Syndicate of co-owners “Le Condo 1820” vs. Lise Boyer and Desjardins Assurances Générales, CQ (division of Small Credits) 2010
Damage to the building - Water damage - toilet tank fissured - Responsibility of the co-owner - Manufacturing defect - Autonomous fact of a thing - Defence of the co-owner based on the absence of fault - Allowance paid by the insurer of the Syndicate – Reclaim of the franchise by the syndicate
The water tank of the toilet of the co-owner is fissured and causes water damage in five units of the building, including the one of the defendant co-owner. The syndicate submits a complaint to its insurer, who compensates it for the amount of the damage caused after having deduced an amount of 2500$ representing the franchise payable by the syndicate under the terms of its insurance policy. The defendant co- owner and her insurer plead that she did not commit any fault and that it is all about a manufacturing defect of the tank. The defendants wish to submit an expert report to this end, but this proof is not allowed by the Court for the reason that this was not done in the fifteen days preceding the hearing, such as required by article 972 of the Code of civil procedure.
The Court condemns the co-owner and her insurer jointly to the payment of this sum to the syndicate for the following reasons:
• Under article 1465 of the C.c.Q., the guardian of a good is held to repair the damage caused by the autonomous fact of the latter, unless he proves not to have made any fault;
• Even if the proof of the manufacturing defect is not accepted by the Court, this procedural gap is not prejudicial to the defendants;
• The concept of fault of the co-owner is not in question in the present case and the jurisprudential controversy surrounding article 1465 of the C.c.Q. is not relevant in the presence of a clause of the declaration of co-ownership, which stipulates that “each co-owner is responsible, with regard to the other co-owners, of the detrimental consequences of his acts or of his negligence and/or of his employees, tenants, guests or members of his family, or the damage caused by a good for which he is legally responsible”;
• The defendants do not dispute the fact that the tank of the toilet at the origin of the disaster was under the responsibility of the co-owner defendant, and thus the latter must repair the damage caused directly with the syndicate of co-ownership, i.e., the amount of the insurance franchise;
• Article 2501 of the C.c.Q. allows the syndicate to take advantage of its right of action against the ensured co-owner, or against the insurer of the former, or against one and the other;
The Court jointly condemns the co-owner and her insurer to pay the sum of 2500 $ to the syndicate of co- ownership, plus interests at the statutory rate and the additional allowance envisaged in article 1619 of the C.c.Q., plus the expenses of the request.