2023 QCCQ 2969, 2023 QCCQ 2969

Alloul c. Gibb (G&S Landscape Conatruction) 2023 QCCQ 2969 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-714842-210 DATE : May 15, 2023 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ JEREMY ALLOUL Plaintiff vs.

CHRISTOPHER GIBB doing business under the name of G&S Landscape Construction Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE OUTLINE [ 1 ] The Plaintiff claims $9,527.98, representing the value of a contract concluded between the parties, as this contract was not adequately fulfilled by the Defendant. [ 2 ] The Defendant denies this claim.

THE CONTEXT [ 3 ] On June 5, 2019, a contract was concluded by the parties [1] by which the Defendant undertook to build a patio in onyx concrete slabs, plus build and install a planter and complete the lawn by putting down topsoil, fertilizer, and sod for a total amount of $9,527.98 that the Plaintiff paid in full. [ 4 ] The Plaintiff provides to the Court several photographs [2] showing the grounds before the work was completed, the concrete slabs installed [3] , the portion of the backyard in grass [4] and the planter [5] . [ 5 ] The Plaintiff complains that when the Defendant put down the topsoil and fertilizer, he did not consider the slopes of the ground nor the direction of the patio causing the water, instead of being directed away from the shed and the planter, was directed toward these items, causing water to seep in the shed [6] and the base of the planter to rot. [ 6 ] In addition, the Plaintiff complains that rocks, debris and a metal rod were left in the yard which he had to remove and caused him injuries. [ 7 ] In the course if his testimony, the Plaintiff admitted that he built a ditch around the shed, to direct the water away from the shed, which cured the problem. [ 8 ] The Plaintiff also admitted that following the work done by the Defendant, the latter did take out the debris from the yard.

THE ANALYSIS [ 9 ] In accordance with the principles outlined in Articles 2803 and 2804 of the Civil Code of Quebec : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. 2804. Evidence is sufficient if it renders the existence of a fact more probable than non-existence, unless the law requires more convincing proof.

to succeed the Plaintiff must show, by preponderance of evidence, namely a clear and convincing proof [7] the liability of the Defendant [8] and the prejudice suffered. [ 10 ] The Plaintiff has not fulfilled these requirements by presenting convincing evidence, he has not fulfilled his burden of proof. [ 11 ] More particularly, no evidence was provided that water seeped into the shed because of a negative slop of the concrete slab. [ 12 ] As appears from the photographs [9] , water seeped in the shed during Winter and the snow was never cleared in front of the door of the shed, which may have caused water to infiltrate once the snow melted. [ 13 ] In any event, the Defendant admitted having dug a ditch around the shed which cured the problem. [ 14 ] As for the debris, again the Court relies on the Plaintiff’s admission that the Defendant, following the work done did clear the debris from his yard. [ 15 ] As for the ground having a negative slope or the planter made of wood that is rotting, again no evidence was provided except the testimony of the Plaintiff. [ 16 ] In the Summer and Fall 2020, the Plaintiff did purchase some sod and earth, however, no evidence was provided to show that these materials were used to replace the lawn in his backyard. [ 17 ] Moreover, these expenses which the Plaintiff now claims [10] were incurred in the Summer and Fall 2020, whereas the Demand letter was only sent on March 4, 2021. [ 18 ] The requirements found in Articles 1594 and 1595 of the CCQ requires that a prior written Demand letter be sent to the debtor, to provide the opportunity to cure the problem at his own expense. [ 19 ] In the Plaintiff’s Demand letter of March 4, 2021 [11] , he does not claim the cost of the sod and earth but the full reimbursement of the contract. [ 20 ] If he had demonstrated that water did seep in the shed because of the negative slope of the slab, in order to minimize his damages, the Plaintiff had to consider lifting the shed which would have been far less expensive than the value of the contract.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s Claim; WITH COSTS in the amount of $195 representing the judicial stamp of the Contestation. ________________________ DIANE QUENNEVILLE, J.C.Q. [7] F.H. c. McDougall, 2008 SCC 53 .