Part 28 published on 01/11/09
Owner permitted to sue another owner
The Plaintiff and Defendant were owners of units in a syndicate of co-owners. The Defendant’s unit was directly above the Plaintiff’s unit. The Plaintiff’s unit suffered damage as a result of water escape from the Defendant’s unit. The Plaintiff claimed for damages from the Defendant.
The Defendant asserted that the Plaintiff could not bring any claim against the Defendant by reason of a provision in the declaration of the syndicate which required that each owner maintain insurance covering this sort of loss, and requiring that the insurance policy include a waiver of subrogation against the syndicate and all other owners. Because of that provision, the Defendant said that owners cannot institute legal proceedings against the syndicate or any other owner for damage that could be claimed from their own insurer under the type of insurance coverage required by the declaration.
The Court allowed the claim to proceed, and ruled in favour of the Plaintiff for the following reasons:
The damages resulted from a “gross fault” on the part of the Defendant. Therefore, Article 1474 of Quebec’s Civil Code applied, and this prevented the Defendant from relying upon any provision of the Declaration that might limit her liability to the Plaintiff.
The Court also added the following:
…in light of the Court’s above findings on the application of article 1474 of the Civil Code of Québec, it shall not be necessary to address the question of the actual scope of the provisions of Article 56-B of the Declaration.
However and with all due respect to the attorney for Defendants, the Court is far from being convinced that the wording of Article 56-B purports to limit or even prohibit all recourses between co-owners and/or the syndicate for damages that could possibly be indemnified through an insurance policy.