2013 QCCQ 6767, 2013 QCCQ 6767

3035203 Canada inc. c. Adhikary 2013 QCCQ 6767 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-125422-107 DATE: July 3, 2013 ______________________________________________________________________ BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ 3035203 CANADA INC. Plaintiff v.

PARIMAL ADHIKARY and ABHISHEK CHAKRABORTY and SUCHIBRATA ADHIKARY and SHIPRA ADHIKARY Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $7,000.00 from Defendants for renovation work conducted at their house in Kirkland (the " House "). [ 2 ] Defendants are alleging that all sums owed to Plaintiff were paid cash and that, in any event, the work was so poorly done that Plaintiff should not be paid more than what he already received.

Question in litigation [ 3 ] How much, if any, should the Defendant pay Plaintiff? The relevant Facts On July 22, 2010, at Defendants' request, Plaintiff sent an estimate (D-1A) asking a flat rate of $13,332.13 for the renovation work to be done. [ 4 ] The parties met on August 12, 2010 (P-5). The scope of the work was modified. The flat fee was reduced to $9,820.13 (D-1).

The parties agreed to payments based on the progress of the work. [ 5 ] On August 14, 2010, prior to Plaintiff beginning the work, Defendants gave Plaintiff a handwritten note requesting some additional work (D-2), which are items 8, 9 and 10 on the invoice (P-1). [ 6 ] Plaintiff decided to stop the work and leave the House on August 24 or 25, when, according to Plaintiff, Defendants refused to pay for the work done up to that date. [ 7 ] Defendants testify that they resiliated Plaintiff's contract on September 4, 2010, after Plaintiff failed to come by the House to complete its work despite their numerous calls. [ 8 ] On September 16, 2010, Plaintiff sent its invoice of $10,328.06 (P-1), together with a letter of demand (P-2), in which Plaintiff acknowledged receipt of a $2,500.00 partial payment and claimed the outstanding amount of $7,828.06.

[ 9 ] Plaintiff consented to reduce its claim to $7,000.00 in order to give jurisdiction to the Small Claims Division of this Court. Analysis [ 10 ] Defendants complain that Plaintiff left prior to completing the removal of the cedar closet in the basement. This item is valued at $100.00 on the invoice (P-1). Yet Plaintiff's invoice (P-1) shows a credit of $800.00 for not doing the basement.

Considering that Defendants admitted that another contractor has charged them $500.00 to complete the work in the basement between September 13 and 18, 2010, the Court concludes that the credit of $800 includes the work for the cedar closet and is adequate. [ 11 ] Defendants also plead that they supplied the flat paint and primer for which Plaintiff claims $220.00. They did not supply invoices to support their allegations.

Plaintiff's president testifies that Defendants were unable to supply the paint because they lacked the time to buy it and this is consistent with Defendants' contention that they were very busy with the process of moving in. The Court denies Defendant’s request for a credit. [ 12 ] Defendants allege that Plaintiff's manpower was inexperimented and did not do a proper job. They filed photos (D-4), showing that the paint finish along the door frames and windows and electrical sockets and plates left much to be desired.

Plaintiff said he never received a demand to fix the situation prior to Defendants' corrective work.

The Court concludes that, given the prevailing situation between the parties, and Plaintiff's clear statement that he would not go back to the House unless he was paid, such a demand would have been useless and was therefore unnecessary [1] . [ 13 ] Defendants' allegation that the bathroom was painted with the wrong color was not contradicted by Plaintiff, but its invoice (P- 1) was not reduced accordingly. [ 14 ] Defendants are therefore allowed to claim a credit on Plaintiff's invoice (P-1) for the poor quality of some of the work.

The Court arbitrates this amount to $1,100.00 before taxes, or 20% of the flat fee agreed on for the paint job. Defendants wish to deduct additional amounts for Plaintiff's failure to reinstall all the electric outlets, the curtains and the blinds. The contract did not provide for such work and the Court refuses the request. [ 15 ] Finally, the parties do not agree on how much Defendants paid prior to the institution of the action. Plaintiff admits that, prior to beginning the work, it received a $2,500.00 cash deposit.

Defendants claim they gave $2,000.00 on August 12, $1,000.00 on August 17, and $2,000.00 on August 19, for a total amount of $5,000.00, all in cash, and that they shouldn't have to pay more considering the poor quality of the work done by Plaintiff and the fact that Plaintiff had agreed not to charge them sale taxes if they were paying in cash. [ 16 ] According to Defendants, Plaintiff refused to remit to them a written receipt for each said cash payments. Plaintiff did not keep a copy for his file of the receipt for $2,500.00 that he claims to have issued to Defendants. [ 17 ] The testimony of Mrs.

Shipra Adhikary is convincing and consistent with Plaintiff's contention that progressive payment had to be made and that he left the House on August 24 or 25, 2010, because Defendants stopped paying.

Therefore, the Court accepts that Defendants paid $5,000.00 to Plaintiff towards the invoice (P-1), but does not give effect to an agreement against public order with respect to the applicable sales taxes which are payable by Defendants irrespective of whether payment is made in cash or not. [ 18 ] Plaintiff's request for payment of a 24% interest rate on the outstanding amount of its invoice is inadmissible in law as it was not contractually provided for.

The Court grants the legal rate of interest and the additional indemnity provided by law [2] . [ 19 ] FOR THESE REASONS, THE COURT : [ 20 ] GRANTS Plaintiff's action in part; [ 21 ] CONDEMNS Defendants, solidarily, to pay Plaintiff the sum of $4,086.44, plus interest at the legal rate of 5% and the additional indemnity provided for by

article 1619 of the Civil Code of Quebec calculated from October 12, 2010; [ 22 ] CONDEMNS Defendants, solidarily, to pay Plaintiff the judicial fees of $207.00 __________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: April 15, 2013