2018 QCCQ 7239, 2018 QCCQ 7239

Advantage Flooring c. Fournier 2018 QCCQ 7239 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-023876-169 DATE: September 28, 2018 ______________________________________________________________________ BY THE HONOURABLE GABRIEL DE POKOMÀNDY, J.C.Q. ______________________________________________________________________ ADVANTAGE FLOORING Plaintiff v.

JULIA FOURNIER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Several judgments by default have been pronounced in the present case.

The first one was on the 24 th of October 2017 while the plaintiff was absent and has been condemned to pay to the Defendant an amount of $1,976.00. [ 2 ] This judgment has been revoked on February 7 th , 2018 considering that the president and representative of the plaintiff was very sick and could not appear in Court for the hearing, the plaintiff has been condemned.

Since the defendant was not present on this second hearing, judgment has been rendered by default condemning Julia Fournier to pay $4,135.88 with interests and costs. [ 3 ] On March 16 th , 2018, Julia Fournier did file an application to revoke the judgment because on February 5 th , 2018, she experienced an episode of dystonia which left her unable to appear for her hearing.

The case was fixed for the third hearing on June 11 th , 2018. [ 4 ] On that day, the plaintiff, even though duly called upon, was absent and non-represented. [ 5 ] Julia Fournier, present, confirmed her intention to proceed on her cross-demand after she established the motive for revocation of the preceding judgment.

Considering the proof presented, we do revoke the judgment of February 7 th , 2018 and proceed to hear the case in the absence of the plaintiff. [ 6 ] The plaintiff (Advantage) claims $4,135.88 which is a balance withhold by the defendant on a bill of $5,635.88 for the restoration of a hardwood floor including the staining and restoration and staining of the stairs. The work has been completed in late August 2016. [ 7 ] The defendant being dissatisfied with the result of the work as done by the plaintiff, claims $1,976.00 for the additional cost she had to disburse to repair the inacceptable work.

She also claims $5,000.00 for inconvenience caused by the corrective work. [ 8 ] The defendant showed, by her photographs, that the floors and stairs to be repaired by the plaintiff were warped, goofed and scratched and had been stained substantially in different colors than the adjacent areas. [ 9 ] The Court is satisfied by the evidence submitted by the defendant, including the photographs she deposited, that the work done by the plaintiff needed to be redone. [ 10 ] The proof presented by the defendant, shows that Advantage did not respect his obligation of result. [ 11 ] Since the plaintiff is absent, the proof is not contradicted. [ 12 ] The cross-demand states that the defendant seeks compensation for the difference of costs between Advantage’s contract and the amount paid to Julien Flooring who agreed to re-do the job. [ 13 ] She did establish that she had to pay more because of the fault of Advantage and that difference amounts to $1,976.00. [ 14 ] Although Advantage offered to re-do the work, the defendant decided to decline the offer because of a loss of confidence in the

capacities of the plaintiff to do better than the first time. [ 15 ] The defendant’s cross demand is well founded and will be granted for the amount claimed of $1,976.00. [ 16 ] As far as the inconvenience of an additional exposure to noxious fumes and moving out of home during the repair job caused by the unsatisfactory work of Advantage Flooring, an additional amount of $500.00 will compensate adequately.

FOR THESE REASONS THE COURT: REVOKES the judgment rendered on February 7 th , 2018; REJECTS the plaintiff’s demand; GRANTS partially the defendant’s cross-demand; CONDEMNS Advantage Flooring to pay to Julia Fournier the amount of $2,476.00 plus the interest at legal rate as well as the special indemnity stipulated in

Section 1619 of the Civil Code of Québec starting on January 9, 2017 which is the date of the cross-demand, the whole with Court costs of $100.00. __________________________________ GABRlEL DE POKOMÀNDY, J.C.Q. Date of hearing: June 11, 2018