2011 QCCQ 1112, 2011 QCCQ 1112

Igolkin c. Leduc (Toiture Royal Roofing) 2011 QCCQ 1112 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-112318-086 DATE: February 1, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Anatoli IGOLKIN […] Mercier (Quebec) […] Plaintiff v.

Jonathan LEDUC (fasn de Toiture Royal Roofing) 24, chemin Godon St-Donat (Québec) J0T 2C0 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is seeking from defendant an amount of $2,000.00 in damages following the partial execution of a contract whereby defendant undertook to install a new roof on plaintiff's house. [ 2 ] According to plaintiff, the work performed by defendant was totally unsatisfactory and, for this reason, he unilaterally decided to terminate the said contract. [ 3 ] Defendant contests plaintiff action.

He does acknowledge that some of the work performed by his employees necessitated corrective work but, according to Mr. Jonathan Leduc, defendant's president, he was never allowed to do the corrective work by plaintiff. [ 4 ] Furthermore, defendant has filed a cross demand by which he is claiming from plaintiff a sum of $4,827.10 representing the value of the work done at the date the contract was resiled. [ 5 ] The evidence adduced at trial has revealed that plaintiff and defendant entered into a contract on March 28, 2008.

The object of this contract was the replacement of the roof of the house of plaintiff situated in Ville Mercier, Province of Quebec. This contract was for an amount of $9,654.19. [ 6 ] The work on the job site commenced on July 1, 2008. After one day of work, defendant had replaced half of the roof. However, plaintiff was so unsatisfied with the work performed by defendant's employees that he called Mr. Leduc immediately to advise him of his dissatisfaction. [ 7 ] At that time, Mr.

Leduc told plaintiff that he would correct the unsatisfactory work but only once the job had been completed in full. [ 8 ] By letter dated July 9, 2008, plaintiff formally advised defendant that the contract concluded on March 28, 2008 was unilaterally resilied by him by reason of the unprofessional work performed on July 1, 2008.

Furthermore, he then advised defendant that he was claiming an amount of $1,500.00 in damages. [ 9 ] Thereafter, plaintiff gave a contract to Construction Holidays which, in the month of August 2008, installed a new roof on the house after having disposed of the partial work completed by defendant. [ 10 ] According to plaintiff, the work performed by defendant's employees on July 1, 2008 was not professional and did not meet the standards of the trade.

[ 11 ] In support of his testimony, plaintiff filed a series of pictures taken by him which, when examined, reveal convincingly that the job done by defendant's employees was unsatisfactory. More particularly, the shingles that were put on the roof by defendant's employees were not installed correctly and some were installed in double.

If only aesthetically, the work was unacceptable. [ 12 ] Furthermore, the evidence has revealed that defendant's employees damaged the three skylights that were installed by them. [ 13 ] In this regard, the testimony of plaintiff is not only corroborated by the pictures filed by him but also by the testimony of Mr. Daniel Proulx, representative of Les Entreprises Prolux . [ 14 ] Mr. Proulx is specialised in the installation of skylights and, on July 4, 2008, he examined the roofing work performed by defendant's employees. [ 15 ] Mr.

Proulx's testimony is categorical as to the fact the skylights were not installed properly and were damaged by defendant's employees. [ 16 ] Mr. Proulx has evaluated the cost of the parts requested to perform the necessary repairs to the skylights to an amount of $568.92. This amount is granted to plaintiff as damages. [ 17 ] Plaintiff's testimony regarding the poor quality of the workmanship was corroborated by that of Mr. Roman Didyk, a home inspector. [ 18 ] After having examined the roof at the request of plaintiff, Mr. Didyk drafted an inspection report dated July 6, 2008. [ 19 ] In this report, Mr.

Didyk concludes this follows: • The roofing material employed on the majority of the roof is installed uncommon to the normal practice and the workmanship is very poor. While it appears to be performing it's intended function (keeping water out), we cannot estimate its future performance in this application. Annual inspections and ongoing maintenance will be critical. The roofing should be replaced and present layers of roofing materials be removed prior to re-roofing. This adds cost of demolition and debris removal to the re-roof cost.

It is recommended that the roofer be contracted for more information and/or any warranties that may apply. • The flashing and roof materials at skylights perimeter not installed according to the common building practice. Skylights do not have a proper flash kit installed and several vulnerable areas exist. There is a higher potential for leaks and should be carefully monitored or skylights replacement will be necessary. • The driveway cobblestone surface has tar marks at several areas.

Resurfacing is necessary to correct this condition. [ 20 ] Although the evidence has revealed that plaintiff, who is a real estate agent, does refer business to Mr. Didyk, and although this is factor to be considered by the Court when evaluating the weight to be given to his testimony, considering what is revealed by the pictures filed by plaintiff, the Court accepts Mr. Didyk testimony as factually correct and accepts the conclusions contained in his report. [ 21 ] The Court is therefore satisfied that defendant's work was not acceptable in that it was not done in a professional manner.

Plaintiff was therefore entitled to refuse the said work. [ 22 ] Regarding defendant's obligations towards plaintiff,

article 2100 of the Civil Code of Quebec stipulates the following: « 2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be provided, they are also bound to act in accordance with usual practice and the rules of art, and, where applicable, to ensure that the work done or service provided is in conformity with the contract.

Where they are bound to produce results, they may not be relieved from liability except by proving superior force. » [ 23 ] After consideration of the evidence, for the reasons set forth previously, the Court is of the opinion that defendant's work was not performed in conformity with the contract because it was not done in a professional manner. [ 24 ] Pursuant to

article 2125 of the Civil Code of Quebec , plaintiff was entitled to terminate the contract by giving defendant notice. This notice was giving to defendant on July 9, 2008. [ 25 ] In this regard,

article 2125 of the Civil Code of Quebec stipulates the following: « 2125. The client may unilaterally resiliate the contract even though the work or provision of service is already in progress. » [ 26 ] As plaintiff was justified to terminate the contract and as defendant's work was not up to the standards of the trade, and as plaintiff did not benefit from the work done by defendant, this work was of no value to him.

Therefore, plaintiff was justified, in fact and in law, to contest defendant's cross demand which is dismissed, without costs. [ 27 ] Regarding the damages claimed by plaintiff, in addition to the sum of $568.92 claimed for the damages to the skylights, plaintiff is claiming a sum of $931.00 for damages caused to the landscaping of the property as well as for the damages done to the cobblestone surface on the driveway. [ 28 ] Regarding the damages caused to the landscaping, the evidence revealed that, while performing the work, defendant's employees did damage the flowers that have being planted by plaintiff's wife. [ 29 ] However, in support of his claim, plaintiff did not file an estimate of the damages caused.

This being so, arbitrarily [1] , the Court finds it reasonable to award an amount of $100.00 to plaintiff.

[ 30 ] As concerns the cobblestone surface of the driveway, no evidence was introduced in court by plaintiff establishing that the tar marks seen on some of the stones cannot be removed.

Consequently, as concerns the damages to the cobblestone surface of the driveway, the Court dismisses plaintiff's demand. [ 31 ] Finally, as concerns the amount of $500.00 claimed by plaintiff as "damages-rent" for the presence of a container on his property until August 21, 2008, an amount of $100.00 is awarded to plaintiff for the inconveniences suffered by him. [ 32 ] Consequently, plaintiff's action is maintained in part for an amount of $768.92. FOR THE FOREGOING REASONS, THE COURT: MAINTAINS in part Plaintiff's action.

CONDEMNS Defendant to pay to Plaintiff the sum of $768.92 with interests at the legal rate of 5% plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of July 9, 2008, plus the judicial costs in the amount of $98.00. DISMISSES Defendant's cross demand, without costs. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: January 24, 2011.