In a recent decision¹ the Court rejected the claim for damages from a co-owner against a Syndicate of co-ownership and its insurer for damage to her unit suffered during heavy rains. The Court concluded that the plaintiff co-owner had not proved that the Syndicate had committed a fault implying its liability.
The Facts according to the Court
The co-owner, a management firm, claims from the Syndicate of co-ownership reimbursement to the amount of $7,000, representing the partial repair costs caused in the condominium unit owned by her as a result of water damage caused by drainpipes on the building and for which she holds the Syndicate of co-ownership responsible.
Faced with this claim for damages, the Syndicate of co-ownership calls its insurer as collateral.
On May 29, 2012, heavy rain fell on Saint-Lambert causing water infiltration in several units of the condominium, including the property of the co-owner.
The occupant of this unit, one of the shareholders of the company owner, is away from his residence at the time of the events. He receives a phone call from a neighbour on the same landing who informs him about the water damage. He went to the scene and found an accumulation of water on the wooden floor in the living room.
Following the advice of a friend, the occupant begins to remove the wood near the walls to stop the water infiltration that may be found in the drywall.
In the following days, the occupant appoints a contractor to do the repairs, which amounted to
$7 248.66 on the evidence presented.
The occupant subsequently informed the Syndicate of co-ownership about the situation which transfers the whole to the collateral which is the insurer.
The co-owner considers the Syndicate of co-ownership responsible for the situation as it is caused, according to her, by an improper installation of the gutters located near her unit. In support of this claim, she states that in the following weeks, the Syndicate of the co-ownership had made a change in the gutters.
No other evidence or expertise is filed with the Tribunal by the co-owner in support of her claims.
The representative of the insurance company of the Syndicate of the co-ownership states that the rain on May 29, 2012, was a very exceptional situation. Indeed, according to Environment Canada, 70 millimeters of rain fell in Saint- Lambert in 30 minutes. According to Environment Canada, such a situation is a rare event that occurs only once every 140 years.
The insurance company states that thousands of claims had been made in Saint-Lambert for the same event and it concerns a fortuitous event not covered in insurance and for which the insured, the Syndicate of co-ownership, can not be held responsible.
The president of the Syndicate of co-ownership specifies that the change of the gutters had nothing to do with the events of 29 May 2012. In support of her claim, she filed a submission made by a firm of contractors of gutters on April 21, 2012. The works described by the co-owner had been done in connection with this tender.
The Syndicate of co-ownership argued that it did nothing wrong concerning the water infiltration in the unit of the applicant and that the municipal water system did clearly not provide.
Analysis and Decision of the Court
The Court observes that the person alleging a point has the burden of proving by a preponderance of evidence. The co-owner therefore has the burden of proving the responsibility of the Syndicate of co-ownership and the causal link between the damage suffered and this responsibility.
According to the Court, the co-owner has proven this damage and the repair costs. However, she did not prove that the installation of the gutters was deficient to the point of causing the situation.
In the Tribunal’s view, the evidence presented by the Syndicate of co-ownership of the request of submission of the changes to the gutters prior to the event counteracts the claims of the co-owner to the effect that the Syndicate of co-ownership felt itself responsible for the situation.
In addition, the evidence presented by the insurer of the Syndicate of the amount of water that fell that day and the frequency of such an event proves that the occurrence is a fortuitous event impossible to predict, according to the Tribunal.
Consequently, the Tribunal finds that the Syndicate of co-ownership is not responsible for the event and that no fault is assigned to it.
For these reasons, the Court rejected the request of the co-owner.
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