2012 QCCQ 290, 2012 QCCQ 290

Alcon c. Doucet's Electrical Services

(2007) Inc. 2012 QCCQ 290 JB 2101 COURT OF QUEBEC « Small Claims Divisions » CANADA PROVINCE OF QUEBEC DISTRICT OF BONAVENTURE LOCALITY OF CARLETON-SUR-MER « Civil Division » No : 145-32-001946-116 DATE : January 23, 2012 ______________________________________________________________________ PRESENT: THE HONOURABLE JEAN BÉCU , JUDGE OF THE COURT OF QUEBEC ______________________________________________________________________ LLOYD ALCON, Petitioner c. DOUCET'S ELECTRICAL SERVICES

(2007) INC., Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Petitioner claims from Defendant an amount of 7 000 $ for damages caused to the basement floor and furniture of his house in 2009 and 2010 adding up to 7 364 $. [ 2 ] According to his allegations, the heating and cooling system bought in 2006 and serviced by Defendant's employees in 2008 and 2009 is not working properly during summers, as water is dripping from the interior unit and finds its way underneath the sub-floor of the basement. [ 3 ] Defendant makes a contestation on the ground the damages are caused by Petitioner's negligence on maintenance because the drain was apparently plugged by sawdust from Petitioner's renovations. [ 4 ] Petitioner buys this unit for 14 250 $ in February 2006 from Doucet's electrical services électriques inc., a company then owned by Fred Doucet. [ 5 ] In 2007, a new company, the present Defendant, owned by Dwayne McIntyre, is formed; it buys some assets of Fred Doucet's company and keeps the same address and phone number; Mr.

Doucet works for the new company for three years. [ 6 ] So, when Petitioner calls for service in 2008, he is under the impression that he is still doing business with Mr. Doucet's company, but in fact, he is dealing with Mr.

McIntyre's, which sends its employees to respond the call. [ 7 ] In these circumstances, the legal link between the parties does not arise from the contract of 2006, but from the services provided to Petitioner by Defendant's employees in 2008 and 2009. [ 8 ] In the Summer of 2008, a person named Doug presents himself at Petitioner's to service the unit: ice is building up inside the exterior unit.

After his departure, ice is still building up even if the unit is turned off to let it thaw out. [ 9 ] In the Summer of 2009, Fred Doucet answers the call. [ 10 ] This time, the temperature sensor is not working properly and there is ice, but in the interior unit. Mr. Doucet cleans the filter and puts a pan under the drain to collect the water. [ 11 ] He has to come back in 2010 as there are water and moisture in the basement. [ 12 ] He cuts the pipes that are filled with glue and other dirt and puts new pipes which are note glued to the others so that

Petitioner could clean them.

He instructs Petitioner to clean them on a regular basis. [ 13 ] Being the owner of the company that sold the unit to Petitioner, and then Defendant's employee when he is requested to service this unit in 2009, he should know what is the problem with the unit at that time and how to fix it. [ 14 ] Has he replaced the glued pipes in 2009 by new ones, unglued to the others, and instructed Petitioner to clean them, no damages would have been caused to this latter's property. [ 15 ] As a Defendant's employee, his negligence to work properly involves his employer's liability towards Petitioner. [ 16 ] Mr.

McIntyre presents no witness. [ 17 ] He states he notices in 2010 sawdust in a piece of pipe brought at the shop by Mr. Doucet, but this fact is denied by Petitioner. It could be sawdust coming from the sawing of the pipes by Mr. Doucet.

This latter's testimony would have been very important, but Defendant did not call him as a witness. [ 18 ] Petitioner establishes Defendant's responsibility on a balance of probabilities. [ 19 ] As far as the damages are concerned, Petitioner has to restore his basement. [ 20 ] The bills added as pieces of evidence to the case file totalize 5 463,28 $. [ 21 ] Taking into account an amount of 1 365,82 $ representing 25 % for the increase of value brought by new materials, an outstanding balance of 4 097,46 $ must be paid by Defendant to Petitioner FOR THESE REASONS, THE COURT: [ 22 ] ORDERS Defendant to pay Petitioner the amount of 4 097,46 $ in capital, plus the interests at the annual rate of 5 % and the additional indemnity provided for by

section 1619 of the Quebec civil Code as of the demand, February 8, 2011, and the judicial fees of 159 $. __________________________________ JEAN BÉCU Judge at the Court of Quebec Date of hearing : January 16, 2012