2019 QCCQ 3907, 2019 QCCQ 3907

Philip Rouben Entreprises Inc. c. Chankowsky 2019 QCCQ 3907 COURT OF QUEBEC “ Small Claims Division “ CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “ Civil Division “ No: 500-32-702458-177 DATE: July 4, 2019 ______________________________________________________________________ BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ PHILIP ROUBEN ENTREPRISES INC. Plaintiff v.

MARVIN CHANKOWSKY -et- MONA CHANKOWSKY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Philip Rouben Enterprises Inc. (“PRE”) claims fees in the amount of $15,000.00 from Mr. and Mrs. Chankowsky, on account of its involvement in the renovation of their condominium. [ 2 ] The agreement providing for PRE’s compensation is verbal. This is because Mr. Philip Rouben, PRE’s principal, was best friends with Mr. and Mrs. Chankowsky’s late son, Kenny. [ 3 ] Mr.

Chankowsky testifies that the agreement provided for PRE’s remuneration in the form of a percentage of all its out-of- pocket disbursements for materials supplied and wages paid in the performance of its contract. Mr. Rouben contends that PRE is entitled to this percentage not only on the materials and workforce it supplied, but also on the cost of materials, sub-trades and professionals that Mr. and Mrs.

Chankowsky purchased, hired, and paid directly, without PRE’s participation (hereinafter: the “Chankowskys’ Expenses”). [ 4 ] The first written manifestation of PRE’s desire to be paid a fee on the Chankowskys’ Expenses is an email from Mr. Rouben to Mr. and Mrs.

Chankowsky, dated December 21, 2016, at the end of the project, which reads as follows: In addition to Invoice MM-CHA-005, I’d appreciate it if you would summarize the amounts that were disbursed to Soll Solutions, Danro Painting, Signature Bachand, and Codell, in order for us to establish a fair coordination fee for these suppliers . [Emphasis added.] [ 5 ] This request was denied. It marks the beginning of the dispute between the parties. [ 6 ] Although Mr.

Rouben argues that the formulation of the underlined portion of this email was an indication of his willingness to mitigate PRE’s fees, his reference to the establishment of a fair coordination fee rather tends to indicate that this fee was, in fact, not determined, nor agreed to. [ 7 ] Furthermore, representatives of the four companies mentioned in this email provided written declarations in lieu of testimony, which corroborate Mr. and Mrs. Chankowsky’s version. [ 8 ] Signature Bachand and Codell’s representatives state that they never met or spoke with Mr.

Rouben, and that all billing and payments took place between them and Mr. and Mrs. Chankowsky. [ 9 ] Danro Painting’s principal states that when his company entered into its contract with Mr. and Mrs. Chankowsky, he did not know Mr. Rouben. He was however very familiar with Mr. and Mrs. Chankowsky, as his company had provided services to them in the past. He further states that all estimates, billing and invoicing by his company were dealt with by Mr. and Mrs. Chankowsky. [ 10 ] Soll Solutions’ partner in charge of this project states that Mr. and Mrs. Chankowsky were referred by their architectural designer.

She adds that at the time of Soll Solutions’ engagement, this company did not know Mr. Rouben, and that all directives, designs, approvals and payments were between Soll Solutions and Mr. and Mrs. Chankowsky. [ 11 ] Mr. Rouben files a voluminous series of progress reports and correspondence with various participants in the project, including these four companies, where he enquires or advises about drawings, designs, deliveries, deadlines, and so on.

He argues that it would have been absurd for him to coordinate the worksite, which included the sub-trades, suppliers and professionals hired and remunerated directly by Mr. and Mrs. Chankowsky, without being compensated to do so. [ 12 ] This may well be, but it is not sufficient to demonstrate that Mr. and Mrs. Chankowsky agreed to pay a fee, and certainly not, as PRE contends, in the same percentage as that applicable to PRE’s out-of-pocket disbursements, on the Chankowskys’ Expenses.

[ 13 ] Contrary to the Chankowskys’ Expenses, PRE assumed the financial burden and risk associated with its own out-of-pocket disbursements. Surely, this is a factor that any business would take into account when determining its prices. [ 14 ] Soll Solutions, which accounts for a major portion of the project’s overall cost, is a clear example. This company demanded an 80%-deposit before starting any work. PRE was not prepared to take such a risk. Mr. and Mrs. Chankowsky were, and they did. [ 15 ] This illustrates that Mr. and Mrs. Chankowsky’s version is at least as likely and probable as PRE’s.

Hence, PRE failed to discharge its burden to demonstrate on a balance of probabilities that it is entitled, in contract, to a fee in the form of a percentage of the Chankowskys’ Expenses. FOR THESE REASONS, THE COURT: DISMISSES the Application, with judicial costs against Philip Rouben Enterprises Inc. in the amount of $200.00, in favour of Marvin Chankowsky and Mona Chankowsky. __________________________________ VINCENZO PIAZZA, J.C.Q. Date of hearing: May 28, 2019