2016 QCCQ 10652, 2016 QCCQ 10652

9208-0753 Québec inc. c. Cholewicki 2016 QCCQ 10652 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-143930-149 DATE: July 18, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ 9208-0753 Québec Inc. Plaintiff v.

Henry Cholewicki -and- CarolE Cholewicki Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants an amount of $4,599 for the installation of a unistone driveway. [ 2 ] Defendants refuse to pay the amount claimed. They argue that Plaintiff was to carry out the work without cost as part of a larger contract and, moreover, that the work was not carried out correctly.

FACTUAL CONTEXT [ 3 ] In April, 2013, Defendants retained Plaintiff to install a French drain around their property. This required the removal of a large

section of Defendants’ existing unistone driveway and the parties agreed that after completion of the French drain work and after the ground had settled, Plaintiff would repair and reinstall the unistone driveway. The written agreement between the parties (the “ Contract ”) states the following: “4) Unistone repairs after ground settles at $10/sq ft.” [1] [ 4 ] The French drain work was carried out in July 2013 and Defendants paid the agreed price for that portion of the work, in addition to $2,000 for extra work. [ 5 ] In the summer of 2014, Defendants arranged to have the driveway finished.

This involved preparing the base under the stones and the actual installation of the stones. The work was carried out on July 2 and 3, 2014. After completion, Plaintiff invoiced Defendants $4,000 ($4,599 with applicable taxes) on the basis of 400 sq. ft. at $10 per sq. ft. [2] [ 6 ] Defendants refused to pay and Plaintiff filed its claim on September 4, 2014. [ 7 ] Defendants filed a contestation claiming that Plaintiff agreed in July 2013 to complete the driveway at no further cost as well as a cross-demand claiming $4,599 from Plaintiff to have the installation redone.

They alleged that the driveway prior to Plaintiff’s work was all uniform shades of red and that it was now specked with white stones where Plaintiff had installed it. [ 8 ] Plaintiff did not offer or ask to correct the work after receiving Defendants’ contestation and cross-demand. ANALYSIS

a) Did Plaintiff verbally agree to complete the unistone installation at no cost to Defendants? [ 9 ] Defendants claim that when Mr. Robert Gentile, Plaintiff’s principal, asked for an additional amount of $2,000 for extra work in July 2013, he stated that this amount included the cost of reinstalling the unistone and that no further cost would be charged to finish the driveway. [ 10 ] Mr. Gentile denies this.

He claims that the $2,000 extra was for additional work to the foundation of Defendants’ house, which was found to be required after the ground around the house was excavated. [ 11 ] Because the Contract expressly provides for a price of $10 per square foot for the repair and installation of the unistone driveway, Defendants bear the burden of proving, on a balance of probabilities, [3] that Plaintiff later agreed to complete the driveway at no extra cost from what had already been paid for the French drain and foundation work. [ 12 ] To meet this burden, the evidence offered by Defendants must be clear and convincing [4] and the alleged facts must not only be

possible, but probable. [5] The Court must determine liability on the basis of the most probable facts. [6] [ 13 ] Respectfully, Defendants have not met this burden of proof. [ 14 ] Mr. Gentile was frank and forthright in his explanation that the extra cost of $2,000 was for additional foundation work and the Court accepts his testimony. This was separate from the unistone driveway installation and although Defendants may have misunderstood Mr.

Gentile at the time, it seems improbable to the Court that Plaintiff would forego the agreed price for the driveway work. [ 15 ] The Court therefore concludes that the agreed price for the repair and reinstallation of the unistone driveway was 10$ per square foot, as reflected in the Contract. The Court must now turn to Defendants’ second ground of defence, namely that the work was not carried out correctly.

b) Was the unistone correctly installed by Plaintiff? [ 16 ] The Contract is a contract of enterprise. [7] As such, it obliged Plaintiff to carry out the work in accordance with usage and good practice [8] and imposed a one-year warranty against poor workmanship. [9] [ 17 ] Under this warranty, if a defect appears within one year of the acceptance of the work, the contractor is presumed responsible unless it can demonstrate that the defect is due to a fault of the client or that it falls completely outside the scope of the warranty. [10] [ 18 ] In the instant case, Defendants have proven a deficiency in the work.

Their testimony that the driveway prior to Plaintiff’s work was all uniform shades of red and that the

section reinstalled by Plaintiff is now specked with white stones is corroborated by photographic evidence. [11] This is not aesthetically pleasing and it is not the result that they were entitled to expect. [ 19 ] This is a defect in the work for which Plaintiff is presumed to be responsible. [ 20 ] To avoid liability, Plaintiff therefore bears the burden of proving, on a balance of probabilities, [12] that the deficiency is due to a fault of Defendants or that it falls outside of the scope of the warranty. [ 21 ] The Court finds that Plaintiff has not met this burden of proof for the following reasons. [ 22 ] Plaintiff cannot explain the different coloring of the driveway after its work.

It was suggested that the stones may have weathered more on the side that was exposed to the elements than on the underside. The Court concludes that this is the most probable explanation and Plaintiff must bear responsibility under the legal warranty against poor workmanship. [ 23 ] Given the proven deficiency, Plaintiff is not entitled to receive the full agreed price. Defendants are entitled to a reduction in price equivalent to the cost of the work needed to correct the deficiency. [ 24 ] Defendants claim that the work needs to be entirely redone but have not proven this to be the case.

It appears exaggerated, as the work involved the preparation of the surface prior to laying the stones and there is no evidence that this portion of the work was faulty or needs to be redone. [ 25 ] In the absence of evidence of the exact cost of having the stones lifted and replaced with the proper side up, the Court will use its discretionary power and finds that Defendants are entitled to a reduction in price of 50% to take into account the deficiency.

Plaintiff’s action will therefore be granted in part only, for $2,000 ($2,299.50 with applicable taxes). [ 26 ] The reduction in price will be sufficient for Defendants to retain a contractor and have the stones reinstalled in the proper way. Defendants are not required to give Plaintiff the opportunity to correct the work, as Plaintiff was already given the opportunity to do so following the filing of Defendants’ cross-demand and it did not do so. [ 27 ] Given the Court’s conclusion on the principal action, Defendants’ cross-demand is moot and will be dismissed without costs.

FOR THESE REASONS, THE COURT: GRANTS the principal action in part. ORDERS Defendants to pay Plaintiff an amount of $2,299.50, together with interest at the legal rate, plus the additional indemnity stipulated in

article 1619 of the Civil code of Québec from September 10, 2014. WITH COSTS of representing the judicial stamp on the application. DISMISSES the cross-demand. WITHOUT COSTS . __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: March 7, 2016