejected the claim of the co-owners against the syndicate.
The claim of the syndicate against the co-owners
After analyzing the evidence of the syndicate the Court stipulated that it had no other choice but to reject the claim for damages by the latter against the co-owners. In fact, the Court stresses that the syndicate’s representative who testified at the hearing did not present any relevant evidence to support the damage he claims from the co-owners, and that nothing in the way of acting of the co-owners can be considered to be at fault.
For all these reasons, the Court rejected both claims, and both the syndicate and the co-owners had to pay their respective legal costs.
For any questions on the matter, and on real-estate law in general, do not hesitate to contact our team of lawyers specializing in the field.
1. 500-32-135416-123, 2015QCCQ5346