The syndicate of the co-owners, applicant, manages the common portions of a building built and sold by the defendant and it claims from her an indemnity for the reason that she would not have carried out completely and correctly her obligations. The defendant disputes the request and she claims 2.000$ by way of counterclaim to compensate for the “incurred trouble - waste of time - expenditure”. The claim of the syndicate amounts to 8 085,73$, which it reduces to 7000$ in order to respect the monetary competence jurisdiction of the Small Claims Division of the Court of Québec. The request of the syndicate includes the following complaints:
• lawyers’ fees, expenses of experts, reparation of the intercom system, unpaid expenses of condo, works of electricity, works of ventilation, supply and installation of extinguishers in the staircases as well as slopes in front of the electrical panel, banister and handrail for the back staircase, roughcast.
The Court treats each complaint distinctly in the following way:
• Lawyers’ fees: The applicant has paid the fees of the lawyer whom the co-owners consulted concerning the notices of legal mortgages of construction affecting each condominium located in the building, but these fees do not relate to a “hidden fault, a fault of design or of construction of the building or a fault of the ground” and, consequently, it are the co-owners themselves who must exert a recourse if they think to be entitled to a compensation for the damage resulting from the legal mortgages. This complaint is thus not founded.
• Expenses of an expert: the syndicate claims the expenses paid to its expert within the framework of a complaint to “the guarantee of the new houses of the A.P.C.H.Q.” This request relating to defects of construction was well-founded since it was partially accommodated by decisions dated April 25 and October 11, 2005. Since the expenses of the expert are reasonable and since they were incurred by the fault of the defendant, the Court concludes that the applicant has the right to obtain a refund from it. This complaint is thus founded.
• Intercom system: The defendant has never given to the applicant the instruction manual of the intercom system. In September of 2005, the system ceased to function and the syndicate calls the representative of the defendant who gives him the telephone number of her subcontractor so that he is asked to come and correct the situation. The technician carries out the reparation and, subsequently, the applicant is surprised to receive an invoice because she believed that the reparation would be covered by the guarantee of the subcontractor. The applicant pays nevertheless this invoice without communicating beforehand with the defendant. The defendant testifies to the fact that her subcontractor was to carry out the reparation without expenses and that he could have had the invoice cancelled without difficulty if she had been informed of it. The Court concludes that the decision of the applicant to pay the invoice of the subcontractor without the knowledge of the defendant has caused a damage to the latter. This complaint is rejected.
• Expenses of the condo: The syndicate claims the contribution to the common costs for the unit of the condominium of the defendant for the period from November 18, 2004 to May 11, 2005. The syndicate begins its activities on November 18, 2004 and, on this date, the defendant is still owner of the unit which is finally sold on May 11, 2005. The defendant does not dispute the exactitude of the claimed amount but she refuses to pay the contribution to the common costs for the reason that several of the co-owners occupied the building before November 18, 2004 and that she asked them nothing as contribution to the common costs for the duration of this preliminary occupation. It is useless to determine if the defendant is entitled to an allowance as contribution to the common costs for the occupation before November 18, 2004. If the defendant thinks to be entitled to an unspecified compensation, it would be necessary that she addresses her request to each co-owner concerned and not to the applicant. This complaint is thus accommodated.
· Works of electricity: the syndicate claims the refunding of an invoice for various works of electricity described on an invoice presented as proof. This invoice includes two categories of works, that is to say the emergency lighting and the carbon monoxide detector. The complaint concerning the carbon monoxide detector is inadmissible since the report of the expert of the applicant mentions that the detector is not necessary in the garage intended for less than five cars. As for emergency lighting, testimony on this subject is contradictory, but if the works all had been completed as alleged by the defendant, the Court does not see why the applicant would have paid an electrician to finish the installation of emergency lighting. This request is accommodated partially.
· Works of ventilation: The report of the expert of the applicant mentions that “in the majority of the units, there was a surplus of moisture generating condensation, rime, ice and mould on the lower framing of the doors and windows. The pipes include valves and these, in cold weather, freeze, not making it possible for hot and wet air to evacuate the building. We recommend to replace the swan necks by evacuation boxes with multiple valves such as the Maximum Ventilation company proposes it”. After the expertise, “The guarantee of the new houses of the A.P.C.H.Q.” has rendered a decision dated April 25 in which it asked the defendant to correct the situation and it is not disputed that the latter actually carried out certain work to take action on the decision. The work is however not identical to the recommendation contained in the report of the expert and the proof is contradictory as for its effectiveness. However, there is no element of proof making it possible to conclude that the work carried out by the defendant was inadequate. This complaint is thus rejected.
• Extinguishers in the staircases and the slopes in front of the electrical panel: The applicant claims the refunding of a sum paid in October 2006 in order to buy and to have installed extinguishers in the stairwells as well as in the slopes of protection in front of the electrical panel located in the garage. The syndicate has the burden to prove that the defendant had the obligation to provide these accessories and the Court concludes that she did not provide the dominating proof for it. The representatives of the syndicate have testified that work was done at the request of the insurer and these testimonies are in conformity with the letter of AXA Compagnie d’assurance produced as proof. It would however be unreasonable to conclude that a contractor must carry out work for the only reason that an insurer requires them. The report of expert of the applicant does not comprise any mention as far as extinguishers are concerned and, although it suggests the installation of a slope in front of the electrical panel, it states by no means that this accessory would be required by the National Building Code of Canada. This complaint is thus rejected.
• Banister and handrail in the back staircase: The syndicate claims the refunding of the sums spent for the purchase and the installation of a slope and a handrail in the back staircase. The defendant recognizes that these accessories are required by the National Building Code of Canada when the total height exceeds 24 inches but she disputes the complaint for the only reason that the staircase in question would have a total height lower than 24 inches. The syndicate has the burden to prove that the staircase has a height higher than 24 inches and the Court concludes that it provided preponderant proof of it because of what follows. The expert report shows the need of these accessories because the total height exceeds the limit fixed by the National Building Code of Canada. The photographs joined to the report of the expert make it possible to notice easily that the total height of the staircase exceeds 24 inches. This complaint is thus accommodated.
• Roughcast: The defendant recognizes her responsibility as for the roughcast but she disputes the request for the reason that the work could have been carried out at a cost lower than the amount paid by the syndicate. There is no element of proof in support of this argument and this complaint will thus be accommodated in entirety.
The defendant is thus condemned to pay the total sum of 5 171,61$.
COUNTERCLAIM
The defendant stood as counter applicant and claims the sum of 2.000$ for “incurred trouble - waste of time - expenditure”. There is no element of proof in support of the counterclaim and during the hearing, the representative of the defendant did not present any argument in support of this. The counterclaim is thus rejected.