2023 QCCQ 1918, 2023 QCCQ 1918

Arcobelli c. Gallo 2023 QCCQ 1918 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-716847-217 DATE: April 13, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ VINCENT ARCOBELLI Plaintiff v.

STEVEN GALLO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Defendant was not present at the hearing, although his motion for postponement was denied. [ 2 ] Plaintiff is an engineer.

He is suing defendant, on account, for professional services rendered. [ 3 ] His claim is based on a contract, which the parties entered into almost 7 years ago, namely on August 26, 2016 (exhibit P-1). [ 4 ] Said contract reads as follows: I, (we) hererby retain your consulting services as a structural engineer and building inspector for the property mentioned above. Your services are required to inspect the building and to do an expertise documented in a written report.

I, (we) understand that remuneration for your services including all future consultations in regards to the present file, will be billed at the rate of $160.00 per hour plus expenses, taxes extra. Payment for said services is due and payable on presentation of progressive invoices . 2% monthly fee on overdue accounts.

Furthermore, I, (we) understand that any and all additional work requested by either myself and/or my lawyer including attendance in court if required will also form part of the present mandate and it will be billed accordingly. (emphasis added) [ 5 ] The services for which plaintiff is claiming $3,452.75, were allegedly performed between March 20, 2019 and July 31, 2021. [ 6 ] Plaintiff did not present defendant with progressive invoices.

His only invoice for the period in question, was issued on August 20, 2021. [ 7 ] This is contrary to the terms of the contract, which provided for the “presentation of progressive invoices”. [ 8 ] Furthermore, the interest claimed, at an annual rate of 24 %, is illegal, as it was included in contract P-1, as a “2% monthly fee”, that which is contrary to the Interest Act , [1] not to mention usurious and contrary to the Code of ethics of engineers. [2] [ 9 ] Finally, the exhibits produced at trial (P-1 to P-8), were not filed into the Court record beforehand (“plumitif” printed April 11,

2023), thereby preventing defendant from examining same, that which is contrary to s. 19, 20 and 545 of the Code of Civil Procedure and s. 6 , 7 and 1375 of the Civil Code of Quebec . [ 10 ] Plaintiff’s application is therefore ill-founded and must be dismissed. WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's claim, with legal costs in the amount of $108.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: April 11, 2023