In a recent judgement of the Court of Quebec, small claims divisionˡ, the Court was asked to decide whether a syndicate of co-ownership of the building was responsible for damage caused to the car of two of the co-owners in an incident with the garage door of the building.
The Court also had to decide whether the co-owners are responsible for damage caused to the garage door by the collision with their car.
The parties’ claims
The co-owners are pursuing the Syndicate of co-ownership of the building for an amount of $ 3910.98 for damage caused to an automotive vehicle rented by the co-owners. The co-owners think that the Syndicate is responsible following an incident that occurred in the garage of the condominium.
The Syndicate told the Court that it denies all responsibility and invokes that the co-owners have caused the incident. For this reason, the Syndicate, in turn, requests from the co-owners an amount of $ 1246.33 which it spent to pay for the repair of the garage door after the incident. This amount includes $ 906 for the repair and $ 340.33 paid by the syndicate for the advice of an attorney.
The facts according to the Court
The co-owners are the sole owners of their condominium unit located in the building of the co-ownership’s syndicate.
One day, when the co-owners left the internal parking garage of the building, the electric garage door struck and damaged the windshield and roof of their vehicle.
The Syndicate immediately contacted the firm that takes care of the regular maintenance of the garage door so that it inspects and verifies the proper functioning of the door-opener system.
At the hearing, the technician of the company shows that the engine and the detection system allowing the door to set itself in motion and to function were in good condition. At the time of inspection, the only disorder affecting the door is the damage caused to one of the panels by the collision with the car of the co-owners. The syndicate pays $ 906 to replace this panel.
As for the co-owners, they paid $ 898.96 to repair the windshield, $ 632.36 for the repair of the vehicle’s roof and $ 2379.66 for the rental of a motor vehicle during the period of the repair work of the damaged vehicle.
The analysis by the Court
The co-owners say that they are the victims of the malfunctioning garage door and demand the price they have paid for the repairs. They believe that the syndicate is responsible because of sections 1465 and 1077 of the Civil Code of Québec, which read as follows:
1465 C.c.Q. “The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.”
1077 C.c.Q. “The syndicate is liable for damage caused to the co-owners or third persons by faulty design, construction defects or lack of maintenance of the common portions, without prejudice to any counterclaim.”
The co-owners therefore believe that the syndicate was both the “guardian” of the garage door and its system, as well as the person whose act is legally held responsible for damage caused by the common portions of the building.
The Court notifies the parties that according to section 1465 of the C.c.Q., the Syndicate has the burden of showing that its liability is more unlikely than likely, which is known in law as “a balance of probabilities.” For their understanding, the Court explained to the parties that this rule of law requires not a 100% certainty of responsibility, but rather one higher than 50%. The rule, as indicated by the Court requires a “clear and convincing” proof.
After hearing the testimony of the representative of the garage-door firm and of the president of the Syndicate, the Court considers these clear and convincing.
The Court noted that the only repair that was required for the garage door as a result of the incident was the replacement of the damaged panel and that no repair of the system for opening and closing the door was required because it worked properly. In these circumstances, the Court concludes that the co-owners had been driving, either too fast to the exit, or too late, compared with the opening and closing cycle of the door.
Moreover, the representative of the Syndicate confirmed during her testimony that she had not received any complaint about the door, either before or after the incident. According to the representative, no further incidents have occurred despite the fact that the garage contains about a hundred parking spaces from which the co-owners users drive in and out of the garage several hundreds of times per day.
According to the evidence presented by the Syndicate, the Court concludes that this is an isolated incident for which the co-owners are the only people responsible. The proof of the proper functioning of the door, and the diligence of the maintenance eliminate the liability of the Syndicate.
The Syndicate claims the sum of $ 906 that it paid to replace a door panel damaged by the car driven by the co-owners. The Court concludes that, whereas the syndicate is not responsible for the incident, the responsibility is that of the defendants. The Court finds then that while these must pay the price to the Syndicate for the reparation of the door that the syndicate (and all of the co-owners) did not have to assume.
As for the sum of $ 340.33 claimed by the syndicate for the reimbursement of its legal fees, the Court explains that it cannot grant them. It reminded the syndicate that it is entitled to compensation for damages that are a direct and immediate consequence of the fault of the co-owners.
The Court stated that under the current Quebec law, lawyers’ fees incurred for advice are not part of this, and that the general rule is that each party shall bear its own costs unless there has been an abuse of law or an abuse of process, which was, according to it, not the case in this dispute.
For these reasons, the Court rejected the claim of the co-owners and ordered them to pay the $ 169 paid by the syndicate to have its challenge stamped. The Court accepted in part the claim of the syndicate and ordered the co-owners to pay the syndicate the door repair of $ 906, plus interest at the legal rate and the additional indemnity under section 1619 of the C.c.Q. and fees of $ 79 paid by the syndicate for the judicial stamp on its application.
1. 500-32-134489-121, QCCQ 11518