2015 QCCQ 5324, 2015 QCCQ 5324

Azizi (Concrete Impression) c. McGill University 2015 QCCQ 5324 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division» No: 500-32-139543-138 DATE: June 2, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ MICHAEL AZIZI ( d.b.a. CONCRETE IMPRESSION) Plaintiff v.

McGILL UNIVERSITY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Michael Azizi (d.b.a. Concrete Impression) is suing McGill University for an amount of $7,000 [1] , claiming that it failed to pay the services rendered. [ 2 ] McGill University denies owing such amount, alleging that the work was poorly executed and necessitated repairs. QUESTION IN ISSUE Has Concrete Impression established its right to be reimbursed for the services rendered?

CONTEXT AND ANALYSIS [ 3 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [2] . In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence . This implies that Mr. Azizi must demonstrate that the existence of a fact is more probable than its non-existence [3] to convince the Court. [ 4 ] All relevant elements of evidence are analysed by the Court.

The probability is evaluated based on the direct evidence, the circumstances and the presumptions [4] . [ 5 ] Every person has a duty to honour his contractual undertakings [5] . [ 6 ] The Court summarizes as follows the relevant facts from the evidence presented. [ 7 ] Concrete Impression has developed an overlayment decorative concrete product for floor covering. [ 8 ] In the context of renovation work performed at the Facility for Electron Microscopy Research, on July 23 rd , 2010, McGill University concluded a contract with Concrete Impression for the floor covering of the hallway [6] . [ 9 ] The floor covering work was completed in September 2010. [ 10 ] In October/November 2010, McGill University notified Concrete Impression that the floor covering was damaged. [ 11 ] A year later, in October 2011, Concrete Impression, at its own cost, repaired the floor covering. (The length of time is explained by Concrete Impression by the fact that their main activities were taking place in Italy.) [ 12 ] The first two payments for the floor covering were made by McGill University. [ 13 ] McGill University however failed to pay the last payment $8,575, alleging the unsatisfying results and the various problems with the floor covering. [ 14 ] On July 29, 2013, Concrete Impression sent a demand letter to McGill University [7] .

Has Concrete Impression established its right to be reimbursed for the services rendered? [ 15 ] The testimonial and documentary evidence established that a curing time was necessary after the floor covering job. [ 16 ] Concrete Impression argues that McGill University did not respect that curing delay and the specifications for the product.

It would explain the indentations and various problems observed on the floor covering [8] . [ 17 ] McGill University established that no equipment circulated on the floor covering before the expiry of the recommended curing time. [ 18 ] Only four pictures were filed by Concrete Impression, representing the work as completed after October 2011 [9] . [ 19 ] On the other hand, McGill University filed pictures covering the period from 2011 to 2015 to establish the damages to the floor covering [10] .

The damages to the floor covering were observed a few days after the job completion and deteriorated with time (bubbling and cracking). [ 20 ] E-mails of complaint were sent [11] . [ 21 ] No remedial action was taken by Concrete Impression. [ 22 ] Concrete Impression presented no technical evidence explaining the cause of the problems of the floor covering or the negligence of McGill University which would explain the problems observed. [ 23 ] Mr. Azizi and Concrete Impression did not meet their burden of proof and did not establish that the job was correctly done. [ 24 ] Mr.

Azizi and Concrete Impression did not justify their claim for the unpaid services rendered. FOR THOSE REASONS, THE COURT: DISMISSES the action of Plaintiff Michael Azizi (d.b.a. Concrete Impression) against Defendant McGill University; CONDEMNS Plaintiff Michael Azizi (d.b.a. Concrete Impression) to pay to Defendant McGill University the judicial costs of $204. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Date of hearing: May 12 th , 2015