2011 QCCQ 2650, 2011 QCCQ 2650

Pintabona c. Zahedi 2011 QCCQ 2650 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-149674-080 DATE: March 14, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ RITA PINTABONA -and- PETER FURLOTTE Plaintiffs v. FARHAD SHAHRIARI ZAHEDI -and- ABDULE KARIME SAMIMI Defendants -and- FARHAD SHAHRIARI ZAHEDI Defendant/Cross Plaintiff v.

ABDULE KARIME SAMIMI Defendant/Cross Defendant -and- PETER FURLOTTE Plaintiff/Cross Defendant ________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Rita Pintabona and Peter Furlotte are claiming the amended amount of $25,098.49 from Farhad Shahriari Zahedi (“Zahedi'') and Abdule Karime Samimi (“Samimi”), alleging they abandoned the job and their work had no value. [ 2 ] Defendants deny the claim and blame each other for the work done. Defendant Zahedi instituted an action in warranty against Mr. Samimi and Mr.

Furlotte, claiming $10,000 in moral damages, allegedly for being prevented from completing the project.

THE QUESTIONS IN LITIGATION: 1. How did the job end; were Defendants fired or did they quit? 2. What was the extent of the work done by Defendants when the renovations ceased and what was the value of their work? 3. Are Plaintiffs entitled to damages and if so, what amount is payable? 4. What is the responsibility of each Defendant and of Mr. Furlotte?

A) THE PRINCIPAL ACTION: THE EVIDENCE: [ 3 ] Mrs. Pintabona and Mr. Furlotte planned to finish the basement of their home by building a bathroom, installing floating floors, ceilings, lighting and doors, and creating wall divisions for a bedroom, laundry room, office, and playroom. [ 4 ] Mrs. Pintabona received a flyer in her mailbox, with a business card stapled to it, advertising renovation services. On February 26 or 27th, 2008 she called one of the numbers listed and within a short time, Defendants Samimi and Zahedi came to her house. After they took measurements of the basement, which were noted by Mr.

Zahedi, Mr. Samimi gave her a verbal estimate of $15,000. [ 5 ] On March 1, 2008, the two men returned and met with Mrs. Pintabona's husband, Mr. Furlotte, who drew up a contract with Mr. Samimi and Mr. Zahedi, listing the items to be done. Before beginning, Defendants requested a cheque for $9,750, which Mr. Furlotte paid, making it payable to Mr. Zahedi. A couple of days later, Mrs. Pintabona signed the contract and kept it on her kitchen table. [ 6 ] The two men began working at the beginning of March 2008. Mrs. Pintabona noted Mr. Zahedi's arrival in the morning. She did not see Mr.

Samimi work much; he usually came later in the day to inspect what was done. [ 7 ] Mrs. Pintabona considered that the work was not progressing but Defendants asked for more money. She complained about the quality of the work; Defendants assured her the job would be properly done. [ 8 ] According to Mrs. Pintabona, on March 14th, Mr. Samimi asked for $4,000 in cash to purchase the floating floor. She withdrew $2,000 and gave it to him. [ 9 ] On March 17th , Mr. Zahedi told her he required another $2,000 or the work would not continue. Fearing she would lose all the money paid to date, Mrs.

Pintabona withdrew another $2,000 in cash and gave it to Mr. Zahedi. Mr. Samimi and Mr. Zahedi both deny they asked for or received any money. [ 10 ] Mrs. Pintabona testified that although the partitions had been put up, there were gaps in the gyproc, the walls were crooked, the plastering was awful and there were wires hanging everywhere. The flooring had not been installed, the ceiling was only partially done and the bathroom had not been built. [ 11 ] On or about March 24th, Mr. Zahedi asked for an extra $15,000, claiming they needed to buy more wood. Mrs.

Pintabona refused to provide any more funds until the work outlined in the contract was completed. After that, the men did not return. Mrs. Pintabona then realized the contract was no longer on her kitchen table. She learned from Mr. Samimi that Mr. Zahedi had torn it up. [ 12 ] Mrs. Pintabona called Mr. Zahedi, pleading with him to finish the job. According to Mrs. Pintabona, he refused to return unless he received the extra funds he requested. Ultimately, the renovations remained unfinished. [ 13 ] At the end of April 2008, Mrs.

Pintabona asked another contractor, Visa Construction, to evaluate the work and give her an estimate as to the cost to finish the basement. Its owner, Robert Daddario, first came in May and found the work to be messy and badly done. [ 14 ] He recommended the basement be restored to its original state. In his view, nothing was salvageable; it would cost more to repair the installations than to began anew. Mrs. Pintabona had the basement renovations demolished by family members. [ 15 ] Mr. Daddario returned in July, after the basement was stripped. His estimate to rebuild the premises came to $15,000.

The work has not been done since Plaintiffs did not and still do not have the funds to do pay for the job. The motion for disavowal: [ 16 ] Defendant Zahedi had filed a motion for revocation of judgment. This motion, which was translated for Mr. Zahedi and is supported by an affidavit, contains a judicial admission as to his receipt of $13, 750. Mr. Zahedi then changed attorneys and amended his motion such that the judicial admission no longer exits. However, given

article 2852 C.C.Q., this admission cannot be withdrawn by simple amendment [1] . [ 17 ] At trial, Mr. Zahedi’s attorney presented a motion to disavow the admission contained in his client's initial motion for revocation of judgment.

[ 18 ]

Article 2852 C.C.Q. states that an admission, made by a party to a dispute or by an authorized mandatory, makes proof against him if it is made in the proceeding in which it is invoked. It may not be revoked, “unless it is proved to have been made through an error of fact.” [ 19 ] When an attorney makes an admission in a judicial proceeding, the admission can be withdrawn either by invoking the absence of authorisation by the attorney, in virtue of 243 C.C.P., or the existence of an error in virtue of

article 2852 C.C.Q. [ 20 ] If the admission was made without authorization, the party himself must present a motion of disavowal; however, no such motion was made in this instance nor is there any proof that the attorney who prepared the motion exceeded his mandate. [ 21 ] If the admission was made by error, either the lawyer or the party who made the error must not only invoke the existence of the error but must also make proof in this regard. [ 22 ] When Mr.

Zahedi was cross examined as to his initial admission, his attorney presented a motion for disavowal but presented no evidence regarding the factual error or the reason the proceedings had contained the judicial admission. [ 23 ] Accordingly, there is no basis for granting the motion for disavowal. It is not sufficient to present a motion in this respect without any evidence in its support. [ 24 ] Since the admission is not retracted by the Court, as the Court held in the case of Gennium Pharmaceutical inc. vs. Genpharm inc. [2] , any evidence to the contrary is not admissible.

THE APPLICABLE LEGAL PRINCIPLES: [ 25 ] The contract concluded by the parties is a contract of enterprise within the meaning of

article 2098 C.C.Q.. [ 26 ] The contractor chooses the method of executing the work (article 2099 C.C.Q.) but, as a counterpart, he assumes responsibility for the work done. He must act in his client's best interests, with care and diligence. Such an obligation constitutes a specific application of the general obligation of good faith, which is imposed on the parties.

Where there is an obligation of result, as in the present case, the contractor must provide the expected result (article 2100 C.C.Q.). [ 27 ] To exonerate himself and avoid liability, a contractor must show that his failure to execute his obligations stems for a superior force, namely an unforeseeable event (article 1470 C.C.Q.). [ 28 ] The contractor may employ third persons to perform the work involved in the contract but he nevertheless remains responsible to the client for the performance of the work, which is carried out under his supervision. [ 29 ] The contractor is obliged to act according to the rules of the trade and to assure that the work performed is in conformity with the contract.

The obligation of respecting the rules of the trade is mandatory, even if the contract makes no mention of such a requirement. The rules apply to all trades and to all stages of construction. [ 30 ] Accordingly, the contractor must respect all the techniques and approved construction practices of his trade that assure quality work. While the work performed is not required to be the highest quality possible, it must be of an acceptable quality.

Where it is not acceptable, the client has recourse against his contractor for defects in the work done (article 2120 C.C.Q.). [ 31 ] When the client notes the contractor's failure to execute his obligations, the client must put the contractor in default, requiring him to respect his contractual obligations (article 1590 C.C.Q.).There are circumstances where a demand letter is not required.

One such situation is where the contractor has made it clear he does not intend to perform the obligation (article 1597 C.C.Q.). [ 32 ] The client can claim damages that are foreseen or which could have been foreseen at the time the contract was concluded. Only those damages that are direct and real are admissible. When the work must be redone because it could not be used due to the contractor's fault, the client is entitled to claim the cost of the original work. [ 33 ] The client's obligation is to pay the price agreed upon by the parties.

The price is fixed by the contract, by usage or by law or on the basis of the value of the work carried out or the services rendered (article 2106 C.C.Q.).

Article 2109 C.C.Q. stipulates that where the price is fixed by the contract, it cannot be increased or decreased unless the parties agreed to such a change in price: 2109.

Where the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen. [ 34 ] Similarly, the contractor or the provider of services may not claim an increase of the price for the opposite reason. [ 35 ] Unless otherwise agreed by the parties, the price fixed by the contract remains unchanged notwithstanding any modification of the original terms and conditions of performance.

[ 36 ] Extras or supplementary work which was not initially foreseen and which was not part of the amount fixed by contract results in supplementary costs. The same occurs when there are modifications to the conditions originally foreseen [3] . ANALYSIS OF THE PRINCIPAL ACTION: [ 37 ] Mrs. Pintabona and her husband, Peter Furlotte, after receiving a flyer and business card from Mr. Samimi and Mr. Zahedi, met with them regarding the planned renovation of their basement. [ 38 ] Defendants wanted $15,000 for the job. Mr. Furlotte drew up a list of the items to be built, and provided a cheque addressed to Mr.

Zahedi for $9,750. [ 39 ] Defendants began working on March 3 or 4, 2008 and ceased working on March 24 th . Mrs. Pintabona claims Defendants abandoned the job after she refused to pay them more money. She testified that she called them several times, asking them to return to finish the job; they claim she cancelled the project. [ 40 ] The Court prefers Mrs. Pintabona's version, particularly since Mr. Samimi admitted that Mrs. Pintabona called to find out why they had stopped working and Mr.

Zahedi testified that she had asked them to return. [ 41 ] The uncontested evidence is that Defendants requested another $15,000 to finish the job. No modifications were made to the original contract, other than an upgrade of bathroom appliances, which Plaintiffs paid for themselves. In a case where the contract is for a fixed price, the client must pay the price agreed upon; the contractor cannot claim an increased price based on the work costing more than he foresaw (article 2109 C.C.Q.). [ 42 ] Since the contract was for a job at a fixed cost of $15,000, there are no grounds to demand more money.

Moreover, Defendants have not even shown that the project had cost them more than foreseen. [ 43 ] Defendants left without a serious reason.

Article 2126 C.C.Q. stipulates that a contractor may not resiliate the contract unilaterally except for a serious reason and not at an inopportune moment; otherwise, he is liable for any injury caused to the client because of the resiliation. [ 44 ]

Article 2129 C.c.Q. concerns the parties obligations when a contract is resiliated: 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property furnished, where it can be returned to him and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered. [ 45 ] At the time Defendants abandoned the project, the renovations had not been completed. Not only was the project far from complete, but also according to Plaintiffs it was badly done. Plaintiffs seek the reimbursement of the sums that they paid. [ 46 ] The Court must therefore determine the value of the services rendered.

a) The value of the work done: [ 47 ] Mrs. Pintabona claims the work done by Defendants was not worth anything. In fact, upon the recommendation of another contractor, Visa Construction, she had all the installations removed, alleging that the entire job had been badly done. [ 48 ] Mr. Daddario of Visa Construction, an architect and contractor, holding a R.B.Q. license, corroborated her testimony. He considered 20% of the job had been completed and if it had been properly done, it would be worth $4,000.

However, he concluded that the work, which had been carried out, had no value, since it all had to be re-done. [ 49 ] Mr. Daddario testified that the walls were not levelled, the gyproc was not straight, the openings for standard doors were too large and the door frames did not align with the ceiling.

In addition, the walls had too much plaster to be sanded, nails and screws were found on the air ducts, an engineering beam had been cut, electrical wires were loose, uncapped and hung from the ceiling, creating a dangerous situation, a hinge was hanging out of the door, the spacing of the 1 x 3 pieces of wood was uneven, steel angles did not meet, etc.. [ 50 ] Mr. Daddario described the site as uncoordinated, messy and the work badly done. He was of the view that any attempt to repair the work would be more costly than beginning anew.

One example he provided was the excessive amount of plaster put on the walls, which would take considerable time to sand. [ 51 ] Mr. Zahedi, who had no experience in such construction projects, considered that the work was well done. He estimated that a large part of the job had been completed, including the walls, ceiling and two rooms. What remained was the installation of the floor, plastering painting and wiring. [ 52 ] Mr. Samimi, on the other hand, considered that 45% or less of the work was done and admitted to its poor quality as well as to its disorganization.

[ 53 ] After reviewing the photographs of the work performed when Defendants left, the Court concludes the work was not performed in accordance with the rules of the trade. The evidence shows exposed hanging electrical wires, walls constructed before the ceiling, crooked and unevenly spaced beams, installed wood that was too short, patchwork pieces of wood joined together, doors not levelled, gaps between gyproc, gaps between the top of the doors and the ceiling, etc..

The workmanship was poor, defective and incomplete. [ 54 ] In light of the testimonial and documentary evidence, the Court concludes that the work had no value and Plaintiffs are entitled to the reimbursement of the money paid to Defendants, less $350, namely the value of five doors that Plaintiffs kept. [ 55 ] Mrs. Pintabona claims Defendants received $9,750 by cheque and another $4,000 as well, in cash. There is no dispute the cheque was provided. [ 56 ] As for the $4,000 cash payment, the documentary evidence substantiates two withdrawals for this amount, from Mrs. Pintabona's account.

Defendant Zahedi submits the money was taken out by Mr. Furlotte to buy bathroom supplies. There is, however, no evidence to substantiates this allegation. Given the admission in Mr. Zahedi's procedures of the receipt of $13,750, as indicated above, the Court concludes that $4,000 was paid to Defendants in cash. Accordingly, Plaintiffs are entitled to $13,750 less $350 for a total of $13,400. [ 57 ] Plaintiffs are also claiming damages. To do so, a client must put the contractor in default; the failure to do so is fatal to his claim, unless one of the exceptions foreseen by

section 1597 C.C.Q. applies.

b) The necessity of transmitting a demand letter: [ 58 ] Defendant Zahedi maintains that Plaintiffs failed to transmit a demand letter to Defendants summoning them to finish the work and as a result, they cannot claim any damages. [ 59 ] Article 1590 (2) C.C.Q. foresees that a creditor has the right to demand that an obligation be performed in full, properly and without delay. However, before a creditor can exercise recourse against a debtor, he must put the debtor in default by a demand letter, providing a sufficient delay to carry out the obligations that were assumed. [ 60 ] There are situations where the foregoing principle does not apply.

Article 1597 C.C.Q. provides for such exceptions, one of which is where the debtor “has made clear to the creditor his intention not to perform the obligation…” [ 61 ] In the Court's view, this is the case in the present instance. The evidence established that it was not Mrs. Pintabona who ended the contract. On the contrary, she sincerely wanted the project finished and even begged Defendants to return and complete the job. [ 62 ] Despite several phone calls to them, Defendants failed to come back to correct the deficiencies or finish the job.

They clearly showed they did not intend to fulfill their obligations and consequently, Plaintiffs are dispensed from their obligation of transmitting a demand letter.

c) The damages claimed: [ 63 ] Plaintiffs paid $559 to “1-800-Got Junk” for the removal of the debris from their basement. Since Defendants left the basement filled with construction material and Plaintiffs had to pay to have it removed, they are entitled to the reimbursement of $559. [ 64 ] Plaintiffs are claiming $450 for the work done to strip the basement of all material installed by Defendants. The removal of material was done by family members over the course of a couple of days. Plaintiffs did not do the actual work and cannot claim on behalf of third parties.

Therefore, this aspect of the claim is not granted. [ 65 ] Plaintiffs are asking for $338.63 for the estimate prepared by Visa Construction to renovate the basement. Plaintiffs, having paid the invoice, are entitled to be reimbursed the sum of $338.63. [ 66 ] Plaintiffs seek $10,000 in damages. While clearly Plaintiffs are disappointed with the outcome and the fact that their planned renovations were not carried out, they presented no evidence regarding their trouble or inconvenience. [ 67 ] The work proceeded over the course of approximately three weeks during which time Mr. Furlotte was not involved and Mrs.

Pintabona slept, after coming back from a night shift at work. Her principle implication was opening the door when the workers arrived. Following Defendants' departure and their failure to return, the installed material was entirely removed by Plaintiffs' family, within a couple of days and the debris was taken by a company that was hired.

In sum, shortly after the renovations ended, Plaintiffs' basement reverted back to its original state. [ 68 ] The Court considers that Plantiffs have not substantiated this aspect of their claim and therefore no compensation is awarded. [ 69 ] Accordingly, the total amount payable by Defendants comes to $14,297.63.

B) THE CROSS DEMAND AGAINST MR. SAMIMI: THE EVIDENCE:

[ 70 ] Mr. Zahedi is suing Mr. Samimi, requesting that the Court condemn Mr. Samimi to pay any damages that may be pronounced against him (Mr. Zahedi). [ 71 ] In essence, Mr. Zahedi alleges that Mr. Samimi supervised Plaintiff’s project and he, Mr. Zahedi, only helped with the basic tasks. Mr. Samini contends that Mr. Zahedi was responsible and he (Mr. Samimi) was only a worker. Their evidence was contradictory on every issue raised, the details of which are as follows: [ 72 ] Defendant Zahedi is a cabinetmaker, with a diploma in this field.

Defendant Samimi is a professional painter who also works as a handyman, doing renovation work, including the installation of gyproc, plastering and painting. [ 73 ] The two men had met sometime before working on Plaintiffs' project. They had both distributed flyers and business cards in Plaintiffs' neighbourhood. [ 74 ] Mr. Samimi claimed he had no idea how Mrs. Pintabona had his business card. Mr. Zahedi, however, admitted his flyer was attached to Mr. Samini's business card; by putting the two together, they would appear more professional. [ 75 ] Each of the two men alleges that Mrs.

Pintabona called the other for his services. Each one also claims that he was asked to attend the meeting with the other Defendant. Mr. Zahedi testified that Mr. Samini asked him to come to show that he (Mr. Samini) work with a cabinetmaker and that they were professionals. [ 76 ] They both met with Mrs. Pintabona at her home towards the end of February 2008, where she explained the work she wanted carried out. They took measurements of the area. Each Defendant claimed the other took notes, while he simply held the tape measure. Mr. Samimi then advised Mrs.

Pintabona the project would cost $15,000. [ 77 ] Both men met Mrs. Pintabona's husband, Peter Furlotte, on March 1, 2008, concerning the contract but both invoked a different reason for attending the meeting. [ 78 ] Mr. Zahedi testified he been asked to meet with Mr. Furlotte and Mr. Samini in case kitchen cabinets were to be made, despite the fact that no cabinets were foreseen by Mrs. Pintabona nor had this item ever been discussed. [ 79 ] Mr. Samimi maintained Mr. Zahedi, whose mother tongue is Persian, asked him to come to the meeting to help him with English conversation, although Mr.

Samimi declared that Mr. Zahedi's English is better than his own. [ 80 ] Mr. Furlotte discussed the terms of the contract with Defendants. Mr. Samini alleged he only sat there but had no role in discussing the project. [ 81 ] Mr. Zahedi testified he wanted to know what Mr. Furlotte and Mr. Samini were discussing, since he understood little of the conversation but because it was his first construction experience, Mr. Samimi asked that he not intervene. [ 82 ] At Mr. Zahedi's request, Mr. Furlotte provided a cheque for $9,750, made out to Mr. Zahedi. Mr. Furlotte understood that Mr. Zahedi was the “boss” . Mr.

Zahedi explained that Mr. Samini had suggested that the cheque be addressed to Mr. Zahedi in order to avoid taxes, since Mr. Samimi's account was in the name of his company. [ 83 ] Each of the three who were present had a different version as to who signed the contract. The only undisputed fact is that Mrs. Pintabona kept the original on her kitchen table and before the end of the project, Mr. Zahedi removed it and tore it up. That was Plaintiffs' only contract. Defendants claim no copy exists. [ 84 ] The two Defendants went to Mr. Zahedi's bank where Mr. Zahedi deposited the cheque and then withdrew $6,000.

He testified he gave it to Mr. Samimi, a fact Mr. Samimi denied. Mr. Zahedi kept the remainder as an advance on his salary as well as to purchase materials. [ 85 ] Both Defendants, in their testimony, denied having received $2,000 in cash, while Mrs. Pintabona's bank statement shows two withdrawals of $2,000 each. [ 86 ] Mr. Samimi testified he worked every day, arriving at 8:00, 9:00 or 10:00. Mrs. Pintabona stated Mr. Zahedi arrived in the morning and began working; Mr. Samimi came to the house towards the end of the day to verify what was done. [ 87 ] According to Mr. Zahedi, Mr.

Samimi brought material, came back to the house to see what they were doing, left for lunch and returned later to supervise. [ 88 ] Mr. Zahedi, a cabinetmaker, had never done basement renovations. He stated that he simply helped by bringing in the gyproc, putting up the wood, measuring, and installing the gyproc on the walls; he did what was asked of him; It was Mr. Samimi who showed him, as well as another worker, what to do. [ 89 ] Mr. Samimi claimed he had no qualifications to make walls. Mr. Zahedi paid him by the hour; he received small amounts of cash for the hours worked. Mr. Zahedi explained what Mr.

Samimi was to do each morning and he did what he was told; Mr. Zahedi set the schedule, hired the other workers, was the boss and supervised the work. In Mr. Samimi's words, he (Samimi) was ''only a worker'' . [ 90 ] The two went to Reno to purchase material together. Both deny having paid for the goods, with the exception of one invoice for $1,430, which Mr. Zahedi had paid. [ 91 ] The project ended on March 14, 2008. Both Defendants said the project terminated when Mrs. Pintabona told them to stop working. Mr.

Samimi first testified that she cancelled the project since she did not like the quality of the work and then he stated that since she did not like the job, they quit.

[ 92 ] Mrs. Pintabona called Mr. Zahedi, begging them to return. He gave the message to Mr. Samimi. Given Mrs. Pintabona's wish to have the renovations completed and since she had already paid for most of the cost of the contract, it is not conceivable that she terminated the project only to call Defendants back. [ 93 ] Mr. Zahedi, despite his lack of experience, considered the work was well done and estimated that a large part of the work had been completed. [ 94 ] Mr. Samimi, on the other hand, considered that 45% or less of the work was done.

He admitted to its poor quality but claimed he was not the contractor, did not have the requisite expertise and was not responsible for the job. ANALYSIS OF THE CROSS DEMAND AGAINST MR. SAMIMI: [ 95 ] To succeed in his cross demand against Mr. Samimi, Mr. Zahedi must satisfy the Court, by preponderant evidence, that Mr. Samimi was the one who obtained the contract and who was responsible for the project. [ 96 ] Mr. Zahedi portrays himself as the victim. He alleges Mr. Samimi manipulated the situation such that Mr. Samimi ''did not figure anywhere in the documentary trail'' linking him to the project. Mr.

Zahedi attempted to show that he was simply employed by Mr. Samimi and followed his instructions. However, the evidence does not support such a conclusion. [ 97 ] While it is true that Mr. Zahedi did not have the requisite qualifications for various aspects of the work he had carried out, in addition to holding a R.B.Q. license, he had printed flyers to advertise his services, which would also allow clients to contact him directly for repairs, installation, finishing and polishing of floors, staircases, doors, furniture and cabinets. [ 98 ] He had distributed his flyers together with Mr.

Samimi to advertise his own services and had presented himself together with Mr. Samimi at Plaintiffs' home to show that they could offer a full range of services. [ 99 ] Mr. Zahedi claims to be a worker but expresses his frustration at being unable to follow the details of the contract negotiations. If, as Mr. Zahedi maintains, he is a simple worker, not only is his attendance questionable but also his need to understand the nature of the discussions. [ 100 ] In addition, Mr.

Zahedi claimed he only understood about 20% of the conversation that took place but he obtained his diploma in cabinet making from an English college and wrote exams in English to obtain his license. [ 101 ] Mr. Zahedi accepted that the cheque, provided by Mr. Furlotte, be made out to him, although supposedly, he is employed by Mr. Samimi, who was present at the meeting. [ 102 ] Mr. Zahedi pocketed part of the money received, claiming it constituted an advance of salary and the calculations would be made at the end.

This appears to be a business deal, rather than the arrangement made between a boss and an employee. While it may not be unusual for an employee to obtain an advance on his salary, it is unlikely that an employee would receive an advance of several thousand dollars. [ 103 ] Mr. Zahedi denied having paid for any merchandise but bought goods for over a thousand dollars. He had other bills in his possession for material allegedly bought by Mr. Samimi who asked Mr. Zahedi to keep the bills for him. [ 104 ] Mr. Zahedi worked on the project until he and Mr. Samimi left. When Mrs.

Pintabona called him asking him to return with Mr. Samimi, Mr. Zahedi never told her that it was not his decision nor did he tell her to call his employer. [ 105 ] Mr. Samimi also attempted to show that he was the worker and was not responsible for the project. He was categorical in his denial of having any responsibility with respect to negotiating the contract, receiving funds, hiring, paying for material or supervising the work. [ 106 ] However, the Court does not consider him Mr. Zahedi's employee. Mr. Samimi had his own business.

Although he claimed he was only a painter and handyman, he operated under the name of “Indice Que Enterprise” and his business card describes his services as general renovation. His card and the information it contains allow clients to contact him directly for his services and the evidence established he had contracted with clients to provide such services. [ 107 ] He was familiar with Mrs. Pintabona's neighbourhood, had left his business card with his telephone number in her mailbox and was working on another project when Mrs. Pintabona called him. [ 108 ] Mr. Samimi claims he was hired by Mr.

Zahedi and only followed instructions. However, he provided the cost of the services, picked up employees and went with Mr. Zahedi to purchase material. [ 109 ] Mr. Samimi declared he never paid for merchandise but his air mile number appears on various receipts. His explanation was that he had purchased the goods for other projects and not for Plaintiffs' renovations. [ 110 ] However, if Mr. Samimi was simply a worker, as he claims, why was he purchasing any material, without being reimbursed?

He claimed he was buying the material for other projects but he provided no details in this regard nor did he explain why he was buying goods for other projects when he was supposedly working regularly on Mrs. Pintabona's renovations.

[ 111 ] He denied having received any cash from the project, other than the money paid for his hourly rate. Admittedly, Mrs. Pintabona's bank statement, showing two separate withdrawals of $2,000 each, does not establish that the funds were given to Defendants. However, Mr. Zahedi, in his judicial proceedings, admitted to the receipt of $13,750, which includes the $4,000 payment. [ 112 ] He also worked on the project until he and Mr. Zahedi left the job unfinished. [ 113 ] The evidence shows that Defendants were together carrying on an enterprise.

Their exact relationship is not clear since each one claims he is merely a worker and blames the other for the result of the project. Most importantly, each claims to be independent of the other, denying any responsibility. [ 114 ] Mrs. Pintabona believed Mr. Samimi was in charge; her husband believed Mr. Zahedi was in charge. Plaintiffs described them as “two peas in a pod” . This description has merit. [ 115 ] They both left their advertising for their business at Plaintiffs' home.

They came together to Plaintiffs' residence to offer their combined services and were both present when the nature of the project was outlined by Mrs. Pintabona. [ 116 ] They both took measurements and noted them. While Mr. Samimi quoted Mrs. Pintabona a price for the renovations, Mr. Zahedi asked Mr. Furlotte that the cheque be made out to him, when the contract was discussed with both Mr. Samimi and Mr. Zahedi. [ 117 ] The two went together to deposit the cheque provided by Mr. Furlotte and then, after several thousand dollars were withdrawn, they divided the money received.

They went together each time they purchased the merchandise. They both began working on the renovations at the same time, used their respective vehicles to pick up employees and bring them to the work site and ultimately abandoned the project. [ 118 ] In light of the evidence, the Court concludes that they not only worked as a team but also were involved in this commercial business venture together. Their liability in such cases is one of solidarity (article 1525 C.C.Q.). [ 119 ] The Court dismisses Mr. Zahedi's cross demand against Mr. Samini. Mr.

Zahedi has failed to satisfy the Court, by preponderant evidence, that his allegations are well founded.

C) THE CROSS DEMAND AGAINST MR. FURLOTTE: [ 120 ] Mr. Zahedi, in his cross demand, claims that Mr. Furlotte was the project's de fact o supervisor, with Mr. Samimi. Mr. Furlotte, having worked in the construction industry, supervised the project, criticized the work, ordered work to be redone, purchased material with Mr. Samimi and demanded many modifications to the project and material, which would increase the costs. [ 121 ] These allegations were not substantiated by the evidence. During the renovations, Mr. Furlotte was very ill.

He did not oversee the work and only went down to the basement on two or three occasions, when asked to look at such items as lights or door handles. Mr. Furlotte was not involved in the purchase of material, other than one trip to Réno-Dépôt where he bought upgraded bathroom appliances and paid for them. [ 122 ] Contrary to Mr. Zahedi's allegations that Mr. Furlotte was actively implicated in the ongoing progress of the renovations, Mr. Furlotte's involvement with Mr. Samimi and Mr. Zahedi was very limited.

He had no interest and virtually no role in the project. [ 123 ] In short, Defendant Zahedi has not established that his cross demand is well founded and therefore his claim for $10,000, as moral damages, is dismissed. [ 124 ] In his written arguments, Mr. Furlotte is claiming $6,000 as damages, submitting that Mr. Zahedi admitted to the frivolous and unjustified basis of his cross demand instituted against Mr. Furlotte. While the Court has concluded that the cross demand is unfounded, the evidence does not show that Mr. Zahedi made the alleged admission.

On the contrary, he attempted to prove his claim but was unsuccessful. [ 125 ] In the absence of a demonstration of bad faith, quarrelsome behaviour, an excessive use of proceedings, etc., Mr. Furlotte’s claim is not granted. FOR THE FOLLOWING REASONS, THE COURT: GRANTS , in part, the Plaintiffs' action; CONDEMNS Defendants, Farhad Shahriari Zahedi and Abdule Karime Samimi, solidarily to pay Plaintiffs, Rita Pintabona and Peter Furlotte, $14,297.63, plus interest at the legal rate and the additional indemnity foreseen by

section 1619, from the date of service of the principal action; DISMISSES Farhad Shahriari Zahedi's cross demand against Abdule Karime Samimi and Peter Furlotte; DISMISSES Peter Furlotte’s claim against Farhad Shahriari Zahedi; THE WHOLE , with costs.

__________________________________ SUZANNE HANDMAN, J.C.Q. Me Jerry Lazaris IONATA LAZARIS ET ASSOCIÉS Attorney for Plaintiffs Me Amir Kafshdaran ÉTUDE AMIR KAFSHDARAN Attorney for Defendant Farhad Shahriari Zahedi Abdule Karime Samimi Personal appearance Dates of hearing: December 8, 9 and 10, 2010 Plaintiffs’ notes and authorities produced December 20, 2010 Defendants’ notes and authorities produced January 7, 2011