2012 QCCQ 2107, 2012 QCCQ 2107

Gorelik c. Sauvé 2012 QCCQ 2107 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-118550-096 DATE: March 13, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ALEXANDRE GORELIK NATALIE SOBOLEV […] Montreal, Quebec […] Plaintiffs v. G.J.

SAUVÉ […] Très-St-Rédempteur , Quebec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Alexandre Gorelik and Natalie Sobolev, entered into a contract with Gérald Sauvé doing business under the name G.J. Sauvé ("G.J.

Sauvé") for the fabrication and installation of a custom-made kitchen for their home in Hampstead. [ 2 ] The Plaintiffs allege that the work is only partly complete and, having paid $8,515 toward a total contract price of $17,957.94 based on degree of completion, they seek a reimbursement of $3,822.72. [ 3 ] G.J. Sauvé contests alleging that the work is 95% complete. He asserts that a balance of $9,442.94 is owing. He reduces this claim to the maximum allowed in the Small-Claims Division of $7,000. [ 4 ] There is common ground between the parties: the work is not complete.

The Plaintiffs take the position that they were justified in stopping the work and asserting a claim for reimbursement of part of the amount paid based on the value of the work completed while the Defendant takes the position that he should have been allowed to complete the work, correcting deficiencies and being paid the balance. QUESTION IN ISSUE [ 5 ] It is therefore necessary for the Court to scrutinise the circumstances in which the work was not completed to determine the legal situation of the parties with respect to a reimbursement or a further payment toward the contract prices, as the case may be.

FACTS [ 6 ] G.J. Sauvé is an experienced fabricator of custom-made kitchens. [ 7 ] After discussions and several quotations, the parties did agree on a contract and a total of $8,515 was given as a total deposit. [ 8 ] It is difficult to know which of the several documents entitled "Estimate and contract" evidences the agreement.

[ 9 ] G.J. Sauvé's practice is to obtain payment of 50% of the price before the work begins. On that basis, the contract price would be in the neighbourhood of $17,030. The document proposed by G.J. Sauvé, dated 20/02/2009 shows a total price, taxes included, of $17,957.94. (D-4) [ 10 ] The Plaintiffs take the position, however, that the last four items in this document, apparently representing changes from an initial version of the contract, were added without their consent. These items add up to $799, or $901.87 if taxes are included.

On that basis, the contract price would be $17,056.07; this corresponds roughly to double the deposit. [ 11 ] Be that as it may, there is sufficient detail in the contract to see that the door panels, the most litigious item in this case, constitute $5,004.26, with taxes included, $5,648.56. [ 12 ] After the signing of the contract, the work proceeded, not without incident. There were some problems resulting from poor coordination with other contractors. [ 13 ] G.J.

Sauvé states, however, that his policy is "customer satisfaction" and he only claims for four items that are either changes to the original design or adjustments required because of coordination issues. [ 14 ] These four items that amount to less than $1,000, taxes included.

One of them, a claim for $240, relates to readjusting the cabinet height for 1¼-inch granite instead of 1¾-inch granite. [ 15 ] The statement in lieu of testimony of the granite supplier, Pasquale Piscopo, simply states that he notified the cabinet installer on site on May 19, 2009 that the counter will be cut to 1 ¼ quartz thickness. [ 16 ] Many of the items complained of in the Plaintiffs' documentation seem to be either issues of touch-ups such as the presence of glue on cabinet trims or items that could have been resolved by a list of deficiencies, such as the poor fit of the wine rack (P-30). [ 17 ] The main issue is the fabrication of the door panels.

The differences in the colour and texture of the wood are quite apparent in the photographs.

The doors do not match each other and they differ greatly from the appearance of the wood used in the fixed panels of the cabinetry. [ 18 ] There is also a very apparent problem of chipping on the surface of the veneer at the saw cut where the panel is joined to the lower trim. [ 19 ] The Plaintiffs found these doors to be unacceptable and the Defendant, eventually, accepted to remove them and to replace them at his own cost in order to complete the project. [ 20 ] If it had not been for the impasse that then resulted, the Court is convinced that the contract would have been completed, perhaps with a list of deficiencies to be corrected before the final payment, but with no major problem. [ 21 ] But the problem of the door panels became insurmountable.

After he removed the doors, Mr Sauvé attempted to have the Plaintiffs accept a sample from a supplier known as Caron. [ 22 ] In other words, the Plaintiff would have subcontracted to Caron the fabrication of the doors based on an approved sample. He had Caron ship to the Plaintiffs' residence a sample (P-53) that shows the veneer, without any finishing. The Plaintiffs object to the sample because it contained a white filler at the edges of the front panel. They also object that it did not match the existing panels of the cupboards and the original sample (P-54).

The differences are apparent to the eye: the sample (P-53) has very fine parallel lines in the grain whereas P-54, the original sample has a very curvy and irregular grain. [ 23 ] The sample of one of the door faces actually provided, that the Defendant agreed to replace, is completely different from both. [ 24 ] The Court agrees with the Plaintiffs that it looks like it comes from a completely different kitchen. [ 25 ] The Plaintiffs response to G.J.

Sauvé called upon him to provide them with an appropriate sample by August 5, 2009. [ 26 ] On August 5 th , Mr Sauvé replied reminding them "that you chose the natural cherry wood essence from samples that I showed you and after I had explained that cherry wood varies in color and grain with each cut and that you should not expect a consistent texture with this choice." [ 27 ] He offered the alternative, "for a slight surcharge to cover materials, change the essence or stain the doors that I have already made." [ 28 ] He also requested paying a balance of $9,442.94 within the next ten days. [ 29 ] At this point, the written communication stopped, the Plaintiffs hired someone else to complete the work.

The invoice from Ramm Aerospace (P-49) for a total of $7,105.57 shows the installation of cabinet doors and moldings, cabinet door handles and polishing of glass shelves. [ 30 ] The photos (P-50 to P-52) show that the Plaintiffs obtained doors with a texture and colour that is very homogenous throughout and compatible with the existing cabinetry. [ 31 ] The Defendant admits that the work supplied by Ramm Aerospace is of good quality. ANALYSIS

[ 32 ] In the contract of enterprise or for services, the parties may unilaterally resiliate the contract under certain modalities. In the case of a resiliation by the client, the modalities of resiliation can be somewhat onerous: 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property furnished, where it can be returned to him and used by him.

For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered. [1] [ 33 ] With respect to the unacceptability of the door panels, the Defendant took the position that he had warned the Plaintiffs that the sample they had chosen was "junk". [ 34 ] When asked about the very apparent chips on the saw cuts of the veneer, on the doors interior panel, he replied that the veneer is very thin and he does not have the type of saw that is required to achieve a cut that does not chip. [ 35 ] In the Court's view, both of these comments are unacceptable: a provider of works cannot accept to build something based on a sample he has provided while at the same time giving a recommendation that the works will not be acceptable. [ 36 ] If the material he accepted to work with was not acceptable, he should not have accepted to work with it. [ 37 ] The Plaintiffs refute his position, rightly, saying that they would have never accepted to spend $17,000 on a kitchen knowing that the result would be unacceptable. [ 38 ] The Defendant admitted his work was unacceptable when he agreed to replace it: it was up to him to show the clients a sample of the replacement door panel in the finished condition representative of the product he would supply. [ 39 ] The Plaintiff did not even see the sample that Caron provided.

At this point, he no longer acted as a contractor committed to complete the work and failed to follow through with an acceptable sample. [ 40 ] In the Court's view, the Plaintiffs were, therefore, entitled to resiliate the contract for cause pursuant to

article 1605 of the Civil Code of Quebec : A contract may be resolved or resiliated without judicial proceedings where the debtor is in default by operation of law or where he has failed to perform his obligation within the time allowed in the writing putting him in default. [ 41 ] The Plaintiffs' letter of August 30 th , meet the requirements of a proper putting in default.

In asking the Court to acknowledge this resiliation of the contract for cause, the Plaintiffs nevertheless seek the Court's assessment of the amount of the contract price owed based on the degree of completion of the work. [ 42 ] The Plaintiffs calculation of the value of the work performed, taxes included, is $4,692.28. [ 43 ] In his letter dated August 2, 2009, the Defendant had taken the position that, to date, based work actually done valued at $9,892.14, there was a balance owing of $1,377.14. [ 44 ] If the amount paid to Ramm Aerospace is added, $8,020.42, we are close to the total contract price, so the calculation made by G.J.

Sauvé on August 2, 2009 is plausible. [ 45 ] The amount Plaintiffs propose as the value of the work completed, $4,682.28 is too low. [ 46 ] G.J. Sauvé's figures need to be reduced however. The amount of $2,705 claimed for "cabinet construction" is erroneous: there was never any amount included in the contract specifically for "construction", except for installation, the price being composed entirely of materials and installation. [ 47 ] Making this adjustment of $2,705, the value of the work done is $6,058.80, plus taxes: $6,838.87. Payments made total $8,515, representing an over payment of $1,676.12.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiffs the sum of $1,676.12, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from July 27, 2009; CONDEMNS the Defendant to pay, to the Plaintiffs, judicial costs in the amount of $127; DISMISSES the Cross-Demand. __________________________________ DAVID L. CAMERON, J.C.Q.

Date of hearing: February 7, 2012