2017 QCCQ 3963, 2017 QCCQ 3963

Mahdavi c. Home Depot of Canada inc. 2017 QCCQ 3963 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148130-158 DATE: March 20, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ HASSAN MAHDAVI Plaintiff v. HOME DEPOT of canada inc.

Defendant/Plaintiff-in-warranty -and- SYNERGIZE INTERNATIONAL INCORPORATED Defendant-in-warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Hassan Mahdavi seeks to recover $15,000 from Home Depot of Canada Inc. (“ Home Depot ”). [ 2 ] He claims that Home Depot breached its obligations pursuant to a contract for the supply and installation of windows and seeks its cancellation, as well as the return of his deposit ($2,944.76) and various damages ($11,373.96).

He also seeks to return ten boxes of allegedly defective hardwood flooring purchased from Home Depot and obtain the reimbursement of the purchase price ($681.98). [ 3 ] Home Depot, who has impleaded its subcontractor Synergize International Incorporated (“ Synergize ”) so that it can be held liable for any amount that may be payable to Mr. Mahdavi, denies the alleged breach of the windows contract, which it argues was unilaterally terminated by Mr. Mahdavi. Home Depot also denies that defective flooring was sold to him. FACTUAL CONTEXT - The Windows Contract [ 4 ] On October 13, 2013, Mr.

Mahdavi and Home Depot entered into a contract (the “ Windows Contract ”) for the supply and installation of 12 Farley windows for Mr. Mahdavi’s duplex (the “ Property ”). [1] The installation was to take place “ 6 to 7 weeks ” later, subject to change. [2] Mr. Mahdavi paid $2,944.76 of the total price of $9,815.88 as a deposit, charging it to his Home Depot credit card. [ 5 ] Home Depot sub-contracted the supply and installation of the windows to Synergize. [3] [ 6 ] The Windows Contract was modified on November 13, 2013 to bring changes to two of the windows. The signed Change Order states that Mr.

Mahdavi’s windows are to be installed “ before end of November ”. [4] [ 7 ] Despite the agreed installation date, Synergize ordered the windows from Farley on November 20, 2013 only and, as a result, they were not ready for delivery until mid-December 2013. [5] Mr. Mahdavi was not happy with this delay. He did not want the windows installed during the very cold weather and, after several exchanges with Home Depot and Synergize representatives, it was agreed that the installation would be postponed until the spring of 2014. [6] [ 8 ] In the months that followed, Mr.

Mahdavi tried repeatedly to obtain the technical specifications of the windows from both Home Depot and Synergize, to no avail. When he finally obtained them on April 22, 2014, [7] he noticed what he considered to be discrepancies in the dimensions of the windows. [8] [ 9 ] This was the proverbial straw that broke the camel’s back. Mr.

Mahdavi immediately advised Home Depot that he wished to terminate the Windows Contract because of the delayed installation and inaccurate dimensions and he demanded the return of his deposit by way of a reversal of the charge on his Home Depot credit card. [9] This was not done, despite several subsequent requests. [10] [ 10 ] At the beginning of June 2014, Synergize advised Mr. Mahdavi that his deposit would not be returned. [11] Synergize took the position that he had unilaterally terminated the Windows Contract and was bound to pay for the cost of the windows manufactured prior to termination.

Synergize insisted that Mr. Mahdavi take delivery of the windows. [ 11 ] Mr. Mahdavi refused and formally demanded the return of his deposit in June 2015. [12] In his claim filed shortly thereafter, adding damages for loss of rent, extra heating costs, loss of a tax credit, inconvenience and loss of time.

- The Hardwood Flooring [ 12 ] In March 2014, Mr. Mahdavi purchased from Home Depot 55 boxes of hardwood flooring, four of which at a 15% discount. [13] Mr. Mahdavi claims that the discount was granted only because the boxes were open, but the word “ damaged ” appears on the order form. [14] [ 13 ] Mr. Mahdavi claims that when he installed the wood flooring in the Property, he found that approximately 15% of the wood was defective, which required him to cut it in smaller planks for use in closets and less visible areas.

He testified that some of the hardwood was marked as rejected by the manufacturer’s quality control, but no evidence of such markings was provided to the Court. [ 14 ] After the installation was complete, ten boxes of hardwood flooring were left over, which Mr. Mahdavi wishes to return. In June 2015, he formally demanded that Home Depot pick up the leftover boxes and reimburse him the price he paid ($681.98). [15] He included the reimbursement of the purchase price in his claim. questionS in issue [ 15 ] These facts and the position of the parties calls for the resolution of the following questions namely:

a) Did Mr. Mahdavi unilaterally terminate the Windows Contract?

b) If not, is Mr. Mahdavi entitled to the termination of the Windows Contract for default, to the return of the deposit and to the damages claimed?

c) Is Synergize liable towards Home Depot for the amounts payable to Mr. Mahdavi?

d) Is Mr. Mahdavi entitled to return the leftover flooring boxes and obtain the reimbursement of the price paid? ANALYSIS

a) Did Mr. Mahdavi unilaterally terminate the Windows Contract? [ 16 ] The Windows Contract is a contract of enterprise [16] governed by certain particular rules.

Notably, a client can terminate such a contract unilaterally at any time, at his or her own discretion, even if the work has been partially executed. [17] If a client does so, he or she must pay the contractor for the work completed up to the termination, but is entitled to the return of any advances paid in excess of the actual value of the work. [18] [ 17 ] Contracts of enterprise can also be terminated under the general regime applicable to all contracts. [19] To obtain termination under this regime, the client must establish a serious breach of the contractor’s obligations [20] and the contractor must be placed in default either by the sole operation of the law or by way of a letter of demand. [21] A contract that is terminated is deemed never to have existed and the parties are bound to restore what they have received. [22] [ 18 ] Contrary to what Home Depot and Synergize submit, it is clear on the facts that Mr.

Mahdavi did not purport to unilaterally terminate the Windows Contract. It is clear from his testimony and the exchange of emails with Home Depot’s representatives [23] that his decision to terminate was motivated by what he considered to be breaches of Home Depot’s obligations, namely the long-delayed installation and the inaccurate dimensions of the windows. [ 19 ] Mr. Mahdavi is therefore not liable for the cost of the windows as a result of unilateral termination of the Windows Contract (article 2129 C.C.Q.). [ 20 ] Let us now see whether Mr.

Mahdavi is entitled to the termination of the Windows Contract under the general regime applicable to all contracts.

b) Is Mr. Mahdavi entitled to the termination of the Windows Contract and to the amounts claimed? i. Termination of contract [ 21 ] It should be stated at the outset that the Windows Contract is between Mr. Mahdavi and Home Depot. Although Home Depot subcontracted its obligations thereunder to Synergize, it remains fully liable to Mr. Mahdavi for any fault of its subcontractor. [ 22 ] As previously stated, a breach of contract must be serious to justify termination. [24] [ 23 ] Mr.

Mahdavi raises three breaches to justify the termination of the Windows Contract. [ 24 ] Firstly , he argues that the delay in the installation of the windows, originally scheduled for November 2013, justifies termination. The Court respectfully disagrees. Although Home Depot undertook to install the windows by the end of November 2013, [25] Mr. Mahdavi later agreed to postpone the installation to the spring of 2014 because he did not want it done in late December. He therefore cannot invoke this delay to justify termination. [ 25 ] Secondly , Mr. Mahdavi claims that the windows are not “Star Energy” compliant.

This is based on his analysis of the technical specifications of Farley Windows and he also contends that the 3-panel windows were not attached and sealed. The evidence does not support this submission. Home Depot and Synergized have established that all Farley windows have “Star Energy” certification and that the 3-panel windows at issue were indeed factory sealed. [26] [ 26 ] Thirdly , Mr. Mahdavi submits that the inaccurate dimensions of the windows justify termination. The Court agrees for the following reasons.

[ 27 ] A chart comparing the dimensions of the existing window openings of the Property to the dimensions of the manufactured windows [27] reveals that 11 of the 12 windows are significantly smaller than the openings and that the remaining one is significantly larger than the existing opening. [ 28 ] Home Depot and Synergize were given the opportunity to explain these discrepancies. [ 29 ] The Court accepts the explanations provided by Mr.

Martin Deniger of Synergize that installation of windows “by insertion” (the method chosen for 10 of the 12 windows [28] ) requires windows that are slightly smaller than the openings because they are meant to be inserted within the frame of the existing windows. However, no feasible explanation was provided regarding the 2 nd floor kitchen window that is larger than the window opening. [ 30 ] Home Depot undertook to supply 12 windows of accurate dimensions for installation in the Property and it did not do so. This is a serious breach of its obligations, as it meant that Mr.

Mahdavi would have had to wait weeks longer for a new window to be manufactured and delivered for installation. [ 31 ] The Court concludes on the evidence that this justified termination, more particularly in light of the other difficulties encountered that clearly affected Mr. Mahdavi’s trust in Home Depot and its subcontractor. Moreover, Home Depot was in default by the sole operation of the law because it was too late for it to properly execute its obligations in a useful way. [29] Mr.

Mahdavi could not reasonably be expected to wait several more weeks to give a contractor that he no longer trusted another chance under those circumstances. [ 32 ] Mr. Mahdavi is therefore entitled to the resolution of the Windows Contract and, consequently, to the reimbursement of the $2,944.76 deposit paid. [30] ii. Damages [ 33 ] The law provides that Mr. Mahdavi is also entitled to compensation for any damages suffered as a direct and immediate consequence of Home Depot’s fault. [31] [ 34 ] On the basis of the evidence, the Court concludes that Mr.

Mahdavi is not entitled to the damages claimed for loss of rent, extra heating costs and loss of a tax credit. The alleged damages for loss of rent and extra heating costs, even if adequately proven, result from Mr. Mahdavi’s decision not to have the windows installed in December 2013 and not from Home Depot’s fault regarding the dimensions of the windows. Moreover, no evidence was provided to support the claim for loss of a tax credit. [ 35 ] As for the damages claimed for the inconvenience and loss of time, the Court concludes, based on the evidence presented, that Mr.

Mahdavi is entitled to some compensation as a result of Home Depot’s fault. He spent many hours in written and verbal communications with both Home Depot and Synergize representatives to obtain the technical specifications of the windows and deal with the situation afterwards. In light of the particular circumstances at issue, the Court considers that $300 is reasonable compensation in this regard.

c) Is Synergize liable towards Home Depot? [ 36 ] Synergize admitted at trial that should Home Depot be held responsible towards Mr. Mahdavi for breach of the Windows Contract, its own liability would be engaged towards Home Depot as subcontractor. [ 37 ] Consequently, the Court will grant the action-in-warranty of Home Depot against Synergize.

d) The Hardwood Flooring [ 38 ] Mr. Mahdavi has not demonstrated on a balance of probabilities that the wood flooring he purchased from Home Depot was defective. His general testimony that 15% of the total quantity purchased was defective is insufficient in the absence of any supporting evidence. [ 39 ] His claim regarding the hardwood flooring must therefore be dismissed.

FOR THESE REASONS, THE COURT: GRANTS the action in part; DECLARES the Proposal and Agreement for Installation entered into on October 13, 2013 between Home Depot and Hassan Mahdavi resolved; CONDEMNS Home Depot Canada Inc. to pay to Hassan Mahdavi an amount of $3,244.76 together with interest at the legal rate plus the additional indemnity stipulated in

article 1619 of the Civil code of Québec from June 13, 2015; GRANTS the action in warranty; CONDEMNS Synergize International Incorporated to pay to Home Depot Canada Inc. an amount of $3,244.76 together with interest at the legal rate plus the additional indemnity stipulated in

Article 1619 of the Civil code of Québec from June 13, 2015; WITH LEGAL COSTS of $200.00 in favour of Mr. Mahdavi representing the judicial stamp on the Application.

__________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: December 2, 2016