• ARBITRATION


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    • Abstract: ARBITRATIONUnder the Regulation respecting the guarantee planfor new residential buildings(O.C. 841-98 of June 17, 1998)CANADAPROVINCE OF QUEBECGroupe d’arbitrage et de médiation sur mesure (GAMM)Dossier no.: GAMM: 2005-12-010

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ARBITRATION
Under the Regulation respecting the guarantee plan
for new residential buildings
(O.C. 841-98 of June 17, 1998)
CANADA
PROVINCE OF QUEBEC
Groupe d’arbitrage et de médiation sur mesure (GAMM)
Dossier no.: GAMM: 2005-12-010
APCHQ: 05-163-FL
______________________________________________________________________
BY THE ARBITRATOR Johanne Despatis
______________________________________________________________________
Between :
MARTIN ROBIN
(the “beneficiary”)
And :
LA GARANTIE DES BATIMENTS RESIDENTIALS NEUFS DE L’APCHQ
(the “Plan manager”)
And :
GROUPE IMMOBILIER FARAND INC.
(the “builder”)
______________________________________________________________________
ARBITRATION DECISION
______________________________________________________________________
For the Beneficiary : Mr. Martin Robin
For the Plan manager: Mr. François Laplante
For the Builder: Mrs. Sylvie Poirier
Date of hearing: June 6, 2006
Place of hearing: Vaudreuil-sur-le-Lac, Quebec
Date of decision: July 10, 2006
______________________________________________________________________
Adjudex inc.
0506-8217-GAMM
S/A 8023
PAGE: 2
INTRODUCTION
[1] Mr. Martin Robin, the “beneficiary”, is appealing under section 19 of the Regulation
respecting the guarantee plan for new residential buildings, the “Regulation”, the following
items from the Garantie des bâtiments résidentiels neufs de l’APCHQ inc., the “Plan manager”,
decision rendered on May 19, 2005:
“We note that the following items were declared in writing after the expiry of the
guarantee covering hidden defects, which is valid for the twelve (12) months following
acceptance of the building.
Consequently, in order to rule on this point, we must refer only to Articles 3.3 and 3.4 of
the guarantee contract. In this case, we do not believe that the conditions we observed
are serious enough to be termed hidden defects or major construction defects as defined
in the guarantee contract.
2. Crack in one step of the stairs leading to the front balcony.
[…]
4. Part of under carpeting missing on the upper floor
[…]
5. Parging on foundation wall
[…]
With regard to the following item, we were unable to establish with certainty which was
the responsible party.
Consequently, the GMN is unable to intervene in this matter.
7. Crack in the dining room ceiling
[…]
With regard to the following item, we must refer to Article 4.9 of the guarantee contract,
which stipulates that parking areas and storage areas located outside the building
containing the residential units, as well as any structures outside the building such as
outdoor pools, landscaping, sidewalks, driveways and the surface water drainage system
are all specifically excluded from the guarantee.
8. Sod
[…]”
[2] Initially, the recourse also extended to items 3 (Retouch paint), 6 (Cracks in the garage
foundation wall) and 9 (Adjustment of the garage door) of the decision. However, the beneficiary
informed me during the course of the hearing that he was no longer challenging these findings.
[3] At the outset, the beneficiary also contested item 1 (Cracks in brick veneer) of the
decision. The issue was settled between the parties in May 2005. Due to some disagreement
between the beneficiary and the builder over the number of bricks he needed to replace, the
PAGE: 3
agreement was never acted on with the result that at the time of the hearing, no work had been
done.
[4] The issue was raised at the hearing where the builder and the beneficiary came to the
understanding that three bricks needed to be replaced and that the builder would do so before
July 15 of this year. Given that, this item was no longer an issue under appeal.
THE EVIDENCE
[5] The beneficiary took possession of his property located at 19, Des Arbrisseaux Street in
Vaudreuil-sur-le-Lac on June 27, 2002. It was a new property built by Groupe Immobilier
Farand inc. and covered by the Guarantee plan for new residential buildings, hereinafter the
“Plan”.
[6] On the same date, the beneficiary signed a form called the Declaration of reception of
building stating that the building was “ready to be used for it’s intended purpose […] without
reserve”. The List of pre-established elements for verification appended to the declaration was
left blank.
[7] It was recognized that a few days before, i.e. on June 21, the beneficiary also signed the
Contrat de garantie. The standardised form normally has four pages. The beneficiary explained
that the document he signed had only two pages, i.e. pages 1 and 4, the latter dated and bearing
the beneficiary’s signature. One can read on page 4 just above the signature:
« L’Entrepreneur affirme avoir remis au bénéficiaire une copie du “contrat de garantie”
Le bénéficiaire affirme avoir pris connaissance du présent « Contrat de garantie, l’avoir
lu et compris »
[8] According to the beneficiary’s testimony, his real estate agent as well as the builder
representative told him that if he did not sign that contract readily he would not be covered by
the Plan and that if he did, he would obtain a full copy of the document in the coming days.
[9] The beneficiary testified that in the days following the signature he phoned the Plan
manager to obtain a full copy of the contract who referred him to the builder. He says it took a
year before he got a full copy.
PAGE: 4
[10] He adds that if he had known that the procedure set out on page 2 and 3 of the contract
required him to make any claim in a timely fashion; he would have acted in time.
[11] This notwithstanding, the beneficiary adds that he did informally notify the builder of the
defects as he discovered them but admits not notifying the Plan manager in writing before
January 5, 2005.
[12] The beneficiary’s claim filed on that date reads as follows:
“I am having major problem with builder Groupe Farand. In the last three years I have
sent several letters. Group Farand has not responded to all defects especially major
ones. Attached is copy of last letter sent registered.
Please open file (if not already open) and send inspector to inspect defects as explained
in attached letter.
In addition to defect detailed in attached letter, wall finishing is very inadequate. I am
now in process of suing builder for defects and inconveniences.”
[13] On May 10, 2005, Mr. Alain Deschesnes, Inspector-conciliator with the Plan manager
carried out his inspection. He released his decision nine days later.
[14] Here is a brief summary of the evidence pertaining to the items at issue.
Item 2: Crack in one step of the stairs leading to the front balcony
[15] According to Mr. Robin, this crack first appeared during the summer 2002 and has been
progressing ever since to a point where the first stair leading to the balcony will probably
eventually fall off.
[16] Evidence was adduced that the problem was caused by the fact that the stair at the bottom
was added on after the balcony and the other stairs leading to it were installed. According to the
builder, that crack is normal in the circumstances. Mr. Deschesnes is of the view that it is not a
latent defect.
Item 4: Part of undercarpeting missing on the upper floor
[17] The beneficiary alleges that a portion of the undercarpeting is missing on the upper floor,
a fact characterized as highly improbable by the builder. Regardless of the factual situation,
inspector Deschesnes does not consider that the issue would qualify as a latent defect.
Item 5: Parging on foundation wall
PAGE: 5
[18] The beneficiary took us to witness the fact that the parging is cracking and falling off
around the entire foundation. According to inspector Deschesnes, this issue is not a latent defect.
Item 7: Crack in the dining room ceiling
[19] The beneficiary states that this crack, visible before the reception of the building was
mentioned verbally to the builder at that time without being put in writing on any list of repairs.
According to Mr. Robin the crack was never repaired and is still expanding. Inspector
Deschesnes for his part considers that this crack is an apparent defect that the owner failed to
denounce upon taking possession of the building and thus not covered under the Plan.
Item 8: Sod
[20] According to Mr. Deschesnes, such an item is not covered under the Plan.
ANALYSIS
[21] Before addressing the merits of the findings of the Plan manager on the items at issue, I
will first deal with the issue of timeliness to decide if the decision of the Plan manager is well
founded.
[22] The Plan manager submits that the beneficiary has failed to denounce the problems he
complains about in accordance with the deadline prescribed under the Plan. These guidelines are
set out in Section 3 of the Plan.
[23] The Plan covers repairs to non-apparent poor workmanship that exist at the time of
acceptance or are discovered within the following year if notice of them is given in writing to the
builder and to the Plan manager within a reasonable time not to exceed six months following the
discovery of the poor workmanship.
[24] The Plan also extends to latent defects discovered within three years following the
acceptance of the building, and if notice of such defects is given in writing to the builder and to
the Plan manager within a reasonable time not exceeding six months following the discovery of
such defects.
PAGE: 6
[25] As one can see, the sole existence of poor workmanship, apparent or not, or of latent
defects is not sufficient to trigger coverage under the Plan: They also need to be formally and in
a timely fashion denounced in accordance with the Plan’s guidelines.
[26] The date of acceptance is crucial since it marks the starting point of each type of warranty
set out in the Plan.
[27] In the case on hand, June 27 2002 is the date of acceptance, i.e. the day on which the
parties completed and signed the document called the Declaration of reception of building.
[28] That being said, ounce a defect appears or non apparent poor workmanship manifest, the
beneficiary has a maximum of six months following the discovery to file a claim in accordance
with the Plan.
[29] The beneficiary’s written claim was filed to the Plan manager in January 2005, more than
30 months after the formal start of the guarantee relative to poor workmanship. It is clear that at
the time of the filing of the claim the coverage regarding poor workmanship had already elapsed.
[30] In effect, the only poor workmanship that can be covered is the one discovered within the
first year following acceptance, in this case, discovered before the end of June 2003 and
denounced in writing to the Plan manager no later then the end of December 2003.
[31] Hence, since the beneficiary never notified the Plan manager of any problem prior to
January 2005, it follows that any claim for poor workmanship was no longer covered by the
Plan.
[32] Consequently, the Plan manager was right to refer to section 3.3 (latent defect) to
determined whether the problems denounced could be characterised as latent defects under the
Plan.
Item 2
[33] The beneficiary alleges that item 2 (Crack in one step of the stairs leading to the front
balcony) is a latent defect. The evidence adduced shows that this problem was discovered in the
summer 2002 a few months after the reception of the building while it was only denounced to the
Plan manager in January 2005. This being so, even in assuming as alleged that it was a latent
PAGE: 7
defect, the evidence is that it was not denounced in compliance with the Plan guidelines. This by
itself warrants that this claim be rejected.
Items 4 and 5
[34] In the instant case, the beneficiary did not allege that items 4 (Part of undercarpeting
missing on the upper floor) and 5 (Parging on foundation wall) constituted latent defects. Further
my own visit of the property allowed me to examine these allege defects under the Plan and thus,
that these two claims are not warranted. I therefore reject them.
Item 7
[35] The undisputed evidence reveals that this problem was apparent at the moment of the
reception of the building. The Plan explicitly requires that apparent defects be denounced in
writing the day of the reception of the building, or within the three days following the reception
if the beneficiary did not move in the building. The beneficiary admits he failed to do so.
Consequently, this claim is rejected.
Item 8
[36] This has to do with alleged poor workmanship regarding an issue of landscaping. Section
4.9 of the Plan formally excludes such claims. Consequently, the instant claim is rejected.
[37] The beneficiary alleges that the builder and the Plan manager failed to provide him in
time with a complete text of the contract outlining the rules and formalities of the Plan. The
beneficiary contends that these circumstances warrant that his claims be entertained regardless of
its being untimely.
[38] The beneficiary submits that the guarantee contract he signed in June 2002 was
incomplete and that he had asked at that time both the builder and the Plan manager to send him
a full copy which he only got twelve months later.
[39] The last page of the contract he signed in June 2002 bears the following statement:
« L’Entrepreneur affirme avoir remis au bénéficiaire une copie du “contrat de garantie”
PAGE: 8
Le bénéficiaire affirme avoir pris connaissance du présent « Contrat de garantie, l’avoir
lu et compris »
[40] In his reply the Plan manager’s representative objected that the beneficiary could not by
testimony contradict the terms of a written contract duly signed by him.
[41] According to section 2863 of the Civil Code of Quebec, “ the parties to a juridical act
set forth in a writing may not contradict or vary the terms of the writing by testimony unless
there is a commencement of proof. “
[42] I sustain the objection of the Plan manager that to allow the beneficiary to achieve his
point regarding the alleged incomplete text of his contract would be contrary to section 2863 of
the Code. This suffices in my view to dismiss this argument.
CONCLUSION
[43] For all the reasons set above, the claim concerning item 2, 4, 5, 7 and 8 are rejected.
[44] Concerning item 1, I take act of the settlement reached and accordingly order the builder
to change the three bricks identified in their agreement before July 15, 2006.
[45] Concerning items 3, 6 and 9, I take act of the withdrawal of the beneficiary’s claim.
[46] In accordance with Section 123 of the Regulation, the costs of the arbitration will be
borne by the Plan manager.
Montreal, July 10th 2006
__________________________________
Johanne Despatis, arbitrator
Adjudex inc.
0506-8217-GAMM
S/A 8023


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