2014 QCCQ 3086, 2014 QCCQ 3086

Simms Aeromark Inc. c. McLafferty 2014 QCCQ 3086 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Civil Division No. 455-32-003999-124 DATE: April 17, 2014 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ SIMMS AEROMARK INC. Plaintiff v.

DENISE McLAFFERTY and PERRY HICKS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Simms Aeromark inc. (hereinafter “Simms inc.”) is claiming $3307.78 in professional fees from defendants McLafferty and Hicks. The defendants invoke that the work carried out was useless, and refuse to pay. [ 2 ] The evidence shows that, in or before 2009, the defendants purchased a property of a few acres in the sector of Mont Owl’s Head.

The property was located in a mountainous area and did not include, at least at the time of the purchase, any building. [ 3 ] It is believed, in retrospect, that their intention was to build a home on it for their retirement. They lived in Ontario at the time, but were considering moving to the area. [ 4 ] Still according to the evidence, the construction project was substantial. Given the layout of the land, with a steep slope, various possibilities were considered for setting up the residence.

Those possibilities depended on the feasibility of constructing a safe road to get to and from the residence. [ 5 ] They mandated Simms inc. Its directing mind, Gordon Simms, is a civil engineer and he assured them that he had the competence and experience needed to carry out the feasibility study for the access road. [ 6 ] Mr. Simms testified. He said he mentioned his hourly rate of $125 an hour (the defendants contended that he mentioned $135 or even $150 an hour). They agreed to give him the mandate. [ 7 ] Mr. Simms stated that, initially, he was only to carry out the feasibility study for the road.

He indicated that he was told that two separate spots were considered for building the residence, one in the lower or middle

section of the property, and the other in the top section. [ 8 ] Not surprisingly, his clients preferred the higher site, because of the beautiful view, and that is where he focussed his effort. To ensure that his clients, the defendants, understood well what steep slopes meant from a practical standpoint, he took them to access roads with 15% to 20% slopes. All agreed at the time that the maximum “tolerable” slope for a safe driveway would be 15%. [ 9 ] He began his work by placing markers on the land and checking the applicable standards with municipal authorities.

Moreover, and without it being a municipal standard, he also applied the other good practices regarding the construction of private roads. [ 10 ] In doing so, he considered building a road shared by the defendants’ property and their neighbour’s property. In fact, the neighbour in question was connected to the seller of the McLafferty-Hicks immovable. That property was also expected to be built on and, according to municipal bylaws, a single entrance for both lots was acceptable, even encouraged, as the landscape would be preserved.

Obviously, both owners had to agree to it. [ 11 ] The defendants seemed interested in the idea. The parties parted with the understanding that Denise McLafferty and Perry Hicks would communicate with the neighbour to see whether she was interested in a shared entrance. That arrangement would have made it possible to use a much gentler slope for the road and very likely to build both residences on the highest parts of the properties. [ 12 ] Time went by, and it appears that the neighbour had a very negative reaction to the proposal. Simms inc. decided to send an interim account in the amount of $2313.94.

It is that bill and the interest on late payment that constitute the plaintiff’s claim.

[13] That bill has never been paid. In the meantime, the defendants, who said they doubted the credibility of Simms inc., mandatedland surveyor Migué to prepare plans for an entrance in order to obtain the municipal permits. Those plans were drawn up for $2050.65,which they are claiming from Simms inc. [14] They acknowledge, however, that if they had never met the plaintiff, they still would have incurred those expenses for theconstruction of the road. The evidence also shows that they built their residence on the

section located half way between the public roadand the highest part of their property. However, it appears that land surveyor Migué also drew up a plan for building a road to the highestpart of the land. [15] They are also claiming $750 for trouble and inconvenience. [16] They honestly acknowledged that certain derogations had to be obtained from the municipality to allow the current layout. [17] ANALYSIS AND DECISION [18] The contract between the parties can be described as a contract for services, within the meaning of articles 2098 et seq. of theCivil Code of Québec.

The existence of the contract or the hourly rate agreed upon is not denied (the defendants even suggested a ratehigher than the rate claimed). [19] The fact remains that the claim cannot be decided only by multiplying the hourly rate by the number of hours Simms inc.alleged to have worked (see, in particular, Ogilvy, Renault v. Beauce, Société mutuelle d’assurance générale, (QCCQ), REJB 1997-05114; Société en nom collectif Vaillancourt Guertin, avocats v. Gaudette, 2008 QCCQ 1427; etc.). [20] Regarding cases when there is no written mandate and the price of the services rendered is contested,

article 2106 states thefollowing: 2106. The price of the work or services is fixed by the contract, by usage or by law or on the basis of the value of the workcarried out or the services rendered. 1991, c. 64, a. 2106.[1] [21] An illustration of this is given, for example, in the following excerpt from a judgment rendered by Pierre Bachand J.C.Q. inJodoin Grondin Scott v.

Langevin, QCCQ: [TRANSLATION] [6] It goes without saying that, in this case, the plaintiffs carried out work and, in principle, would be entitled toadequate remuneration, even if it was based on a quantum meruit.[2] [22] However, just because the defendants did not ultimately use the plaintiff’s work does not mean that they owe the plaintiffnothing. [TRANSLATION] [14] The fact that, as they contend, to obtain their permit to enlarge the disposal field, they did not use the study carriedout by the plaintiff, but instead a study that Groupe Poly-Tech carried out in 1996, cannot exempt them from paying the price ofthe contract that was entered into with the plaintiff and honoured by the plaintiff.[3] [23] The bill claimed, Exhibit P-2, lists a series of interventions made on behalf of the defendants, including the preliminary studyfor building the private road, meetings with the municipality to gather information on both the current bylaws and future changes, visitsof lots with the defendants and a contractor, as well as support for negotiations with the neighbour.

The whole represents 16.4 hours atthe hourly rate agreed upon. [24] That amount seems reasonable, and nothing indicates that the work alleged was not carried out. The work in question wasdifferent from the work defendants McLafferty and Hicks ultimately chose to have done.

However, it is far from clear in the Court’smind that the solution proposed by Simms inc., namely, an entrance shared with the neighbour, was not the best one in all respects.Unfortunately, the neighbour, who was in the process of selling her property, showed no interest. [25] Similarly, it is far from convincing that land surveyor Migué’s work was comparable to the plaintiff’s work.

The evidence evenshows clearly that certain requests for derogation had to be filed with the municipality, which indicates that the layout proposed by landsurveyor Migué did not comply with the bylaws in force at the time. [26] Be that as it may, the amount claimed by Simms inc. was reasonable and corresponded to the work duly ordered by thedefendants. That amount will therefore have to be paid. [27] The same is not true for the rest of the claim, namely, the interest on the unpaid bill.

There was no agreement providing for arate of interest on such a balance, stated on a yearly basis, and agreed to by the defendants. Hence, that amount cannot be granted (seeInterest Act, R.S.C., 1985, c. I-15,

section 4). [28] As for the cross demand, as stated earlier, the amount paid to land surveyor Migué cannot be allowed. After all, that amountrepresents an expense that was useful for building the road that the defendants ultimately chose. That amount cannot be claimed from theplaintiff, any more than the cost of the construction of the road.

[ 29 ] Nor is there any evidence of trouble and inconvenience for which compensation should be paid. ACCORDINGLY AND THEREFORE, THE COURT: [ 30 ] ALLOWS IN PART the claim. [ 31 ] CONDEMNS the defendants, Denise McLafferty and Perry Hicks, to pay the plaintiff the sum of $2313.94 with interest as of the summons, the additional indemnity, and costs. [ 32 ] DISMISSES the cross demand, with costs. __________________________________ Serge Champoux J.C.Q. Date of hearing: March 20, 2014