2020 QCCQ 2361, 2020 QCCQ 2361

Adrian Construction inc. c. Cohen 2020 QCCQ 2361 COUR DU QUÉBEC “Small Claims Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” N° : 500-32-159255-183 DATE : June 17, 2020 ______________________________________________________________________ BEFORE JUDGE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ ADRIAN CONSTRUCTION INC. Plaintiff vs.

DANIEL COHEN Defendant ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ OVERVIEW [ 1 ] Plaintiff Adrian Construction Inc. (Adrian) claims $14,659.31 from the Defendant (Mr. Cohen) following a contract for services concluded sometime in the fall of 2017. [ 2 ] Adrian operates a construction company. [ 3 ] Mr. Cohen owns a property, located at [...], Montréal.

The front door of the building was broken by officers of the Montréal police department during the night of October 23, 2017 after a 911 call was received concerning this address. Mr. Cohen phoned Mr. Adrian Pop, the director of Adrian, during the night of the events : he wanted Adrian to go to the building, check everything, immediately secure the premisses and proceed speedily to carry out the necessary repairs to the front door. Adrian acted accordingly. The day after, Adrian sent Mr. Cohen an estimate of the work. Mr. Pop goes on to say that Mr.

Cohen also asked later on, during telephone conversations, for additional work to be performed, i.e. : - Install two mail boxes ($200); - Paint the entrance hall ($800); - Remove a green glued carpet in the front of the building and clean the cement ($2,500); - Remove the garbage from garage ($3,550) [1] . This specific work was asked by Mr. Cohen’s father rather than Mr. Cohen himself. [ 4 ] Mr. Pops states that Adrian has not been paid for the work it performed even though it did everything Mr. Cohen asked it to do, adding that he received no response, whatsoever, from Mr.

Cohen despite his numerous phone calls, e-mails and text messages, except for an e-mail sent by Mr. Cohen after the end of the work – but before the sending of the invoice – asking for three or four touch ups to be made. [ 5 ] Adrian ended up sending Mr. Cohen a letter of demand on October 1st, 2018 [2] . [ 6 ] Mr. Cohen admitts owing $4,100.00 to Adrian for « the services pertaining to the door » [3] . He denies, however, any responsibility for the remainder of the claim.

His defense is based on three grounds : - Part of the works for which Adrian claims payment is related to a previous contract, entered into between the parties earlier in 2017, for a fixed price and for which he has paid the entire amount, leaving no outstanding balance; - He never asked Adrian to perform some of the works for which it claims payment; - Some of the works performed by Adrian is so defective that he had to hire a third party to correct them. ANALYSIS

[ 7 ] In civil litigation, the burden of proving the facts on which a claim is based rests on the Plaintiff [4] . That means that Adrian has to establish that its factual allegations are well-founded. [ 8 ] Adrian must also demonstrate that its version of the facts has greater weight than that of Mr. Cohen [5] . [ 9 ] Let’s immediately deal with the part of the claim related to the repairs to the door (items 1 to 3 of Exhibit P-2). Mr Cohen admitts that he asked Adrian to carry out this work and further conceeds that he must pay for it. [ 10 ] However, Mr. Cohen’s admission is erroneously for $4,100.

This is probably the result of a clerical mistake, since the invoice for that work amounts to $5,100 [6] . Mr. Pop’s testimony is also to the effect that the repairs costed $5,100 to Adrian. [ 11 ] For these reasons, the Court will award $5,100 to Adrian for this portion of its claim. [ 12 ] What about the rest of the law suit? [ 13 ] The contract agreed upon by the parties is a contract for services [7] .

Section 2106 of the Québec’s Civil code provides that : 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 work carried out or the services rendered. [ 14 ] Here, the contract does not clearly indicate the different prices alleged by Adrian. But the contract for services does not have to specifically mention the price of the services to be rendered [8] . Besides, Mr. Cohen does not challange the figures claimed by Adrian.

Rather, he contests the claim in itself, for the reasons mentionned above. - The two mailboxes [ 15 ] Adrian claims $200 for that specific item. At trial, Mr. Segal, Mr. Cohen’s Montréal representative while in Florida, testified that could not remember if he or Mr. Pop installed these mailboxes. He honestly admitted that he could not say much about that item. That certainly gives weight to Mr. Pop’s testimony that this work was specifically asked by either Mr. Cohen or Mr. Segal.

Besides, why would it be that Adrian adresses such a specific work if not required for by the other party? [ 16 ] Considering the evidence, Mr. Cohen has to pay for these two mailboxes and will be condemned accordingly. - The painting of the entrance [ 17 ] Adrian claims $800 for that item. Here, Mr. Segal admitts that the painting was done. Mr. Cohen alleges, however, that he never asked for this service to be performed, adding moreover that it was carried out under a previous contract for which Adrian was fully paid. [ 18 ] The Court agrees with Mr. Cohen.

At the hearing, the Court asked the parties to provide any documentation establishing the content of the previous contract. A document entitled «Estimation», dated 08/05-2017 was communicated to the Court by Mr. Cohen. The Estimation was drafted by Adrian and puts in writing, in great details, all the works to be performed at the same building on Hingston Street. The price of the works was estimated at $25,000.00. Page 2 of that document shows that the entrance hall was to be plastered and painted. [ 19 ] This evidence corroborates and supports Mr.

Cohen’s testimony. [ 20 ] Adrian, on the other hand, has no other proof to put foreward but Mr. Pop’s testimony, which was flawed on that point. [ 21 ] Considering the evidence and the burden of proof mentioned above, the Court concludes that the painting of the entrence hall was done months before, under a prior contract, and that Mr. Cohen has already paid Adrian for this service. The Court will dismiss this part of Adrian’s claim. - The removal of the carpet and the cleaning of the cement [ 22 ] Adrian claims $2,500. [ 23 ] Adrian submitted a series of e-mails concerning the work.

More specifically, an e-mail sent by Mr. Cohen to Mr. Segal – Mr. Pop was copied on the e-mail – on May 26th, 2018, reminds Mr. Pop of the outstanding work to be completed [9] . Amongst other things is « outside entrance where green carpet removed needs scrape away old glue and carpet remnant ». But the Court does not know if this matter stems from the contract concluded in the spring of 2017 or is related to the contract on which the present claim is based.

Thus, the Court cannot draw any factual conclusion from that communication. [ 24 ] Nevertheless, the Estimation provides nothing as to such work although some repairs are mentionned concerning the front of the building. That may be explained by the fact that, at that time, the entrance door was yet not boken – the 911 event took place in October 2017 whereas the Estimation was given earlier since it is dated 08/05/2017. The carpet glued in the front of the building was more likely delt with at the same time that the entrance door repairs were performed. [ 25 ] Giving the evidence, more specifically Mr.

Pop’s testimony, to which the Court affords more probative value on that point, the Court will grant this item of Adrian’s claim. - Remove the garbage from garage.

[ 26 ] At the hearing, no amount of money was specified on that topic. However, the Court notes that, while the Invoice P-2 is for a total amount of $12,750.00, the price of each work but the removal of the garbage sums up to $9,200.00. That leaves an estimated price of $3,350.00 for this service. [ 27 ] The Court will dismiss this part of the claim. [ 28 ] Photographies submitted to the Court show that part of the garbage removal was for branches of trees, cement debrits and broken stones, a result of Adrian’s works, left on the yard of the building.

Clearly, Adrian had to remove these debrits, unless the contract specifically provides otherwise, which is not the case at bar. [ 29 ] As for the interior of the garage, Mr. Segal is categorical : the garbage was removed by his employees and a third party, in the summer of 2018. His testimony was clear and credible, showed a perfect recollection of the facts and the Court gives great weight to it. [ 30 ] On the other hand, here again Mr. Pop’s testimony was evasive. The Court must rely on sounded ground to reach a factual conclusion. That is why it prefers Mr.

Segal’s version of the facts for that item. - Final remarks [ 31 ] Mr. Cohen argued that the work carried out by Adrian was defficient and of poor quality. He claims that he had to hire another company to fix the deficiencies. [ 32 ] The Court informed Mr. Cohen that, since he did not file a counter-claim, he was precluded from adressing the alleged defaults. FOR THESE REASONS, THE COURT: GRANTS IN PART Plaintiff’s claim; CONDEMNS the Defendant to pay to the Plaintiff $ 7,800, plus interests and the additionnal indemnity set forth by

Section 1619 of the Civil code of Québec , as of October 1st, 2018; THE WHOLE, without the judicial costs, given the result of the trial. __________________________________ ÉRIC DUFOUR, J.C.Q. Date of hearing : November 19, 2019.