2014 QCCQ 11501, 2014 QCCQ 11501

Entreprises Clifton DRAM inc. c. Guaiani 2014 QCCQ 11501 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-140314-131 DATE: November 11, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ENTREPRISES CLIFTON D.R.A.M. INC. 8011, Elmslie Lasalle, Qc H8N 2W6 Plaintiff v.

FRANCESCO GUAIANI […] St-Lazare, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Entreprises Clifton D.R.A.M. Inc., a snow-removal business, claims a balance of account in the amount of $ 2,650.47 from the Defendant Francesco Guaiani, doing business under the name “Guzzo Landscaping”.

The claim relates to snow removal services performed through out the period November 2013 to April 2014. [ 2 ] In his defence, Francesco Guaiani alleges that the modalities of the contract were not respected by the Plaintiff, and that the work was often carried out late and with insufficient frequency resulting in complaints from the two clients for whose benefit this work was to be carried out. [ 3 ] The Defendant alleges that each time his clients complained, he had to send a member of his own snow-removal team to do the work that he had subcontracted to the Plaintiff. [ 4 ] The issue in the case is whether the Plaintiff carried out the work according to its contractual obligations and, if not, whether the Defendant can be exonerated from paying all or part of the balance claimed.

FACTS [ 5 ] The testimony of the Plaintiff’s representative, Dino Narducci, and the invoices mentioned in the statement of account establish that the parties agreed on an amount of $ 400.00 per month for each of the two properties serviced, one on Lafayette Street, one on Lafleur Street. [ 6 ] The parties also stipulated that if any abrasives were required, it would be billed and paid for by unit price. The Plaintiff admits that the Defendant paid for all such abrasives and the action is therefore limited to for a balance owing on the bills that were issued for the monthly snow-removal service.

The statement of account establishes a balance owing of $ 2,650.47 [ 7 ] The Defendant’s case is based on the assertion that on more than one occasion, the Plaintiff’s employees would not arrive punctually and would not return to the areas to be cleared with sufficient frequency to satisfy the needs of the Defendant’s clients. [ 8 ] The Defendant had subcontracted this work to the Plaintiff because of a surplus of work.

He complains that when the Plaintiff’s work was inadequate, he had to leave other work sites in order to complete the work. [ 9 ] The Plaintiff, on the other hand, denies having received any complaint, certainly not any complaint in writing and is unaware of

any shortcoming on the part of his employees. [ 10 ] One such employee, Rocco Belmonte, who was responsible for operating the machinery, testified that there were no specific instructions given at the beginning of the contract, that he received no oral or written putting in default, and that at the point in time where payment was claimed, there was no reference made by the Defendant to his clients being unsatisfied.

ANALYSIS [ 11 ] In cases such as this one, where there is no written contract establishing in detail the technical criteria of the work to be carried out, it is difficult for a Defendant to oppose payment on the basis that the work is inadequate. [ 12 ] The Defendant’s difficulty in the case is compounded by the fact that he at no time gave a written notification of any particular default.

While it may be that, on occasion, the Defendant did work that he had counted on the Plaintiff to carry out, it is not possible to establish a defence if it can not be demonstrated, on the balance of probabilities, that the Defendant clearly put the Plaintiff in default, spelling out what was inadequate about the work and giving the Plaintiff an opportunity to correct the default. [ 13 ] There is no formal rule that a putting in default must be in writing, but when it is not, it becomes very difficult for the party alleging fault to prove that, in fact, a complaint was made.

As well, the Plaintiff would have been entitled to receive a specific detailed assertion of what was allegedly defective in the work, in order to either clarify the contract obligations with the Defendant or, if he agreed that he had failed to carry out the contract, to do what was necessary to correct this default. [ 14 ] In the present case, in the absence of a clear warning, the Plaintiff was entitled to continue to execute the contract as he had been doing, and to claim whatever amounts remained outstanding from the Defendant who had, nevertheless, made substantial payments toward the contract price. [ 15 ] Given that the Defendant has failed to meet the burden of proof, the defence can not be maintained.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the amount of $ 2,650.47 together with interests at the legal rate of 5% per anumn, as well as the additional indemnity provided at

article 1619 of the Civil code of Québec , calculated from the date of institution of the proceedings. THE WHOLE with costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 9, 2014