2015 QCCQ 6056, 2015 QCCQ 6056

Minchinton (Minchinton Landscaping Reg) c. Falcati (Estate of) 2015 QCCQ 6056 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139994-133 DATE: July 6, 2015 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ TOBY MINCHINTON doing business under the name of Minchinton Landscaping Reg. Plaintiff / Cross defendant v.

YANICK FALCATI es quality liquidator of the Estate of the late Renaud Rino Falcati Defendant / Cross plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] WHEREAS plaintiff provides landscaping services; [ 2 ] WHEREAS the parties entered into a verbal agreement for said services, in May or June of 2013; [ 3 ] WHEREAS plaintiff did not provide defendant with a written agreement; [ 4 ] WHEREAS defendant allowed plaintiff to proceed with the work, without a proper written contract; [ 5 ] WHEREAS , according to plaintiff, the parties did not agree on a price; [ 6 ] WHEREAS , according to defendant, they agreed on hourly rates of $10.00, $15.00 and $25.00; [ 7 ] WHEREAS it is probable that this was the price agreed upon, given plaintiff's handwritten calculations contained in exhibit P- 1; [ 8 ] WHEREAS , however, the parties transacted without providing for payment of the appropriate taxes; [ 9 ] WHEREAS plaintiff did not issue an invoice; [ 10 ] WHEREAS he is now claiming $3,375.88; [ 11 ] WHEREAS defendant issued a cheque, in the amount of $500.00, as full and final payment for plaintiff's services, which plaintiff cashed, without reserve (exhibit D-1); [ 12 ] WHEREAS , according to defendant, plaintiff's work was incomplete and shoddy; [ 13 ] WHEREAS defendant is counter-suing plaintiff, in damages, for $7,000.00;

[ 14 ] WHEREAS , however, since the parties avoided their fiscal responsibilities, any agreement which intervened between them is null (articles 1373 and 1411 C.C.Q .) [1] and the Court will not enforce it; [ 15 ] WHEREAS , given the price of the top soil, rolls of sod and machinery rented ($853.58, exhibits P-2 and P-3) and the monies paid by defendant, on account, restitution is not in order (art. 1699 C.C.Q .); [ 16 ] WHEREAS , what is more, by cashing a cheque identified as being a final payment, plaintiff lost all his rights to this recourse; [ 17 ] WHEREAS , lastly, with regards to the counterclaim, in addition to it being unfounded for the above reasons, the evidence is clearly insufficient; WHEREFORE THE COURT HEREBY: DISMISSES the claim and the counterclaim, each party paying his own costs. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: June 12, 2015