2014 QCCQ 2673, 2014 QCCQ 2673

Rebelo (Transport et Accord) c. Sharek 2014 QCCQ 2673 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-133047-128 DATE: APRIL 7, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ THOMAS REBELO, doing business under the name TRANSPORT ET ACCORD Plaintiff v.

ANDRÉ SHAREK and JEAN YOON Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming $4,108.90 from Defendants, solidarily, with interest at the annual rate of 5% and the additional indemnity provided for in virtue of

Article 1619 of the Civil Code of Québec ( C.C.Q .), as from January 16, 2012, for work done on a 6-feet Steinway Grand Piano (the “Piano” ). [ 2 ] Defendants argue that Plaintiff did not perform the services according to the contract and that the $2,175.97 they already paid is sufficient. QUESTIONS IN DISPUTE 1. What was the agreement between the parties with respect to the work that Plaintiff had to carry out on the Piano? 2. What amount, if any, is due to Plaintiff by Defendants?

RELEVANT FACTS [ 3 ] In February 2010, following a fire at Defendants’ home, the Piano was brought to Plaintiff by the claims adjuster of Defendants’ insurer. [ 4 ] On April 10, 2010, Plaintiff submitted to Renovaneuf, the company retained by Defendants’ insurer to restore Defendants’ home and belongings, an estimate (D-1) of $3,700 plus tax to restore the Piano and $250 plus tax for transportation to return the Piano to Defendants’ home. [ 5 ] It took a while before Plaintiff was given the go ahead.

In the meantime, in the Summer of 2010 (P-3), he arranged to submit the Piano to an ozone treatment, following which Plaintiff had various discussions with Renovaneuf. [ 6 ] On March 2, 2011, Plaintiff forwarded a second estimate to Renovaneuf (P-14), that modified the scope of the work without changing the price. [ 7 ] It was only on September 14, 2011, that Renovaneuf sent Plaintiff the approval of Defendants’ insurer (P-15), which reads as follows: As per our telephone conversation of Monday sept 12/2011 you have my go ahead to restore the piano but the must ( sic ) important person to give you the ok and it should be in writing is from Mr Andre Shareck the owner of the piano in question and he should be advised how much it is to restore the piano and the cost of the storage and also the tuning and regulation and adjustment of the piano upon delivery. […] [ 8 ] Plaintiff spoke to Defendant Yoon.

He offered her the possibility to come to his workshop to look at the Piano and to discuss the work to be done as well as her requirements with respect to the Piano’s tuning and regulation. She refused to go but asked Plaintiff to send her his estimate for the work. [ 9 ] On September 23, 2011, Plaintiff sent Defendants, by fax, his original estimate of April 10, 2010 (D-1). At trial, Plaintiff admits that he had understood, rightly or wrongly, that Defendants already had a copy of his estimate of March 2, 2011 (P-14).

[ 10 ] On October 4, 2011, Plaintiff informed Defendants (P-5) that the Piano was ready for delivery and gave the details of his invoice which came to $6,066.51 (P-7). [ 11 ] On October 6, 2011, Defendant Yoon remitted to the men delivering the Piano a cheque for $6,066.51 (P-10) to the order of Plaintiff and signed the acknowledgement that was already typed on the invoice (P-7), which reads: “I have inspected the piano and received it in good condition” . [ 12 ] The Piano was dusty and Defendant Yoon was busy preparing supper for Defendants’ children.

Therefore, she realized only later that evening that the Piano had not been refinished. Defendant Shareck called Plaintiff to complain and he ordered the bank to stop payment of the cheque (P-10). [ 13 ] The following excerpts of Plaintiff’s letter of October 25, 2011 (P-9), sum up and explain the work that was performed by Plaintiff on the Piano (the “Work” ): […] When we made the original estimate of repairs we stated that the piano needed to be refinished since the smoke had permeated the wood. In these cases, cleaning and deodorizing will not be effective since the smoke smell will remain.

After a thorough cleaning and deodorizing, however, the smoke smell was removed. This is probably due to the fact that the fire was in another area of the house and the instrument not exposed to the extreme heat. The soot was cleaned last summer and after hand cleaning the piano’s finish inside and out we were quite pleased with the result. The reason we made the effort was to save the original finish was to avoid stripping a 100 year old finish which disqualifies it as an antique and therefore takes away from its value.

In addition, it is our responsibility to restore the finish to its original state (before the fire), and we were confident that was done. The second part of the repair work was addressing the mechanism. It is after all a musical instrument and when we started getting into the gusts of the piano we realized that the damage caused by the humidity from the fire affected the action more seriously than we originally estimated.

It is impossible to determine the condition of the piano before the fire, but we were confident that the exposure of the piano to a sudden change in humidity and temperature caused extensive damage to the action of the piano. The original inspection of the piano did not take into account the effect of the humidity and sudden change in temperature since these effects take time to manifest.

Essentially, although we were able to save the finish the extra time and effort was put into the mechanism of the piano. […] [ 14 ] In September 2012, Defendants had the Piano refinished for a fixed price of $8,047.90, including tax (D-6). ANALYSIS [ 15 ] Following receipt of Plaintiff’s demand letter (P-13), Defendants paid $2,175.97 (D-3) on February 6, 2012 towards Plaintiff’s bill. 1. What was the agreement between the parties with respect to the work that Plaintiff had to carry out on the Piano? [ 16 ] The Work was carried out under the following rules governing a contract of enterprise under C.C.Q .: 2098.

A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay. 2099. The contractor or the provider of services is free to choose the means of performing the contract and no relationship of subordination exists between the contractor or the provider of services and the client in respect of such performance. 2102.

Before the contract is entered into, the contractor or the provider of services is bound to provide the client, as far as circumstances permit, with any useful information concerning the nature of the task which he undertakes to perform and the property and time required for that task. 2109. Where the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen.

Similarly, the contractor or the provider of services may not claim an increase of the price for the opposite reason. Unless otherwise agreed by the parties, the price fixed by the contract remains unchanged notwithstanding any modification of the

original terms and conditions of performance. [ 17 ] Plaintiff had the burden [1] to prove that he had obtained Defendants’ consent or that of their duly authorized representatives prior to carrying out the Work. The following are the rules of C .C.Q . governing consent, which are relevant to this matter: 1385. A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law requires a particular form to be respected as a necessary condition of its formation, or unless the parties require the contract to take the form of a solemn agreement.

It is also of the essence of a contract that it have a cause and an object. 1399. Consent may be given only in a free and enlightened manner. It may be vitiated by error, fear or lesion. 1400. Error vitiates consent of the parties or of one of them where it relates to the nature of the contract, the object of the prestation or anything that was essential in determining that consent.

An inexcusable error does not constitute a defect of consent. [ 18 ] Furthermore, because Defendants are “consumers”, as defined in the Consumer Protection Act [2] (the “ Act ”) and the contract was entered into in the course of Plaintiff’s business, the Court must apply Sections 9 and 17 of the Act , which read: 9. Where the court must determine whether a consumer consented to a contract, it shall consider the condition of the parties, the circumstances in which the contract was entered into and the benefits arising from the contract for the consumer. 17.

In case of doubt or ambiguity, the contract must be interpreted in favour of the consumer. [ 19 ] Plaintiff had the honesty to admit that it was the first time he had to discuss the work he intended to do on a piano directly with the owner. He usually dealt with insurance companies, claims adjusters or companies like Renovaneuf. He considered that his duty was to restore the Piano’s finish to its original state and that, under the circumstances, the Piano did not need to be refinished.

The Court disagrees. [ 20 ] Plaintiff’s obligation was to carry out the Work that Defendants had agreed upon and he did not do so. [ 21 ] The insurer and Renovaneuf were very clear in their email of September 14, 2011 (P-15): Plaintiff was to discuss the scope of the Work and the price with Defendants and obtain their consent before carrying out the work. [ 22 ] Plaintiff was no longer acting for the insurer but rather for Defendants.

The scope of the coverage provided to Defendants under their insurance policy had become irrelevant. [ 23 ] Therefore, Plaintiff must assume the consequences of his decision of September 23, 2011 to send Defendants the estimate of April 10, 2010 (D-1), when he intended to perform the Work described in the estimate of March 2, 2011 (P-14). It may have been an honest mistake on the part of his employee, considering that both estimates bear the same “constat” number and refer to the same purchase order number.

That is nonetheless fatal to his claim. [ 24 ] Defendant Yoon is credible when she states that if she had realized that Plaintiff wanted to touch the mechanism of the Piano, she would have questioned the validity of such a proposal and sent her own expert.

The Piano is a Steinway, of great value, and she considered, rightly or wrongly, that its mechanism was in a perfect condition prior to the fire and could not have been affected as a result of the firefighters’ intervention. [ 25 ] She expected the Piano to be refinished and the Court believes her considering that she did proceed to do so in September 2012 (D-6). [ 26 ] Therefore, applying the aforementioned legal principles to the facts of this case, the Court concludes that Plaintiff did not obtain Defendants’ consent to do the Work for which he claims payment and he did not refinish the Piano in accordance with the contract resulting from Defendant’s acceptance of the estimate of April 10, 2010 (D-1). [ 27 ] Defendant Yoon’s signature on the invoice merely admits that the Piano was received in a good condition, which was the case; the remittance of the cheque is not, under the circumstances, an admission that the work was done in accordance with the contract between the parties. 2.

What amount, if any, is due by Defendants to Plaintiff?

[ 28 ] At trial, Plaintiff admitted that his invoice (P-7) includes a charge of $185 for regulation and tuning after delivery that was not done. He also claimed $350 for transportation costs instead of the $250 agreed upon, and $3,950 for the Work, instead of the agreed $3,700.

Therefore, Plaintiff’s total invoice (P-7) should have been $5,457 instead of $6,066.51. [ 29 ] Plaintiff also acknowledged having received Defendants’ payment of $2,175.97 (D-3). [ 30 ] Defendants explained that this payment includes the transportation cost of $250, the storage fee of $840, an amount of $820 for the value of the work effectively done on the Piano and applicable sales taxes. [ 31 ] Mr.

Marc-André Daoust, a cabinetmaker and piano tuner with 27 years of experience in piano restoration, testified with respect to his expert’s report of October 31, 2011 (D-2). [ 32 ] He noted physical evidence which contradicts Plaintiff's statement (P-9) that some work had been done. Eliminating this alleged work, he evaluated the time required to do the other steps and concluded that, at an hourly rate of $60, they were worth $820, or $934.19 including tax. [ 33 ] The Court does not doubt that Plaintiff testified in good faith, but he was not the one who did the Work.

He relied on the statement of his technician, who has since returned to Asia and could not come and contradict Mr. Daoust. [ 34 ] Plaintiff had the burden to prove [3] his entitlement to the amount claimed based on work effectively done. He did not succeed. [ 35 ] Plaintiff's hourly rate may be $70, but Defendants never accepted that rate. Therefore, the Court accepts Mr. Daoust’s testimony as to what the hourly rate should be [4] and concludes that the amount of $2,175.97 paid by Defendants is sufficient pay for Plaintiff's services. [ 36 ] Mr.

Daoust acknowledged that, when he saw the Piano, there was no soot or any smell of smoke. Plaintiff testified that the absence of an odour was the result of the ozone treatment for which he paid $375.30. Therefore, considering the result obtained [5] by this treatment, the Court will grant this amount, together with applicable sales taxes. [ 37 ] Under the circumstances, each party will assume their own judicial fees. FOR THESE REASONS, THE COURT: [ 38 ] CONDEMNS Defendants, solidarily, to pay Plaintiff the sum of $427.56, with interest at the annual rate of 5% and the additional indemnity provided for under

Article 1619 C.C.Q ., calculated from January 16, 2012. ________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: January 14, 2014