The demand letter is the last chance for the debtor to remedy his default. The failure of the creditor to provide a demand letter to the debtor may have serious consequences, including the dismissal of his case.
In addition to the general principles governing the admissibility of a legal action, some specific obligations, such as the prior submission of a claim to the insurer, are the responsibility of the syndicate of co-ownership that wants to pursue legal action against one of its co-owners.
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In Syndicat des copropriétaires du condominium Verrières VI v. Maddalon1, the co-ownership syndicate did not send a demand letter to the defendants in a timely manner and no claim was submitted to the insurer of the building.
The syndicate was asking the co-owners a compensation for the repair of a water leak which occurred in the bathroom of their unit and which caused damages for several other units of the Condominium Verrières VI.
At the first hearing, the Superior Court held that the defendants' knowledge of the damage did not relieve the syndicate of its obligation to send them a demand letter and that the lack of diligence of the syndicate to do so deprived them of a full answer and defence.
The court also held that the syndicate should have asserted its rights against the insurer of the building. By failing to do so, it deprived the defendants of the benefit of the waiver of subrogation clause contained in the insurance policy subscribed by the syndicate. For the judge, this clause constituted an implicit commitment of the co-owners not to take legal action against one another.
The Court of Appeal found that the syndicate did not meet its burden of proof and upheld the trial judge's decision.
Comment: This decision is rendered almost a year after the amendments to the provisions of the Civil Code of Québec2 relating to buildings held in divided co-ownership came into force. The Court of Appeal does not interpret the new provisions as they were not in force at the time of the incident. However, this decision illustrates that the recent legislative changes constitute, to a large extent, a codification of pre-existing case law.
Over time, the courts have not been unanimous with regard to the possibility of suing a co-owner who is responsible for a disaster claim in the building where he lives. Some allowed the co-ownership syndicate or its insurer to take action against the faulty co-owner3. In other cases, it was held that the provisions of the declaration of co-ownership should be construed as excluding the possibility to take action against any co-owner4.
This situation is now governed by the second paragraph of the new article 1074.1 CCQ, which namely provides that a syndicate that does not avail itself of insurance may not sue [a co-owner] for the damages for which it would otherwise have been indemnified by the insurance.
In addition, the amounts incurred by the syndicate for the payment of the deductible and the damage caused to the property in which the syndicate has an insurable interest can only be recovered from the co-owner if the latter has committed a fault5.
The new provisions clarify the situation by preventing the courts from having to interpret the specific provisions of each declaration of co-ownership in order to determine whether a legal action against co-owners is possible. One of the repercussions of the reform will certainly be to standardize the case law on this issue.
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In his reasons, the trial judge blames the syndicate for not contesting the insurer's refusal to indemnify, which he considers to be abusive and short6. If we follow this reasoning, it is only after a final judgment confirming the absence of insurance coverage that the syndicate could have asserted its rights against Maddalon-Molson.
We may question whether such steps are necessary when the insurer's decision is manifestly reasonable and justified. It will be up to the courts to establish the analysis criteria that will determine whether the syndicate acted diligently with respect to its claim to its insurer.
1. 2019 QCCA 1737, EYB 2019-321342.
2. Mainly the addition of articles 1074.1, 1074.2 and 1075.1 CCQ, adopted on June 13, 2018, by the National Assembly in the context of Bill 141 entitled An Act mainly to improve the regulation of the financial sector, the protection of deposits of money and the operation of financial institutions.3. Vignoble (Condo) v. Gaudreau, 2019 QCCQ 7007, par. 31 (referring to Syndicat des copropriétaires des terrasses Lulli v. Fortin, REJB 2001-25554; Syndicat des copropriétaires de l'Estuaire condo, phase III v. Gentex, EYB 2005-122896; Assurances générales des caisses Desjardins inc. v. Labelle, EYB 2003-40825; Montanarini v. Syndicat Le Bourg-le-Ponsardin, EYB 2005-92131).
4. Compagnie d'assurances Missisquoi v. Aviva Canada inc., 2018 QCCS 2760, EYB 2018-295918; Allianz Global Risks US Insurance Company v. Hemani, 2019 QCCQ 2656, EYB 2019-311729; GCAN Compagnie d'assurances v. Khalifeh, 2008 QCCQ 8518, EYB 2008-148608.
5. This principle is now codified in article 1074.2 CCQ.
6. Syndicat des copropriétaires du condominium Verrières VI v. Maddalon, 2018 QCCS 2312, EYB 2018-294863, par. 82 and 93.
This article is a modified version of a comment originally published by Éditions Yvon Blais in December 2019 (EYB2019REP2875).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.