2011 QCCQ 2389, 2011 QCCQ 2389

Bobrow Architects c. Thériault 2011 QCCQ 2389 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-110532-084 DATE: February 15, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ BOBROW ARCHITECTS 5155, Notre-Dame-de-Grâce Montréal Québec H4A 1K6 Plaintiff v.

KATHERINE THÉRIAULT PAUL HARRIS […] Montréal Québec […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Bobrow Architects, is claiming $4,820.17 from Defendants, Katherine Thériault and Paul Harris, for his architectural services. Defendants deny the claim. They presented a cross demand, requesting the reimbursement of all sums paid, invoking their dissatisfaction with Plaintiff's services.

The evidence: [ 2 ] Plaintiff, an architect, was engaged by Defendants, to design changes to their house, including designing their basement, finishing the exterior porch and balcony and possibly building a garage. Defendants had structural problems, involving the foundation and masonry and electrical problems which had to be redone. [ 3 ] Plaintiff charges 10% of the total cost of the work, as indicated in his fee schedule.

He received a $1,000 retainer before beginning his work. [ 4 ] Plaintiff's work process is as follows: After obtaining the client's requirements, he prepares sketches, called concept drawings. If they have merit, he proceeds to the design development stage, which is more specific. If approved, the working drawings are done. He also prepares a time chart or

schedule of activities. [ 5 ] The parties met on several occasions. Plaintiff took measurements, prepared plans and wall elevations, designed the home's outside and prepared drawings. [ 6 ] Plaintiff attempted to obtain a permit from the City to have a garage built under the home. After receiving a negative response, he took photographs to support his case and, at the same time, he designed an English Court, to satisfy Defendants' requirement to have access to the lower level of the house.

Defendants chose not to proceed with this idea. [ 7 ] Plaintiff referred to a number of problems, including Defendants' interference in the process. As an example, Defendants chose their own engineer, precluding Plaintiff's involvement in their services. [ 8 ] Plaintiff prepared many design concept and development drawings and modified them in accordance with Defendants' frequent request for changes. However, Defendants were never satisfied with any changes he made.

[ 9 ] On May 5, 2008, Defendants terminated Plaintiff's services. Plaintiff is claiming the outstanding amount owed for services rendered until his contract ended. [ 10 ] Defendants considered Plaintiff had difficulty grasping concepts concerning the modifications they sought and his drawings did not correspond to what they wanted. [ 11 ] For example, while Defendants wanted an enclosed area for a home theatre, Plaintiff's design was an open concept. Plaintiff denied he had been asked to design a room with four walls.

Ultimately Defendants did not use Plaintiff's plans. [ 12 ] Defendants complained Plaintiff was unable to explain certain expressions he used. He provided information that was wrong or confusing. Discussions regarding changes to the second floor were not instigated by Defendants, which resulted in substantial delays and alleged electrical problems did not exist. [ 13 ] Defendants claimed Plaintiff failed to understand the urgency of the situation; the house was at risk of crumbling.

They pointed to Plaintiff's lack of experience regarding municipal bylaws when he sought to obtain a building permit for an underground garage. [ 14 ] Defendants complained of the lengthy delays between meetings and a

schedule that was impossible to meet. Although it takes months to

schedule a contractor, Plaintiff had foreseen contracting the work on April 22nd and beginning construction on May 6th, which according to Defendants is an unrealistic delay. They reproach Plaintiff for obtaining a construction quote from his neighbour. [ 15 ] In response, Plaintiff submitted his quote was from a reputable contractor who could begin the work within a few days. He also explained that the established time plan could not be maintained because of Defendants' changes.

Analysis: [ 16 ] Plaintiff is seeking the balance of payment for the professional services he rendered, namely the amount of $4,820. [ 17 ] Defendants seek to obtain the reimbursement of their $1,000 retainer plus $4,232.81, already paid. They do not have access to their basement, as requested. They point to the urgency of the situation, Plaintiff's inability to grasp concepts or to obtain municipal permits, his unrealistic time chart proposals, his lack of competence and the fact that his designs did not meet their requirements. [ 18 ] The evidence fails to establish that Plaintiff was incompetent.

Plaintiff outlined the work to be done, prepared a schedule, took the requisite measurements, prepared plans and elevations and did concept and design development drawings in response to Defendants' stated requirements. [ 19 ] Defendants' contention of an unrealistic timetable is not substantiated. Certain changes made by Defendants affected the

schedule as did decisions made by the municipality; its delays, over which Defendant had no control, impacted on the decision making process. [ 20 ] While Defendants maintain that it would take months to engage a contractor for the foundation repairs, such that the

schedule could not be met, Plaintiff obtained a submission for work that could be effected immediately and was waiting for a submission from another contractor, with whom he had worked in the past. [ 21 ] Defendants claim Plaintiff's documents were of no value to them; they used drawing from other firms. However, designs had been made of Defendants' property. Defendants chose not to use them. [ 22 ] There were communication problems. Defendants were unable to articulate their needs or Plaintiff failed to comprehend Defendants' requirements. One such issue concerned the home theatre to be built in the basement.

Plaintiff designed an open theatre space while Defendants wanted an enclosed area. [ 23 ] Whatever the reason was for the communication breakdown, Defendants considered they were not obtaining the services they desired and decided to terminate Plaintiff's services on May 5, 2008. [ 24 ] A client has the right to unilaterally end the contract even though the services have already begun and are in progress. However, the client must pay the service provider, in proportion to the agreed price, the value of the work performed before notice of termination. The Civil Code states: 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. [ 25 ] Defendants were entitled to end Plaintiff's services but they must pay for the value of the work performed. [ 26 ] On April 15, 2008, Defendants paid Plaintiff $4,232.81. Plaintiff then sent another invoice dated April 30, 2008, showing an outstanding amount of $4,820.17 for the progression of work from April 14th to the end of the month. [ 27 ] The bill includes charges for design concept drawings, for working drawings and for tender documents.

Defendants claim that Plaintiff never moved past the design concept stage and that the design development stage was not carried out. [ 28 ] Plaintiff admitted that during the last month, he only prepared one working drawing and had not prepared any tender

documents. He had however produced both design concept drawings and design development drawings. [ 29 ] In light of the contract and the work done, the Court concludes that Plaintiff performed a substantial part of the work involved. However, since working drawings and the tender stage were not carried out, the sum of $2,000 charged for these items is removed from the bill. The amount of the invoice that is payable is $3,000 for the design concept drawings and $2,812.50 for the design development drawings, plus tax, for a total of $6,560.86.

The sum of $4,232.81 is removed since Defendants already paid that amount. The balance, including tax, is therefore $2,328.05. [ 30 ] In addition, Plaintiff must repay the $1,000 deposit he received in light of

article 2129 of the Civil code of Quebec which states that “...the provider of services is bound to repay any advances he has received in excess of what he has earned.” [ 31 ] Accordingly, the remaining amount comes to $1,328.05 which remains payable. [ 32 ] Defendants, in their cross demand, request a reimbursement of all sums paid. Given the conclusion reached above, their cross demand is dismissed. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Defendants, Katherine Thériault and Paul Harris, to pay Plaintiff, Bobrow Architectes, $1,328.05 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec , since the institution of the action, plus judicial fees of $126. DISMISSES Defendants' cross demand. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: January 25 and November 22, 2010