2011 QCCQ 5587, 2011 QCCQ 5587

Williams c. McIntyre 2011 QCCQ 5587 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-147133-089 DATE: May 24, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ DEAN WILLIAMS Plaintiff vs.

MONICA McINTYRE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ PARTIES AND PROCEEDINGS [ 1 ] Dean Williams, who operates under the business name West Island Chimney Enr., sues Monica McIntyre in relation to work done in the summer of 2006 on a property that she then owed situated at 3284 Cedar, in the city of Westmount, claiming the following amounts:

a) a balance of $16,856.95 of an alleged contract price of $38,856.95, taxes included;

b) the unpaid price of additional work: $4,193.36, taxes included;

c) judicial costs related to the preparation, service and publication of a notice of legal hypothec;

d) a prior notice of hypothecary recourse and the subsequent release of this inscription $786.32; for a total of $21,050.31. [ 2 ] The inscription of the Plaintiff's legal hypothec was struck from the office of publicity of rights pursuant to an agreement between the parties whereby a certain sum was placed in trust with the Plaintiff's attorneys to be used in satisfaction of judgement. [ 3 ] The Defendant contests these claims alleging that the work was not completed and that the work executed was of such poor quality that it added no value. [ 4 ] Defendant therefore denies owing the amounts claimed and, in the cross-demand, seeks the resolution of the contract and the restitution of the amount of $22,000 paid on account of the contractual amounts, or, alternatively, the award of $22,000 as damages. [ 5 ] At the trial, November 24 th , 2010, the Court permitted the Defendant to amend her defence and cross-demand in order to raise the relative nullity of the contract on the ground that the Plaintiff did not hold the requisite licence from the Régie du Bâtiment du Québec, as provided in the Building Act [1] . [ 6 ] The resolutory conclusion, as amended, reads as follows: RESOLVE the contract between the Plaintiff and the Defendant, or alternatively ANNUL the contract between the Plaintiff and the Defendant ;

[ 7 ] In either case, the Defendant seeks a conclusion to the effect that the Plaintiff is not entitled to any form of restitution. [ 8 ] In reply to this, the Plaintiff argues that, should the principle of relative nullity of

article 50 of the Building Act apply, this nullity was waived by the Defendant's conduct in agreeing to contract with the Plaintiff when she knew or should have known that he did not have an RBQ licence and by not raising it at any time prior to the opening of the trial. ISSUES [ 9 ] The Court considers the issues it must decide to be the following: - Does the principle of relative nullity of

article 50 of the Building Act apply to the circumstances of the case? - If so, has the Defendant lost the benefit of this relative nullity by confirmation of the contract, renunciation or otherwise? - If valid, should the contract be resolved because of an inexecution? - What restitution should the Court impose in the case of resolution or nullity? - In the case that resolution or nullity are not awarded should the sanctions of reduction of price or damages be imposed and, if so, for what amount? FACTS The contract [ 10 ] In 2006, Ms McIntyre decided to put her home on the market.

To that end, she sought to improve the appearance of the brickwork, in order to obtain a higher price. [ 11 ] As seen from the street, the house consists of a main structure on a left-right axis with a wing protruding toward the street on a perpendicular axis on the left side of the building. The front of this wing has a pronounced parapet wall in a stepped configuration following the slope of the roofs.

This parapet wall is echoed in a smaller parapet on the same axis over a dormer window set in the roof of the main building over the entrance door. [ 12 ] Because of the configuration of the main building and the protruding wing, the entrance is recessed in a courtyard the perimeter of which is established on two sides by the walls of the house and, on the other two sides, by a low wall made from the same bricks as the facades, of a light beige hue. [ 13 ] Under this courtyard, there is an underground structure with a finished interior. [ 14 ] Leaded-glass windows and stone treatment around the front door give the building an ancient northern-European look. [ 15 ] Ms McIntyre was concerned about cracks that appeared to have been patched, especially in the courtyard wall that appeared to be in bad repair and the parapet walls, referred to by her as "turrets", the appearance of which left something to be desired.

Brickwork was showing signs of deterioration on the chimney of the rear of the building, where bricks seemed to be loose. [ 16 ] She met with the Plaintiff, Dean Williams who represented himself as West Island Chimney enr., a firm specialising in brickwork. [ 17 ] The Defendant expected the Plaintiff to recommend doing what was needed to make the front of the building look good, to stabilise the chimney and to deal with some cracks on the East side of the building that did not look good. [ 18 ] She also hoped to solve a problem of water infiltration in the underground structure built under the courtyard terrace. [ 19 ] In her request for a quote, she did not impose any more precise specification or limitation. [ 20 ] With respect to the water-infiltration problem, affecting the underground structure, Mr Williams claimed that he had dealt with such problems before solving them through the installation of a waterproofing membrane guaranteed for five years. [ 21 ] Mr Williams' initial recommendation included knocking down the stone wall enclosing the courtyard terrace, using the bricks that could be salvaged to replace any bricks requiring replacement on the façade of the building. [ 22 ] He remitted to her, on a form printed with the firm's logo, an estimate for $36,800.

The work is described as follows: P-1A: Removal of courtyard wall reuse good brick for walls: Grind all joints between brick in front and 1 side to door: replace cracked brick in same areas replace concrete top on front wall rebuild side chimney below 2 nd Stage

repair back chimney removal of unistone front courtyard, dig to concrete sealing: install membrane on floor: reinstall unistone [ 23 ] Upon reflection, Ms McIntyre decided to repair rather than remove the courtyard wall; Mr Williams revised his estimate, making manuscript corrections (P-1) reducing the price to $31,800 plus taxes. [ 24 ] This revised version reads the same as the initial estimate except for the very first item which now reads "repair of courtyard wall, 1" removal of cement, wash and repaint". [ 25 ] On August 7, Ms McIntyre remitted an initial payment of $11,000 as foreseen in the modified estimate (P-1). [ 26 ] After beginning the work, Mr Williams approached Ms McIntyre for a modification of the contract price claiming that unexpected work was required on one of the chimneys on an area that could not be seen from ground level. [ 27 ] Ms McIntyre testifies that she did not agree to an increase in price because, for her, the initial price took into account unforeseeable circumstances. [ 28 ] The Plaintiff contends, however, that an additional $3,000 was accepted and he produces P-2, a modified estimate dated August 17, 2006 incorporating a redraft of the first item of the description: "repair to courtyard wall – replace destroyed brick wash and repaint removal of cement 1 inch " .

The estimate includes an additional item at the end "Removal of Wasp Nest on chimney 2 men 2hrs + material" . [ 29 ] The price now reads $34,100; there is no change to the stipulation of the progressive payments of $11,000 each and the taxes are not calculated. [ 30 ] Mr Williams testifies that he placed this revised estimate (P-2) in the Defendant's mailbox. [ 31 ] As well, Mr Williams asserts that, when it came to repairing the front parapet, it became necessary to rebuild the wall rather than simply repoint the bricks.

He states that the bricks on the top of the parapet were falling apart as they were cracked in the center. [ 32 ] When he approached the Defendant for a change in price, this led to a heated reaction and he was asked to leave the job. [ 33 ] He asserts however that the discussion ended with him agreeing to do the work with the lowest possible increased price. A second advance of $11,000 was paid September 5, 2006.

On September 25 th , 2006 using the same estimation form, the Plaintiff issued an invoice for the contract work at $34,100 plus taxes ($38,856.95) taking into account the deposit totalling $22,000, claiming a balance due of $16,856.95 on the basis that the work was completed September 25, 2006 (P-4). [ 34 ] On the same day, he issued an additional invoice described "Re: Extra work done not on Contract. Rebuilt front wall above front door […] " for $3,680 plus taxes ($4,193.36). [ 35 ] Ms McIntyre testified that she was not happy with the appearance of the work.

She was unsatisfied with uncompleted joints; there were chipped bricks, grouting marring the surface of brick, a lack of uniformity in the color of the mortar and areas that looked like patchwork. [ 36 ] In the area of the entrance door, the result still looked patched rather than uniform. [ 37 ] She also testifies that she expressed disappointment with the outcome of the membrane work done to solve the water- infiltration problem. [ 38 ] Mr Williams had removed the paving in the courtyard terrace, dug to the roof level of the underground structure, installed a heat-activated membrane known as a "Resisto membrane d'étanchéité" (P-12) and replaced the soil and re-laid the unistone finishes. [ 39 ] Mr Williams states that, after he installed the membrane and replaced the soil and the unistone, he tested the waterproofing membrane by running a garden hose to soak the soil in the courtyard for eight hours.

He felt that his work was successful because no water infiltrated during that full day. [ 40 ] Ms McIntyre complains that, shortly after the work was completed, water infiltrated in the walls of the vault-like structure under the courtyard, which had originally been a cold storage area, later converted to a sauna. [ 41 ] In view of these problems and conditions, Ms McIntyre states that she told Mr Williams that she would not pay him.

There is no written demand on her part until the letter of April 12, 2007 (D-2) triggered apparently by the service of prior notice of the exercise of a hypothecary right. [ 42 ] Mr Williams recounts an event where, shortly after the completion of the work, it was inspected, in his presence, by Ms McIntyre's handyman.

He testifies that certain deficiencies were identified and agreed to, but Ms McIntyre wanted a second opinion on the pointing. [ 43 ] In the interim, Ms McIntyre confronted him with the water-infiltration problem and he replied stating that the problem was not his liner; perhaps there were other works required to solve the problem.

This discussion ended with Ms McIntyre refusing to make any more payments and Mr Williams refusing to do any other work. [ 44 ] Subsequently, in August of 2008, Mr Williams attended the premises at the invitation of Ms McIntyre so that he could see the water-infiltration problem for himself.

[ 45 ] He was able to see from the exterior that there was a pool of water in the hole that had been dug out above the roof membrane. [ 46 ] He was not allowed into see the interior where contractors were working at the time. Ms McIntyre testifies that the purpose of the visit was to permit him to visit the interior but on the condition that he take pictures with the camera that she would lend to him.

She would then provide the photographs once developed. [ 47 ] Because he refused to follow this procedure and proposed taking pictures with his own camera, she decided to end the meeting, because he was refusing to follow the protocol agreed to. [ 48 ] Ms McIntyre decided to proceed with the sale of the building. The listing (D-4) shows that there was a declaration concerning the water-infiltration problem: "there is a water infiltration in the roof of the sauna".

The property was sold for $1,699,000 pursuant to an offer to purchase dated December 17, 2008. [ 49 ] Ms McIntyre's son, Ryan Ludlow, affiliated with Re/Max Westmount inc. was both the listing agent and the selling agent. ANALYSIS 1.

The quality of the work [ 50 ] Ordinarily, in a claim for the price of a contract of enterprise consisting in construction or renovation of a building, the fact that work has been done by a qualified contractor and is substantially complete gives rise to a certain presumption that payment of the contract price is owed. [ 51 ] When the contractor establishes this evidence, the burden of proof shifts, if not in an absolute legal sense, at least tactically, as a balance of persuasion, to the Defendant. [ 52 ] In the present case, the situation is different because the contractor, having no RBQ licence, and employing workman who did not hold the applicable competency cards, was not a credible witness in terms of the applicable standards and techniques and the quality of his work. [ 53 ] The brickwork was probably in need of some maintenance or repair; this is evident from the testimony of Mr Jean Bluteau, architect, who, as early as 2004, when inspecting the building at the request of the owner, observed that on the front façade there was some deterioration of the brick walls.

Beyond that observation, he simply recommended that the building be examined by a competent masonry specialist. [ 54 ] The testimony of Ms McIntyre establishes that there were some aesthetic issues with the brick, which appeared patched and cracked in some locations. [ 55 ] The testimony of Manual Limnos, one of the purportedly skilled, but unlicensed, workman involved in the job, is clearly given from a position of interest and is not particularly reliable as evidence of the extent of the work required. [ 56 ] Consider, for example, the assertion made by this presumably experienced yet unqualified mason that the workmen on the job used a 4½ inch grinding wheel to remove the mortar between the joints in order that it could be replaced. [ 57 ] Mr Morris Charney architect, the expert called by the Defendant, stated that grinding the mortar joints is not a valid option.

If pointing was necessary, which he doubts, the appropriate way to remove mortar is with a saw cut especially if one is dealing with lime brick which, according to the Plaintiff was the type of brick of which the facade consisted. [ 58 ] The result of the clash of opinions, as between a very experienced and recognised expert witness and an unlicensed bricklayer, results in a substantive doubt as to whether the work prescribed was necessary, or even appropriate. [ 59 ] The Plaintiff believes he is entitled to payment for the work done as described in the estimates and in the billing, but it is difficult for him to establish that it was necessary or useful to grind virtually all of the joints in the façades and part of the side wall of the building. [ 60 ] There is no prior inspection report, nor even a set of notes or sketches to record what he observed when he gave his quote. [ 61 ] The mere fact that he requests an adjustment of the contract price of $3,000 because of the state of the chimney below the areas that were readily visible from ground level casts doubt on the accuracy of his observations that led to the quote. [ 62 ] Should a contractor who is quoting on a job for brickwork use a ladder or scaffold to have access to the areas that are not visible from ground level before quoting a fixed price? [ 63 ] Common sense would say that, on an investment of approximately $35,000, it would be reasonable for a contractor to take the necessary time, even if it meant erecting a scaffold, in order to properly assess the work. [ 64 ] The same consideration would apply to the claim for an extra because of the perceived necessity to rebuild the front wall as opposed to simply repointing the brick. [ 65 ] At the time of quoting on the job, the contractor could not have really taken a good look, if, when doing the job, he realised that a much more substantial amount of replacement brick was necessary than had been anticipated.

[ 66 ] This also begs the question whether the damage to the brick below the capstones of the stepped upper limits of the parapet walls became necessary because of damage occurring when the capstones were removed. [ 67 ] The extra claim is also for two extra concrete capstones beyond those contemplated in the initial repair. Because of their number and size, the capstones were a significant part of the contractor's cost.

He would have been well advised to take a closer look, even if this required erecting a scaffold, to ascertain their true state. [ 68 ] More importantly, if we take it as a given that the brick was seriously deteriorated below the capstones, this would lead, in the opinion of the expert witness, to an inference that the capstones were not performing their function properly, which is to drain water away from the brick so that it drips to the ground without causing water infiltration in the interstices of the brick wall. [ 69 ] Surprisingly, Mr Lingos states that crowns on parapet walls usually have a 3½-inch overhang while the existing one had only a 1-inch overhang. [ 70 ] The ones that were replaced were split, which would suggest that they were not properly draining water and fell prey to the freeze-thaw cycle. [ 71 ] The Plaintiff's approach was to replace the damaged capstones by pouring in place an exact reproduction of the existing ones in the belief that the city of Westmount would not have permitted redimensioning the capstones for reasons of preservation of architectural heritage. [ 72 ] But, no request was made to the City of Westmount, not even for a building permit.

The contractor did not ascertain what construction was or was not considered appropriate according to city bylaws and building Code requirements incorporated by these bylaws. [ 73 ] In the opinion of Mr Charney, the configuration of the capstones would be the root cause of deterioration of the brickwork below the crown of the parapet wall.

The capstones were flat and did not provide proper flow of water off the top of the wall toward the ground without touching the brickwork. [ 74 ] The Court concludes from his testimony that the replacement of the capstones, as done by the Plaintiff, would simply perpetuate an existing problem as opposed to solving it. [ 75 ] Mr Charney also criticises the brick jointing as being uneven, undulating with joints that are too large in width and generally unsightly. [ 76 ] He writes (D-8): The aesthetic component of the masonry/brickwork is important. It is an integral part of the rules of the art.

It is also one of the principal reasons clients undertake such repairs. [2] [ 77 ] As for the front chimney, probably on area of the house that required substantive work, the outcome is unsuccessful in that steps have not been taken to avoid water infiltration by applying angled flashing. Because of problems of dimensioning the chimney, the bricklayers left some extraordinary large joints between the bricks (photo 15).

This is incorrect both from a technical and aesthetic point of view. [ 78 ] Finally, the expert report points to several areas where the work was simply not done. [ 79 ] It is unusual, in a case of substantial renovation or repair work to find that no value has resulted. But the facts of the case warrant such a finding, and the Court accepts the conclusions of the expert summarised in the report as follows: The contractor has not done his work according to either the art of the trade or the requirements of the building code. The workmanship is poor. It represents diminished value.

A major motivation for this work was to facilitate the future sale of the property. It has failed both from a technical and an aesthetic viewpoint. There was no added value. The contractor should have refused to do the work if he could not execute it in a professional manner. The quality of the work is unprofessional and unacceptable.

There is no value to it because the brickwork will continue to deteriorate and because the property was being groomed for sale and the results of this work could only have diminished market value. [ 80 ] In conclusion on the brickwork, the contractor obviously spent time and expense in performing the works that he had specified for himself but there is considerable doubt as to whether the extent of work performed was really required, whether it resulted, at least in part, from the grinding technique employed which may have damaged the very brickwork the mason had set out to repair and, in the final result, the Court concludes that it has not been established that any value was added to the property in comparing the final outcome with the state of the building at the outset. [ 81 ] The Plaintiff chose not to call an expert witness to establish his case and refute the defence.

He fails to meet the burden of proof. The roofing membrane [ 82 ] As a roofer, the Plaintiff not only had no qualifications or status recognised by the RBQ, his only claim to expertise was that he had solved other infiltration problems by the application of a self-adhesive membrane. [ 83 ] The representations he made to the Defendant were to the effect that he could solve the problem as he had done in the past. [ 84 ] Mr Charney pointed out that the roofing system of an underground structure falls within the area of expertise of qualified

roofers. [ 85 ] Mr Charney's opinion is that the application of a waterproofing membrane alone without determining the source of the presence of water, considering issues of drainage, etc., would not give an overall solution to the problem of water infiltration in the interior of the underground structure.

This opinion is accepted by the Court. [ 86 ] The Plaintiff's response, when he was told that the water infiltration continued to be a problem, was to defend his membrane and to suggest that the problem resulted from other issues beyond his scope of work. [ 87 ] This is an inadequate response in the case where the contractor not only performs work but also specifies this scope of work required. [ 88 ] By doing so, he not only promised that his work would be done correctly but that it would have the result sought i.e. a solution to the water-infiltration problem guarantied for a substantial period of time. [ 89 ] It obvious that, failing to have the proper knowledge and qualifications, the Plaintiff failed in his obligation, whether it be one of means or of result.

The capstones [ 90 ] The Defendant makes a related argument concerning the capstones: he states that if he had replaced all of the capstones, rather than limiting his work to the capstones that were seriously deteriorated, the contract would have been more expensive by approximately $10,000. [ 91 ] This would be a valid argument if the Plaintiff had carried out work specified by a professional and, in the course of construction, he was ordered to do additional work because of a change of design or the discovery of unanticipated site conditions. [ 92 ] From the point of view of the Defendant, however, this was a fixed-price contract based on an assessment of work carried out by the contractor as being complete in order to achieve the desired result: all appropriate repairs to the facade and part of the sidewall of the building. [ 93 ] While the estimates describe the work, the essence of the contract was not only to perform the work referred to but to properly specify the appropriate work and to establish a fixed price for all of that work. [ 94 ] On the whole of the evidence, the Plaintiff has not fulfilled the burden of proving that the work recommended was appropriate and that the execution of that work resulted in a value as contemplated by the parties in their contract. 2.

Nullity, resolution or reduction in price/damages. [ 95 ] Whichever of the above remedies is applicable, the Defendant seeks the same result: avoidance of the claim for the balance of the contract price, the reimbursement of the contract price paid and no restitution to the Plaintiff for the value of the work. - Nullity [ 96 ] Conceptually, the defence of relative nullity is the principal recourse (the others being alternative or subsidiary) even though it was added by amendment at the end of the judicial process as an alternative to the conclusion in resolution. [ 97 ] Clearly, the Plaintiff did not comply with the licensing requirement of

article 46 of the Building Act [3] . Building contractor 46. No person may act as a building contractor, hold himself out to be such or give cause to believe that he is a building contractor, unless he holds a current licence for that purpose. No contractor may use, for the carrying out of construction work, the services of another contractor who does not hold a licence for that purpose. [ 98 ]

Article 50 provides a remedy of relative nullity: Cancellation of contract 50. A person not being a contractor who has entered into a contract for construction work with a contractor not holding the proper licence may apply for cancellation of the contract. Cancellation of registration. The owner of an immovable charged with a legal hypothec referred to in paragraph 2 of

article 2724 of the Civil Code and registered on the application of a contractor who does not hold the proper licence may apply for the cancellation of the registration of the hypothec and for the cancellation of any related registration which the contractor may have applied for. Exception.

No application for the cancellation of a contract or privilege will be granted where it is established that the applicant was aware that the contractor did not hold the proper licence. [ 99 ] Seeking the application of the exception, the Plaintiff argued that the Defendant knew or ought to have known that he did not hold au RBQ licence.

Mrs McIntyre owns properties and could be considered to be a person having a certain degree of sophistication and experience in business. [ 100 ] The Plaintiff argued that she ought to have known that Mr William was not licensed because no licence number appears on his stationary or on his truck. [4] [ 101 ] The fact, taken alone, that a contractor has not deliberately induced a client to believe he is licensed, when he is not, does not establish awareness of the client of this fact.

There is no concept in the Building Act that a person dealing with a contractor ought to know that he is not licensed, when this fact is not declared. While a prudent client may ask if a contractor is licensed, and ask to see a certificate, or even check with the RBQ, the law does not impose in

article 50 any due diligence on the part of the client. [ 102 ] There may be cases where the client would be deemed to have the awareness, for example because of a wilful blindness, but the evidence in the present case does not contain any elements that would suggest such a state of mind on behalf of the Defendant.

The Court accepts that she simply did not know. [ 103 ] The defendant also argued that, through the passage of time, the Defendant had ratified the contract by not raising the issue of nullity earlier than at the beginning of the trial. [ 104 ] The choice of remedy in a legal proceeding does not necessarily imply renunciation of rights giving rise to other remedies.

It is, to some extent, a question of whether good procedural practice would permit an amendment. [ 105 ] In a case where the same factual material could give rise to remedies that are mutually contradictory, such as nullity of contract and execution by equivalence of the obligations of the contract, they can be sought in the alternative. [ 106 ] The addition of the remedy of nullity, at the last minute, as an alternative to resolution of the contract, was permitted because it had no adverse impact on the conduct of the trial from an evidentiary point of view, as the only additional fact added through the amendment was the negative fact of the absence of the RBQ licence, a fact that the Plaintiff had no choice than to admit. [ 107 ] From the point of view of good case management, the amendment was allowed without any need for a postponement. [ 108 ] But even if a remedy is invoked procedurally, a right (in this case the right to invoke the nullity) may be extinguished substantively by prescription or renunciation.

The burden of proof would be on the Plaintiff in this case to establish the extinction. [ 109 ] Tardiness, as a means of establishing an implied renunciation, would be measured from the time the Defendant became aware of the fact that generates the right.

The Plaintiff did not establish from what date the Defendant knew he did not have the requisite licence. [ 110 ] The only indication in the file that the Plaintiff informed the Defendant of this fact came from the Defendant’s attorney who mentioned that it was first confirmed in a letter from the Plaintiff’s former lawyer given in lieu of particulars on November 6, 2009. [ 111 ] After that date, until the trial in November 2010, nothing of note occurred procedurally except the addition of allegations concerning the lack of added value, allegations that are not different whether the recourse be resolution or nullity.

In that light, adding the remedy the day of the trial had the same impact as adding it the day the Defendant obtained awareness of the right, except that it surprised the Plaintiff who had not anticipated it. Therefore, the Court does not consider the tardiness in raising the nullity to constitute a renunciation. [ 112 ] Was the right extinguished by prescription? [ 113 ] As an exception pleaded to an action for the balance of a contract price, the recourse of nullity is imprescriptable because of

article 2882 C.C.Q. [5] The claim for restitution of partial payment made may, however, be prescriptable as a direct action: Si le contrat entaché d'une telle nullité n'a pas été exécuté en tout ou en partie, en réalité l'écoulement de la période de prescription n'a pas pour effet de le rendre valide et de permettre une demande en exécution puisque, quel que puisse être le laps de temps entre la conclusion du contrat et la demande d'exécution du contrat, le contractant peut toujours opposer la nullité par voie d'exception.

Si, par contre, ce même contrat a été exécuté en tout ou en partie, le contractant qui a fourni cette exécution n'est pas admis après trois ans à invoquer la nullité pour répéter les sommes payées ou revendiquer les objets livré par lui. L'intérêt public cède devant l'intérêt privé. [6] [ 114 ] The conclusions in restitution of the partial payment, however, were not added with the amendment.

They were already part of the defence and cross-demand dated September 11, 2008 flowing from the remedy of resolution sought. [ 115 ] These considerations are somewhat academic, since the Plaintiff, as cross-Defendant, did not formally plead prescription. - Resolution of contract [ 116 ] Chronologically, if not conceptually, the Defendant treated the case as one of resolution of contract and nullity of the hypothecary inscription because of the absence of an added value. [ 117 ] The recourse of relation of nullity of

article 50 does not depend upon a demonstration of prejudice [7] . [ 118 ] In the case of resolution of contract, the Code requires a significant default, more than a default "of minor importance" [8] .

1604. Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance.

However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation. All the relevant circumstances are taken into consideration in assessing the proportional reduction of the correlative obligation.

If the obligation cannot be reduced, the creditor is entitled to damages only. [ 119 ] There is a significant default in the present case: the work is, among other things, of poor quality. - Restitution [ 120 ] In either case that the contract is set aside, by nullity or by resolution, the restitution of prestations takes place pursuant to articles 1699 and following C.C.Q. [ 121 ] The prestation received by the Defendant cannot be restituted in kind: the work is done and the materials are incorporated into the immovable. [ 122 ] Routinely, in cases of nullity, Courts will ascertain and, if necessary, arbitrate the value of the work received by the client, sometimes making a distinction between the materials incorporated, which add value, and the work or profit of the contractor which the latter should not be allowed to recover given the public-order provision giving rise to the nullity. [9] This distinction would not apply in a case of resolution. [ 123 ] Given the Court's conclusion that the Plaintiff has not, on the balance of probabilities, established a significant added value, it is not possible to find a value for the Defendant to restitute. [ 124 ] While it is true that the brick walls required some maintenance and repair and significant work was done, it has not been established that the work, actually required, was done and the work done was severally criticised by a credible expert as being incomplete, and when done, faulty in its technical and aesthetic properties.

There may have been some value added for part of the work, but it would be offset by the reduction of value resulting from the defective aspects of the work. [ 125 ] The membrane work, constituting a significant portion of the price, was totally useless and simply caused more trouble and inconvenience. [ 126 ] In the Court's view, the amount paid on account of the price should be restituted by the contractor with no correlative restitution of value received to the client. [ 127 ] The remedy of nullity is the appropriate remedy, but the application of restitution would not be different if the appropriate remedy is resolution. [ 128 ] Given these findings, it is not necessary to discuss the claims for reduction in price or damages and for the costs claimed by the Plaintiff for the preservation of a legal hypothec.

Expert costs [ 129 ] Mr Charney billed his client $3,386.25 for the report (D-16), one-half day for preparation and two days in Court, of which one full day was spent in the witness box (8 hour days at $200 per hour, plus tax). [ 130 ] The taxation of the time spent in Court should be reduced to one-half day. Some of the testimony, although very interesting, was not essential to the resolution of the key issues of the case. [ 131 ] The fees to be taxed are therefore set at $6,998.85, which includes G.S.T. of $310.03 and P.S.T. of $488.29.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's Motion to Institute Proceedings; GRANTS the Defendant's defence and cross-claim; ANNULS the contract between the Plaintiff and the Defendant; CONDEMNS the Plaintiff to refund to the Defendant the sum of $22,000, with interest at the legal rate, plus the additional indemnity provided by law, to accrue from April 12, 2007; DECLARES that the Plaintiff is not entitled to any form of restitution; THE WHOLE , with costs including expert fees in the amount of $6,998.85.

__________________________________ DAVID L. CAMERON, J.C.Q. Mtre Magali Lewis BARRETTE & ASSOCIÉS Attorneys for the Plaintiff Mtre Alberto Martinez DESLAURIERS JEANSONNE Attorneys for the Defendant Dates of hearing: November 24, 25 and 26, 2010