Executive Summary: Key Legal and Evidentiary Issues

• Whether a kitchen countertop in a newly built condominium unit suffered from faulty workmanship was the central question before the Small Claims Division.
   
• The seller argued the defect was apparent and that the buyer took possession without reservation.
   
• A conciliator under the A.C.Q. guarantee plan closed the buyer's claim on the basis that the defect was apparent, and the defendants relied on that report.
   
• Evidence showed the countertop was still covered by the supplier's one-year warranty when the buyer reported the problem.
   
• Admissions and repair undertakings by the seller were treated as an extrajudicial admission of liability.
   
• Competing replacement quotations required the court to set a fair amount, while the trouble-and-inconvenience claim turned on breaches of contractual good faith.
   

Facts of the case

Teresa Attallah bought a new condominium unit at [...]-3055 Notre-Dame Boulevard in Laval from Le Prestige du Boisé Notre-Dame inc. (BND) on July 26, 2018, with the legal warranty of quality, intending to rent it out. She took possession on February 26, 2019 [source inconsistency: paragraph [2] can be read as placing the taking of possession on May 15, 2019, while paragraph [25] gives February 26, 2019]. According to her testimony, she attended two completion-of-work visits with BND on January 21 and February 12, 2019, described in the decision as taking place before the purchase [source inconsistency: the purchase is dated July 26, 2018], and neither she nor BND noticed any defect in the countertop at either visit.

BND, acting as developer, had hired EBC inc. (EBC) as general contractor under a turnkey contract for five phases of condominium buildings. EBC in turn contracted with 9240-6826 Québec inc. (GBC) to supply and install the countertops, which were made of resin and stone.

On May 15, 2019, while the unit was still unoccupied, Ms. Attallah noticed numerous premature pits and major imperfections in the kitchen countertop. BND attended and confirmed the deterioration, explaining in its evidence that this was during the COVID-19 pandemic [source inconsistency: the events are dated May 2019]. A June 11, 2019 email from BND told her GBC would come on June 17 to repair it. On that date, EBC and a GBC technician attended; the technician added resin but, given the porosity, concluded the countertop had to be replaced. Ms. Attallah told BND on June 18 that the unit would be rented from August 1, 2019, and EBC replied by email on June 19 that it would first try another repair before that date.

Repeated efforts to secure a replacement went nowhere. She sent a formal notice on June 25, 2019, and opened a claim with Plans de Garantie A.C.Q. inc. (ACQ) on July 15, 2019, within the plan's 90-day window. The conciliator observed porous areas, including a one-foot zone to the left of the sink and holes on both sides of it, but closed the file because the defect was apparent. On February 17, 2022, she put BND in default. BND sent its own demand to EBC in April 2022, and a meeting was set for June 13, 2022, to arrange repairs through a new supplier because EBC and GBC had stopped cooperating. According to BND, Ms. Attallah refused that option in favour of monetary compensation. The countertop has still not been replaced.

She claimed $11,727.45 for replacement and $3,270 for trouble and inconvenience. BND called EBC in warranty, and EBC in turn called GBC in warranty.

Policy and legislative provisions at issue

The court applied the Civil Code of Québec rules on the burden of proof (arts. 2803 and 2804), the definition of sale and the seller's duties to deliver and warrant ownership and quality (arts. 1708 and 1716), and the client's obligation to accept the work and state reservations (art. 2110). Under art. 2113, a client who accepts without reservation still keeps recourse for non-apparent defects and faulty workmanship. Article 1732 bars a seller from excluding liability for its own acts, and art. 1729 presumes a defect existed at the time of sale when property sold by a professional seller deteriorates prematurely compared with identical goods.

Contractors must act with prudence and diligence, follow the rules of the art and deliver work conforming to the contract (art. 2100), and they carry an obligation of result as to quality. Relying on Fafard c. Chicoine, 2019 QCCQ 7945, the court noted that an apparent defect can become legally hidden where the seller's incomplete or reassuring statements mislead the buyer. Doctrine cited in the decision also holds that a buyer of a new home is held to a less rigorous inspection standard than a buyer of a used one. Contractual liability (art. 1458), damages (art. 1611) and the additional indemnity (art. 1619) governed the remedy. The countertop itself carried a one-year conventional replacement warranty from GBC for BND's benefit.

Reasoning and analysis

Justice Melissa De Petrillo held that this was not a hidden-defect claim but a claim for faulty workmanship following the sale of a new countertop. BND had admitted the premature deterioration and undertaken to repair or replace it, and the court treated that as an extrajudicial admission of liability; EBC had made the same undertaking. EBC's own evidence confirmed that GBC's one-year warranty was still running when the problem was reported, and even the ACQ conciliator's report described the countertop's poor condition.

GBC's testimony fared poorly. In light of the exhibits filed by BND, the court had difficulty believing GBC's claim that BND never asked for a replacement, which undermined its credibility. GBC also admitted the countertop could not be repaired and had to be replaced, maintaining only that an apparent defect left the buyer without recourse. The court found each defendant at fault: BND through its admission and repair undertaking, EBC through the absence of any evidence that it pressed GBC to replace the countertop, and GBC through its failure to meet its quality obligations and honour its warranty.

On quantum, Ms. Attallah's $11,727.45 figure was based on several quotations. BND called it exaggerated and put the cost at $6,898.50. GBC pointed out that only the Rocartz quotation came from a countertop manufacturer, and that neither the ceramic backsplash nor any electrical work needed to be touched, with the sink being salvageable. Stressing that compensation must be fair without enriching the claimant, that the claimant must mitigate, and that damages must flow directly from the breach, the court adopted the Rocartz quotation and awarded $6,606.85.

For trouble and inconvenience, the court found that BND, despite claiming to have cooperated, quickly led Ms. Attallah to negotiate directly with EBC and GBC, in breach of its contractual obligations, and noted her vulnerability relative to the three companies. GBC's conduct was described as equally reprehensible for wrongly invoking the conciliator's report to avoid its own warranty. Ms. Attallah had accused the defendants of hiding behind the notion of hidden defect [source inconsistency: the defendants' position, as recorded elsewhere in the decision, was that the defect was apparent]. Finding that all three breached their duty of contractual good faith, the court awarded $500 in non-compensatory damages rather than the $3,270 claimed.

Ruling and overall outcome

Ms. Attallah [source inconsistency: the plaintiff's name appears as "Theresa" at paragraph [73] and as "Atallah" at paragraphs [33], [48], [62], [63] and [75]] succeeded in part. BND was ordered to pay her $7,106.85 with legal interest and the additional indemnity under art. 1619 C.c.Q. from March 5, 2022, identified as the date of default [source note: the demand letter at paragraph [36] is dated February 17, 2022, and the decision does not explain the March 5, 2022 date], plus $217 in legal costs. On the warranty claims, EBC must pay BND $7,106.85 with interest and the additional indemnity from April 22, 2022, plus $325 in costs, and GBC must pay EBC the same $7,106.85 with interest and the additional indemnity from June 6, 2022, plus $325 in costs. No single combined total of the amounts ordered is stated in the judgment.