2011 QCCQ 4905, 2011 QCCQ 4905

Janna c. Balogh 2011 QCCQ 4905 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-120152-097 DATE: May 9, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ LORRAINE JANNA […] Mount-Royal, Quebec […] Plaintiff vs.

RON BALOGH […] Lachine, Quebec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lorraine Janna, owner of a home at 3074 Cote de Liesse, sues Ron Balogh, a landscaping contractor, for damages she alleges he caused to her sprinkler system during the sodding of the backyard carried out in June 2009, in the amount of $356.68. [ 2 ] She also sues for $1,800, representing the contract price, alleging that the job has to be redone because Mr Balogh's work was of poor quality and resulted in a lawn that is full of weeds.

ISSUES [ 3 ] The Court must decide: 1) Whether the Plaintiff has demonstrated that the Defendant is responsible for damages to the sprinkler system and; 2) Whether the contract price should be reduced in part or completely reimbursed because of the quality of the work.

FACTS [ 4 ] A contract of services is entered into between the parties on June 18 th , 2009 for the sodding of the back yard to be carried out between June 22 nd and June 26 th , 2009. [ 5 ] For a price of $1,800, the Defendant is to remove the existing grass, apply new soil and lay sod. [ 6 ] The work is completed on time, it is inspected by Mrs Janna and accepted and payment it is made. [ 7 ] Prior to the work being done, the parties had discussed the possibility of having the irrigation company locate the sprinkler heads and identify them prior to the sodding work being done. [ 8 ] Mrs Janna was unable to do this because the irrigation company she usually worked with was no longer in business.

[ 9 ] Mr Balogh asserts that when he planted the sod, he did not damage any part of the irrigation system. [ 10 ] On June 26, a couple of days after the completion of the sodding work, a company called Les Entreprises Clifton D.R.A.M.

Inc. charged Mrs Janna $356.68 for the opening of the irrigation system and for providing and installing five sprinkler heads with 10 feet of wiring and miscellaneous hardware. [ 11 ] The bill gives no report as to whether the sprinkler heads were in new locations, whether they were replacement of worn parts, whether they were damaged and if so whether the damage occurred because of the elements or because of human intervention. [ 12 ] On July 1 st , Mrs Janna writes to Mr Balogh claiming $356.68 alleging: You damaged my sprinkler system by cutting wires during your work and new heads had to be installed.

You took the responsibility and even told me not to contact the sprinkler Company to assist you to know where the heads were prior to damaging them and incurring this unnecessary expense. Invoice included. [ 13 ] In the same letter, she complains about the quality of the sod: At this time also take note that the grass is bumpy with a sinking feeling when walking on it and the grass is dead in certain areas.

In future this observation may result in an additional process. [ 14 ] On July 21, Mr Balogh writes back (P-4), essentially denying the claim and raising other issues that it is not necessary to address in the present judgement. [ 15 ] The letter states that Mr Balogh attempted to reach Mrs Janna and had no success. [ 16 ] Mr Balogh testifies that he did not make any further inquiries nor did he attempt to get permission to see the premises to inspect the present condition of the lawn. [ 17 ] The next communication takes place on August 31 st , 2009, a letter of demand from Mrs Janna claiming again the repair costs for the sprinkler system and speaking in more particulars about the lawn: Further, my new lawn looks horrible.

I have enclosed the pictures to demonstrate. And now I will also claim the reimbursement of the $1800.00 for damages. [ 18 ] The pictures enclosed show close ups of the lawn. The grass is sparse and not mowed. The base under the grass is brown and there is a presence of weeds. [ 19 ] During the hearing, Mrs Janna produced some additional photos but, in all cases, it is not possible to see the overall appearance of the lawn, only close-ups. Most of these appeared to be close to the wall and the grass that is growing is quite thin.

ANALYSIS [ 20 ] The Plaintiff had burden of proving, on the balance of probabilities, that the work was defective and that the contractor damaged the sprinkler system.

The sprinkler system [ 21 ] While the Court does not doubt that Mrs Janna paid to have the some sprinkler heads and wiring installed, the evidence is unclear as to whether this was ordinary damage that can occur over the winter, ordinary wear and tear resulting in the need to replace some parts or damage caused by the work done by Mr Balogh. [ 22 ] In the absence of proof that is strong enough to show that it was probably the result of damage caused by Mr Balogh, this part of the action cannot succeed.

The sod [ 23 ] There is no direct evidence, such as could be made by an expert, to show that Mr Balogh's work did not comply with the ordinary standards of the trade. [ 24 ] In a contract such as this, the contractor has an obligation to deliver the lawn properly sodded and ready to be maintained. [ 25 ] Proof merely that the lawn did not do well over the summer is not sufficient proof that there was a defect in the quality of the workmanship or materials. [ 26 ] Many causes are possible when a sodded lawn does not perform well: was the lawn properly watered, neither too much nor too little, and properly mowed over the summer? [ 27 ] Are the areas that are shown in the photographs consistent with the entire area of the back yard or were they taken selectively in the worst areas? [ 28 ] It was not possible to know this because the person who took the photos did not testify.

[ 29 ] The watering of the lawn after the sod was installed was not carried out by a professional; Mrs Janna's son-in-law watered the lawn profusely for several weeks after it was installed. [ 30 ] Did he water enough? [ 31 ] Did he water too much? [ 32 ] Given the uncertainties in the evidence, it is not possible for the Court to conclude on the balance of probabilities that: 1. the result of the sodding is unacceptable or; 2. the sodding was not carried out according to the ordinary rules of the art. [ 33 ] The Court appreciates that the Plaintiff is not satisfied, but she has not fulfilled the duty to demonstrate with clear evidence that her lack of satisfaction results from faulty workmanship or materials on the part of the Defendant.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action; CONDEMNS the Plaintiff to pay, to the Defendant, judicial costs in the amount of $88. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 19, 2011