2014 QCCQ 6869, 2014 QCCQ 6869

Danh c. Dennis 2014 QCCQ 6869 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No: 500-32-131712-129 DATE: August 11, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ CHANH THA DANH Plaintiff/Cross-Defendant v.

MICHAEL DENNIS Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lessee Chanh Tha Danh sues lessor Michael Dennis based on a commercial lease [1] , in order to obtain $7,000 paid by her for plumbing work done in the rented premises. She referred to a verbal agreement with Mr. Dennis where he undertook to reimburse her for these expenses. [ 2 ] Chanh Tha Danh was absent at the hearing and the evidence was presented by Mr. Dennis in her absence. [ 3 ] Mr.

Dennis also presented a cross-claim demanding $4,872.04 for plumbing work paid by him, explaining that he also had to retain subcontractors in view of the work done by Chanh Tha Danh in the rented premises. QUESTIONS IN LAW [ 4 ] Principal action A. Has Chanh Tha Danh established her right to claim damages? Cross-claim B. Does Mr. Dennis have the right to get reimbursed for the various expenses deriving from the plumbing work done by Chanh Tha Danh in the rented premises? C. In the affirmative, what are the damages?

CONTEXT AND ANALYSIS [ 5 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [2] . [ 6 ] 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 the demand must demonstrate that the existence of a fact is more probable than its non-existence [3] . [ 7 ] Furthermore, every person has a duty to honour his contractual undertakings [4] . Principal action A.

Has Chanh Tha Danh established her right to claim damages? [ 8 ] In view of the absence of Chanh Tha Danh at trial, no evidence was presented regarding her right to damages. As such, the principal action is therefore dismissed. Cross claim B. Does Mr. Dennis have the right to get reimbursed for the various expenses deriving from the plumbing work done by Chanh

Tha Danh in the rented premises? [ 9 ] Chanh Tha Danh rented commercial premises from Mr. Dennis to operate a spa. [ 10 ] The spa had to be functional, requiring that the toilet be relocated which implied plumbing work. [ 11 ] According to Mr. Dennis, part of the connections for the plumbing of the toilet had to be directed towards the drainage system located in the basement of the building. That area was not part of the rented premises. [ 12 ] As lessor, Mr.

Dennis let Chanh Tha Danh handle the plumbing expenses in the rented premises but decided to control, with his own subcontractors, the portion of the work leading to the drainage system. He therefore paid for these expenses, wanting to ensure that the work was done in conformity with the rules of the trade. [ 13 ] Mr. Dennis relied on the terms of the lease to justify his right to be reimbursed for those expenses. [ 14 ] Mr.

Dennis contracted a net lease with Chanh Tha Danh where it is indicated [5] : […] Except as stated in this Lease, the Landlord is not responsible for costs, charges or expenses relating to the Premises, their use and occupancy, their contents, or the business carried on in them. [ 15 ] Clause 3.01 of

Schedule A of the lease specifies:

a) The Tenant will provide and carry out, at its expense, all equipment and work required to be provided and performed in order to make the Premises complete and suitable to open for business [6] . [ 16 ] Part of the plumbing expenses were the object of the principal action issued by Chanh Tha Danh. As mentioned, no evidence was presented on that subject. [ 17 ] In the

section of the Lease entitled “ Maintenance, repairs and alterations ”:

Section 9.02 Approval of the Tenant’s Alterations […]

c) The Landlord may require that any maintenance to the Premises, Premises Work or improvements installed to benefit the Premises be performed by the Landlord at the Tenant’s cost if they affect, (

i) the structure of the Premises, (ii) the Common Elements, or (iii) any part of the Building outside the Premises. [ 18 ] “Common Elements” are defined in the lease and the work as described by Mr. Dennis falls under that definition. [ 19 ] The Tribunal concludes that Mr. Dennis has the right to be reimbursed for the various expenses deriving from the plumbing work done by Chanh Tha Danh in the rented premises. C. In the affirmative, what are the damages? [ 20 ] The damages claimed by Mr. Dennis are detailed as follows [7] :

a) Plumbing work invoices: - Les Plomberies Vida ltée September 6, 2011: $2,222.48 September 13, 2011: $1,130.80

b) Digging out of a trench for the plumbing: - Atelier de réparation Martin Swiss October 7, 2011: $1,025.33

c) Various invoices from Home Depot for material $493.43 TOTAL $4,872.04 [ 21 ] Mr. Dennis was requested at the hearing to provide proof of payments for the invoices mentioned in

a) and

b) of the above paragraph. Mr. Dennis fulfilled that obligation to the satisfaction of the Court. [ 22 ] The Court grants $4,872.04 as damages to Cross-Plaintiff Michael Dennis. FOR THESE REASONS, THE COURT: Principal action

DISMISSES the action of Plaintiff Chanh Tha Danh against Defendant Michael Dennis; CONDEMNS Plaintiff Chanh Tha Danh to pay $152 as judicial fees to Defendant Michael Dennis; Cross-claim GRANTS the cross-claim of Cross-Plaintiff Michael Dennis against Cross-Defendant Chanh Tha Danh; CONDEMNS Cross-Defendant Chanh Tha Danh to pay $4,872.04 to Cross-Plaintiff Michael Dennis, at the interest rate of 5 % per annum, plus the additional indemnity provided for at

article 1619 C.C.Q, calculated as of May 4, 2012; CONDEMNS Cross-Defendant Chanh Tha Danh to pay the judicial cost of $71,75 to Cross-Plaintiff Michael Dennis. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Date of hearing: July 9, 2014