2012 QCCQ 2127, 2012 QCCQ 2127

Edwards c. Gotteiner 2012 QCCQ 2127 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-116764-095 DATE: March 12, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ SHERWIN EDWARDS […] Terrebonne, Quebec […] Plaintiff v.

JAY GOTTEINER […] Hampstead, Quebec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Sherwin Edwards who does business under the name "Sherwin roofing and masonry" sues former client Jay Gotteiner claiming a balance of $2,500 allegedly owing for masonry repairs completed April 21 st , 2009 at the Defendant's residence at […] Hampstead, Quebec. [ 2 ] Mr Gotteiner contests owing the amount claimed alleging improperly performed the work and brings a Cross-Demand for damages caused to the brickwork and for abuse and harassment. [ 3 ] This claim was initially made for the amount of $5,000 and subsequently amended to the limit permissible in the Small- Claims Division of $7,000. [ 4 ] The initial contract in the form of an accepted estimate was for a total of $3,150, taxes included, for which a deposit of $1,000 was given, leaving a balance of $2,150. [ 5 ] The contract included brickwork on the front façade, the repair of window sills, chipping and repairing a crack on the front balcony slab, repairing and purging an opening on the East foundation wall and, finally, repairing broken bricks on the chimney. [ 6 ] The Plaintiff alleges that an additional $350 was added to the sale price in a subsequent agreement reached during the execution of the work.

This change in price is not admitted by the Defendant. ISSUES [ 7 ] The Court must determine: 1. The price stipulated by the parties for the work: was the extra of $350 agreed to or otherwise warranted? 2. The balance owing for the work if any; 3. Was the work faulty and if so, what damages is the Defendant entitled to claim?

FACTS [ 8 ] The Defendant required replacement of bricks that had been removed around the front doors of the building when the doors and frames had been changed as part of the renovation. [ 9 ] Mr Sherwin Edwards, who carries out masonry work, assessed the situation and recommended that in addition to the work

requested he should also tuck-point the joints on the front façade of the building. [ 10 ] He also agreed to perform two other minor tasks, namely the patching of a hole in the foundation wall of the building on the East side where a vent had been removed and to repair a crack in the front and entrance balcony slab by chipping and replacing of the concrete.

There were also some repairs to windows sills, which are not in issue in this case. [ 11 ] Finally, there were some repairs to the chimney because of damage to bricks. [ 12 ] Some problems arose during the performance of the work. [ 13 ] Mr Edwards had said that he could find bricks to replace those missing on the façade around the entrance doors but once the work was commenced, he said that this was not the case and proposed using existing bricks from the chimney, replacing them with the bricks he was using to repair the chimney, which did not necessarily match, this not being in issue because the chimney is barely visible from the ground level.

After he performed the work, however, these new bricks showed signs of efflorescence, namely a white powder that the Defendant found to be unacceptable. [ 14 ] Mr Edwards asserts in his testimony that he proposed masking the efflorescence by coating the bricks with pigments that are normally used to colour mortar and he asserts that the Defendant's wife Nathalie Ben-David, who was present, agreed to this after seeing a sample. [ 15 ] Nathalie Ben-David denies having approved use of this technique.

The Defendant objects to the work as completed because of the aesthetic impact of the pigments. [ 16 ] He also does not accept the repair done to the crack in the entrance balcony slab, also from an aesthetic point of view. [ 17 ] Finally, the Defendant also objects to the appearance of the patch done on the East side of the building where the opening was closed with mortar.

THE EVIDENCE [ 18 ] The appearance of the three repairs that are in issue, those to the bricks on the front façade around the doors, to the crack in the front balcony slab and the repair of the opening in the sidewall, gave the Court some idea about why the Defendant is complaining. The brickwork [ 19 ] There are, in the vicinity of the repairs done around the front doors several bricks that appeared to be discoloured and one is visibly chipped.

The repair to the balcony slab shows that the crack is still evident and the mortar used to patch it is of a different colour: the patch is unsightly. [ 20 ] The patch to the sidewall is also unsightly and shows along a stain in the form of a drip. [ 21 ] These were only impressions, however, arrived at by viewing photographs and hearing testimony, the Court decided to conduct a visit of the site to see in ordinary lighting conditions what the aesthetic impression really was. [ 22 ] As well, the Court invited the parties to produce expert testimony concerning the quality of the work and means that could be taken to correct any defects. [ 23 ] The Defendant called Mr Drazen Bokor of Cro-Pro Bokor Renovations, a constructor licensed by the RBQ.

Mr Bokor testified that the only way to deal with the aesthetic impact of the ochre colour pigment on the front bricks is to completely replace the brick of the entire front façade of the building even if 85% of it is in good condition. [ 24 ] This would also involve removing of the balcony on the upper floor and the railing on the entrance balcony and to reinstall these elements after the brickwork is complete. [ 25 ] The budget would be $21,670 plus taxes. [ 26 ] The undersigned is a layperson and has the same understanding of construction as the average reasonable person residing in Montreal. [ 27 ] In the Court's view, the ochre pigment stains on some of the bricks are clearly visible and are unacceptable. [ 28 ] It is a commonplace that brickwork serves not only the function of covering the exterior of the building making it resistant to the elements but also an aesthetic function.

Bricks on the façade of a building should appear uniform and regular, particularly in areas that a visitor will see up close. Those around an entrance are particularly important. [ 29 ] Both from a distance and in proximity, it is evident that some of the bricks are not of the same color as the whole. When viewed up close, several bricks in the vicinity of the doors have a strange appearance because they are visibly tainted with a coloring that is not harmonious with the other bricks. [ 30 ] It is easy to see that they have been stained with a pigment.

The effect is not aesthetic. [ 31 ] One can see that the colour has been chosen because it is similar to the colour that some of the bricks on the façade have as part of the natural variance in the hue of the bricks, but because of the way the pigment is applied, it looks like a stain, not like the

natural colour of the bricks. [ 32 ] One of the bricks is chipped and it was confirmed that this damage took place during the performance of the work. The slab repairs [ 33 ] The repair to the crack in the slab had evolved at the date of the visit, January 10, 2012, as compared with its state at the time of the pictures dating from around the time the work was performed in 2009. [ 34 ] It was due to be re-repaired as the concrete patching the hole had given way.

Mr Bokor said that he would have repaired the crack differently, opening it more fully, repairing it with a polymer filling, and putting a finishing coat of mortar, as a final step. [ 35 ] When questioned about the costs, he said that this would require a budget of approximately $700 plus taxes. [ 36 ] He does not express an opinion on the quality of the work done on the patch on the east foundation wall. [ 37 ] The Court questioned Mr Bokor and Mr Edwards as of the feasibility of replacing the discoloured bricks with bricks having a similar texture and identical size and then staining them using specialised products designed for this purpose so that they would match the existing brick. [ 38 ] Both, Mr Bokor and Mr Edwards, were aware that there are firms that perform this type of work. [ 39 ] Mr Edwards pointed out that he is not competent to do such work and Mr Bokor explained that he would not be able to guarantee that the work would be satisfactory to his clients.

ANALYSE The price of the work [ 40 ] When Mr Edwards accepted to repair the brickwork on the façade, he stated that he would use replacement bricks that he would purchase. [ 41 ] While it is true that he obtained the customer's permission to use bricks from the chimney, it was up to him to absorb the costs, if it was greater unless he obtained an agreement to modify the price. [ 42 ] In the absence of anything in writing and on the sole basis of his testimony, he has not fulfilled the burden of proving an agreement to change the price. [ 43 ] Therefore, the balance owed to him is limited to that determined in the estimate P-1, $2,150.

The patch on the east side of the wall [ 44 ] Although unsightly, the patch is on a part of the building where it is of little consequence. [ 45 ] An opening was left after the removal of a metal vent and, unfortunately, it is and will look like a patch. [ 46 ] But it has not been established that something different could have been done. Nothing will be awarded for this issue. The balcony repair [ 47 ] Based on the photo taken at the time of the work and Mr Bokor's testimony, an amount of $800 taxes included will be awarded to cover the costs of redoing the repair to this crack.

The brickwork [ 48 ] It would be truly disproportionate to the problem at hand and also risky to completely replace the brickwork on the front façade of the building.

While this may solve the problem it would not represent the true measure of damages. [ 49 ] The technique of staining new bricks to match existing brickwork exists: both the expert and the Plaintiff are aware of it. [ 50 ] The Court was unable to establish a value for performing such work in the present case, but it would most probably be more expensive than simply replacing the bricks because the staining process would be a delicate operation involving skilled workmen taking their time to make sure the job is correctly done. [ 51 ] The Court can do no better than to arbitrate an amount that it seems reasonable.

Mr Edward charged $3,150 for his work, the bulk of which had to do with replacing bricks and duck pointing the entire front façade. [ 52 ] This involved three to four days' work. [ 53 ] If the problem could be solved with two workman, costing $50 per hour spending three days and using $1,000 of materials

($3,400) considering 15% for administration and profit $360, taxes included ($4,495.52), rounded out, a budget of $4,500 seems adequate. [ 54 ] The Court also awards $1,000 for the trouble and inconvenience to which the Defendant would be put in dealing with this problem. [ 55 ] Finally, the Court recognises the costs of the expert, Mr Drazen Bokor, who spent nine hours on the problem at a rate of $50 per hour, for a total of $507.93, taxes included. [ 56 ] There will be compensation between the condemnations owing in favour of each party.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiff, the contractual balance of $2,150, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of service; CONDEMNS the Plaintiff to pay, to the Defendant the sum of $6,300, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of service; PRONOUNCES judicial compensation of these two condemnations leaving a balance owing in favour of the Defendant of $4,150 plus interest and additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of service; CONDEMNS the Plaintiff to pay the Defendant's costs of $88 for the Court's stamp plus expert costs for the report of Drazen Bokor and his attendance in Court in the amount of $515. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: June 4, 2010 and January 10, 2012