2015 QCCQ 13261, 2015 QCCQ 13261

Sanchez c. Construction Abbco (2007) inc. 2015 QCCQ 13261 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Civil Division» No: 500-32-140068-133 DATE: November 25, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ pamela sanchez Plaintiff v. construction abbco (2007) inc.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant, the contractor she retained to carry out a renovation project in her apartment (the « Project »), an amount of $7,000, which she seeks to increase to $15,000.

Unhappy with Defendant’s work, she terminated the contract before completion of the Project. [ 2 ] She claims to be entitled to the reimbursement of all advances paid to Defendant ($12,128.42), as well as compensation for costs incurred and inconvenience suffered ($5,900), but she reduced her claim to $7,000 to benefit from the special regime applicable to small claims. She sought at trial to increase her claim to $15,000 and her request was taken under advisement to be decided in this judgment. [ 3 ] Defendant contests the claim.

It argues that the value of the work carried out before the termination of the contract far exceeds the amount paid by Plaintiff and, accordingly, that she is not entitled to any reimbursement or compensation. By way of cross-claim, Defendant claims from Plaintiff the outstanding balance of the contract ($5,220.38) and damages for lost time or productivity ($1,789.62), for a total of $7,000.

FACTUAL CONTEXT [ 4 ] On June 1, 2012, Plaintiff retained the services of Defendant to renovate her kitchen and carry out other renovation work in her apartment. [ 5 ] The contract between the parties (the « Contract ») [1] provided for a fixed price of $12,268 ($14,105.13 with taxes) for a defined scope of work including the following:

a) Kitchen : ➢ Demolition of existing cabinets; ➢ Removal of existing wallpaper and repair, plastering, priming and painting of walls and ceilings; ➢ Supply and installation of kitchen cabinets (manufactured by Armoires Kiel inc./Destination Design and already chosen by Plaintiff); ➢ Supply and installation of kitchen sink and faucet; ➢ Supply and installation of countertop and backsplash; and ➢ Supply and installation of over-the-stove fan.

b) Hallway/living room : ➢ Painting of living room ceiling; ➢ Removal of travertine tile in the hallway (prior to the installation of a new hardwood floor by another contractor). [2] [ 6 ] The Contract also priced certain potential upgrades and additions to the scope of work or “extras”. [3] [ 7 ] The contract price was payable by instalments of 50% at start up, 25% upon installation of the kitchen cabinets and 25% upon completion. [4] [ 8 ] No

schedule or timeline was provided for in the Contract.

[ 9 ] The work began in June 2012 with the demolition of the existing kitchen. In the following months, the walls and ceiling of the kitchen were prepared for the installation of the new cabinets and the finishes were chosen or approved by Plaintiff (countertop, backsplash tile, sink and faucet, lighting, etc.). [5] The travertine floor in the hallway was also removed. [ 10 ] The new kitchen cabinets were delivered on January 21, 2013 and installed on January 28, 2013.

They were later partly dismantled when Plaintiff complained about the quality of the finish on the doors and drawer fronts, which were removed and returned to Armoires Kiel inc./Destination Design, who accepted to supply new doors and drawer fronts. The replacement components were manufactured, but have not been installed due to the dispute between the parties. [ 11 ] On January 31, 2013, Defendant invoiced upgrades and extras totalling $1,851.20 ($2,128.42 with taxes) [6] and Plaintiff paid this $2,128.42 on February 2, 2013.

She also made another partial payment of $3,000 on February 3, 2013, bringing the total of advances paid to $12,128.42. [ 12 ] Sometime in the spring 2013, the granite countertop was delivered and installed. This was also the cause of a dispute. According to Plaintiff, the colour was not what she had approved and she immediately refused it. [ 13 ] According to Mr. Howard G. Abboud, Defendant’s President, and Mr.

Eddy Arseneau, who installed the counter, Plaintiff loved the countertop when it was installed and it is only a week later, after more than half of the backsplash tile had been installed, that she demanded that it be removed. Although it denies Plaintiff’s allegations, Defendant nonetheless accepted to remove the countertop and the partially installed backsplash tile. [ 14 ] Although Plaintiff made a deposit on another countertop, [7] she did not purchase it and no other countertop or backsplash was installed.

The kitchen sink and faucet could not be installed either, although they were delivered to Plaintiff. [ 15 ] The work continued, but was still unfinished at the beginning of July 2013. Plaintiff was still awaiting the replacement cabinet doors and drawer fronts from Armoires Kiel inc./Destination Design and there was still no counter, backsplash or sink in place.

In the rest of the apartment, Defendant had painted the living room and den ceiling, but Plaintiff was unhappy with the result and the work was still in progress. [ 16 ] Just before the construction holiday in July 2013, it was agreed that the work would be suspended for the holiday and that it would resume on August 8, 2013 with the installation of the new doors and drawer fronts in the kitchen and completion of the rest of the work. [ 17 ] On Monday July 22, 2013, Plaintiff called Mr.

Abboud and demanded that he take her to the Armoires Kiel inc./Destination Design to retrieve the doors and drawer fronts and that he install them immediately. She had been advised that the replacement components had been ready for several days. [ 18 ] Mr.

Abboud refused because of the construction holiday and, according to him, Plaintiff became very angry, threatened to file a lawsuit and demanded that Defendant reimburse all amounts that she had paid to date. [ 19 ] The same day, Plaintiff filed a complaint with the Régie du bâtiment regarding Defendant, stating again that she wanted the reimbursement of all amounts paid to Defendant. [8] [ 20 ] On July 31, 2013, Defendant demanded payment from Plaintiff of what it considers to be the balance of the Contract, namely $5,220.38. [9] [ 21 ] On September 18, 2013, Plaintiff sent Defendant a letter of demand seeking the reimbursement of the $12,128 paid, compensation for the deposit made on a replacement countertop ($900) and the inconvenience of being without a kitchen for 16 months ($5,000). [10] [ 22 ] Defendant responded with a letter of demand seeking payment of $5,220.38 on the Contract. [11] [ 23 ] Plaintiff filed her application on September 27, 2013, reducing the amount of her claim to $7,000.

Defendant filed its contestation and cross-claim on October 31, 2013. [ 24 ] As appears from photographs [12] and a video [13] produced by Plaintiff, she did not proceed to any work subsequent to these events and her apartment is in essentially the same state as it was in July 2013. ANALYSIS

a) Can Plaintiff be allowed to increase her claim to $15,000? [ 25 ] When Plaintiff filed her claim in September 2013, the jurisdictional ceiling of the Small Claims Division of this Court was fixed at $7,000 [14] and she voluntarily reduced her claim to that amount in order to benefit from the special provisions governing small claims. [ 26 ] On January 15, 2015, this ceiling was increased to $15,000. [15] Plaintiff seeks to amend her claim to benefit from this increased ceiling. [ 27 ] It is now well established that a legislative amendment extending the jurisdiction of a court cannot, in the absence of a legislative provision to the contrary, apply to pending proceedings to authorize an amendment that would increase the amount claimed beyond the maximum amount that could be claimed before the Court when the proceedings were filed. [16] [ 28 ] The legislative amendment at issue does not provide for its application to pending cases.

Consequently, the Court is of the opinion that the increased ceiling of $15,000 cannot apply to Plaintiff’s pending claim.

[ 29 ] Plaintiff’s request to increase her claim to $15,000 must therefore be dismissed.

b) Is Plaintiff entitled to the amount claimed in the principal action?

i) The legal principles applicable to Plaintiff’s termination of the Contract [ 30 ] The Contract is a contract of enterprise governed by articles 2098 and following of the Civil Code of Québec (the « C.C.Q. »). It obliges Defendant to act diligently and to carry out the work in accordance with usage and good practice. [17] [ 31 ] Contracts of enterprise can be resiliated (terminated) in two different ways.

Firstly, a client can terminate a contract of enterprise unilaterally at any time, at its own discretion, even if the work has been partially executed. [18] [ 32 ] If a client does so, the law provides that it must pay the contractor the value of the work executed up to the termination. [19] As a corollary, the contractor must reimburse to the client any advances paid in excess of the actual value of the work. [20] [ 33 ] To determine the value of the work completed, the Court must take into account the quality of the work; the contractor is only entitled to be paid for work carried out in conformity with the contract and in accordance with usage and good practice. [21] [ 34 ] Thus, the value of proven deficiencies or faulty workmanship and the value of incomplete work must be subtracted from the price that the contractor was to receive if all of the work had been carried out. [22] [ 35 ] The client who terminates a contract unilaterally can also obtain compensation for damages suffered as a result the contractor’s fault in carrying out the work, but the client cannot be compensated for the cost of having the work completed by another contractor. [ 36 ] Contracts of enterprise can also be terminated under the general regime applicable to all contracts. [23] To succeed in doing so, the client must first place the contractor in default after granting him the opportunity to cure any default within a reasonable period of time. [24] Also, the contractor’s default must be serious enough to warrant resiliation. [25] [ 37 ] The Court concludes, on the preponderance of the evidence, that Plaintiff exercised her right to unilaterally resiliate the Contract when she demanded from Mr.

Abboud, on July 22, 2013, the reimbursement of all advances paid. [26] [ 38 ] Indeed, the evidence shows that she did not want Defendant to continue with the Project and did not wish to give it the opportunity to finish or correct the work, as required to obtain the resiliation of the Contract for default under the general regime. [ 39 ] Consequently, the Court must decide the parties’ respective claims according to the principles applicable to the unilateral resiliation of a contract of enterprise. [27] Since Plaintiff must pay the value of the work completed up to July 22, 2013, the Court must determine the value of the work completed up to that date and see if the advances paid exceed this value. [ 40 ] In addition, the Court must consider Plaintiff’s claim for damages caused by Defendant to her property. ii) The agreed contract price [ 41 ] The law provides that the value of the work must be determined “in proportion to the agreed price”. [28] In other words, if only half of the work is complete when a contract is terminated, the value of the work completed is half of the agreed price. [ 42 ] Here, the parties disagree on what the agreed price is. [ 43 ] Defendant claims that the agreed price is $17,426.70 (exclusive of taxes) [29] because the following upgrades and/or extras were requested and approved by Plaintiff after the Contract was signed: 1) Upgrade - Ceramic tile for the backsplash $416.59 2) Upgrade - Over-the-stove fan $14.65 3) Addition of under cabinet LED lighting $169.96 4) Scraping and smoothing of the original “popcorn” ceiling in the kitchen $900.00 5) Remove and rebuild door frames of the kitchen/dining room and kitchen/hall doors $350.00 6) Upgrade – Granite countertop $641.00 7) Upgrade - Kitchen sink, grill and faucet $609.50 8) Restocking fee for cabinet and drawer front handles $169.50 9) Electrical materials/supplies $100.00 10) Electrical work to install LED lights, switches/plugs, etc. $337.50 11) Installation of 4 closet doors in the kitchen hall $500.00 12) Paint ceiling in den $300.00 13) Remove/Transport granite counter top to shop (after installation) $150.00 14) Pick-up closet doors from Home Depot and deliver to client $50.00 15) Move/Install felt pads under furniture $450.00 TOTAL (before taxes) $5,158.70 [ 44 ] Plaintiff originally stated that no upgrades or extras were requested or approved, but she admitted much of the extra work at trial. [ 45 ] Based on the evidence, the Court concludes that items 1) to 7) and 11) are upgrades and extras that Plaintiff clearly requested

and accepted. Items 1) to 5) were invoiced in February 2013 and Plaintiff’s second instalment of $2,128.42 was paid on the basis of these items.

At trial, and although she argued that she should not have to pay the amounts claimed, Plaintiff also admitted items 6), 7) and 11). [ 46 ] As for item 8), Defendant has proven to the satisfaction of the Court that it purchased special order cabinet handles on Plaintiff’s instructions, that she later asked that they be returned to the supplier and that the supplier charged the 25% restocking fee provided for in the original order. [30] There is a calculation error, however, and the correct amount is $159.32.

It should be noted that Defendant has reversed the charge of $234 for the original purchase of the handles. [ 47 ] As for items 9) and 10), the Contract excluded “lighting/electrical work” at the out-set and Plaintiff implicitly admits that she requested this work, since she claims that it was poorly carried out. This will be dealt with in the next section. [ 48 ] As for item 12), the Court does not accept Plaintiff’s contention that painting the den ceiling was implicitly included in the original scope of work.

The Contract refers exclusively to the living room ceiling and even if the den ceiling is visible from the living room, Plaintiff could well have chosen to paint the living room ceiling only. [ 49 ] As for items 13), 14) and 15), it has not been established that Plaintiff agreed to pay for these extra amounts and they cannot be added to the price of the Contract. [ 50 ] The Court therefore concludes that the agreed price of the Contract including approved extras (the « Contract Price ») is $16,766.52 [31] (exclusive of taxes). [ 51 ] This is the amount that would have been due to Defendant had all the work been fully and correctly carried out and it is the amount from which the value of any proven deficiencies, faulty workmanship or incomplete work must be deducted to determine the value of the work at the time of resiliation. iii) The value of the work at the time of resiliation [ 52 ] Plaintiff claims that the work carried out by Defendant has no value whatsoever given the numerous alleged defects and, consequently, that all the advances she paid must be reimbursed. [ 53 ] Defendant admits that some of the work is incomplete and it has voluntarily subtracted certain charges from the original price in its invoicing. [32] It argues, however, that the value of the work largely exceeds the advances paid by Plaintiff. [ 54 ] The Court cannot accept Plaintiff’s position that the work completed by Defendant has no value.

Clearly, the work carried out has substantial value, even if it is less than the Contract Price. [ 55 ] The Court will consider Plaintiff’s complaints and determine, on the preponderance of the evidence, what amounts must be deducted from the Contract Price to arrive at the value of the work. The Court will follow the order used by Defendant in its July 31, 2013 invoice. [33] a.

Kitchen cabinets [ 56 ] Plaintiff claims that the cabinets supplied by Defendant are second-hand cabinets, that they are damaged, that the drawers are not the right dimensions [34] and that they were very poorly installed. [ 57 ] Defendant insists that the cabinets are new and confirms that the replacement doors and drawer fronts manufactured by Armoires Kiel inc./Destination Design at Plaintiff’s request are ready for delivery and installation. [35] It denies that they were poorly installed, but admits that the finishing work is incomplete. [ 58 ] The Court concludes on the preponderance of the evidence that the kitchen cabinets are new.

It accepts the testimony of Mr. Abboud and Mr. Phil Priftis, Defendant’s sub-contractor who installed the cabinets, that they were predrilled to facilitate installation of the cabinets and handles. The Court also concludes that the drawers are the standard dimensions for the cabinets. [ 59 ] Plaintiff has demonstrated, however, that the cabinets were poorly installed, that they were damaged during installation and that the installation is significantly incomplete.

Indeed, it is evident from the video [36] and photographs [37] of Plaintiff’s apartment that little finishing work has been done and there are a number of holes (other than predrilled holes) and scratches on the cabinets that the Court can only conclude result from the installation. [ 60 ] Because Plaintiff insisted at trial that she wanted the cabinets removed, she did not provide evidence of how much it would cost to correct the noted deficiencies, deliver and install the cabinet doors and drawer fronts and complete the finishing work. [ 61 ] Based on the evidence provided, [38] the Court evaluates on an empirical basis that $2,000 must be deducted from the Contract Price to reflect the proven faulty and incomplete work relating to the kitchen cabinets.

The Court makes this evaluation knowing that Plaintiff can take possession of the replacement cabinet doors and drawer fronts at Armoires Kiel inc./Destination Design as confirmed by Defendant. b. Cabinet doors and drawer handles [ 62 ] The Contract Price includes $234 for the supply and installation of the kitchen cabinet doors and drawer handles. Given that the handles were returned to the supplier (subject to a restocking fee that Plaintiff is responsible for) and were not installed, an amount of $234 must be deducted from the Contract Price. Defendant admits this in its invoicing. [39] c.

Demolition of travertine floor [ 63 ] Plaintiff has convinced the Court that when Defendant undertook to remove the travertine floor, it was agreed that the concrete

slab would be brought smooth in order to allow for the installation of the new hardwood floor by another contractor. [ 64 ] Defendant failed to do so and this resulted in Plaintiff being charged an extra cost of $174.06 for the installation of the hardwood floor. This amount must be deducted from the Contract Price. d. Granite countertop and backsplash tile [ 65 ] Plaintiff claims that the granite countertop delivered and installed by Defendant did not match the color she approved and that the bullnose on each side was not cut in the same way.

She also claims that Defendant should be held responsible for the deposit that she put on another granite countertop. [ 66 ] The Court acknowledges that Defendant voluntarily granted Plaintiff a full credit for the countertop (original allocation of $675; upgrade to granite of $641; and installation of the backsplash tile of $275 for a total of $1,591). This amount of $1,591 must therefore be deducted from the Contract Price. [ 67 ] Given that she is not paying for the original counter, Plaintiff cannot claim the cost of another countertop. e.

Installation of kitchen sink, grill and faucet [ 68 ] Plaintiff has offered no evidence or justification for her claim to the reimbursement of the purchase price of the sink, grill and faucet. She chose these items, they were purchased by Defendant on her behalf and there is no reason for their return. [ 69 ] Because the installation of the sink was not completed, however, the $450 installation charge must be deducted from the Contract Price. f.

Painting of wall and ceiling in the kitchen [ 70 ] Plaintiff has proven to the satisfaction of the Court that the finishing of the walls and ceiling in the kitchen is either incomplete or of poor quality, with an uneven and imperfect appearance. [40] [ 71 ] The walls and ceilings will clearly require repainting and, consequently, the full $475 charge for this portion of the work must be deducted from the Contract Price. g.

Improper protection and clean up [ 72 ] Plaintiff has proven to the satisfaction of the Court that the protection of her apartment and Defendant’s clean up during the course of the Project was seriously deficient, resulting in damage to her property. The Court will consider the issue of compensation in the next section. [ 73 ] The Court believes, based on the evidence, that the full $250 charge relating to protection and clean up must be deducted from the Contract Price. h.

Painting of living room ceiling [ 74 ] Plaintiff has also demonstrated faulty workmanship in the painting of the living room ceiling, which is uneven and unprofessional looking. [41] Again, the Court concludes that the living room ceiling will need to be repainted and the full price of $800 must therefore be deducted from the Contract Price. i. Incomplete refinishing of the front door [ 75 ] Plaintiff has also proven that Defendant did not install moldings on the front door as originally planned and an amount of $100 must be deducted from the Contract Price in this regard. j.

Glazing and smoothing of kitchen ceiling [ 76 ] Plaintiff claims that the $900 charge to glaze and smooth the kitchen ceiling was unnecessary and unreasonable because she originally planned to build a dropped ceiling with pot lights, which did not require such work. She admitted at trial, however, that this work turned out to be necessary after she changed her mind and decided against a dropped ceiling. She also contests the amount charged, but she accepted it when the extra was discussed and cannot contest it today. [ 77 ] Consequently, no amount should be deducted from the Contract Price in this regard. k.

Incomplete reframing of kitchen/dining room and kitchen/hall doors [ 78 ] The evidence shows that although Defendant was to remove and reframe the doors leading from the kitchen to the living room and to the hallway, only a portion of the work was completed. The Court believes that an amount of $250 must be deducted from the Contract Price in this regard. l. LED under-cabinet lighting and other electrical work [ 79 ] Plaintiff claims that the LED under-cabinet lighting was poorly installed and that the wiring is hanging and visible.

Defendant denies that it was poorly installed, but admits that the installation was not fully completed.

[ 80 ] Plaintiff has not provided conclusive evidence of faulty workmanship here, but the evidence shows that the electrical work was left substantially incomplete. Consequently, the Court considers that $200 should be deducted from the Contract Price to reflect the value of the incomplete work. m.

Unhinged closet doors in kitchen hallway [ 81 ] Plaintiff has proven that the closet doors installed by Defendant in the kitchen hallway are already coming off their hinges and the Court believes that an amount of $150 should be deducted from the Contract Price so that Plaintiff can get the doors adjusted and repaired. [ 82 ] A total amount of $6,674.06 representing the value of proven deficiencies or incomplete work must therefore be deducted from the Contract Price of $16,766.52.

The value of the work completed by Defendant at the time of termination is therefore of $10,092.46 or $11,603.81 with applicable taxes. [42] [ 83 ] Given that Plaintiff advanced $12,128.42, or $524,61 in excess of the value of the work, Defendant must reimburse to Plaintiff this amount of $524,61.

Plaintiff can also take possession of the replacement doors and drawer fronts from Armoires Kiel inc./Destination Design, of which she is the owner. iv) Plaintiff’s damages claim [ 84 ] In addition to her right to the reimbursement of advances made, Plaintiff claims compensation for costs incurred and for the inconvenience suffered during the course of the Project. [ 85 ] To succeed on this portion of her claim, Plaintiff must demonstrate, on a balance of probabilities, [43] that Defendant breached its obligations under the Contract and that the damages claimed are the direct and immediate result of this breach. [ 86 ] As concerns costs incurred, the Court has already dealt with Plaintiff’s claim to recover the $900 deposit made on a replacement granite countertop.

Plaintiff has not convinced the Court that Defendant delivered the wrong countertop and, more importantly, she was not charged for the original countertop and there is no basis for this claim.

There is no basis either to her claim to recover the $749.37 paid for the four doors installed in her kitchen hallway. [ 87 ] Plaintiff also argues that she was inconvenienced because she has been without a functional kitchen since June 2012. [ 88 ] Although the Contract is silent as to a deadline to complete the Project, Defendant had a general obligation to carry out the work diligently. [44] Clearly, Defendant breached this obligation given the length of the Project and it must be held responsible for some of the delay. [ 89 ] On the other hand, Plaintiff clearly expected to be without a functional kitchen for a certain period of time, as this is part and parcel of any major kitchen renovation project and it is clear from the evidence that her decisions contributed to the delay. [ 90 ] Also, Plaintiff chose to terminate the Contract in July 2013 and she cannot blame Defendant for any subsequent delay, as Defendant could no longer finish the work. [ 91 ] Under the circumstances, the Court believes that a compensation of $500 is appropriate as concerns delay. [ 92 ] Plaintiff has also demonstrated to the satisfaction of the Court that Defendant’s workers or sub-contractors were negligent and caused damage to her property.

The photographs and video show numerous paint splatters on the grasscloth wallpaper, furniture and new wood floors, slight damage to the new wood floor, damage to a leather chair, damage to her refrigerator and damage to the carpet on the balcony.

On the preponderance of the evidence, the Court concludes that they were caused by Defendant. [ 93 ] All in all, the Court considers that $1,000 is an adequate compensation for the damage to Plaintiff’s property. [ 94 ] Finally, Plaintiff claims the cost of $461.82 that she incurred to prepare the photographs [45] and video [46] of her apartment for the purpose of the trial. [47] They were very useful to the Court but it was not essential to retain a professional photographer for this purpose. Under the circumstances, the Court will grant Plaintiff $230 in this regard.

c) Is Defendant entitled to the amounts claimed in the cross-claim? [ 95 ] Through its cross-claim, Defendant seeks, firstly, what it considers to be the outstanding balance of $5,220.38 due pursuant to the Contract. [ 96 ] For the reasons set out above, this claim must fail. Defendant has been paid in excess of the value of the work due following the termination of the Contract and must reimburse Plaintiff the excess advances received.

It can claim nothing else pursuant to the Contract. [ 97 ] As to Defendant’s claim for damages due to lost time and productivity, no evidence of a fault on the part of Plaintiff or of any prejudice on the part of Defendant was provided to the Court. [ 98 ] Defendant’s cross-claim must therefore be dismissed. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s request to amend her claim; GRANTS the action;

CONDEMNS Defendant Construction Abbco (2007) inc. to pay to Plaintiff Pamela Sanchez an amount of $2,254,61, together with interest at the legal rate of 5% and the additional indemnity provided by law from September 24, 2013; DECLARES that Plaintiff Pamela Sanchez is the owner of the cabinetry described in invoice #2722 of Armoires Kiel inc./Destination Design and any replacement components of said cabinetry and is authorized to take possession thereof; WITH COSTS of $167 representing the judicial stamp on the Application; DISMISSES the cross-claim of Defendant Construction Abbco (2007) inc.; WITHOUT COSTS. __________________________________ DOMINIQUE GIBBENS, J.C.Q.

Date of hearing: June 26, 2015 (taken under advisement July 3, 2015).