2013 QCCQ 3434, 2013 QCCQ 3434

Legatos c. Entreprises Distinction inc. 2013 QCCQ 3434 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-22-189576-120 DATE: April 4, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ PHYLLIS LEGATOS Plaintiff v. LES ENTREPRISES DISTINCTION INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Phyllis Legatos is claiming $57,610.19 from Les Entreprises Distinction inc. (“Les Entreprises”). She alleges the work carried out was deficient and seeks the cost of redoing her wood floors, her repairs and various damages. Les Entreprises contests the claim and presented a cross demand, seeking $8,078.39. QUESTIONS IN LITIGATION: 1.

Did Les Enterprises carry out its work in accordance with the rules of the trade and if not, what aspects of the project needed to be redone? 2. Is Mrs. Legatos entitled to the damages she is claiming? 3. Did Mrs. Legatos’ actions exonerate Les Enterprises of its responsibility? 4. Is Les Entreprises entitled to the amount it charged for extras? THE EVIDENCE: [ 2 ] This case concerns the renovation of Mrs. Legato’s condominium (the “condo”) which led to the present litigation and a rift in a family relationship. [ 3 ] Mrs. Legatos bought a large, upscale, condo in Westmount on October 29, 2010.

She planned to renovate it, by having bamboo floors and mouldings installed, pocket doors created, walls opened and the condo painted throughout. [ 4 ] Mrs. Legatos asked her cousin’s husband, Sylvain Lagacé, a general contractor and one of the owners of Les Enterprises, to do the work. He accepted the project. She then provided him with a copy of the condo rules, which stipulate that hardwood floors must be installed with a membrane glued to the cement base and the floor glued to the membrane.

[ 5 ] Mr. Lagacé prepared an estimate for $32,127.96. Mrs. Legatos found the cost too high. Mr. Lagacé obtained a better price from his supplier, Bois-Franc Richelieu (“BFR”). Mrs. Legatos accepted his new estimate of $22,590.19. [ 6 ] According to Mr. Lagacé, the new bamboo product did not require glue. He says he told Mrs. Legatos of BFR’s price reduction and that no glue would be used. [ 7 ] For Mrs. Legatos, the floors were to be glued in accordance with the condo rules. She denies any discussion with Mr.

Lagacé about deviating from the rules. [ 8 ] Plans to renovate must be submitted to the property manager and consent obtained from the condo association’s Board of Directors before doing any work. [ 9 ] Mr. Lagacé sent his plans to the condo’s management company but made no mention of an installation without glue. The condo association’s President authorized the renovations. [ 10 ] Mr. Lagacé considered that no special request concerning the installation was necessary since he had told the management representative he intended to install the floors in Mrs.

Legatos’ condo in the same way as he had done in another building, where the floors were installed without glue. [ 11 ] Douglas Mossey, President of the condo association’s Board of Directors, had authorized the renovations. However, he never received a formal request to install the floors without glue and he never consented to such an installation. [ 12 ] Mr. Lagacé had suggested that Mrs. Legatos take her cat elsewhere because of the smell of glue. The day before the installation, she asked about the glue. She claims Mr.

Lagacé told her it was not necessary; once the floors were put in, management and the condo association would not know what was installed. The tensions between them began at this point. Mrs. Legatos was concerned and felt coerced. [ 13 ] Daniel Francoeur and his son Maxime began installing the floors on November 23rd. They had no instructions to use glue. Mrs. Legatos returned to her condo at mid day and found the wood flexed when she walked on her bedroom floor, which was not level or glued. She told the employees to stop working and called Mr. Lagacé to stop the installation but the work continued.

When she returned later, her room was finished. The floor sloped and it flexed when walking on it. [ 14 ] The parties had a run in the next day. Mrs. Legatos was screaming that the job was unacceptable and reproached Mr. Lagacé for not having levelled the floor. [ 15 ] The following day, Mrs. Legatos and Mr. Lagacé met with Matthiew Houle, a representative of BFR, the supplier. Mr. Houle noted valleys and air pockets in the cement, which had not been properly levelled and proposed the spread of an auto-levelling product throughout the condo. Mrs.

Legatos pointed out that the condo rules required gluing. [ 16 ] Mr. Houle would correct the problem, without glue for $9,000 or with glue for $15,000, provided the cement floor was levelled. [ 17 ] Both Mrs. Legatos and Mr. Lagacé found the price too high. Mr. Lagacé hired an experienced tile installer to level the floors for $450. His method, referred to as “à l’italienne” involved using a ruler to find an uneven area and inserting cement in it. [ 18 ] Mrs. Legatos wanted the bedroom redone. Mr. Lagacé refused.

The remaining floors were levelled “à l’italienne” and installed on December 6 th . [ 19 ] The rest of the work did not progress well. Employees complained of constant interruptions. Maxime Francoeur described the environment as tense and disagreeable. His father claimed “ce n’était pas vivable” and stopped working on December 13, 2010. Ms. Legatos showed a lack of respect for the employees and continually demanded other work be done or her furniture moved. She was concerned with details and dissatisfied with the quality of the work. [ 20 ] On December 13 th , Mrs. Legatos and Mr. Lagacé argued.

She told him to leave. She noticed the wood planks had separated in several places and the unlevelled floor created a bouncing effect when she walked on it. She also noted the shoddy quality of the work, including a poor paint job, an improperly installed lock, sliding doors not on their hinges, unfinished quarter rounds, a cut door frame, etc.. [ 21 ] On January 20, 2011, the parties met with David Boileau, a representative of the manufacturer Goodfellow, and Mr. Houle from BFR. Mr. Boileau noted the cement floor was not level and planks had opened, primarily in the corridor. [ 22 ] Mr.

Boileau said the humidity level should be raised to 45% to 55%. However, in his testimony, he admitted that the humidity level was not low enough to create the separation of the planks. Mrs. Legatos had never heard of this problem. [ 23 ] Mr. Boileau proposed two solutions, either installing the floors without glue and placing transition bars between each room or gluing the floor to the cement base, throughout the condo. In the latter case, no transition bars would be required. [ 24 ] Mr.

Lagacé agreed to correct the defects by removing portions of the floor and installing transition bars where required and by inserting cement into the uneven areas. He proposed levelling the entire bedroom floor “à l’italienne” , at a cost of $1,700, at Mrs. Legatos’ expense. Mrs. Legatos refused the transition bars because of their appearance and refused to assume the added cost. [ 25 ] Mr. Boileau, Goodfellow’s representative, sent two reports to Mathieu Houle of BFR, on January 21, 2000, invoking the humidity level in the condo did not conform to the 45-55% requirement. Mr. Lagacé then advised Mrs.

Legatos that Goodfellow considered her responsible for the damage because of the humidity level, an issue that had never been discussed with her.

The expertise: [ 26 ] Mrs. Legatos hired Charles-Etienne Robert, an architectural technician, to do an inspection. He noted the floor was unlevel in three areas and planks had separated in various places. Certain planks were too close to the wall and improperly cut; the cement base was not properly levelled and the floor was not installed in accordance with the rules of the trade. [ 27 ] He attributed the separation of the planks to an installation that was done too quickly, an insufficient humidity level and a lack of glue.

He specified that the glue renders the wood more resistant to movement; it helps prevent the planks from separating, provides greater floor stability and provides for a better acoustic milieu. [ 28 ] He recommended that the flooring be completely removed and re-installed after levelling the base with an auto-levelling liquid and gluing the membrane to the cement base and gluing the wood to the membrane (a “double gluing”). [ 29 ] As for the rest of the project, he noted a crooked electric socket, hardware on the sliding door improperly installed, uneven moulding, a door hook and doors not well installed, the hole for the lock extending beyond the metal plate, baseboards installed in small pieces, paint on the floor, traces of stucco from the ceiling on the walls and dripping paint, paint that was granular and the first coat not sanded.

He provided a list of unfinished or improperly done work and evaluated the cost of the extra work at $2,820, rather than $10,488.21, namely the amount indicated in Les Entreprises’ two invoices. [ 30 ] He concluded that the defects related to installation techniques, the paint job and the renovation work in general, which did not conform to the rules of the trade. The end of the project: [ 31 ] Armed with an inspection report, Mrs. Legatos and her brother met with Mr. Lagacé and his wife, Nathalie, on March 21, 2011, for the last time, in an attempt to resolve the parties’ differences.

The meeting did not go well. [ 32 ] Mr. Lagacé, from memory, remitted a list of work to be done. He accepted to complete the job and do repairs, including levelling the floor in specific areas. Mrs. Legatos wanted the work redone. Mr. Lagacé was not prepared to do so. [ 33 ] There was no settlement. Mr. Lagacé did not do any further work. He estimated the job could be finished in seven days and evaluated the cost at $2,800. The flooring was the major part of the project and made up 75% of his total price. The repairs: [ 34 ] Planchers PM was hired to redo the condo floors.

Denis Pitre, who did the work, noted cardboard under the floor, which was unlevel and failed to meet the manufacturer’s norms. 9/16 inch differences were found whereas the maximum permissible difference over a ten foot range is 3/16 inches. As well, the product used to level the floors was not appropriate nor the right quantity. [ 35 ] The wood planks had separated in several areas. The wood touched the wall, although a 3/16 inch space is required to allow for expansion; for this reason, the base of door frames needed to be cut. [ 36 ] The wood and the initial levelling product were removed.

The floor was levelled. The membrane and wood were reinstalled and double glued. While this type of floor can be installed without glue, given the planks are only clipped together, Mr. Pitre stated that when glued they will not react as much to humidity changes. [ 37 ] Mr. Spiros Stassinos painted the condo in August 2011. He found uneven surfaces, plaster that had been painted but not sanded; paint cuts that were not straight and paint from the walls that overlapped the ceiling. It appeared to be a finished paint job that was badly done. He sanded, plastered and painted, using two coats.

He charged $4,329,15, including tax. ********** [ 38 ] Mrs. Legatos is claiming the costs she incurred to redo the project plus damages. [ 39 ] Les Entreprises is claiming $8,078.39, representing the balance of its account and which includes $8,428.52, charged for extra work (p.166). Mrs. Legatos contests these costs [1] . THE APPLICABLE LEGAL PRINCIPLES: [ 40 ] The contract concluded by the parties is a contract of enterprise within the meaning of

article 2098 of the Civil code of Quebec (C.C.Q.). [ 41 ] The contractor chooses the method of executing the work (article 2099 C.C.Q.) but, as a counterpart, he assumes responsibility for the work done. He must act in his client's best interests, with care and diligence. [ 42 ] The contractor has an obligation of information and must provide the client with any useful information with respect to the task he has undertaken to do (article 2102 C.C.Q.).

[ 43 ] Where there is an obligation of result, as in the present case, he must provide the expected result (article 2100 C.C.Q.). [ 44 ] To exonerate himself and avoid liability, a contractor must show that his failure to execute his obligations stems from a superior force, namely an unforeseeable event (article 1470 C.C.Q.) or the client’s actions.

He cannot avoid responsibility towards a client by attributing an unforeseen event to a subcontractor. [ 45 ] The contractor may employ third persons to perform the work involved in the contract but he nevertheless remains responsible to the client for the performance of the work, which is carried out under his supervision. [ 46 ] The contractor is obliged to act according to the rules of the trade and to assure that the work performed is in conformity with the contract. The obligation of respecting the rules of the trade is mandatory, even if the contract makes no mention of such a requirement.

Such rules of the trade apply to all trades as well as to all the stages of construction. [ 47 ] Furthermore, the contractor must carry out work that is in conformity with pertinent regulations and is obliged to take cognizance of the applicable regulatory norms and respect them. [ 48 ] Accordingly, the contractor must respect all the techniques and approved construction practices of his trade that assure quality work.

Where it is not acceptable, the client has recourse against his contractor for defects in the work done (article 2120 C.C.Q.). [ 49 ] When the client notes the contractor's failure to execute his obligations, the client must put the contractor in default, requiring him to respect his contractual obligations and carry out the work in question, before having it done by another (article 1590 C.C.Q.).

A demand letter is not required where the contractor clearly indicates he does not intend to execute his obligation or where there is urgency and he fails to immediately perform his obligation (article 1597 C.C.Q.). [ 50 ] The client can claim damages that are foreseen or which could have been foreseen at the time the contract was concluded. Only real and direct damages are admissible. [ 51 ]

Article 1590 foresees that the obligation must be performed in full, properly and without delay. In the absence of any delay stipulated in the contract, the contractor must carry out the work with reasonable diligence. [ 52 ] The client's obligation is to pay the price agreed upon by the parties. The price 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 (article 2106 C.C.Q.).

Article 2109 C.C.Q. stipulates that where the price is fixed by the contract, it cannot be increased or decreased unless the parties agreed to such a change in price. [ 53 ] Extras or additional work, which was not initially foreseen nor part of the cost of the contract, results in supplementary costs. The same occurs when there are modifications in the conditions originally foreseen [2] . [ 54 ]

Article 2111 C.C.Q. authorizes the client to retain a sufficient amount of money, until the repairs or corrections are made, to satisfy his reservations as to the poor workmanship that existed when he accepted the work. [ 55 ] The client or the contractor can resiliate the contract. However, in so doing the client must pay the contractor, in proportion to the agreed price, the actual costs and expenses and the value of the work performed before the end of the contract.

The contractor, for his part, must repay any advances he has received in excess of what he has earned (article 2129 C.C.Q.). [ 56 ] These principles are applicable in the present case. ANALYSIS OF THE PRINCIPAL ACTION: [ 57 ] Mrs. Legatos is claiming the cost to redo her floors, the cost of her repairs and compensation for various costs incurred, as outlined below.

A) The installation of the flooring: [ 58 ] The major portion of the renovation project concerned the installation of bamboo flooring throughout the condo. [ 59 ] Mr. Lagacé, as a contractor, has an obligation of result. In the case of an inadequate outcome, the contractor’s fault is presumed [3] . Unless he can establish a superior force or

an act of the client, he is held responsible for the work done [4] . In short, he is required to carry out his work according to the rules of the trade. [ 60 ] This was not the case in this instance. After the installation, the planks separated in several areas; the floor was uneven and valleys were found in the cement base, resulting in a bouncing sensation when walking on the floor.

The planks were badly cut in various places and placed too close to the wall, without room for expansion. [ 61 ] Various explanations were provided for the defects, included the failure to level the cement, the lack of glue, the rapidity of the installation preventing the bamboo from acclimatizing to the humidity level and the low humidity level of the condo. [ 62 ] Goodfellow, in its report, pointed to the low humidity level in the condo as the cause of the wood separation. However, Mr. Boileau in his testimony admitted that the humidity level had nothing to do with the separation.

He also admitted that Goodfellow’s

recommended level was extremely high and would generate considerable condensation in the condo. Moreover, far lower levels of humidity are appropriate in the winter months. [ 63 ] The Court concludes that humidity was not a factor in the separation of the wood and therefore Mrs. Legatos is not responsible. As well, the evidence did not establish that the defects stem from the wood product [5] . [ 64 ] Mr. Robert, the expert witness, declared that the floor was not installed in accordance with the rules of the trade. Other witnesses noted the separation of the wood, air pockets and an unlevelled surface.

The photographic evidence confirms the testimonial evidence and shows the unacceptable state of the floor. [ 65 ] The evidence established that the cement floor was not level. The bedroom had not been levelled and the rest of the condo was done “à l’italienne” . This involved finding the valleys in the cement base and filling them with a levelling product, which was neither the proper material nor the appropriate quantity. [ 66 ] Les Entreprises argues that the method “à l’italienne” was explained to Mrs.

Legatos and given the difference in cost to level the base using this method as opposed to auto-levelling the floors, it was clear the result would not be the same. It submits that Mrs. Legatos nevertheless chose the method “à l’italienne” . [ 67 ] However, the obligation of result applies, irrespective of the price of the contract. The fact that a client seeks to have the job done at little cost does not justify the contractor to make concessions on the quality of his services [6] .

He is required to provide his work in conformity with the rules of the trade and assure quality work. [ 68 ] In light of all the evidence, the Court concludes that the deficiencies stem from an installation that was improperly done. Accordingly, Les Entreprises is responsible for the ensuing damages.

i) The cost to redo the floors: [ 69 ] Les Entreprises claims the defects were minor and it was prepared to level the floor in specific areas where it was unlevel. Mrs. Legatos refused, claiming Les Entreprises planned to do a patch job. The Court agrees and considers that the solution proposed by Les Entreprises does not respect the rules of the art any more than its initial job. [ 70 ] Given the photographic and testimonial evidence, the Court, without hesitation, retains the solution proposed by Mr.

Robert to remedy the problem. [ 71 ] First, the base must be properly levelled, with an auto levelling product, spread throughout and the base measured with a level to assure its surface is even. [ 72 ] As to the installation of the bamboo, Les Entreprises submits that Mrs. Legatos considered the price to glue the floors too costly, glue is not necessary and transition bars suffice to resolve the problem. [ 73 ] The Court considers the floors should be installed with a double glue process.

According to the evidence, this method assures greater stability, prevents the separation of the planks and provides a quieter acoustic environment. [ 74 ] More important is the fact that gluing the floors is one of the conditions required by the condo association. Les Entreprises was well aware of this condition. Although Mr.

Lagacé claimed he had obtained authorization to proceed without glue, he had not specified the means of installation in his plans and no authorization was given by the Board of Directors to circumvent the existing rules and permit the installation of the floors without glue. [ 75 ] In addition, when installing floors without glue, transition bars are required.

Such bars are far from aesthetic and the client has the right to have work that is not only impeccable but also aesthetic [7] . [ 76 ] Plancher PM charged $12,613.81 plus tax for a total of $14,370.28 to remove the bamboo flooring and redo the floors by levelling the cement and gluing the planks. The Court grants this amount. ii) The cost to do the baseboards and quarter rounds: [ 77 ] Mrs. Legatos submitted an invoice for $800 representing the labour costs to have the baseboards and quarter rounds installed. The material cost $189.

Les Entreprises was prepared to finish the work which had not been completed; its list of items included the baseboards and quarter rounds. [ 78 ] Given the willingness of Les Entreprises to complete the execution of its contract and since Mrs. Legatos refused to allow it to do so, she cannot claim compensation for this aspect of her action.

B) The finishing and repairs: [ 79 ] Mrs. Legatos pointed to Les Entreprises’ poor workmanship. The photographic and testimonial evidence confirm that the work was shoddy and sloppy. However, Mr. Lagacé testified that the job was not finished; some parts were to be completed and the repairs

required were minor. [ 80 ] For example, the entrance sliding doors had been removed to install the ceramic tiles and the rail retaining the doors had not been reinstalled. The doors, baseboards, base of the door frames and kitchen shelves needed to be painted and the finishing had not been completed. Other repairs were minor, as in the case of overlapping paint on the ceiling or the adjustment for the improperly installed lock on the door hinge. Les Entreprises was prepared to complete the requisite work and do the repairs but maintains that Mrs.

Legatos refused to let it do so. [ 81 ] It is established that when the client, by his conduct, renders the execution of work impossible, he cannot complain about a contractor’s shortcomings. As indicated in the text « Les obligations » [8] : « Le créancier qui, par son acte seul, rend l’exécution impossible, doit en supporter les conséquences et ne saurait se plaindre de la défaillance du débiteur… »

i) Various repairs invoiced by Renovations 360: [ 82 ] Mrs.

Legatos submitted an invoice for $2,062.04 from Renovations 360 for work it did in August 2011, consisting of repairs to doors and mouldings, the installation of thresholds and porcelain tiles on steps leading to the patio doors, the installation of a return air for ventilation and miscellaneous finishings. [ 83 ] With the exception of the repair of the doors and mouldings and the finishings, the other items do not consist of work that Les Entreprises was hired to do. [ 84 ] Les Entreprises had not done the finishings and was prepared to carry out the repairs. Since Mrs.

Legatos had not allowed it to return to complete the job, this aspect of her claim is denied. ii) The paint job: [ 85 ] Mrs. Legatos is claiming $4,329.15 for the cost to repair the walls and doors in order to paint them and to apply two coats of paint. Both the expert witness and Mr.

Stassinos described the inadequate paint job that had been done, including plaster that was not sanded, uneven paint cuts, granular paint, stucco from the ceiling and dripping paint on the walls, etc.. [ 86 ] Les Entreprises provided a list of remaining work which included the repair and painting of a bedroom wall and a dining room wall as well as the paint job above the sliding doors.

However, the evidence shows the walls had to be repaired and re-sanded and the paint job redone throughout; this was not a case of simply repainting a couple of walls and a select number of items. [ 87 ] The Court considers that, in light of the inacceptable means proposed to rectify the paint job, Mrs. Legatos was justified in having the condo repainted by another company. [ 88 ] This having been said, certain repairs could have been done by Les Entreprises, such as removing paint from the floors and removing the overlapping ceiling paint.

It also could have completed the painting of the baseboards, the base of the door frames and kitchen shelves. Accordingly, the Court in its discretion removes $1,500 from the total paint invoice.

C) The Damages : [ 89 ] Mrs. Legatos’ request for compensation is grossly exaggerated and for the reasons outlined below, most of her claim is denied.

i) Moving costs: [ 90 ] Mrs. Legatos is claiming $4,715 as moving costs for the pick up of her goods from her condo in July 2011 and their delivery in August 2011. [ 91 ] It is usual to vacate premises when floor renovations are carried out. Such cost is borne by the client and not by the contractor. In this instance, Mrs. Legatos did not leave her condo and, according to the evidence, her furniture remained in the premises when the floors were first installed. The costs claimed do not constitute a repeat of her moving costs.

Since moving costs are assumed by the client and since she never incurred moving charges when Les Entreprises did the work, there is no reason to require that it now pay for this aspect of her claim. ii) The cost of a humidifier and a dehumidifier: [ 92 ] Mrs. Legators is seeking the cost of a humidifier, which is a useful if not a necessary household appliance. However, it is not a cost that is assumed by a contractor. Even had Mrs. Legatos been told by Les Entreprises that she required a humidifier, Les Entreprises does not become responsible for its cost. [ 93 ] Mrs.

Legatos is also seeking the reimbursement of $100, which she paid for a dehumidifier. There is no evidence with respect

to the requirement of this appliance nor is there any proof that it resulted from a fault committed by Les Entreprises. Therefore the claim of $100 is not retained. iii) Hook up digital sound and the Installation of various items: [ 94 ] Mrs. Legatos submitted a bill of $145.82 for a service call to hook up digital sound for her living room, install the DVD Illico and pass component. She testified that wires had been installed in the walls and this cost was to re-instate the service. [ 95 ] This work was not done by Les Entreprises.

As well, no expert evidence was presented to substantiate the reason for redoing the work. No compensation for this item is granted. iv) The invoice from Air Fournier and from Comfort Expert: [ 96 ] Air Fournier’s invoice of $129.81 indicates the work is for the maintenance of the pump and furnace. Mrs. Legataos testified that this bill, dated November 5, 2010, was for the verification of her air conditioning system but nine months later, following the work by Les Entreprises, the A/C system was not working.

It was serviced by Comfort Expert, on August 3, 2011, which charged $403.43. [ 97 ] The Court did not hear any witness who serviced this appliance. The first invoice indicates that the work consisted of routine maintenance, for which Les Entreprises is not responsible. As for the invoice of Comfort Expert, no evidence was presented as to the nature of the problem or why various modifications were done. The claim for both bills is therefore denied.

v) Notary’s fees: [ 98 ] Mrs. Legatos is claiming $494, representing the notary’s fees she incurred. She submits she had to contract a loan and mortgage her condo to redo the work that should have been properly executed by Les Entreprises. [ 99 ] To obtain such damages, a causal link must clearly be established. The Court does not consider the notary’s fees to constitute a direct damage resulting from Les Entreprises’ failure to properly execute its contract [9] .

It is conceivable that others placed in the same situation would have other means to redo their renovations and not have to borrow funds and incur such legal fees. Les Entreprises is not responsible for this cost. vi) Loss of income: [ 100 ] Mrs. Legatos is seeking $2,170, representing 31 hours of her work as a trainer at $70 per hour. She alleges she was unable to provide her services to many clients because of the necessity of supervising the renovations in her condo. However, she provided no evidence of her loss at trial. [ 101 ] Subsequent to the hearing, Mrs.

Legatos submitted a document to substantiate her claim, containing a list of clients whose appointments she allegedly cancelled. Les Enterprises objected to the admissibility of this evidence. [ 102 ] Since it was not presented at the time of trial, Les Entreprises is deprived of the possibility of cross examining Mrs. Legatos on this aspect of her claim and accordingly, this evidence is inadmissible and the claim is denied. vii) Loss of Rental income: [ 103 ] Mrs. Legatos is claiming seven months of lost rental income, at $2,500 per month, for a total of $17,500.

She submits she could have rented her premises had the work been properly carried out. [ 104 ] Mrs. Legatos established that in September, 2011, a real estate agent was confident her condo could be rented for $4,000 a month. However, at the time of the hearing she was still living in her premises and had not shown she attempted to rent it to tenants. This aspect of her claim is totally unfounded. viii) Pain and Suffering: [ 105 ] Mrs. Legatos is claiming $10,000 for pain and suffering.

Given that the floors in the condo as well as the paint job were not done in conformity with the rules of the trade and considering that Mrs. Legatos had to deal with the inconvenience of redoing the floors of her condo and repainting her premises several months after moving in and after undergoing renovations, the Court in its discretion grants $1,000. ix) Expert fees: [ 106 ] Mr. Robert’s invoice to prepare his report, which was presented in Court, comes to $850. He did not present a bill for his Court appearance.

The Court accepts his bill of $850 but not any subsequent costs since the failure to present an invoice in Court deprives Les Entreprises of its right to a full defence. [ 107 ] The total amount granted to Mrs. Legatos is $18,199.43 ($14,370.28 for the floors, $2,829.15 for the paint job and $1,000 in damages).

THE CROSS DEMAND: The extras: [ 108 ] Les Entreprises sent Mrs. Legatos an invoice dated November 22, 2010, for $4,266.68 and a second dated January 5, 2011 for $6,221.53. These bills form part of the total bill of which $8,078 constitutes its cross demand. These bills concern extra work that was not envisaged when the original contract was concluded and include plumbing, redoing a kitchen wall, furnishing ventilators, etc. [ 109 ] Mrs. Legatos complained she never received any details with respect to these invoices and is contesting the nature of the work done and the amount charged. [ 110 ] The expert, Mr.

Robert, disputed the cost of the extras. He estimated their value at $2,820 plus tax. However, his evaluation does not include the task of moving the washer and dryer from one room to another, the installation of plugs throughout, wood flooring and a backsplash in the kitchen, sliding doors in the den and ventilators in the bathroom. It also does not cover the electrical work. [ 111 ] In his testimony, Mr. Lagacé detailed the work Les Entreprises carried out as extras and the cost of each item. Such itemization should have been provided to Mrs. Legatos. However, the list of work carried out is extensive and Mrs.

Legatos requested the extra work done. Accordingly the Court grants Les Entreprises the amount claimed in its cross demand, namely $8,078.39. ********** [ 112 ] As obiter, the Court considers it unfortunate that the parties, who are related and are no longer talking to each other, did not resort to mediation. While clearly counsel for both parties spent considerable time and effort in representing their clients, the judgment rendered is unlikely to satisfy either party.

A mediated settlement would have been far more beneficial to the parties than a lawsuit, from the perspective of the costs involved as well as their family relations. FOR THESE REASONS, THE COURT: GRANTS , in part, the introductory motion for the amount of $18,199.43; GRANTS the cross demand for the amount of $8,078.39; And effecting compensation: CONDEMNS Les Entreprises Distinction inc. to pay Phyllis Legatos $10,121.04 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since April 6, 2011. THE WHOLE , with costs, including $850 representing expert fees. __________________________________ SUZANNE HANDMAN, J.C.Q. Me Lorianne Charles Bélec

Savonitto et ass. Inc. Attorney for Plaintiff Me Annie Thivierge Tremblay, Bigler, Thivierge Attorney for Defendant Date of hearing: January 31 and February 1 st , 2013