2011 QCCQ 6647, 2011 QCCQ 6647

9212-0666 Québec inc. (GS Tech-Reno) v. Kioussis 2011 QCCQ 6647 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-121463-105 DATE: June 7, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ 9212-0666 QUÉBEC INC. ( G.S. Tech-Reno) 623, Rive Boisée Pierrefonds (Québec) H8Z 2Y6 Plaintiff v.

Anastasios KIOUSSIS […] Ile Bizard (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant the sum of $2,923.48 for residential renovation work done at the request and for the benefit of Defendant. [ 2 ] Plaintiff submits that a balance of $2,360.24 is owed to it for the work performed.

This amount includes a sum of $1,400.00 for ''additional work'' performed at the request of Defendant. [ 3 ] Plaintiff furthermore claims a sum of $243.69 for reimbursement of lawyer fees and the sum of $320.00 for loss of time. [ 4 ] Defendant contests the action instituted against him alleging that Plaintiff, without his consent, modified the contract concluded between the parties. He also alleges that the work performed by Plaintiff was not satisfactory. [ 5 ] The evidence adduced at trial has revealed that an unsigned contract was concluded between the parties on or around June 7, 2009.

The extent of the work to be performed is described in a document entitled ''labor and materials cost estimation'' filed by Plaintiff as exhibit P-1. [ 6 ] At trial, the parties agreed that the work described in exhibit P-1 was estimated at the cost of $3,474.00 for the labour.

The materials to be supplied by Plaintiff were estimated at the cost of $1,921.00. [ 7 ] The work was performed by Plaintiff during a period of three weeks beginning on July 6, 2009. [ 8 ] Although the Defendant alleges, in his contestation, that the work performed by Plaintiff was not satisfactory, the evidence adduced at trial has revealed that this is not the case. [ 9 ] The dispute between the parties is really twofold in contents.

More particularly, the first issue concerns Plaintiff's claim regarding the additional work allegedly performed and the second issue concerns the materials to be supplied by Plaintiff according to the terms of the estimate (exhibit P-1). [ 10 ] At trial, Mr. Grzegorz Seweryn, president of Plaintiff, declared that he performed all the additional work described in the document prepared by him dated August 1, 2009 (exhibit P-3) entitled ''Additional labor charges - detailed description''. [ 11 ] According to Mr.

Seweryn, the work described in exhibit P-3 was requested by Defendant who accepted that it would be performed at an additional cost, although he acknowledges the fact that the precise amount of each ''extra'' was not agreed to before the performance of the work. [ 12 ] Defendant contests having requested any additional work stating that, in his opinion, the work described in exhibit P-3 was

for the most

part included within the general terms contained in Plaintiff's estimate of June 7, 2009 (exhibit P-1). [ 13 ] Mrs. Margaret Kioussis, Defendant's wife, also stated that she purchased and paid for many materials that should have been supplied and paid for by Plaintiff.

In her opinion, this materials were included in the estimate of June 7, 2009 (exhibit P-1). [ 14 ] The examination of the bills filed by Defendant in support of the allegation regarding the supply of materials does not reveal, in a conclusive manner, that Defendant did supply materials that should have been supplied by Plaintiff. [ 15 ] Furthermore, in this regard, Mr.

Seweryn filed bills establishing that Plaintiff did supply various materials as requested in the estimate of June 7, 2009 (exhibit P-1). [ 16 ] From the evidence, it appears that the dispute between the parties originates from a misunderstanding regarding the extent of the work to be performed by Plaintiff and the materials to be supplied by it pursuant to the terms of the estimate of June 7, 2009 (exhibit P-1). [ 17 ] The evidence has revealed that the estimate of June 7, 2009 (exhibit P-1) was drafted by Plainfiff. This being so, the Court refers to

article 1432 of the Civil Code of Quebec which stipulates the following: « 1432. In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer. » [ 18 ] In view of the preceding, as the estimate of June 7, 2009 (exhibit P-1) was drafted by Plaintiff and adhered to by Defendant, its contents, being ambiguous, must be interpreted in favour of Defendant. [ 19 ] This being said, as concerns Plaintiff's claim for additional work performed by him,

article 2107 of the Civil Code of Quebec stipulates the following: « 2107. Where the price of the work or services is estimated at the time the contract is entered into, the contractor or the provider of the services shall give the reasons for any increase of the price. The client is bound to pay such increase only to the extent that it results from work, services or expenses that the contractor or the provider of services could not foresee at the time the contract was entered into. » [ 20 ] In the present case, Plaintiff has not established its right to the increase of price requested by it from Defendant.

The evidence does not allow, in a conclusive manner, to determine what work was included in the basic contract and what work was agreed to as additional work. Furthermore, the evidence has revealed that the cost of the additional work, if any, was not agreed to when performed. [ 21 ] Consequently, the Court is in the opinion that Plaintiff has not established its right to claim any amount for additional work performed. This part of Plaintiff's claim is therefore dismissed. [ 22 ] The evidence has established that Defendant has paid Plaintiff an amount of $3,800.00 for the work performed.

This being said, an amount of $1,295.00 is owed by Defendant to Plaintiff pursuant to the terms of the estimate of June 7, 2009 (exhibit P-1). [ 23 ] As the work in question has been performed in a satisfactory manner, the above said amount of $1,295.00 must be paid to Plaintiff by Defendant ($5,395.00 - $3,800.00 - $300.00 credit for vinyl floor installation = $1,295.00). [ 24 ] Regarding Defendant's allegations that he purchased materials that should have been supplied by Plaintiff according to the terms of the estimate of June 7, 2009 (exhibit P-1), as discussed previously, the bills filed and the testimony of Defendant and his wife regarding this issue are not conclusive and do not allow the Court to conclude in favour of Defendant. [ 25 ] Finally, the Court is of the opinion that Plaintiff's claims for reimbursement of attorney fees and for time loss are unfounded in fact and in law.

They are therefore dismissed. FOR THE FOREGOING REASONS, THE COURT: MAINTAINS in part Plaintiff's action. CONDEMNS Defendant to pay to Plaintiff the sum of $1,295.00 with interests at the legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of August 18, 2009. THE WHOLE with costs in the amount of $146.00. __________________________________ ARMANDO AZNAR, J.Q.C.

Date of hearing: June 7, 2011.